Brown v. Super. Ct.

Filed 6/6/16
IN THE SUPREME COURT OF CALIFORNIA
EDMUND G. BROWN, JR., )
as Governor, etc., et al., )
)
Petitioners, )
) S232642
v. )
)
THE SUPERIOR COURT OF )
SACRAMENTO COUNTY, )
)
Respondent; )
)
CALIFORNIA DISTRICT ATTORNEYS )
ASSOCIATION et al., )
)
Real Parties in Interest. )
____________________________________)
Here we consider the scope of Elections Code provisions enacted in 2014,
which created a new process by which a proposed initiative measure is submitted
for public comment. (Elec. Code, § 9002.)1 After the comment period, the
Attorney General prepares an official circulating title and summary, including an
estimate of the measure‟s fiscal impact. (§ 9004.) The proponents may then
solicit signatures to qualify their measure for the ballot.
1 Further statutory references are to the Elections Code, unless otherwise
designated. We shall refer to the subdivisions of section 9002 as sections 9002(a)
and 9002(b).
SEE DISSENTING OPINION
The Legislature specified that any amendments to a measure submitted for
comment must be “reasonably germane to the theme, purpose, or subject of the
initiative measure as originally proposed.” (§ 9002(b).) In this case, proponents
decided to amend their measure, deleting some provisions and adding others that
were supported by Governor Edmund G. Brown, Jr. Challengers sought a writ of
mandate requiring the Attorney General to reject the amendments. The trial court
granted the writ, finding that the revised measure failed to meet the requirements
of section 9002. The proponents, joined by the Governor, sought emergency relief
in this court. We temporarily stayed the trial court‟s judgment and issued an order
to show cause. We now grant the requested relief and direct the trial court to
vacate its judgment.
As discussed in detail below, the legislative history and statutory language
demonstrate that the Legislature intended the comment period to facilitate
feedback, not to create a broad public forum. Nor did the Legislature preclude
substantive amendments. It required only that any amendments be “reasonably
germane” to the original measure‟s aims. (§ 9002(b).) While the new process
imposes time constraints on various governmental functions, the constraints are
similar to those that existed under the former statutory scheme. In particular, the
Legislature continued existing law relating to fiscal analyses of the impacts of
proposed measures.
I. BACKGROUND
Section 9002(a) requires the Attorney General to post the text of proposed
initiative measures on her Web site for a 30-day public comment period. 2 On
2 Section 9002(a) provides: “ Upon receipt of a request from the proponents
of a proposed initiative measure for a circulating title and summary, the Attorney
(Footnote continued on next page.)
2
December 22, 2015, proponents Margaret R. Prinzing and Harry A. Berezin
submitted “The Justice and Rehabilitation Act.” The act declared it was intended
to “ensure that California‟s juvenile and criminal justice systems effectively stop
repeat offending and improve public safety.” The first of its listed purposes was to
“[e]nsure that California‟s juvenile and criminal justice system resources are used
wisely to rehabilitate and protect public safety [sic].” The measure proposed
statutory amendments to accomplish the following:
(1) Abolish the requirement that minors 14 years or older be prosecuted as
adults for certain serious offenses. Eliminate the discretion of district attorneys to
file charges against juveniles in adult court. Establish 16 as the minimum age at
which juveniles may be transferred to adult court. Require a judicial transfer
hearing in all cases. Specify a number of serious crimes for which juveniles may
be committed to the Division of Juvenile Facilities.
(Footnote continued from previous page.)
General shall initiate a public review process for a period of 30 days by doing all
of the following:
“(1) Posting the text of the proposed initiative measure on the Attorney
General‟s Internet Web site.
“(2) Inviting, and providing for the submission of, written public comments
on the proposed initiative measure on the Attorney General‟s Internet Web site.
The site shall accept written public comments for the duration of the public review
period. The written public comments shall be public records, available for
inspection upon request pursuant to Chapter 3.5 (commencing with Section 6250)
of Division 7 of Title 1 of the Government Code, but shall not be displayed to the
public on the Attorney General‟s Internet Web site during the public review
period. The Attorney General shall transmit any written public comments
received during the public review period to the proponents of the proposed
initiative measure.”
3
(2) Allow minors convicted of crimes in adult court to move for a juvenile
disposition instead of a prison sentence, and make various other changes to the
process of juvenile dispositions and commitments.
(3) Eliminate the prohibition against the sealing of juvenile court records,
and permit the sealing or destruction of such records.
(4) Alter parole suitability review for prisoners who were under 23 years of
age at the time of their “controlling offense” in two respects: sentence
enhancements would no longer be included in determining the term of
imprisonment for purposes of identifying the “controlling offense,” and “Three
Strikes” offenders would no longer be excluded from such parole suitability
review. (See Pen. Code, § 3051.)
The proponents of The Justice and Rehabilitation Act received no online
comments from the public. However, during the comment period they spoke with
a number of individuals and groups interested in justice reform, including
members of the Governor‟s staff. A political action committee supporting the
measure engaged in discussions with numerous interest groups, including the
California District Attorneys Association (CDAA). The Governor and his staff
were significantly involved in these discussions as well.
On January 25, 2016, after the close of the public comment period but
within the ensuing five-day window for accepting amendments, the proponents
submitted a revised measure, retitling it “The Public Safety and Rehabilitation Act
of 2016.”3 Among the declared purposes of the amended measure were to
3 Section 9002(b) provides: “During the public review period, the
proponents of the proposed initiative measure may submit amendments to the
measure that are reasonably germane to the theme, purpose, or subject of the
initiative measure as originally proposed. However, amendments shall not be
(Footnote continued on next page.)
4
“[p]rotect and enhance public safety,” “[s]ave money by reducing wasteful
spending on prisons,” and “stop the revolving door of crime by emphasizing
rehabilitation, especially for juveniles.” The new measure retained the original
provisions eliminating district attorneys‟ discretion to file charges against
juveniles in adult court and requiring a judicial hearing to determine whether a
transfer of jurisdiction is warranted. Transfers were generally limited to minors
aged 16 or older, but were permitted for 14 or 15 year olds accused of certain
serious crimes. All other original provisions were deleted, and new provisions
were added.
The original proposal to amend Penal Code section 3051, governing parole
hearings for prisoners under the age of 23 at the time of their offenses, was
replaced with a constitutional amendment that would significantly modify parole
consideration for all state prisoners “convicted of a non-violent felony offense.”
These prisoners would be eligible for parole consideration after completing “the
(Footnote continued from previous page.)
submitted if the initiative measure as originally proposed would not effect a
substantive change in law.
“(1) An amendment shall be submitted with a signed request by all the
proponents to prepare a circulating title and summary using the amended
language.
“(2) An amendment shall be submitted to the Attorney General‟s Initiative
Coordinator located in the Attorney General‟s Sacramento Office via United
States Postal Service, alternative mail service, or personal delivery. Only printed
documents shall be accepted; facsimile or email delivery shall not be accepted.
“(3) The submission of an amendment shall not extend the period to
prepare the estimate required by Section 9005.
“(4) An amendment shall not be accepted more than five days after the
public review period is concluded. However, a proponent shall not be prohibited
from proposing a new initiative measure and requesting that a circulating title and
summary be prepared for that measure pursuant to Section 9001.”
The timeliness of the submission here has not been challenged.
5
full term” for their “primary offense,” defined as “the longest term of
imprisonment imposed by the court for any offense, excluding the imposition of
an enhancement, consecutive sentence, or alternative sentence.” The Department
of Corrections and Rehabilitation would be authorized to award credits for good
behavior and rehabilitative or educational achievements, and to adopt
implementing regulations.
The Attorney General examined the amended measure, determined it was
“reasonably germane” to the original, and began preparing a circulating title and
summary. (§ 9002(b).) On February 11, 2016, the Legislative Analyst issued a
summary of the measure‟s fiscal impacts. (See § 9005, subd. (a).) The same day,
CDAA sought a writ of mandate to restrain the Attorney General from proceeding
with the measure.4
The trial court granted the writ, ruling that the Attorney General abused her
discretion by accepting the amendments as “reasonably germane” to the original
measure. (§ 9002(b).) The court found that the “theme and purpose of the
original initiative was reform of the juvenile justice system,” whereas the amended
version “deals primarily with reform of the adult justice system.” The court also
ruled that the “purpose and intent of [section] 9002” were violated because the
public was deprived of the opportunity to comment on the amended measure.
The Governor and the proponents of the measure sought emergency relief
in this court, based on the shortness of time remaining for collecting signatures to
qualify the measure for the ballot. We stayed the trial court‟s judgment and
ordered CDAA to show cause why the requested relief should not be granted.
4 CDAA was joined by Anne Marie Schubert, District Attorney of
Sacramento County. Hereafter, we refer to these parties jointly as CDAA.
6
II. DISCUSSION
As noted, the Elections Code limits the extent to which a proposed measure
may be amended once it is posted for public comment. Amendments must be
“reasonably germane to the theme, purpose, or subject of the initiative measure as
originally proposed.” (§ 9002(b).) CDAA argues that the trial court‟s judgment
honors the terms and purposes of section 9002. It contends the statute was
intended to enhance the transparency of the initiative process by giving the public
a meaningful opportunity to review and comment on proposed measures. It
reasons that this opportunity is lost if a measure is replaced with a dramatically
different version never exposed to public comment. It claims such a substitution
deprives the Legislative Analyst of the time needed to prepare a fiscal estimate,
the Attorney General of the time needed to properly prepare a circulating title and
summary, and potential opponents of the time needed to mount a campaign against
the initiative. CDAA suggests the Legislature contemplated only amendments to
correct drafting errors and legal flaws, and urges us to construe the “reasonably
germane” standard accordingly. Finally, CDAA contends that even if the standard
is applied broadly, the changes made in this initiative measure are not “reasonably
germane” to the original proposal under section 9002(b).
With regard to the purposes of the statutory scheme and the time frames it
imposes, the legislative history is instructive. After reviewing that history, we will
turn to the “reasonably germane” standard and its application here.
A. Section 9002 in the Light of Legislative History
The Legislature is authorized to “provide the manner in which petitions
shall be circulated, presented, and certified, and measures submitted to the
electors.” (Cal. Const., art II, § 10, subd. (e).) It first addressed the subject of
amendments to proposed initiative measures in 1976, when it revised former
section 3503. The Attorney General was directed to “provide a copy of the title
7
and summary to the Secretary of State . . . within 15 days after receipt of the fiscal
estimate or opinion.” 5 (Former § 3503, as amended by Stats. 1976, ch. 1278, § 1,
p. 5670.) The amended statute provided: “If during the 15-day period, the
proponents of the proposed initiative measure submit amendments, other than
technical, nonsubstantive amendments, to the final version of such measure, the
Attorney General shall provide a copy of the title and summary to the Secretary of
State within 15 days after receipt of such amendments.” (Ibid.) Thus, the
Legislature placed no restriction on the nature of the amendments proponents
might submit, providing only that if substantive changes were made, a new 15-day
period would begin for the Attorney General to prepare a title and summary.
That statutory regime remained in place for 39 years. The operative
provisions were transferred to section 9004 in 1994, and to section 9002(a) in
2009. (Stats. 1994, ch. 920, § 2, p. 4915; Stats. 2009, ch. 373, § 8.) In 2014, the
Legislature enacted the provisions now before us as part of Senate Bill Number
5 Since 1968, the Attorney General has been required to include information
about the fiscal impact of an initiative measure along with the circulating title and
summary. (Stats. 1968, ch. 1444, § 1, p. 2855, enacting former § 3501.3.) The
Department of Finance and the Joint Legislative Budget Committee were
originally responsible for providing this information. In 1975, the Legislature
created an alternative for circumstances when, in the view of the responsible
entities, a “reasonable estimate . . . cannot be prepared” within the time allowed,
which was then 25 days from receipt of the final version of the proposed initiative
by the Attorney General. (Former § 3501.3, as amended by Stats. 1975, ch. 955, §
1, p. 2133.) In such cases, the entities were required to provide “their opinion as
to whether or not a substantial net change in state or local finances would result if
the proposed initiative is adopted.” (Ibid.) The “opinion” alternative has been a
consistent feature of the scheme, and is now found in section 9005. (See Stats.
1976, ch. 248, § 3, p. 490, renumbering the provision as former § 3504; Stats.
1976, ch. 1278, § 2, pp. 5670-5671, amending former § 3504; Stats. 1992, ch. 232,
§ 2, p. 1024; Stats. 1994, ch. 920, § 2, pp. 4915-4916, renumbering the provision
as § 9005; Stats. 2009, ch. 485, § 1.5.)
8
1253 (2013-2014 Reg. Sess.) (Bill No. 1253). The bill was revised a number
times before passage.
As originally proposed, the 2014 amendments included provisions
requiring the Attorney General to initiate a 30-day public comment period by
posting the text of a proposed initiative on her website. The first version
instructed the Attorney General to “[p]romot[e] public participation by inviting on
the Web site written public comments on the proposed initiative measure. The site
shall accept written public comments for the duration of the public review period.
Public comments may address perceived errors in the drafting of, or perceived
unintended consequences of, the proposed initiative measure. The Attorney
General shall transmit any written public comments received during the public
review period to the proponents of the proposed initiative measure.” (Bill No.
1253, as introduced Feb. 20, 2014, § 5.) Section 9002(b) said simply, “[d]uring
the public review period, the proponents of the proposed initiative measure may
submit amendments to the measure.” (Bill No. 1253, as introduced Feb. 20, 2014,
§ 5.) Section 9002(b)(3) specified, as it does now, that “[t]he submission of an
amendment shall not extend the period to prepare the estimate required by Section
9005.”6 (Bill No. 1253, as introduced Feb. 20, 2014, § 5, italics added.)
6 Section 9005 was also amended by Bill Number 1253. The Legislative
Analyst was substituted for the Joint Legislative Budget Committee as an entity
responsible for evaluating a proposed measure‟s fiscal impact. (§ 9005, subd. (b),
as amended by Stats. 2014, ch. 697, § 7, pp. 4601-4602.) The time for preparing
an estimate or opinion, formerly 25 working days from receipt of the “final
version” of a measure from the Attorney General (see Stats. 2009, ch. 373, § 11,
pp. 4218-4219), was changed to 50 days from receipt of “the proposed initiative
measure.” (§ 9005, subd. (c), as amended by Stats. 2014, ch. 697, § 7, p. 4601.)
Otherwise, the substance of the fiscal estimate requirements remains the same as it
has been since 1975. (See fn. 5, ante, p. 8.) The entities are tasked with
producing either an “estimate of the amount of any increase of decrease in
(Footnote continued on next page.)
9
Section 9002(b)(4) was not modified during the legislative process. It
states: “An amendment shall not be accepted more than five days after the public
review period is concluded. However, a proponent shall not be prohibited from
proposing a new initiative measure and requesting that a circulating title and
summary be prepared for that measure pursuant to Section 9001.” (Bill No. 1253,
as introduced Feb. 20, 2014, § 5.) The provisions governing the time for the
Attorney General to prepare a circulating title and summary were set out in section
9004, subdivision (b), which also was enacted as originally framed: “The
Attorney General shall provide a copy of the circulating title and summary and its
unique numeric identifier to the proponents and to the Secretary of State within 15
days after receipt of the fiscal estimate or opinion prepared by the Department of
Finance and the Legislative Analyst pursuant to Section 9005.” (Bill No. 1253, as
introduced Feb. 20, 2014, § 6.)
The first bill analysis that appears in the legislative history was prepared for
a hearing on the first amended version. None of the amendments affected the
statutes relevant here, but the author of the legislation commented: “Presently,
there is not a sufficient review process of initiatives by the public or the
Legislature where either is able to provide greater input and suggest amendments
or correct flaws before the measure is printed on the ballot. Implementing a better
public review process before the title and summary process by the [Attorney
(Footnote continued from previous page.)
revenues or costs to the state of local government,” or if an estimate “cannot be
prepared within the 50-day period . . . their opinion as to whether or not a
substantial net change in state or local finances would result if the proposed
initiative measure is adopted.” (§ 9005, subds. (a), (c).)
10
General] . . . helps address this deficiency.” (Sen. Com. on Elections and
Constitutional Amendments, Analysis of Bill No. 1253, as amended Apr. 9, 2014,
p. 6.) Other comments provided a summary of related legislation, which noted:
“[Assembly Bill Number] 1245 (Laird) of 2003, would have similarly allowed for
a 30-day public examination/comment period prior to the [Attorney General]
drafting the title and summary. [Assembly Bill Number] 1245 was vetoed by
former Governor Gray Davis who stated in relevant part: „I am concerned that an
initiative could receive either a negative or positive comment while displayed on
the [Secretary of State‟s] web site; the proponents may then revise the initiative,
but [are] not required to repost it. Consequently, the public may see one version
of the initiative prior to the election and an entirely different initiative during the
election.‟ ” (Ibid.)7
The provisions governing the public comment period were then revised to
read as they do today. The Attorney General is required to “[i]nvit[e], and
provid[e] for the submission of, written public comments on the proposed
initiative measure” on her Web site, and “[t]he site shall accept written public
comments for the duration of the public review period.” (§ 9002(a)(2), as
7 A copy of Governor Davis‟s 2003 letter to the Assembly declining to sign
Assembly Bill Number 1245 (2003-2004 Reg. Sess.) is included in the bill file
maintained by the Senate Committee on Elections and Constitutional
Amendments. In addition to the language quoted above, the letter observed:
“This bill would require the Attorney General (AG) to forward a draft copy of a
proposed initiative to the Secretary of State (SOS). SOS is then required to post
the draft, including the names of the proponents, on its web site for 30 days to
facilitate public comment on the measure. The public comments will be retained
on the web site for 90 days. After 120 days, proponents have the option to direct
the AG to prepare the draft as originally presented, a revised draft, or [post] a
revised draft on SOS‟s web site for another 30 days.” (Governor‟s Veto message
to Assem. on Assem. Bill No. 1245 (Oct. 12, 2003) 3 Assem. J. (2003-2004 Reg.
Sess.) p. 4012.)
11
amended by Bill No. 1253 on June 17, 2014, § 5.) However, the comments are
not displayed on the site. Instead, “[t]he Attorney General shall transmit any
written public comments received during the public review period to the
proponents of the proposed initiative measure.” (Ibid.) 8 The following statement
was removed from section 9002(a)(2) and added to Bill No. 1253‟s uncodified
findings and declarations: “Public comment may address perceived errors in the
drafting of, or perceived unintended consequences of, the proposed initiative
measure.” (Bill No. 1253, as amended June 17, 2014, § 2, subd. (b)(3), 5.) The
provisions governing amendments were not changed at this time.
In a subsequent bill analysis, the following criticisms were directed against
section 9002‟s treatment of amendments: “Possibility of „Spot‟ Initiatives:
During the public review period, this bill permits proponents of a proposed
initiative measure to submit amendments to the measure. However, this bill does
not place any limitation on the amendments submitted by the proponents.
Consequently, this bill does not prevent a proponent from receiving public
comments on the text of a „spot‟ initiative, and then submitting a substantially
revised initiative text to the [Attorney General] after the 30 day public comment
period for the ballot title and summary preparation. This scenario renders the
public review process meaningless. Moreover, the proponents of a proposed
measure could do this and circumvent paying another $200 filing fee.
“Furthermore, because this bill does not prevent the submission of a „spot‟
initiative, the time period that the Legislative Analyst and DOF [the Department of
Finance] have to prepare the fiscal estimate could be negatively impacted. This
8 The statute designates the comments “public records, available for
inspection upon request pursuant to [the California Public Records Act].”
(§ 9002(a)(2).)
12
bill, which extends the time for the DOF and the Legislative Analyst to prepare the
fiscal estimate from 25 working days to 50 days, also permits the proponents to
submit amendments 5 days after the 30 day public review period. As a result, if
the proponents submit an amendment that substantively changes the initiative text,
the DOF and Legislative Analyst will only have 15 days to prepare a new fiscal
estimate.” (Assem. Com. on Elections and Redistricting, Analysis of Bill No.
1253, as amended June 17, 2014, p. 10.)
Thereafter, section 9002(b) was revised to add the following italicized
language: “During the public review period, the proponents of the proposed
initiative measure may submit amendments to the measure that further its
purposes, as determined by the Attorney General.” (Bill No. 1253, as amended
July 1, 2014, § 5.) The provision was amended again a month later: “During the
public review period, the proponents of the proposed initiative measure may
submit amendments to the measure that are reasonably germane to the theme,
purpose, or subject of the initiative measure as originally proposed. However,
amendments shall not be submitted if the initiative measure as originally proposed
would not effect a substantive change in law.” (§ 9002(b), italics added, as
amended by Bill No. 1253 on Aug. 4, 2014, § 5.) No further changes were made
to the relevant provisions.
The evolution of the governing statutes, as set forth above, puts to rest
CDAA‟s arguments about the purposes of section 9002. While the Legislature
intended to improve the initiative process by allowing members of the public to
make suggestions to proponents, it did not establish a public forum for comments
or provide a broadly transparent amendment process. Nor did the Legislature limit
proponents to amendments correcting drafting errors or “legal flaws,” as CDAA
suggests. In its originally proposed form, the statute permitted amendments
without any limitation as to their substance, consistent with the state of the law
13
since 1977. The sponsor of the bill informed his fellow legislators that the new
public comment period was intended to allow the public to suggest amendments or
correct flaws.
When it was noted that an earlier proposal for a 30-day public comment
period had been vetoed, out of concern that the public might be asked to vote on
an initiative measure that was entirely different from the one posted for comment,
the statute was amended to specify that comments were not to be posted online for
public review, as they would have been under the vetoed legislation. (See fn. 7,
ante, p. 11.) They were simply to be sent to the measure‟s proponents. At the
same time, language suggesting that public comments were meant to address
perceived errors and unintended consequences was taken out of the operative
provisions of section 9002 and moved to an uncodified section of Bill Number
1253. Thus, while corrections of this nature are among the contemplated purposes
of the statute, the drafters went out of their way to avoid any implication in section
9002 that they are the only reason for enabling public comments.
When more pointed objections were raised that the proposed legislation
placed no restriction on amendments, allowing extensive alterations that would
render the public comment period “meaningless,” the statute was not revised to
limit amendments to nonsubstantive changes. Such a restriction would have been
a natural one because it was part of existing law, which provided no extension of
time for the Attorney General to prepare a title and summary after nonsubstantive
amendments. (Former § 9002(a); see Stats. 2009, ch. 373, § 8, p. 4218.) Instead,
the statute was initially altered to require the Attorney General to determine
whether amendments furthered the purposes of the original measure.9 Shortly
9 This standard, like the “reasonably germane” test that was finally adopted,
was drawn from existing law governing initiative measures. “It is common for an
(Footnote continued on next page.)
14
thereafter, that requirement was dropped and section 9002(b) was given its current
form. The limitation imposed on amendments is a lenient one: they must be
“reasonably germane to the theme, purpose, or subject of the initiative measure as
originally proposed.” (§ 9002(b).)
So-called “spot initiatives” are addressed by a provision barring
amendments “if the initiative measure as originally proposed would not effect a
substantive change in law.” (§ 9002(b).) CDAA, however, takes issue with the
policy of allowing substantive amendments to any initiative measure. It argues
that permitting such amendments facilitates maneuvers akin to the legislative
practice of gutting and amending a proposed bill. CDAA does not define what it
means by “gut and amend,” but presumably it refers to instances where the
contents of a bill are deleted and replaced with different provisions at a late stage,
bypassing the usual legislative process. That is not an apt analogy to the
procedures established by section 9002, which provides for public comment as an
initial step. The usual process for initiative measures follows: the measure is
circulated for signatures, placed on the ballot if sufficient signatures are gathered,
and subjected to the tests of the campaign season.
At the early stage addressed in section 9002, the Legislature intentionally
left ample room for proponents to make substantive changes. It squarely
considered, and was not moved by, the possibility that a measure emerging from
(Footnote continued from previous page.)
initiative measure to include a provision authorizing the Legislature to amend the
initiative without voter approval only if the amendment furthers the purpose of the
initiative.” (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal. 4th 1243, 1251,
italics added; see Cal. Const., art. II, § 10, subd. (c) [Legislature may amend
initiative statute only if statute so provides].) We have construed this limitation
strictly. (Amwest, at pp. 1255-1256.)
15
the public comment process would be significantly different from the original. By
ensuring that comments would not be posted, but transmitted directly to the
proponents, the Legislature signaled its intent that comments are for the benefit of
proponents, not for the purpose of fostering public discussion. It could have, but
did not, require proponents to respond to comments or to post amendments for a
second round of comment. CDAA‟s objection that this procedure does not serve
the purpose of transparency fails to acknowledge that the avenue for public
comment laid out by the Legislature runs only one way, and for only one round of
suggestions.10
The legislative history also undermines CDAA‟s arguments concerning the
time frames allowed by the statutory scheme. Although the drafters of section
9002 were warned that it might leave as little as 15 days for the preparation of a
fiscal estimate, they did not respond by expanding the time allowed. To the
contrary, they retained a provision stating that the time for preparing the estimate
would not be extended by the submission of amendments. (§ 9002(b)(3).) No
unreasonable burden was thereby imposed. The Legislature was familiar with the
existing provisions of section 9005, subdivision (c), which explicitly permit the
responsible entities to provide an opinion of a measure‟s fiscal impact if they
deem the time too short for preparation of an estimate. The Legislature also knew
10 We note that other provisions enacted by Bill Number 1253 further the
interests of transparency, particularly the new requirement that the Secretary of
State create a Web site consolidating information about all state ballot measures
“in a manner that is easy for voters to access and understand.” (§ 9082.7, subd.
(b), as amended by Stats. 2014, ch. 697, § 14.) The required information includes
a summary of each measure, the amount of contributions in support and
opposition, a list of the top 10 contributors in support and opposition, a list of
committees that support or oppose, and access to online information about the top
10 contributors of at least a million dollars to any committee. (§ 9082.7, subd. (b),
as amended by Stats. 2014, ch. 697, § 14.)
16
that if a measure qualifies for the ballot, a more thorough statement of its fiscal
impacts is prepared by the Legislative Analyst and summarized by the Attorney
General for inclusion on the ballot. (§§ 9051, 9087; Gov. Code, § 88003.) Thus,
the Legislature was satisfied that existing law adequately addresses the concerns
raised by CDAA over the time for preparing a fiscal estimate.
CDAA further objects that the Attorney General is entitled to 65 days to
prepare a circulating title and summary, which she will not have if a measure is
substantially amended after submission. CDAA arrives at this 65-day period by
adding the 50 days provided for preparation of a fiscal estimate under section
9005, subdivision (c) to the 15 days permitted by section 9004, subdivision (b) for
preparing a title and summary after receipt of the fiscal estimate. However, under
the long-standing statutory scheme replaced by Bill Number 1253, the Attorney
General was given only 15 days to produce a title and summary after receiving
substantive amendments to a proposed initiative measure. (See former § 9002(a);
Stats. 2009, ch. 373, § 8.) The new statutes actually allow more time. The
comment period is 30 days, followed by five days for accepting amendments.
Even if an amendment is accepted on the 35th day, there are 15 days remaining for
the preparation of a fiscal estimate or opinion, and the Attorney General has an
additional 15 days to perform her functions after obtaining the fiscal report.
(§§ 9004, subd. (b), 9005, subd. (c).)
Finally, there is no merit in CDAA‟s claim that allowing amendments to
the substance of a measure after the public comment period deprives opponents of
time to mount a campaign. Opponents can use the comment period to
communicate their objections to proponents. Thereafter, they have ample
opportunities to make their case during the lengthy process of signature gathering,
ballot qualification, and the election itself.
17
B. The “Reasonably Germane” Standard
Section 9002(b)‟s provision requiring amendments by proponents to be
“reasonably germane to the theme, purpose, or subject of the initiative measure as
originally proposed” is plainly taken from our case law applying the constitutional
requirement that “[a]n initiative measure embracing more than one subject may
not be submitted to the electors or have any effect” (Cal. Const., art II, § 8, subd.
(d).) We have long held that the constitutional “single subject” rule is satisfied “so
long as challenged provisions meet the test of being reasonably germane to a
common theme, purpose, or subject.” (Californians for an Open Primary v.
McPherson (2006) 38 Cal. 4th 735, 764 (McPherson), and cases cited.) This
standard reflects our “ „liberal interpretative tradition . . . of sustaining statutes and
initiatives which fairly disclose a reasonable and common sense relationship
among their various components in furtherance of a common purpose.‟ ”
(Legislature v. Eu (1991) 54 Cal. 3d 492, 512, quoting Brosnahan v. Brown (1982)
32 Cal. 3d 236, 253.)
CDAA does not dispute the derivation of the “reasonably germane”
standard. It urges, however, that the standard operates differently in this statutory
context than it does under the Constitution. Section 9002(b) requires an
amendment to be “reasonably germane to the theme, purpose, or subject of the
initiative measure as originally proposed” (italics added), whereas an initiative
measure will pass the constitutional single subject test “so long as challenged
provisions meet the test of being reasonably germane to a common theme,
purpose, or subject” (McPherson, supra, 38 Cal.4th at p. 764, italics added and
deleted). We agree that the frame of reference is different in the two contexts,
though the difference may be a subtle one. Under section 9002(b), a proponent‟s
amendment is compared with the original measure. Under the single subject rule,
the various internal parts of a measure are examined for their relationship to an
18
overarching objective. In McPherson, at p. 764, fn. 29, we observed that whether
provisions are reasonably germane to each other and whether all provisions are
reasonably germane to a common theme, purpose, or subject are different, but
related questions. Thus, as both sides here recognize, we are not reviewing “The
Public Safety and Rehabilitation Act of 2016” for compliance with the single
subject rule.
Even though the focus of the test is different under section 9002(b), the
Legislature‟s adoption of the terms “reasonably germane” and “theme, purpose, or
subject” is significant. It could have used synonyms, such as “rationally related”
and “concern, objective, or topic.” Instead it chose terms of art with which it is
quite familiar, given that the “reasonably germane” standard also governs the
separate single subject requirement applicable to legislative enactments. (Cal.
Const., art. IV, § 9 [“A statute shall embrace but one subject . . . .]; McPherson,
supra, 38 Cal.4th at p. 764.) The Legislature was well aware that in the
constitutional context, these terms have been applied “in an accommodating and
lenient manner so as not to unduly restrict the Legislature‟s or the people‟s right to
package provisions in a single bill or initiative.” (McPherson, at p. 764.)
There is no reason to suppose the Legislature contemplated a more limited
meaning for “reasonably germane” and “theme, purpose, or subject” under the
statute. It is a venerable principle that when a word or phrase appearing in a
statute “has a well-established legal meaning, it will be given that meaning in
construing the statute. This has long been the law of California: „The rule of
construction of statutes is plain. Where they make use of words and phrases of a
well-known and definite sense in the law, they are to be received and expounded
in the same sense in the statute.‟ (Harris v. Reynolds (1859) 13 Cal. 514, 518.)
[¶] This rule has been declared in our basic codes since they were first enacted in
1872. (Civ. Code, § 13 [words and phrases are to be construed according to
19
„approved usage,‟ but „such others as may have acquired a peculiar and
appropriate meaning in law . . . are to be construed according to such peculiar and
appropriate meaning‟]; accord, Code Civ. Proc., § 16; Pen. Code, § 7, subd. 16;
Prob. Code, § 21122.)” (Arnett v. Dal Cielo (1996) 14 Cal. 4th 4, 19.)
Accordingly, we review this proposed measure remembering “that the
initiative process occupies an important and favored status in the California
constitutional scheme,” and therefore the “reasonably germane” standard “should
not be interpreted in an unduly narrow or restrictive fashion.” (Senate of the State
of Cal. v. Jones (1999) 21 Cal. 4th 1142, 1157, and cases cited.) We have
consistently deemed it our duty to guard the people‟s right to exercise the initiative
power. (Id. at p. 1168.) The proponents of an initiative measure are captains of
the ship when it comes to deciding which provisions to take on board. In section
9002, the Legislature has granted them substantial leeway to make amendments
before the measure is presented to the public for signatures. The statute permits
even sweeping changes, so long as they are reasonably germane to the theme,
purpose, or subject of the original proposal.
With these guidelines in mind, we apply section 9002(b) to the amendments
at issue. As noted, the amended version of the initiative measure requires a
judicial transfer order before a minor can be prosecuted as an adult and sets age
limits for such a transfer. CDAA does not dispute that these provisions are
reasonably germane to the very similar ones found in the original measure. It
concedes that the deletion of other original provisions applying to juvenile
dispositions, commitments, and records was a reasonably germane amendment.
CDAA‟s arguments center on fact that the proponents replaced their original
amendment of Penal Code section 3051 with a broader constitutional amendment.
Before comparing the terms of the original and amended proposals, we
address CDAA‟s argument that the original submission was concerned with
20
juvenile justice, while the amendments were concerned with the adult criminal
justice system. The claim fails. Both as it now exists and as it would have been
amended by the initially proposed measure, Penal Code section 3051 applies only
to inmates in state prison, not juvenile facilities. CDAA contends the amendments
to Penal Code section 3051 were merely “collateral” to the juvenile justice reforms
of the original measure. It relies on Manduley v. Superior Court (2002) 27 Cal. 4th
537, 578, a single subject case in which we held that provisions expanding the list
of Three Strikes offenses were “collateral” to other provisions addressing gang
and juvenile offenses. Manduley is inapposite. Here the parole reforms were
central to the proponents‟ original submission, which was prefaced by the
declaration: “Evidence shows that authorizing judges and parole boards to
consider release of individuals that have become rehabilitated reduces waste and
incentivizes rehabilitation.” We note that even the provisions of the original
measure governing the prosecution of minors in adult court, which were retained
by the amended version in substantially similar form, would have had a significant
effect on adult courts and correctional facilities.
The originally submitted statutory amendment proposed changes to the
parole suitability review process for prisoners under the age of 23 at the time of
their offense. It had two components: eliminating enhancements from the
calculation of the relevant term of imprisonment, and removing the bar against
parole hearings for Three Strikes offenders. The newly proposed constitutional
provision also addresses parole suitability review. It would be significantly more
restrictive in one way, because it would apply only to prisoners convicted of non-
violent felonies. It would be significantly less restrictive in another way, because
it would apply to all prisoners regardless of their age at the time of the offense. It
21
would also authorize the Department of Corrections and Rehabilitation to award
credits for good behavior and rehabilitation.11
Given the “accommodating and lenient” review to which the proponents
are entitled (McPherson, supra, 38 Cal.4th at p. 764), we cannot say the amended
measure is not reasonably germane to the theme, purpose, or subject of the
original. Both proposals address parole suitability review for inmates in state
prison, with an eye toward making such review available at an earlier stage than
under existing law. Both accomplish this objective by removing enhancements
from the calculation of parole review dates. Neither makes any change in the
determinate sentencing statutes per se. Both are intended to benefit prisoners who
have rehabilitated themselves in custody, and to reduce the costs of
incarceration.12
11 We emphasize two points we have made before when reviewing initiative
measures. We pass no judgment on the wisdom, efficacy, or soundness of the
proposal before us. (Brosnahan v. Brown, supra, 32 Cal.3d at p. 248; Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d
208, 228-229.) And we give no consideration to “possible interpretive or
analytical problems” that might arise should the measure become law. (Raven v.
Deukmejian (1990) 52 Cal. 3d 336, 341.) Our review is limited to the points
necessary to resolve the basic questions before us. (Ibid.; see Brosnahan, at p.
241[“we neither consider nor anticipate possible attacks, constitutional or
otherwise, which in the future may be directed” at the measure].)
12 Among the stated purposes of the original Justice and Rehabilitation Act
were to “ensure that California‟s juvenile and criminal justice systems effectively
stop repeat offending and improve public safety,” and “[e]nsure that California‟s
juvenile and criminal justice system resources are used wisely to rehabilitate and
protect public safety [sic].” The amended Public Safety and Rehabilitation Act of
2016 declares that it was intended to “[p]rotect and enhance public safety,” “[s]ave
money by reducing wasteful spending on prisons,” and “stop the revolving door of
crime by emphasizing rehabilitation, especially for juveniles.” In the single
subject context, we have consulted the stated purposes of initiative measures to
determine whether their various provisions were reasonably germane to a common
(Footnote continued on next page.)
22
CDAA places great reliance on the fact that the original proposal would
have provided hearings only for a younger class of offenders. However, as the
proponents point out, some offenders covered by the original proposal are serving
Three Strikes sentences. Those prisoners would have been middle-aged by the
time they received parole suitability review. The amended version would apply to
the same class of offenders, so long as their offense was nonviolent. It would
include others of the same age or younger who are serving shorter sentences, as
well as older inmates who have completed the full term for their primary offense.
The theme, purpose, and subject of the original measure are easily recognizable in
the amended version, even though it would allow parole hearings for offenders
regardless of their age at the time of their offenses.
CDAA objects that the amended version would enact a broad constitutional
provision, whereas the original would have amended a statute with narrower
application. But the “reasonably germane” standard imposes no limit on the scope
of amendments within range of the “theme, purpose, or subject” of the original
proposal. (§ 9002(b).) In the single subject context, we have held that the
standard does not preclude “comprehensive, broad-based reform in a particular
area of public concern.” (Senate of the State of Cal. v. Jones, supra, 21 Cal.4th at
p. 1157.) We have also held that initiative measures combining significant
constitutional amendments with statutory changes comply with the standard.
(Raven v. Deukmejian, supra, 52 Cal.3d at pp. 346-347; Brosnahan v. Brown,
supra, 32 Cal.3d at p. 242-245, 247.) By adopting the central terms from the
(Footnote continued from previous page.)
purpose. (E.g., Manduley v. Superior Court, supra, 27 Cal.4th at pp. 574, 576;
Brosnahan v. Brown, supra, 32 Cal.3d at pp. 247-248.)
23
“reasonably germane” standard as it developed in single subject cases for use in
section 9002(b), the Legislature indicated its intent to allow substantial changes by
proponents, even constitutional amendments, after the public comment period.
CDAA makes a perfunctory argument that the substituted measure cannot
be considered an “amendment” under section 9002(b). It relies on a Court of
Appeal opinion applying the constitutional limitation on the Legislature’s power
to amend initiative measures. (Franchise Tax Bd. v. Cory (1978) 80 Cal. App. 3d
772; Cal. Const., art. II, § 10, subd. (c).) In no way do we suggest that initiative
proponents face similar limitations in deciding whether to amend their own
proposals. We note, however, that the language relied on by CDAA would
include the new proposal here as an “amendment”: its “ „aim is to . . . reach
situations which were not covered by the original.‟ ” (Cory, at p. 777; see People
v. Kelly (2010) 47 Cal. 4th 1008, 1026, fn. 19.) Other authority quoted in Cory
supports the same conclusion: “An amendment is „. . . any change of the scope or
effect of an existing statute, whether by addition, omission, or substitution of
provisions, which does not wholly terminate its existence, whether by an act
purporting to amend, repeal, revise, or supplement, or by an act independent and
original in form, . . .‟ (Sutherland, Statutory Construction (4th ed.1972) § 22.01, p.
105).” (Cory, at p. 776; see Kelly, at p. 1026, fn. 18.)
There is no question that the changes the proponents made to this initiative
measure were, in certain respects, quite extensive. However, that is their right, so
long as the changes are reasonably germane to the original theme, purpose, or
subject. The amended measure, like the original, addresses the process for
transferring minors to adult court for criminal prosecution, and expands parole
suitability review for state prisoners. It meets the accommodating standard
established in section 9002(b). Accordingly, the trial court erred in directing the
Attorney General to reject the amended measure.
24
III. DISPOSITION
A peremptory writ of mandate shall issue, directing the trial court to vacate
its judgment and enter a new order denying the relief sought by CDAA.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
25
DISSENTING OPINION BY CHIN, J.
In my view, the superior court was correct. I would deny the instant writ
petition.
The 2014 amendment to Elections Code section 9002 (section 9002) was a
legislative reform designed to improve the initiative process. This case sets the
precedent establishing whether that section can function as a true reform to
achieve its intended purpose, or if it is an empty shell — just another rule that can
easily be evaded with a little imagination.
As amended, section 9002, subdivision (a), requires a 30-day period of
public review of all proposed initiative measures, during which time the public
may make written comments to be transmitted to the measure‟s proponents.
Section 9002, subdivision (b), provides that during this “public review period, the
proponents of the proposed initiative measure may submit amendments to the
measure that are reasonably germane to the theme, purpose, or subject of the
initiative measure as originally proposed.” The “reasonably germane” language is
taken from cases interpreting the single subject rule. (See Californians for an
Open Primary v. McPherson (2006) 38 Cal. 4th 735, 764.) I agree with the
majority that this court has interpreted the term broadly when deciding whether an
initiative measure satisfies the single subject rule. But that does not mean the
Legislature intended the same broad interpretation in this context. In amending
section 9002, the Legislature did not merely incorporate the single subject rule.
1
We do not have to look far to find the legislative intent behind section
9002. The Legislature itself stated its intent in the bill that led to the amendment.
As enacted, the bill stated the Legislature‟s intent to do, among other things, the
following: “Identify[ing] and correct[ing] flaws in an initiative measure before it
appears on the ballot. Currently, proponents of an initiative measure have few
options to correct the language of an initiative measure or to withdraw a petition
for a proposed initiative measure, even when flaws are identified. This act would
give voters an opportunity to comment on an initiative measure before the petition
is circulated for signatures. Public comment may address perceived errors in the
drafting of, or perceived unintended consequences of, the proposed initiative
measure.” (Stats. 2014, ch. 697, § 2, subd. (b)(3).)
Thus, the Legislature intended to improve the quality of initiative measures
by requiring a period of public review and permitting amendment to correct flaws
that review revealed. As originally introduced, the bill permitted any amendment
to the proposed initiative measure. (Sen. Bill No. 1253 (2013-2014 Reg. Sess.) as
introduced Feb. 20, 2014, § 5.) The Legislature was concerned about this. As a
bill analysis stated, “this bill does not place any limitation on the amendments
submitted by the proponents. Consequently, this bill does not prevent a proponent
from receiving public comments on the text of a „spot‟ initiative, and then
submitting a substantially revised initiative text to the [Attorney General] after the
30 day public comment period for the ballot title and summary preparation. This
scenario renders the public review process meaningless.” (Assem. Com. on
Elections & Redistricting, Analysis of Sen. Bill No. 1253 (2013-2014 Reg. Sess.)
as amended June 17, 2014, p. 10, italics added.)
It should be obvious the Legislature intended the public review process to
be meaningful, not meaningless. It added the “reasonably germane” limitation to
ensure that it would be meaningful. Consistent with this Legislative intent, we
2
must interpret section 9002, subdivision (b) in a way that makes the review
process meaningful rather than something easily evaded.
The same bill analysis expressed another concern that the “reasonably
germane” language was also intended to obviate. “Furthermore, because this bill
does not prevent the submission of a „spot‟ initiative, the time period that the
Legislative Analyst and [Department of Finance] have to prepare the fiscal
estimate could be negatively impacted. This bill, which extends the time for the
[Department of Finance] and the Legislative Analyst to prepare the fiscal estimate
from 25 working days to 50 days, also permits the proponents to submit
amendments 5 days after the 30 day public review period. As a result, if the
proponents submit an amendment that substantively changes the initiative text, the
[Department of Finance] and Legislative Analyst will only have 15 days to prepare
a new fiscal estimate.” (Assem. Com. on Elections & Redistricting, Analysis of
Sen. Bill No. 1253, supra, p. 10.) The Legislature was thus concerned that the
fiscal analysis be afforded adequate time.
As even the majority recognizes, “the Legislature intended to improve the
initiative process by allowing members of the public to make suggestions to
proponents . . . .” (Maj. opn., ante, at p. 13.) In this way, the Legislature enacted
the comment period to benefit the public, and not merely the initiative‟s
proponents. The Legislature made the public comment period mandatory, not
optional. The reason is clear. The Legislature wanted to improve the final
product. It wanted to permit the public to point out obvious, and not so obvious,
flaws in a measure‟s drafting so the proponents could correct those flaws before
the measure was irrevocably placed on the ballot.
When he signed the amendment to section 9002 into law, the Governor
made clear it was intended to benefit the public and not merely proponents of
initiative measures. He issued a press release saying that he signed it “to increase
3
public participation in the initiative process and provide better information to
voters on ballot measures. [¶] „California‟s century-old initiative process is a
hallmark of our electoral system and today we‟re taking an important step to
modernize and strengthen direct democracy,‟ said Governor Brown. [¶] . . . The
measure introduces a 30-day public review period at the beginning of the initiative
process. Proponents can amend the initiative in response to public input during
that review period.” (Governor Edmund G. Brown, press release regarding Sen.
Bill No. 1253 (2013-2014 Reg. Sess.) Sept. 27, 2014.)
The same press release quoted the bill‟s supporters as saying the bill would
“ „enabl[e] broader debate and public review so that measures can be modified
before they go to the ballot, avoiding unintended consequences‟ ” and would
“ „give voters the chance to . . . address flaws if there are problems with the
language.‟ ” (Governor Edmund G. Brown, press release regarding Sen. Bill No.
1253, supra, italics added.) It quoted former Chief Justice Ronald George: “ „Too
often, ballot measures are confusing and poorly written, but there is no chance for
initiative backers to make even the most routine changes. This legislation makes
common-sense improvements that will help voters understand what their votes
mean and enable them to make informed decisions.‟ ” (Ibid.)
The majority observes, correctly, “ „that the initiative process occupies an
important and favored status in the California constitutional scheme,‟ ” and we
must “guard the people‟s right to exercise the initiative power.” (Maj. opn., ante,
at p. 20.) But this observation does not mean the initiative process cannot be
improved. Exercising its constitutional responsibility to “provide the manner in
which petitions shall be circulated, presented, and certified, and measures
submitted to the electors” (Cal. Const., art. II, § 10, subd. (e)), the Legislature
amended section 9002 to do just that. Nor does this observation mean that a
statute like section 9002 that is designed to improve the process should be given a
4
crabbed interpretation that defeats its purpose. In no way does enforcing section
9002 to achieve its purpose diminish the important and favored status the initiative
process occupies in our constitutional scheme. It just makes the process work
better. Proponents of measures may still circulate what they want. They merely
have to provide enough lead time to do so consistent with legal and practical
requirements, including section 9002. The proponents of the measure at issue here
inform us they did not have enough time to submit the proposed constitutional
amendment for public comment. But that is their doing, not the Legislature‟s.
Initiative proponents should not be permitted to defeat statutory
requirements by submitting for public review a measure vaguely similar to what is
ultimately intended, then on day 34 or so, finally showing their hand by
substituting something dramatically different, something that will never receive
the mandatory public review.
I now turn to the initiative measure at issue here. Certainly, some of the
amendments are reasonably germane to the original measure. Some simply
eliminate many of the changes in the law concerning juveniles included in the
original proposal. But the newly proposed constitutional amendment — the
centerpiece of the new initiative measure — is not reasonably germane. It would
work a major change in California‟s constitutional form unrelated to the original
measure.1 Under the majority‟s holding, that constitutional amendment will never
1 The amended initiative measure was retitled “The Public Safety and
Rehabilitation Act of 2016” (amended measure). Section 3 of that amended
measure would add section 32 to article I of the California Constitution (article I,
proposed section 32) to read: “(a) The following provisions are hereby enacted to
enhance public safety, improve rehabilitation, and avoid the release of prisoners
by federal court order, notwithstanding anything in this article or any other
provision of law:
(Footnote continued on next page.)
5
receive public comment or the opportunity to amend to correct drafting flaws. But
it is entirely different from the original measure.
I must admit the previous sentence is a slight — a very slight —
overstatement. Vague similarities exist between the new proposed constitutional
provision and the original measure. Both involve the criminal justice system in
the broadest sense — the original measure concerned juvenile and, to a lesser
extent, youthful offenders; the constitutional amendment concerns mostly adult
offenders. To some extent, both involve the potential release of inmates, although
in very different ways. To some extent, both involve parole, although in very
different ways. But there the similarity ends.
The stated reason for the newly proposed constitutional amendment — “to
enhance public safety, improve rehabilitation, and avoid the release of prisoners
by federal court order” (amended measure, § 3, adding art. I, proposed § 32, subd.
(a)) — has nothing to do with juveniles, meaning it has nothing to do with the
original measure‟s juvenile focus.
(Footnote continued from previous page.)
“(1) Parole consideration: Any person convicted of a non-violent felony offense
and sentenced to state prison shall be eligible for parole consideration after
completing the full term for his or her primary offense.
“(A) For purposes of this section only, the full term for the primary offense means
the longest term of imprisonment imposed by the court for any offense, excluding
the imposition of an enhancement, consecutive sentence, or alternative sentence.
“(2) Credit Earning: The Department of Corrections and Rehabilitation shall have
authority to award credits earned for good behavior and approved rehabilitative or
educational achievements.
“(b) The Department of Corrections and Rehabilitation shall adopt regulations in
furtherance of these provisions, and the Secretary of the Department of
Corrections and Rehabilitation shall certify that these regulations protect and
enhance public safety.” (Amended measure, § 3.)
6
Dramatically changing the sentencing laws — by permitting early parole
for some offenders, contrary to the detailed sentencing scheme currently in
effect — is not reasonably germane to changing the treatment of juvenile and
youthful offenders in the criminal justice system. Supposedly avoiding the release
of prisoners by federal court order — the purpose the proponents stress in their
argument that the measure must qualify for the 2016 ballot — has nothing to do
with the original measure.
The constitutional amendment would also give the Department of
Corrections and Rehabilitation (department) constitutional authority to award
behavior and other credits. The Legislature has already enacted detailed
mandatory provisions for the department to award conduct and participation
credits. (See Pen. Code, § 2931 et seq.) But the amended measure‟s proposed
constitutional language is permissive. Presumably, authority to award credits
includes authority not to award credits or to award lower credits than the statutes
currently require. Because the Constitution prevails over mere statutes, it appears
the proposed constitutional amendment would displace the current statutory
provisions for credits and shift authority over such credits from the legislative to
the executive branch of government.
For the moment, I will assume that altering the balance of power between
the two branches of government in this way would not be an impermissible
constitutional revision. (Cf. Legislature v. Eu (1991) 54 Cal. 3d 492, 509 [finding
a 1990 initiative imposing term limits on members of the Legislature was not
invalid, as a procedurally defective constitutional revision, because “[n]o
legislative power is diminished or delegated to other persons or agencies. The
relationships between the three governmental branches, and their respective
powers, remain untouched.”].) But shifting power from one branch of government
7
to another is not reasonably germane to the original measure, which left the
separation of powers between the branches of government unchanged.
The new constitutional provision would also have an entirely different, and
obviously complex, fiscal impact that warrants careful study. Whatever work was
done on the fiscal analysis of the original measure would be useless in analyzing
the fiscal impact of the proposed constitutional amendment; those responsible for
that analysis would have to start from the beginning. The amendment would
require at least thousands of new parole hearings, and would presumably require
such hearings to be regularly conducted at intervals yet to be determined.
Regulations would have to be adopted. Some unknown number of inmates would
be released. All this suggests that the 50-day period under section 9002 for the
joint fiscal analysis of the new measure should not be reduced to 16 days, as it was
here.
I agree with the majority “that the Legislature intended the comment period
to facilitate feedback, not to create a broad public forum,” and that the “avenue for
public comment” runs “for only one round of suggestions.” (Maj. opn., ante, at
pp. 2, 16.) But the Legislature did intend to facilitate feedback and to permit one
round of suggestions. The proposed constitutional amendment — the main part of
the new proposal — has received no feedback and no round of suggestions. If the
court overturns the superior court‟s order, it never will receive such comment and
cannot be amended.
But the proposed constitutional amendment is exactly the sort of measure
that would greatly benefit from public comment and the opportunity to make
amendments. Disregarding its merits, public comment could easily expose its
drafting flaws. For example:
(1) It seems odd to embed permanently in the California Constitution a
reference to a potential “federal court order” in an unnamed piece of litigation.
8
(Amended measure, § 3, adding art. I, proposed § 32, subd. (a).) It is also
redundant, as this purpose is already referenced in a preceding portion of the new
initiative measure, where it more logically belongs. (Amended initiative measure,
§ 2, par. 3 [one purpose of the measure is to “Prevent federal courts from
indiscriminately releasing prisoners”].)
(2) It seems particularly odd, and pointless, to conclude a statement of
purpose with the language, “notwithstanding anything in this article or any other
provision of law.” (Amended measure, § 3, adding art. I, proposed § 32, subd.
(a).)
(3) More substantively, the constitutional provision never defines the term
“non-violent felony offense.” Because the United States Supreme Court recently
declared unconstitutional as impermissibly vague the term “violent felony” in a
federal statute (Johnson v. U.S. (2015) __ U.S. __ [135 S. Ct. 2551]), the absence
of a definition is troublesome, to say the least. The Penal Code contains various
lists of crimes satisfying various definitions, including a list of “violent” felonies.
(Pen. Code, § 667.5, subd. (c).) Does that statute apply to mean that any crime not
listed in it would be a nonviolent felony, even though many such crimes are
arguably violent? Can a statute define a constitutional term? What if the
Legislature amends the list? What happens if the term “non-violent felony
offense” is also found to be void for vagueness? Would that mean all inmates
would be eligible for parole? The amended measure could greatly benefit from a
definition of the term. Adding such a definition would be possible if the proposal
were submitted for public review, but it is impossible under the majority‟s
holding.
(4) The sentencing laws currently in effect refer to a “principal term” and a
“subordinate term.” (E.g., Pen. Code, § 1170.1, subd. (a).) Because the proposed
constitutional provision does define “full term for the primary offense” (amended
9
measure, § 3, adding art. I, proposed § 32, subd. (a)(1)(A)), it appears that what is
meant is the equivalent of the “principal term.” If so, it might be better to use the
same terminology — which has an established meaning — rather than a new term
that might suggest something different is intended. Or if, against appearances,
“full term for the primary offense” means something different than “principal
term,” the difference should be identified.
(5) The proposed constitutional amendment gives the department
“authority to award credits earned for good behavior and approved rehabilitative
or educational achievements.” (Amended measure, § 3, adding art. I, proposed
§ 32, subd. (a)(2).) But it does not explain how this new, apparently permissive
constitutional provision would interact with the detailed, mandatory provisions for
credits the Legislature has enacted. As I have already discussed, the
constitutional provision would seem to displace the statutory scheme. But I am
not sure that is the intent. Displacing the statutory credit scheme might be one of
the measure‟s “unintended consequences” the Legislature sought to avoid in
amending section 9002. (Stats. 2014, ch. 697, § 2, subd. (b)(3).) If something else
is intended — perhaps that any credits the department awards under its new
constitutional authority would be in addition to, rather than instead of, the
statutory credits — the measure should so explain.
(6) Finally, there is a technical flaw. California Constitution, article I,
proposed section 32, has a subdivision (a)(1)(A), but no subdivision (a)(1)(B).
Most people are aware that one cannot subdivide something into one part. Public
comment and amendment could easily avoid the embarrassment of having the
California Constitution contain such a purported subdivision.
Concluding, as I do, that the proposed constitutional amendment is not
reasonably germane to the original measure would not significantly hinder the
initiative process. It would merely mean that a new measure that is unlike any
10
already proposed would, for the first time, be subject to public comment for 30
days and be amendable if drafting errors and any other flaws are uncovered during
that review.
Here, for example, if the proponents were to amend the proposed
constitutional provision after the public review process to correct some of the
problems identified above, or others revealed in the process, the changes would
clearly be germane to the original proposal, and no new review process would be
required. But an entirely new, and major, change, such as the proposed
constitutional amendment in this case, should not be removed from the process of
review and possible amendment. Voters who might agree in principle with an
initiative measure should not have to choose between voting for the measure even
though it was poorly drafted, or voting against the measure because it was poorly
drafted. The Legislature amended section 9002 in 2014 to avoid such a dilemma.
It sought to increase the likelihood an initiative measure would be well drafted, so
the voters would only have to be concerned with its merits. But for the
amendment to section 9002 to function as intended, a new measure that, as a
practical matter, is utterly unlike the original, must be subjected to public
comment and possible amendment.
Unfortunately, this case has now set the precedent. Under today‟s ruling,
future initiative proponents can evade the period of public review in the same way
the proponents have done here. They merely need to hijack a vaguely similar
measure that was in the process of qualifying. But the Legislature never intended
section 9002‟s mandatory provisions to be so easily evaded. It intended to require
a meaningful period of public comment.
Accordingly, I dissent.
CHIN, J.
11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Brown v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S232642
Date Filed: June 6, 2016
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Shelleyanne Chang
__________________________________________________________________________________
Counsel:
Remcho, Johansen & Purcell, Robin B. Johansen and James C. Harrison for Petitioners.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Constance L.
LeLouis, Jennifer A. Lee and Paul Stein, Deputy Attorneys General, for Real Party in Interest Attorney
General.
Bell, McAndrews & Hiltachk, Thomas W. Hiltachk, Brian T. Hildreth and Terry J. Martin for Real Parties
in Interest California District Attorneys Association and Anne Marie Schubert.
Counsel who argued in Supreme Court (not intended for publication with opinion):
James C. Harrison
Remcho, Johansen & Purcell
201 Dolores Avenue
San Leandro, CA 94577
(510) 346-6200
Paul Stein
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1382