Brown v. Superior Court of Sacramento County

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.”

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(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

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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