Unpleasant Surprises?  The Limits of Public Comment on Proposed Ballot Initiatives

Unpleasant Surprises? The Limits of Public Comment on Proposed Ballot Initiatives


As of 2014, Elections Code section 9002 allows for a 30-day public comment period on proposed ballot initiatives, which occurs before the Attorney General prepares the official summary and estimate of the initiative’s fiscal impact. This public comment period also occurs before the petition is submitted to the general public for solicitation of signatures to get on the ballot.

During that public comment period, or up to five days after it closes, the initiative’s proponents may submit amendments to the Attorney General that are “reasonably germane to the theme, purpose, or subject of the initiative as originally proposed.”1 But it had been unclear exactly how much an initiative could change after public comment. After the California Supreme Court’s decision in Brown v. Superior Court 2 the answer is: quite a bit. In fact, the initiative on which the public commented could turn into something completely different by the time it is distributed for signatures and appears on the ballot.

As proposed, the Justice and Rehabilitation Act sought to make significant changes to the juvenile and criminal justice system. It would have abolished the requirement that minors 14 or over be tried as adults for certain crimes, eliminated prohibitions on sealing juvenile records, and altered parole suitability review for those who were under 23 when they committed their crimes.

The proponents received no comments during the 30-day period, but they did consult with individuals interested in justice reform including the Governor’s staff. After the public comment period closed but within the five-day window, the proponents amended their initiative and replaced the parole modification for those under 23 with a much broader parole modification that would apply to all prisoners convicted of non-violent felonies. The revised initiative was renamed the “Public Safety and Rehabilitation Act.”

Challengers, including the California District Attorneys Association, sought a writ compelling the Attorney General to reject the amended initiative, which would have prevented signature collection and its qualification for the ballot. They argued that the modifications fundamentally rewrote the initiative and that the changes were not “reasonably germane” to what was originally proposed.

Essentially, the amendment converted an initiative about juvenile offenders into a complete rewrite of parole rules for offenders of any age who committed non-violent felonies. And because it was so much broader, the fiscal impact would be completely different than what had been initially presented for public comment.
The trial court agreed and granted the writ. The initiative’s proponents sought immediate relief in the California Supreme Court given the shortness of time left to gather signatures to qualify for the November ballot.

The Supreme Court reversed, directing the trial court to enter an order denying writ relief to the challengers. Reviewing the Legislative history, the Court concluded that the public comment period was not meant to “establish a public forum for comments or provide a broadly transparent amendment process.”3 Rather, the Legislature intended the public comment period comments to be “for the benefit of the proponents, not for the purpose of fostering public discussion…the avenue for public comment laid out by the Legislature runs only one way, and for only one round of suggestions.”4 After all, public comments submitted to the Attorney General are not posted or disseminated publicly, but instead are sent solely to the initiative’s proponents. And the statute did not require proponents to respond to the comments or post amendments for a second round of comment.

The Court also gave an expansive definition to “reasonably germane.” This term of art appears in much of the Court’s jurisprudence concerning the single-subject rule – a Constitutional provision prohibiting an initiative from embracing more than one subject. The single-subject rule is satisfied so long as the challenged provisions are “reasonably germane” to a common theme, purpose, or subject. The term “reasonably germane” is typically applied in an “accommodating and lenient manner,” and the Court found no reason to give it more restrictive meaning in the context of Section 9002.5

On one hand, the decision may not have much practical effect. Generally, public comment on proposed initiatives is rare and the public has plenty of time to comment during signature-gathering or once the initiative makes the ballot. Such will be the case for the Public Safety and Rehabilitation Act, which will appear on the November ballot presuming verification of the estimated one million signatures already obtained. But as Justice Chin pointed out in his dissenting opinion in Brown, the early public comment period is still important to clean up drafting problems, such as the missing definitions of important terms like “non-violent felony offense” and “full term for the primary offense.” Allowing fundamental changes to the initiative after the public comment period hardly incentivizes public comment in the first place, and it minimizes the chance of correcting these kinds of oversights.

Presuming signature verification, the initiative before the voters in November would make numerous, substantive changes to the parole and sentencing procedures for non-violent offenders. That it is supported by Governor Brown – who himself shepherded through the tough determinate sentencing laws which this initiative would change – is interesting in itself, and follows the Governor’s own public statement of his belief that those laws have failed. Responding to concerns of prison overcrowding and the risk of releasing certain offenders arbitrarily to satisfy court-imposed population control, the initiative would permit parole consideration for non-violent inmates once they complete the full sentence for their primary offenses. It would remove a prosecutor’s authority to decide whether to try certain juvenile offenders as adults, transferring that power to the judge. It would also enhance the ability of the Department of Corrections and Rehabilitation to award credit for good behavior as well as for education and rehabilitation achievements. This would enable earlier release for many prisoners and encourage their participation in rehabilitation activities.

Opponents express concern that the initiative would allow release of violent offenders merely because their most recent crime was non-violent. Victims would also have far less assurance that an offender’s actual prison sentence would be anywhere near that originally issued, compromising trust in the criminal justice system. Yet much of the opposition has not yet coalesced, since the initiative has not officially qualified for the ballot. Once it is certified, voters should expect to see an active campaign against these proposed changes to California’s determinate sentencing structure.

But as to the narrow issue of public comment, Brown v. Superior Court clarifies that Elections Code section 9002 does not dramatically limit the ability of initiative proponents to significantly and substantially amend their proposed initiative even after the comment period closes. “The proponents of an initiative are captains of the ship when it comes to deciding which provisions to take on board.” 6 In all likelihood, whether that ship sinks or floats will now be up to the California electorate.

[1] Elec. Code § 9002(b).
[2] (2016) 63 Cal.4th 335.
[3] Id. at 347.
[4] Id. at 348.
[5] See id.
[6] Id. at 351.