Opinion

Untitled California Attorney General Opinion

Court: California Attorney General Reports
Filed: Aug 30, 1990
Status: Published
Cited by: 0 cases
Authority: More cited than 3.5%

The opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

______________________________________

OPINION :

: No. 89-1202

of :

: AUGUST 30, 1990

JOHN K. VAN DE KAMP :

Attorney General :

CLAYTON P. ROCHE :

Deputy Attorney General :

______________________________________________________________________________

THE HONORABLE VICTOR J. WESTMAN, COUNTY COUNSEL, CONTRA

COSTA COUNTY, has requested an opinion on the following questions:

1. Can public funds of a city, county or district be lawfully used to draft an initiative

or referendum measure which will be circulated for signatures among the voters with respect to

legislation of another city, county or district?

2. Can public funds of a city, county or district be lawfully used to gather signatures

for an initiative or referendum measure with respect to legislation of another city, county or district?

Is there a distinction in law between a state measure and a local measure regarding gathering

signatures? Is there a distinction in law between the use of public funds regarding gathering

signatures for a referendum measure versus an initiative measure?

3. Can public funds be used to promote an initiative or referendum measure that has

qualified for the ballot? Can a public agency or official use public funds to provide educational

information to the public about a ballot measure? If so, how is a distinction made between

"educational materials" and "campaign literature?"

CONCLUSIONS

1. Public funds of a city, county or district may lawfully be used to draft an initiative

or referendum measure which will be circulated among the voters with respect to legislation of

another city, county or district.

2. Public funds of a city, county or district may not be lawfully used to gather

signatures for an initiative or referendum measure with respect to legislation of another city, county

or district. There is no distinction in law to be drawn between a state measure or a local measure

in this respect. Nor is there a distinction in law to be drawn between a referendum measure versus

an initiative measure.

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3. Public funds cannot be used to promote an initiative or referendum measure that

has qualified for the ballot, at least in the absence of clear and explicit legislative authorization. A

public agency or official can use public funds to provide educational information to the public about

a ballot measure. No hard and fast rule be set forth to distinguish between "campaign literature" and

"educational materials" which will govern each case. Circumstances such as the style, tenor or

timing of the publication may be determinative.

ANALYSIS

Under the provision of article IV, section 1 of the California Constitution "[t]he

legislative power of the State is vested in the California Legislature . . . but the people reserve to

themselves the power of initiative and referendum." Accordingly, with respect to state legislation,

the people may either propose laws to be voted upon by them (the power of initiative) or they may

reject by their vote laws which the Legislature has enacted (the power of referendum). [See Cal.

Const., art. II, §§ 8-10, and generally, Elec. Code, §§ 3500-3524].

Additionally, under the provisions of article II, section 11 of the California

Constitution, "initiative and referendum powers may be exercised by the electors of each city or

county under procedures that the Legislature shall provide. . . ." (See, generally, Elec. Code, §§

3700-4061)1

Finally, as to most special districts which are authorized to enact ordinances, the

Legislature has provided for the initiative and referendum procedures for such districts. (See Elec.

Code, §§ 5150-5201).

In this request for our opinion our focus in questions one and two is upon initiative

or referendum measures which are to be drafted by a city, county or special district and circulated

among the voters for signatures with respect to legislation of another city, county or district.

Accordingly, with respect to questions one and two we do not consider any measures

which might appear on the ballot on advisory matters, but which do not seek to propose legislation

(e.g., the myriad "straw votes" once prevalent concerning the withdrawal of troops from Southeast

Asia.) Such "straw votes" do not fall within the reserved powers of the initiative or referendum.

(See American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 708-715; 56 Ops.Cal.Atty.Gen. 61

(1973).)

Additionally, with respect to questions one and two we are not concerned with what

this office denominated many years ago as a "voluntary referendum" at the local level. (See 31

Ops.Cal.Atty.Gen. 100 (1958).) Under this procedure the legislative body of a city, county or

district drafts proposed legislation on its own motion, without any petition being presented to it by

the voters, and submits the proposed legislation to the voters for their approval or rejection. (See

Elec. Code, §§ 3750, 4017, 5201.) Thus, the drafting of the proposed legislation is authorized by

statute, it involves the agency's own legislation, and there is no circulation of any petition for the

signature of the voters.

With respect to question three, that is whether a local agency may support a ballot

measure or provide information concerning the measure to the voters, we also consider ballot

measures in their broader sense, that is any measure properly submitted to the voters, whether by

Chartered cities may also provide for initiative and referendum by charter. (Cal. Const., art. II,

§ 11; Elec. Code, § 4061.)

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initiative, referendum or by the state legislature or a local legislative body. (See Elec. Code, § 38:

"`Measure' means any constitutional amendment or other proposition submitted to a popular vote

at any election.")

Procedurally, at both the state and local level an initiative follows three basic steps,

which are: 1) proposed legislation is drafted and placed in petition form for circulation among the

voters of the jurisdiction for their signature; 2) the measure is filed with the appropriate state or

local election officials and then circulated among the voters in an attempt to obtain the number of

signatures of voters legally required to qualify the measure for placement on the ballot; and 3) if the

required number of signatures are obtained, the measure is placed on the election ballot for the

electorate to either adopt or reject the proposed legislation by their vote. (See generally, Elec. Code,

§ 3500 et seq.)

Likewise, procedurally at both the state and local level, a referendum measure, that

is, one whereby the voters either approve or reject legislation which has just been enacted by their

legislative body, also follows the same three basic steps: 1) the measure, which sets forth the

question whether the specified legislation shall take effect, is drafted; 2) the measure is filed and

then circulated among the voters in an attempt to obtain the number of signatures legally required

to place the measure on the ballot; and 3) if it qualifies for the ballot the electors vote on the measure

to determine if the legislation shall or shall not take effect. (Ibid.)

In this request for our opinion we are asked whether local agencies may use public

funds to draft initiative and referendum measures as to other local agencies and, if so, what

restrictions may apply to the use of such funds.

Additionally, we are asked 1) whether local agencies may use public funds to gather

signatures for such initiative and referendum measures and 2) whether there is a distinction in law

to be drawn between an initiative measure and a referendum measure, or a state or local measure in

this respect.

Finally, we are asked whether a local agency may promote an initiative or referendum

measure which has qualified for the ballot, or provide "educational information" as opposed to

"campaign literature" to the public concerning ballot measures generally.

We conclude that local agencies, that is, cities, counties or districts may use public

funds to draft an initiative or referendum measure as to other local agencies. The measure, however,

must serve the legitimate governmental interests of the drafting local agency. Furthermore, public

funds may not be used to endeavor to secure the support of the electorate on only one side of the

issue.

We conclude, however, that local agencies, that is, cities, counties and districts, may

not use public funds to gather signatures for an initiative or referendum measure and that there is

no distinction to be made in this respect as to an initiative or a referendum measure, or a state or

local measure.

Finally, we conclude that public funds may not be used to promote an initiative or

referendum measure, absent clear legislative authorization. However, a public agency or official

may provide to the public "educational information" about a ballot measure if such information is

neutral in its content and presentation.

We reach these conclusions primarily upon the authority of three California cases

decided over the last decade and a half, that is Stanson v. Mott (1976) 17 Cal.3d 206, Miller v.

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Miller (1978) 87 Cal.App.3d 762, and League of Women Voters v. Countywide Crim. Justice

Coordinating Com. (1988) 203 Cal.App.3d 529. We will discuss the salient features of each case

and then apply them to the specific questions asked.

1. Stanson v. Mott

Stanson v. Mott, supra, 17 Cal.3d 206, presented the question whether the State

Director of Beaches and Parks was authorized to expend public funds in support of certain state

bond measures to be voted upon by the people. Such bonds were to provide funds to enhance state

and local recreational facilities.

The California Supreme Court, relying heavily upon its early decision in Mines v.

Del Valle (1927) 201 Cal.273, concluded that the Director of Beaches and Parks lacked such

authority since it could not find it in the statutes. The Court set forth the basic rule that ". . . at least

in the absence of clear and explicit legislative authorization, a public agency may not expend public

funds to promote a partisan position in an election campaign. . . ." (17 Cal.3d at pp. 209-210.) The

Court, after reviewing cases from other jurisdictions, noted that ". . . every court which has

addressed the issue to date has found the use of public funds for partisan campaign purposes

improper, either on the ground that such use was not explicitly authorized . . . or on the broader

ground that such expenditures are never appropriate. . . ." The Court further concluded that:

"Underlying this uniform judicial reluctance to sanction the use of public

funds for election campaigns rests an implicit recognition that such expenditures

raise potentially serious constitutional questions. A fundamental precept of this

nation's democratic electoral process is that the government may not `take sides' in

election contests or bestow an unfair advantage on one of several competing factions.

A principal danger feared by our country's founders lay in the possibility that the

holders of governmental authority would use official power improperly to perpetuate

themselves, or their allies, in office (see, e.g., Madison, The Federalist Papers, Nos.

52, 53; 10 Richardson, Messages and Papers of the Presidents (1899) pp. 98-99

(President Jefferson)); the selective use of public funds in election campaigns, of

course, raises the specter of just such an improper distortion of the democratic

electoral process." (17 Cal.3d at p. 217.)

The Court also held that there was no distinction to be drawn between candidates and

ballot measures in this respect.

The Court did, however, note the various statutory provisions permitting legislative

lobbying, the duty of elected and appointed officials to implement current administrative policies

by suggesting legislation, and the distinction between such processes and "election campaigning."

The Court thus stated:

"Moreover, the suggested analogy between election campaigning and

legislative lobbying ignores important distinctions between the two activities. To

begin with, California statutes draw a clear distinction between the two matters;

while various provisions authorize public expenditures for appropriate legislative

lobbying activities (see, e.g., Gov. Code, §§ 50023, 53060.5, 82039, 86300, subd.

(a); cf. Cal. Const., art. IV, § 15), no similar provision sanctions the use of public

funds in election campaigns. (Cf. Ed. Code, § 1073 (quoted in fn. 7, post).)

"More fundamentally, while public agency `lobbying' efforts undeniably

involve the use of public funds to promote causes which some members of the public

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may not support, one of the primary functions of elected and appointed executive

officials is, of course, to devise legislative proposals to attempt to implement the

current administration's policies. Since the legislative process contemplates that

interested parties will attend legislative hearings to explain the potential benefits or

detriments of proposed legislation, public agency lobbying, within the limits

authorized by statue (see fn. 4, ante), in no way undermines or distorts the legislative

process. By contrast, the use of the public treasury to mount an election campaign

which attempts to influence the resolution of issues which our Constitution leave to

the `free election' of the people (see Cal. Const., art. II, § 2) does present a serious

threat to the integrity of the electoral process." (17 Cal.3d. at p. 218, footnotes

omitted, emphasis added.)

Finally, the Court closed with the caveat that the general powers granted to the

Director of Parks and Recreation did "provide the department with authority to spend funds

budgeted for informational purposes [regarding the agency's activities and long range needs and

plans], to provide the public with a `fair presentation' of relevant information relating to a park bond

issue on which the agency has labored." (17 Cal.3d at p. 221.)

2. Miller v. Miller

The case Miller v. Miller (1978) 87 Cal.App.3d 762 (Miller I)2 followed shortly after

the Court's decision in Mott.

In Miller I the issue was whether the California Commission on the Status of Women

had the power to campaign both in this state and elsewhere for the ratification of the Equal Rights

Amendment (ERA). These activities included lobbying "both at the legislative and the grass-roots

level." The "grass-roots" level included urging the general public to contact their legislators in

support of the ERA. (87 Cal.App.3d at p. 766.)

The Commission took the position that ratification of the ERA would not involve the

electoral process, since the matter could not be submitted to the voters; accordingly, its lobbying

activities could not be said to interfere with the electoral process; and hence its lobbying activities

were legally permitted. Plaintiffs urged, however, that the Commission was not legally authorized

to do any lobbying. They urged that since state legislatures could do nothing more than vote "yes"

or "no" on the ERA ratification, such would not involve the legislative process so as to authorize

lobbying.

The Court, however, stated that "[s]uch labeling is not very helpful to us. Rather, we

conclude that the real issue under Stanson is not the objective of the promotional activity but the

audience to which it is directed" (87 Cal.App.3d at p. 768.) The Court noted that "[i]t is one thing

for a public agency to present its view to the Legislature. It is quite another for it to use the public

treasury to finance an appeal to the voters to lobby their Legislature in support of the agency's point

of view. The latter `undermines and distorts the legislative process' just as clearly as `the use of the

public treasury to mount an election campaign. . . [distorts] the integrity of the electoral process.'

(Stanson, supra, 17 Cal.3d at p. 218.) (Italics added)." (87 Cal.App.3d at pp. 768-769.)

Miller v. California Com. On Status of Women (1984) 151 Cal.App.3d 693 (Miller II) was

decided after legislative action was taken to modify the result in Miller I as to the lack of authority

of the state agency to take the action it took. Miller v. California Com. On Status of Women (1985)

176 Cal.App.3d 454 concluded the litigation, settling matters of costs.

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The Court concluded, however, that under the facts presented and the "audience test"

the plaintiffs had made an adequate showing on the summary judgment motion that the

Commission's activities involved election campaigning and not mere legislative lobbying for which

no "clear and explicit" legislative authority existed. It therefore held that "any expenditures of

public funds to marshal public support for the ERA were unauthorized." (87 Cal.App.3d at p. 772.)

3. League of Women Voters v.

Countywide Crim Justice Coordinating Com.

League of Women Voters v. Countywide Crim. Justice Coordinating Com., supra,

203 Cal.App.3d 529 is the last of the triad of California cases relevant to the questions presented

herein. In this case the issue presented was the legality of activities taken by the County of Los

Angeles and its officials 1) to draft a proposed state initiative measure to provide for certain

procedural changes in the criminal justice system relating to juries in criminal cases; 2) to find a

sponsor or sponsors for such statewide initiative measure; and 3) to indicate support for such

measure through speeches and otherwise. In resolving the issues presented, the court drew heavily

upon Miller I and Stanson v. Mott, applying the concepts discussed therein to its facts.

With respect to the county's activities in drafting the proposed statewide initiative and

finding sponsors, the court found no difficulty in implying such power from 1) the legitimate county

interest in the subject matter 2) the broad autonomous legislative and fiscal powers possessed by the

county and 3) the fact that the drafting stage would not involve partisan campaign activity. The

Court rejected arguments of the plaintiffs that drafting the initiative and seeking out sponsors was

inherently partisan in nature and that the "audience" was necessarily the electorate.

Accordingly, relying upon Stanson v. Mott, and the discussion therein regarding the

power of a public agency to lobby before other public bodies (including section 50023 of the

Government Code) the court then noted that that case had stated that "one of the primary functions

of elected and appointed officials is, of course, to devise legislative proposals to attempt to

implement the current administration's policies." (203 Cal.App.3d at p. 544.)3 Relying then upon

a series of New Jersey cases the court concluded that "[it] is logical to conclude the power to devise

legislative proposals to serve a local entity's perceived interests implies the power to draft proposed

legislation." (203 Cal.App.3d at p. 547.) The court then took this concept one step further and

concluded that "if the interests a local government seeks to serve are legitimate but the Legislature

has proven disinterested, there appears to be no logical reason not to imply from the indispensable

Section 50023 of the Government Code provides:

"The legislative body of a local agency, directly or through a representative,

may attend the Legislature and Congress, and any committees thereof, and present

information to aid the passage of legislation which the legislative body deems

beneficial to the local agency or to prevent the passage of legislation which the

legislative body deems detrimental to the local agency. The legislative body of a

local agency, directly or through a representative, may meet with representatives of

executive or administrative agencies of state, federal, or local government to present

information requesting action which the legislative body deems beneficial to, or

opposing action deemed detrimental to, such local agency. The cost and expense

incident thereto are proper charges against the local agency."

Accordingly, a local agency may not only lobby before Congress and the State Legislature, but may

also "lobby" other local agencies as to what is beneficial or detrimental to them.

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power to draft proposed legislation the power to draft a proposed initiative measure in the hope a

sympathetic private supporter will forward the case and the public will prove more receptive." (263

Cal.App.3d at p. 548). The Court distinguished between drafting a proposed initiative, which it

found did not fall within the rubric of partisan campaigning, and urging a particular vote on a matter

which has already qualified for the ballot. The court in summary held:

"Clearly, prior to and through the drafting stage of a proposed initiative, the

action is not taken to attempt to influence voters either to qualify or to pass an

initiative measure; there is as yet nothing to proceed to either of those stages. The

audience at which these activities are directed is not the electorate per se, but only

potentially interested private citizens; there is no attempt to persuade or influence

any vote. (Miller I, supra, 87 Cal.App.3d at p. 768.) It follows those activities

cannot reasonably be construed as partisan campaigning. Accordingly, we hold the

development and drafting of a proposed initiative was not akin to partisan campaign

activity, but was more closely akin to the proper exercise of legislative authority."

(203 Cal.App.3d at p. 550.)

In this respect, however, we would point out that it is not every piece of proposed

legislation which a city, county or district may legitimately draft. For example, a city could not draft

a entire new county general plan to be submitted to the voters of the county. The proposed draft

would still, in the words of the New Jersey Court, supra, have to serve the city's "perceived

interests", that is, relate to the city's governmental matters. Otherwise, the drafting of the measure,

which uses city tax dollars, would constitute a waste of the public funds of the city. However, were

the city to draft a proposed amendment to the general plan on a matter which impacted upon the city

(e.g, the location of a garbage dump in nearby unincorporated territory) then we believe it could be

said to serve the city's "perceived interests" and serve a public purpose of the city. The following

reasoning of the court in League of Women Voters v. Countywide Crim. Justice Coordination Com.,

supra, 203 Cal.App.3d 529, 554 would then be pertinent:

"There is no authority which provides useful guidance on this subject, other

than the principle enunciated, ante, that the nature of the public purpose primarily

is a matter of legislative discretion which will not be disturbed if it is supported by

a reasonable basis. . . ."

In short, we believe a city, county or district would have wide discretion as to matters

which legitimately affect it, but such discretion is not without boundaries.

4. Use of Public Funds To Draft

Initiative or Referendum Measure

We now proceed to the first question presented for resolution herein, that is, whether

public funds of a city county or district may be used to draft an initiative or referendum measure

with respect to legislation of another city, county or district.

We conclude that League of Women Voters v. Countywide Crim. Justice

Coordinating Com., supra, 203 Cal.App.3d 529, which is clear authority for local agencies to draft

a statewide initiative in which they have a legitimate interest, in principal also constitutes authority

in a proper case for a local agency to draft a local initiative measure, directed to the electorate of

another local agency. For example, as already noted a city has a legitimate interest as a city in many

county legislative matters, such as a county general plan insofar as it may impact the city. As noted

by the court in League of Women Voters, which reasoning would be applicable in principle whether

directed to state legislative matter or the legislative matters of another local agency:

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"Nonetheless, if the interests a local governmental entity seeks to serve are

legitimate but the Legislature has proven disinterested, there appears to be no logical

reason not to imply from the indisputable power to draft proposed legislation the

power to draft a proposed initiative measure in the hope a sympathetic private

supporter will forward the cause and the public will prove more receptive. (2) `"The

determination of what constitutes a public purpose is primarily a matter for

legislative discretion [citations], which is not disturbed by the courts so long as it has

a reasonable basis."' (Shean v. Edmonds (1948) 89 Cal.App.2d 315, 323 [200 P.2d

879], quoting from County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281 [106

P.2d 11, 130 A.L.R. 1141]; accord, Board of Supervisors v. Dolan (1975) 45

Cal.App.3d 237, 243 [119 Cal.Rptr. 347].)" (203 Cal.App.3d at p. 548.)

Additionally, we believe there is no logical distinction to be drawn between drafting

an initiative measure and drafting a referendum measure. Both relate to the legislative process,

albeit at difference stages. However, Stanson v. Mott and its progeny still teach that absent clear

and explicit authority "a government may not `take sides' in election contests." (17 Cal.3d at p. 217).

However under League of Women Voters "sides" are not taken at the drafting stage or even at the

stage where sponsors for the measure are sought. The court in that case, discussing the New Jersey

cases previously alluded to, stated: "Reilly v. Ozzard (1960) 33 N.J. 529 [166 A.2D 360, 89 A.L.R.

2d 612] holds that a local government entity has the right to seek or oppose legislation affecting its

interests and may draft legislation to accomplish that end." (203 Cal.App.3d at p. 547, emphasis

added.) Although a referendum petition itself does not propose "legislation", we believe it travels

with similar credentials in the context of the rules enumerated in Stanson v. Mott and its progeny

since it relates to the final stage of the legislative process, and opposes legislation.

We therefore conclude that a local agency under the reasoning of the case law, and

by analogy to it lobbying powers, (see, e.g., sec. 50023 of the Government Code, supra.) may draft

an initiative or referendum petition. This conclusion however carries the caveats found in the case

law to the effect that the matter must be of legitimate interest to the drafting public agency and that

public funds may not be used to endeavor to secure the support of only one side of the issue. To be

of "legitimate interest" to the local agency we believe that the legislation at which the measure is

directed must effect the local agency as a local agency, or affect the citizens of the local agency in

their status as citizens of that local agency. Mere general interest of the electorate in a matter, (e.g.,

in "pro-life" or "pro-choice" matters), would not be a sufficient or a legitimate interest.

5. Securing Signatures On An

Initiative or Referendum Petition

The second question presented for resolution herein is whether a city, county or

district may use public funds to gather signatures for an initiative or referendum measure. We

conclude they may not do so and that there is no difference between a state or local measure in the

this respect.

In League of Women Voters v. Countywide Crim. Justice Coordinating Com., supra,

203 Cal.App.3d 529 the court concluded that the drafting of an initiative petition and seeking out

possible sponsors for the measure by the county did not cross the prohibited line drawn in Stanson

v. Mott as to using public funds to "take sides" in partisan campaigns.

In doing so the Court noted that the decided case law on the subject in California and

elsewhere had involved measures which had already qualified for the ballot. In justification of its

decision that the drafting and seeking out of sponsors would not constitute the prohibited "taking

sides", the court concluded first as to the drafting stage as follows:

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