BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 884


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          Date of Hearing:  April 29, 2015 


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 884  
          (Rendon) - As Amended April 22, 2015


          SUBJECT:  Initiative petitions:  title and summary.


          SUMMARY:  Requires the title and summary of a state initiative  
          measure to contain a specified disclaimer if the Attorney  
          General (AG) determines that the proposed measure would likely  
          result in a violation of an individual's constitutional rights.   
          Increases the fee that proponents must pay when submitting a  
          proposed state initiative measure to the AG for preparation of  
          the circulating title and summary. Specifically, this bill:  


          1)Requires the AG to include the following statement in the  
            circulating title and summary of a proposed state initiative  
            measure if the AG, when preparing the circulating title and  
            summary, determines that the measure would likely result in a  
            violation of an individual's constitutional rights:


               The Attorney General has determined that this  
               initiative measure, if approved by the voters, would  
               likely result in a violation of an individual's rights  
               under the United States Constitution or the California  
               Constitution.









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          2)Increases the fee that proponents of a state initiative  
            measure must pay at the time they submit the text of the  
            proposed measure to the AG for preparation of the circulating  
            title and summary, from $200 to $1,000.  Permits the AG, on an  
            annual basis, to determine the actual cost of preparing the  
            title and summary and to increase the fee to a maximum of  
            $5,000 to recover the full cost of preparing the title and  
            summary.


          3)Makes technical changes.


          EXISTING LAW:  


          1)Requires the proponents of a proposed state initiative measure  
            to submit the text of the proposed measure to the AG with a  
            written request that a circulating title and summary of the  
            measure be prepared, prior to circulating the petition for  
            signatures.  Requires the proponents, at the time of  
            submitting the text of the measure to the AG, to pay a fee of  
            $200.  Provides that the fee shall be refunded to the  
            proponents if the measure qualifies for the ballot within two  
            years of the date that the circulating title and summary is  
            provided to the proponents.

          2)Requires the AG to prepare a circulating title and summary of  
            the chief purposes and points of a proposed state initiative  
            measure, which is not to exceed 100 words.  Requires the  
            Department of Finance (DOF) and the Legislative Analyst to  
            prepare an estimate of the amount of any increase or decrease  
            in revenues or costs to the state or local government from the  
            measure.  Requires the AG to include this estimate in the  
            title and summary, as specified.









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          3)Requires the circulating title and summary of a state  
            initiative measure, as prepared by the AG, to appear on each  
            page of the initiative petition on which signatures are to  
            appear and on each section of the petition preceding the text  
            of the measure.


          FISCAL EFFECT:  Unknown. State-mandated local program; contains  
          a public records disclaimer.


          COMMENTS:  


          1)Purpose of the Bill: According to the author:


               More than a century ago, Californians adopted the  
               "initiative" process of gathering signatures for a  
               ballot measure to change California law.  Since that  
               time, voters have approved countless initiatives, but  
               the process has drawn criticism as well.  In some  
               cases, voters approve an initiative only to have a  
               court throw out the measure, because it violates the  
               federal or state constitution.  AB 884 would allow the  
               Attorney General to make a judgment on the  
               constitutionality before the measure goes out for  
               signatures.  It also increases the cost of filing an  
               initiative in order to cover the costs of the Attorney  
               General preparing a title and summary.


          2)Recent Proposed State Initiative: In February of this year a  
            proposed initiative measure, entitled the "Sodomite  
            Suppression Act" by its proponent, was submitted to the AG for  









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            preparation of a circulating title and summary.  Among other  
            provisions, that measure provides that a "person who willingly  
            touches another person of the same gender for the purposes of  
            sexual gratification [shall] be put to death" and that the  
            distribution or transmission of "sodomistic propaganda," as  
            defined, is punishable by a $1 million fine, imprisonment for  
            10 years, or expulsion from the state.



          Last month, Attorney General Kamala Harris filed an action for  
            declaratory relief seeking judicial authorization not to issue  
            a circulating title and summary for that proposed initiative  
            measure.  In announcing that action, Attorney General Harris  
            issued the following statement:
               As Attorney General of California, it is my sworn duty  
               to uphold the California and United States  
               Constitutions and to protect the rights of all  
               Californians. This proposal not only threatens public  
               safety, it is patently unconstitutional, utterly  
               reprehensible, and has no place in a civil society.  
               Today, I am filing an action for declaratory relief  
               with the Court seeking judicial authorization for  
               relief from the duty to prepare and issue the title  
               and summary for the "Sodomite Suppression Act."  If  
               the Court does not grant this relief, my office will  
               be forced to issue a title and summary for a proposal  
               that seeks to legalize discrimination and vigilantism.


            Attorney General Harris' request for declaratory relief  
            is pending in the Sacramento Superior Court.  The  
            deadline for the AG to issue the circulating title and  
            summary for the initiative is early in May.


          3)Word Limit on Circulating Title & Summaries and Suggested  









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            Amendment: Existing law prohibits the circulating title and  
            summary for a state initiative measure that is prepared by the  
            AG from exceeding 100 words, not including the fiscal estimate  
            of the measure that is prepared by the Legislative Analyst and  
            the DOF. This bill requires the AG to include specified text  
            in the circulating title and summary of a proposed state  
            initiative measure if the AG determines that the measure would  
            likely result in a violation of an individual's constitutional  
            rights.  It is unclear whether that text-which is 30 words  
            long pursuant to the rules in the Elections Code that govern  
            the counting of words-would count against the limit on the  
            length of the title and summary. To the extent that those  
            words do count against the limit, this bill could hamper the  
            AG's efforts to accurately and completely describe the effect  
            of certain proposed state initiative measures.



          The committee and the author may wish to consider an amendment  
            to explicitly specify that the inclusion of this text does not  
            count against the 100 word limit on the circulating title and  
            summary for a proposed state initiative measure. 
          4)Appeals Process and Suggested Amendment: While this bill  
            allows the AG to make a determination that a proposed state  
            initiative measure may violate an individual's constitutional  
            rights, and requires specified information to be included in  
            the circulating title and summary if the AG makes such a  
            determination, the bill does not explicitly contain an remedy  
            or appeals process for proponents that disagree with the AG's  
            determination.  In order to ensure that initiative proponents  
            have an appropriate method of review in situations where they  
            disagree with the AG's assessment that a proposed state  
            initiative measure may violate an individual's constitutional  
            rights, the committee and the author may wish to consider an  
            amendment to permit the proponents of a measure to challenge  
            the AG's determination in court.










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          5)Increasing Number of Initiatives: According to the AG's  
            office, there has been a steady increase in the number of  
            initiative proposals submitted in the last few decades.  The  
            following illustrates the increased number of state  
            initiatives that were submitted for title and summary:


             a)   47 from 1960 to 1969;


             b)   180 from 1970 to 1979;


             c)   282 from 1980 to 1989;


             d)   391 from 1990 to 1999;


             e)   647 from 2000 to 2009; and,


             f)   240 from 2010 to April 21, 2015.


          6)Background and Purpose of the Fee:  The purpose of the $200  
            filing fee is two-fold.  Primarily, the fee exists to  
            discourage the submission of frivolous proposals; secondly,  
            the fee is intended to defray some of the administrative costs  
            to the state associated with processing initiatives. 

          The existing fee was established in 1943 and has never been  
            increased. When adjusted for inflation using the Consumer  
            Price Index, $200 in 1943 corresponds to more than $2,700  
            today.  










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          7)Costs to Prepare a Title and Summary: According to information  
            from the AG's office, between 2009 and 2013 (the last year for  
            which cost information is available), 315 proposed state  
            initiative measures were submitted to the AG for preparation  
            of a circulating title and summary.  Of those 315 proposals,  
            27 qualified for the ballot.  Based on the staff time involved  
            for the preparation of circulating titles and summaries for  
            those measures, the AG estimates that each initiative costs an  
            average of $8,252 to the AG for preparation of the title and  
            summary.  Those costs do not include any costs incurred by the  
            Legislative Analyst and the DOF for preparation of the fiscal  
            estimate for proposed measures, nor do they include costs  
            incurred by state and county elections officials for duties  
            they must perform for proposed initiative measures.


          8)Arguments in Support:  In support of this bill, the American  
            Civil Liberties Union of California writes:


          Californians have a long history of passing initiatives  
          that violate individual constitutional rights. In 1964,  
          California voters passed Proposition 14 to repeal the  
          Rumford Fair Housing Act, a statute that prohibited  
          discrimination in housing based on race, religion and  
          gender. Passed by 65 percent of the voters, Proposition 14  
          made it lawful to discriminate and went even further,  
          changing California's Constitution to prohibit the state  
          and local governments from enacting fair housing laws. As  
          the argument against the initiative in the voter guide  
          said, "Proposition 14 would write hate and bigotry into the  
          constitution." The ACLU challenged the initiative on behalf  
          of Dorothy Mulkey, an African American woman denied the  
          right to rent an apartment. The case went all the way to  
          the U.S. Supreme Court which upheld the California Supreme  









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          Court's decision that Proposition 14 violated the equal  
          protection clause of the Fourteenth Amendment of the U.S.  
          Constitution. 

          Just six and a half years ago, California voters approved  
          Proposition 8, taking away the right of gay men and  
          lesbians to marry the person they love. While Proposition 8  
          is no longer in effect in California as a result of legal  
          challenges in federal court, its words remain in our state  
          constitution.  

          California currently has no formal process to review ballot  
          initiatives for their impact on protected constitutional  
          rights before the election. In contrast, eight states and  
          Washington, D.C, have some form of pre-certification review  
          to ensure that only constitutionally sound measures make it  
          onto the ballot. 

          AB 884 would not go as far as these other states have gone.  
          Rather, AB 884 is a modest step forward. The bill provides  
          a simple mechanism to inform voters of the likely impact of  
          a potential ballot measure on the constitutionally  
          protected rights of individuals. For these reasons, we  
          support AB 884.

          9)Arguments in Opposition:  In opposition to this bill, the  
            Howard Jarvis Taxpayers Association writes:


               AB 884 would increase the fee to file a ballot measure  
               with the Attorney General for a circulating title and  
               summary from $200 to $1000. At her discretion, the fee  
               could be increased annually up to a maximum of $5000  
               in order to recover the full cost of preparing the  
               materials.  AB 884 also states that if the Attorney  
               General believes that the initiative measure would  
               likely result in the violation of an individual's  









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               rights that she can include a statement to that effect  
               along with any petition that is circulated.





               Our main concern stems from the language regarding  
               violating an individual's rights.  While we recognize  
               this is in response to numerous individuals who have  
               filed directly offensive measures-things we too find  
               distasteful-we think such broad language being  
               included in the ballot pamphlet could lead to the  
               direct democracy process becoming needlessly  
               politicized, and also confusing, for voters.  For  
               instance, what is to stop a pension reform measure  
               from having this warning because it might violate an  
               individual's right to a secure retirement? Or  
               regarding the more recent Proposition 26, that it  
               violates an individual's right to breathe clean air  
               because it allegedly aids polluters? While well  
               intentioned, without tighter controls this language  
               could be subject to manipulation.


          10)Related Legislation: AB 1100 (Low), which is also being heard  
            in this committee today, would raise the fee that is required  
            to be paid to the AG at the time an initiative is submitted  
            for title and summary from $200 to $8,000. 


          REGISTERED SUPPORT / OPPOSITION:




          Support









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          American Civil Liberties Union of California


          American Federation of State, County and Municipal Employees,  
          AFL-CIO (prior version)




          Opposition


          Howard Jarvis Taxpayers Association




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094