Calif. Supreme Court follows the lead of U.S. Supreme Court on amending proposed initiatives

By Nancy Crist | Sep 18, 2016

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.

In Brown 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 2014 legislation.

“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 summary.”  

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.”  

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