BILL ANALYSIS                                                                                                                                                                                                    Ó






                            SENATE COMMITTEE ON ELECTIONS
                            AND CONSTITUTIONAL AMENDMENTS
                             Senator Alex Padilla, Chair


          BILL NO:   AB 2093              HEARING DATE: 6/17/14
          AUTHOR:    GROVE                ANALYSIS BY:  Frances Tibon  
          Estoista
          AMENDED:   5/13/14
          FISCAL:    NO
          
                                        SUBJECT
           
          Petitions:  filings

                                      DESCRIPTION  
          
           Existing law  provides that the initiative is the power of the  
          electors to propose statutes and amendments to the California  
          Constitution and to adopt or reject them.

           Existing law  provides that a referendum is the power of the  
          electors to approve or reject statutes except urgency statutes,  
          statutes calling elections, and statutes providing for tax  
          levies or appropriations for usual current expenses of the  
          State. 

           Existing law  requires a petition for a proposed statewide  
          initiative to be filed with the county elections official not  
          later than 150 days from the official summary date, and also  
          prohibits a county elections official from accepting a petition  
          for the proposed initiative measure after that period. 

           Existing law  requires a petition for a proposed statewide  
          referendum to be filed with the county elections official not  
          later than 90 days from the date of the enactment of the bill,  
          and further prohibits a county elections official from accepting  
          a petition for the proposed referendum after that period.

           Existing law  prohibits a petition for a proposed initiative or  
          referendum from being circulated for signatures prior to the  
          official summary date.  

           Existing law  requires the Legislature to provide the manner in  
          which petitions must be circulated, presented, and certified,  
          and measures submitted to the electors.










           Existing law  permits an act to be performed upon the next  
          business day if the last day for the performance of any act  
          provided for or required by the Elections Code is a holiday, as  
          defined.

           This bill  permits a statewide initiative or referendum petition,  
          if the last day to file a petition is a holiday, as defined by  
          current law, to be filed with the county elections official on  
          the next business day.

           This bill  provides this act it shall not be construed to affect  
          any matter pending in the courts of this state on the date this  
          act is enacted.

           This bill  makes the following Legislative findings and  
          declarations:

             Under the California Constitution, an initiative or  
             referendum measure may be proposed by presenting to the  
             Secretary of State (SOS) a petition containing a specified  
             number of signatures. The California Constitution requires  
             that a petition for a referendum measure be submitted within  
             90 days of the date of enactment of the statute that is the  
             subject of the referendum, and state law requires that a  
             petition for an initiative measure be submitted within 150  
             days of the date of the circulating title and summary  
             furnished by the Attorney General.

             In some instances, the final day to submit an initiative or  
             referendum petition falls on a holiday, when the offices of  
             state and county elections officials are closed. In those  
             circumstances, the proponents of an initiative or referendum  
             measure are faced with the choice of either submitting the  
             petition prior to the holiday, in which case the period to  
             gather signatures would be reduced, or submitting the  
             petition after the holiday, in which case the proponents  
             would risk rejection of the petition as untimely.

             While the California Constitution specifies a period of 90  
             days to gather signatures for a referendum measure, it gives  
             no guidance as to how to construe the 90-day period in those  
             instances in which the final day falls on a holiday.

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             The courts of this state have long held that the initiative  
             and the referendum are sacred rights of the people and  
             provisions of law shall be liberally construed to give full  
             effect to the powers of initiative and referendum.

             The framers of the California Constitution did not intend  
             that the powers of initiative and referendum should be  
             frustrated by the mere happenstance that the final day to  
             submit a petition falls on a holiday.

             It is a general and well-accepted rule of law that, when the  
             last day to perform an act falls on a holiday, the time in  
             which to perform that act is extended to the next business  
             day.

             It is the intent of the Legislature in enacting this act to  
             preserve the people's rights of initiative and referendum by  
             clarifying that, in those instances in which the final day to  
             submit a petition falls on a holiday, the proponents of the  
             initiative or referendum measure may submit the petition on  
             the next business day following the holiday.

                                      BACKGROUND  
          
           Secretary of State's Current Initiative and Referendum  
          Practices  :  Statewide initiatives and referenda have distinctly  
          different petition filing deadline requirements.  Current state  
          law requires a petition for a proposed statewide initiative to  
          be filed with the county elections official not later than 150  
          days from the official summary date, and prohibits a county  
          elections official from accepting a petition for the proposed  
          initiative measure after that period.  Additionally, Elections  
          Code Section 15 permits an act to be performed upon the next  
          business day if the last day for the performance of any act  
          provided for or required by the Elections Code is a holiday, as  
          defined.  As a result, it has been the longstanding practice  
          that when a deadline for a proposed initiative measure falls on  
          a weekend or holiday, the deadline rolls forward to the next  
          business day.  However, this only applies to dates set in  
          statute in the Elections Code, not to deadline dates set forth  
          in the California Constitution.  

          Because the deadlines for statewide referendum are in the  
          California Constitution, it is unclear whether the Legislature,  
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          by state statute, can extend deadlines established by the  
          Constitution.  As a result, it has been the longstanding  
          practice for the SOS, should a filing deadline fall on a  
          weekend, to request county registrars to briefly open their  
          offices on the weekends.  According to the SOS's court filings,  
          at the request of the petitioner, the SOS coordinated a  
          conference call with 17 county registrars requesting them to  
          briefly open on Sunday for the filing of the referendum  
          petitions.  The petitioner did not request Sunday filings for  
          Mono and Tulare counties.  By not making the same request of  
          Mono and Tulare counties, the petitioner assumed the risk that  
          petitions would not be timely filed in those counties.   

                                       COMMENTS  
          
            1. According to the Author  :  The courts of this state have long  
             held that the initiative and the referendum are sacred rights  
             of the people.  Most recently, [o]n January 3 of this year, a  
             Superior Court Judge ruled in  Gleason v. Bowen  that the  
             Secretary of State violated California law by refusing to  
             count petition signatures for a referendum filed in two  
             counties which had refused delivery of petitions or were  
             closed on the last business day before the 90-day filing  
             deadline.  The court ruled that by attempting to deliver  
             petitions to county registrars within the 90 days, supporters  
             had substantially complied with their legal requirements, and  
             that the real deadline in this particular case should have  
             been the following Tuesday due to the intervening holiday  
             weekend.

           In his ruling, the Judge cited a 1915 decision by the state  
             Supreme Court which stated that referendum power "should be  
             liberally construed and should not be interfered with by the  
             courts except upon a clear showing that the law is being  
             violated."  (  Laam v. McLaren  ).  The Judge further ruled that  
             he "sees no basis to effectively diminish the people's  
             referendum power here by giving Petitioner only 88 days to  
             collect signatures and submit her petition to elections  
             officials."

           An initiative or referendum effort should not be hindered and  
             reduced merely because the final day to submit a petition  
             happens to land on a holiday.

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           By passing AB 2093, this point will be expressed clearly in  
             statute, reducing the possibility of additional confusion and  
             disagreement over initiative and referendum petition dates.

            2. Constitutionality  :  In 2013, the Legislature passed and the  
             Governor signed AB 1266 (Ammiano), Ch. 85, Statutes of 2013,  
             which amended the Education Code to allow pupils to  
             participate in school activities and use facilities based on  
             gender identity.  Petitioners sought to qualify a referendum  
             asking voters to reject AB 1266 and the petitioner filed a  
             request for title and summary for a referendum of the  
             statute.  The title and summary was issued on August 26,  
             2013, along with the circulating and filing schedule for the  
             referendum.  Article II, section 9 of the California  
             Constitution requires a petition for a referendum to be  
             presented to the SOS within 90 days after the enactment date  
             of the statute.  State law implements this constitutional  
             provision and requires a petition for a proposed referendum  
             measure to be filed with the county elections official not  
             later than 90 days from the date the legislative bill was  
             chaptered by the SOS.  As a result, the referendum filing  
             scheduled stated that the last day to file referendum  
             petitions with the county elections officials was Sunday,  
             November 10, 2013.  However, the 90 day requirement was  
             complicated in this instance because the 90th day fell on a  
             Sunday and the following day, November 11th, was a holiday  
             (Veteran's Day), when counties offices were not open.  Due to  
             the holiday and the closure of county offices, referendum  
             petitions from Mono and Tulare counties were not submitted  
             within the 90 day deadline.  Consequently, the SOS refused to  
             accept petitions submitted to Mono and Tulare Counties on the  
             grounds that the petitioner's filings were untimely and  
             submitted after the November 10th deadline.

           Earlier this year, a lawsuit was filed against the SOS  
             challenging the rejected referendum petition signatures and  
             requesting the court to require the SOS to accept, file, and  
             process, as timely, the petitions delivered to Mono and  
             Tulare counties.  In the lawsuit, the petitioner asserted  
             that Elections Code Section 15 permits any act, if the last  
             day for the performance of any act provided for or required  
             by the Elections Code is a holiday, to be performed upon the  
             next business day.  As a result, the petitioner argued that  
             under the above rule the petitioner had until Tuesday,  
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             November 12th to file her petitions with the county election  
             officials and that Tulare and Mono counties had a ministerial  
             duty, under the California Constitution, to accept the  
             petition materials up to, and until the expiration of the 90  
             day deadline.  In addition, the petitioner argued that the  
             doctrine of "substantial compliance" applies to the  
             constitutional requirements pertaining to the referendum  
             process.  The petitioner further argued that the petitioner  
             substantially complied with the 90 day filing limit so that  
             her failure to actually file the Mono and Tulare county  
             petitions within that time limit should be forgiven and if  
             there was a departure from the constitutional requirements it  
             was minor and did not undermine or frustrate the basic  
             purposes by the statutory requirements in ensuring the  
             integrity of the initiative or referendum process.

           The Superior Court ruled in favor of the petitioner's request  
             for a Writ of Mandate directing the SOS to accept, file, and  
             process as timely the petitions delivered by the petitioner  
             to Mono and Tulare Counties.  In the ruling, the judge cited  
             a 1915 decision by the state Supreme Court which stated that  
             referendum power "should be liberally constructed and should  
             not be interfered with by the courts except upon clear  
             showing that the law is being violated." (  Laam v. McLaren   
             (1915) 28 Cal.App.632, 638.)  The SOS has since appealed the  
             court's ruling and this issue is still pending in the courts.  


            3. Related Legislation  :  SB 1253 (Steinberg) makes several  
             changes to the initiative process including extending the  
             timeframe allowed for circulating a petition.  SB 1253 is  
             scheduled for hearing in the Assembly Elections and  
             Redistricting Committee on June 24, 2014.  
            
                                        PRIOR ACTION
           
          Assembly Elections and Redistricting Committee:  6-0
          Assembly Floor:                             74-0
                                           
                                      POSITIONS  

          Sponsor: Author

           Support: Howard Jarvis Taxpayers Association
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           Oppose:  None received









































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