SAN FRANCISCO – The California Supreme
Court’s first-time interpretation of Section 9002 of the state’s Elections Code
shows its willingness to follow the lead of the U.S. Supreme Court.
v. Superior Court, 63 Cal.4th
335 (2016), the court interpreted a statute enacted in
2014, Section 9002 of the Elections Code, which made it easier to amend a
proposed initiative, the process by which California residents are able to
submit statues and amendments to the California Constitution.
As J. Clark Kelso explained in a recent
California Bar Journal article, the process was cumbersome at best prior to the
“A proposed initiative would be submitted to the attorney general, who would provide a copy of the title and summary to the Secretary of
State within 15 days of the receipt of the fiscal estimate or opinion. During
that 15-day period, the initiative’s proponents could make technical, non-substantive
amendments to the initiative without affecting the initiative’s progress
through the process. If substantive amendments were made, however, a new 15-day
period would begin for the attorney general to prepare a revised title and
In an attempt to simplify things and
truly give residents the chance to participate in their state’s lawmaking
process, the 2014 amendment provided for a 30-day public comment period after a
proposed initiative goes to the attorney general. After the 30 days, the attorney general prepares the final title and summary.
The amendment gave supporters a
35-day window to amend the measure: during the 30-day comment period and for
five days after. That is, as long as changes “are reasonably germane to the
theme, purpose, or subject of the initiative measure as originally proposed.” If
changes are made to the measure, the attorney general’s preparation includes
the amended version without a follow-up public comment period.
While the amendment broadened the
ability for citizen participation, it also opened the door to controversy. Such
was the case in Brown. This was
a proposed initiative focused on reform of specific juvenile justice actions,
including parole review parameters for prisoners who were under 23 years of age
at the time of arrest.
Once the public comment period closed, the
measure’s initiators revised the provision by swapping out the juvenile justice
conditions with conditions for the adult parole system. The California District
Attorneys Association cried foul and immediately pursued court action to stop
the attorney general from proceeding with the amended measure. The group’s
request was based on its argument the revisions were not “reasonably germane”
to the original measure and were a bait-and-switch of the original provisions. The
trial court agreed and granted the request.
The California Supreme Court, however, reversed
the trial court decision 6-1, with a dissent by Justice Ming Chin. In making their
decision, the five justices hung their hats on the U.S. Supreme Court’s use of
the “single subject” rule, which states that an initiative measure can’t cover
more than one subject. That court ruled that the single subject requirement is
met “so long as challenged provisions meet the test of being reasonably
germane to a common theme, purpose, or subject.”
The single subject rule has been
liberally interpreted by the California Supreme Court, including its interpretation
of Section 9002. In its decision, the court wrote that Section 9002 “permits
even sweeping changes, so long as they are reasonably germane to the theme,
purpose, or subject of the original proposal.” By these guidelines, the
amendments were reasonably germane to the topic of parole reform for inmates in
state prisons who had become rehabilitated.
On the other hand, Chin was
critical of the majority decision, fearing it will be used to “evade the period
of public review” by “hijack(ing) a vaguely similar measure that was in the
process of qualifying.”