Last winter, California Governor Jerry Brown wanted to put on the ballot a new initiative to facilitate large-scale releases of felons from prison. He had a problem, though, in that it was too late in the initiative cycle to begin an initiative from scratch and get it on the November 2016 ballot.
Gov. Brown's solution was to strike a deal with proponents of an unrelated juvenile justice initiative that had already gone through the early stages of the process. Can he do that? The bill allowing amendment of pending initiatives is only two years old, and there are unanswered questions. Today the California Supreme Court answered one of the questions and cleared the way for the Jailbreak Initiative to be put on the ballot this fall.
The statute at issue, California Elections Code ยง 9002(b), requires that the amendments be "reasonably germane" to the original measure. Does that phrase stretch far enough to take an initiative that is entirely about juvenile justice and graft on a measure that largely dismantles the determinate sentencing reforms of 40 years ago, which apply only to convictions in adult court?
Gov. Brown's solution was to strike a deal with proponents of an unrelated juvenile justice initiative that had already gone through the early stages of the process. Can he do that? The bill allowing amendment of pending initiatives is only two years old, and there are unanswered questions. Today the California Supreme Court answered one of the questions and cleared the way for the Jailbreak Initiative to be put on the ballot this fall.
The statute at issue, California Elections Code ยง 9002(b), requires that the amendments be "reasonably germane" to the original measure. Does that phrase stretch far enough to take an initiative that is entirely about juvenile justice and graft on a measure that largely dismantles the determinate sentencing reforms of 40 years ago, which apply only to convictions in adult court?
The California District Attorneys Association filed suit to have the initiative stopped on the ground that it was not an authorized amendment of the preexisting juvenile justice initiative but rather a new measure. Sacramento Superior Court Judge Shelleyanne Chang halted the process in late February. See this News Scan from Feb. 26. I was there for the oral ruling. Judge Chang's decision was heavy on the purpose and intent of the statute, more so than on the text.
Gov. Brown and the initiative proponents asked the Supreme Court for an order blocking the Superior Court's order, effectively reinstating the initiative. Much of what they said in support of their petition was nonsense, and CJLF submitted submitted a "letter brief" (which is how Cal. Supreme does amicus briefing in these proceedings) to refute some of the nonsense.
We did not address the meaning of "reasonably germane," leaving that to CDAA as the real party in interest in the action. That proved to be the toughest nut to crack.
The problem is that the Legislature used a term developed by the courts in cases dealing with the "single subject" rule of the California Constitution. An initiative can be yanked off the ballot, even though its proponents complied with all the rules, if substantively it embraces more than one subject. To preserve the ability of the people to enact comprehensive reforms through the initiative, the California Supreme Court has broadly construed the term, using the expansive phrase "reasonably germane."
To improve the quality of initiatives, the Legislature now requires a public comment period and permits amendment of initiatives. As explained in Justice Chin's dissent, the bill as written raised concerns about people misusing the amendment process, such as by holding a place with a "spot" initiative and then dumping in the substantive provisions late in the process after the public comment period was over.
Unfortunately, the "reasonably germane" standard borrowed from the single-subject rule does not do the job. The cynical practices that were supposed to be averted can still go on as long as there is a pending initiative in the same general area of law. This case is a prime example.
As a matter of straight statutory interpretation, I can't criticize the majority opinion. The Legislature did lift its term from the single-subject cases, and that lifting carries a strong implication that the same standard was intended. There is much to be said for a philosophy that courts must enforce what the Legislature enacted, not what they think the Legislature really meant. The latter approach is particularly dangerous in the hands of judicial activists.
So we must defeat this ill-conceived, badly written initiative at the ballot box. (See Justice Chin's dissent at pages 8-10 and my letter brief at pages 2-3 on the dismal draftsmanship.) The proponents will have a huge funding advantage, but they did in the death penalty fight in 2012, and we won that one. Unlike Proposition 47 in 2014, the pro-justice forces are more aware and better organized this time.
See also this episode of Air Talk with Larry Mantle from January discussing the initiative.
Gov. Brown and the initiative proponents asked the Supreme Court for an order blocking the Superior Court's order, effectively reinstating the initiative. Much of what they said in support of their petition was nonsense, and CJLF submitted submitted a "letter brief" (which is how Cal. Supreme does amicus briefing in these proceedings) to refute some of the nonsense.
We did not address the meaning of "reasonably germane," leaving that to CDAA as the real party in interest in the action. That proved to be the toughest nut to crack.
The problem is that the Legislature used a term developed by the courts in cases dealing with the "single subject" rule of the California Constitution. An initiative can be yanked off the ballot, even though its proponents complied with all the rules, if substantively it embraces more than one subject. To preserve the ability of the people to enact comprehensive reforms through the initiative, the California Supreme Court has broadly construed the term, using the expansive phrase "reasonably germane."
To improve the quality of initiatives, the Legislature now requires a public comment period and permits amendment of initiatives. As explained in Justice Chin's dissent, the bill as written raised concerns about people misusing the amendment process, such as by holding a place with a "spot" initiative and then dumping in the substantive provisions late in the process after the public comment period was over.
Unfortunately, the "reasonably germane" standard borrowed from the single-subject rule does not do the job. The cynical practices that were supposed to be averted can still go on as long as there is a pending initiative in the same general area of law. This case is a prime example.
As a matter of straight statutory interpretation, I can't criticize the majority opinion. The Legislature did lift its term from the single-subject cases, and that lifting carries a strong implication that the same standard was intended. There is much to be said for a philosophy that courts must enforce what the Legislature enacted, not what they think the Legislature really meant. The latter approach is particularly dangerous in the hands of judicial activists.
So we must defeat this ill-conceived, badly written initiative at the ballot box. (See Justice Chin's dissent at pages 8-10 and my letter brief at pages 2-3 on the dismal draftsmanship.) The proponents will have a huge funding advantage, but they did in the death penalty fight in 2012, and we won that one. Unlike Proposition 47 in 2014, the pro-justice forces are more aware and better organized this time.
See also this episode of Air Talk with Larry Mantle from January discussing the initiative.
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