CORRIGAN, J. —
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.)
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.
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.
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."
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 full term" for their "primary offense," defined as "the longest term of imprisonment imposed by the court for any offense, excluding the
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.
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.
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.
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
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 Web site. The first version instructed the Attorney General to "[p]romot[e] public participation by inviting on the Attorney General's Internet 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."
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 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 General] ... helps address this deficiency." (Sen. Com. on Elections and Constitutional Amends., Analysis of Bill No. 1253, as amended Apr. 9, 2014, p. 6.) Other comments provided a summary of related legislation, which noted: "[Assembly Bill No.] 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 No.] 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.)
In a subsequent bill analysis, the following criticisms were directed against section 9002's treatment of amendments: "
"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 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
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. 345.) 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 No. 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.) Instead, the statute was initially altered to require the Attorney General to determine whether amendments furthered the purposes of the original measure.
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.
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 No. 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.
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. (See 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
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 the fact that the proponents replaced their original amendment of Penal Code section 3051 with a broader constitutional amendment.
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 nonviolent 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 would also authorize the Department of Corrections and Rehabilitation to award credits for good behavior and rehabilitation.
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
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 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 [145 Cal.Rptr. 819]; 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 [103 Cal.Rptr.3d 733, 222 P.3d 186].) 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.)
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.
Cantil-Sakauye, C. J., Werdegar, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
CHIN, J., Dissenting. —
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
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 [43 Cal.Rptr.3d 315, 134 P.3d 299].) 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.
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: "Identifying and correcting 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
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 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 and Redistricting, Analysis of Sen. Bill No. 1253, supra, as amended June 17, 2014, 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. 347.) 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 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
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, Jr., press release regarding Sen. Bill No. 1253, supra, Sept. 27, 2014, 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. 351.) 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 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
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.
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.
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 [286 Cal.Rptr. 283, 816 P.2d 1309] [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 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. 339, 348.) 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.
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 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.
Accordingly, I dissent.
The timeliness of the submission here has not been challenged.
