BILL ANALYSIS �
AB 2338
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2338 (Wagner) - As Introduced: February 21, 2014
SUBJECT : INITIATIVES: WRIT OF MANDATE
KEY ISSUES :
1)SHOULD LOCAL GOVERNMENTS BE BARRED FROM SEEKING PRE-ELECTION
DECLARATORY RELIEF AND BE LIMITED TO FILING A PEREMPTORY WRIT
OF MANDATE THAT APPEARS TO BE ILL-SUITED FOR MANY TYPES OF
IMPORTANT ELECTION CHALLENGES?
2)IS THERE SUFFICIENT EVIDENCE THAT LOCAL GOVERNMENTS ARE
CURRENTLY ABUSING THEIR ABILITY TO BRING DECLARATORY RELIEF
ACTIONS AGAINST QUALIFIED INITIATIVES AS A DELAYING TACTIC TO
KEEP THEM FROM APPEARING ON THE BALLOT FOR WHICH THEY
QUALIFIED?
SYNOPSIS
This bill, sponsored by the Howard Jarvis Taxpayers Association,
seeks to require any local government or district seeking to
challenge the qualification or validity of a certified ballot
initiative to use a specified elections writ of mandate
procedure instead of filing a pre-election action for
declaratory relief. According to proponents, the bill responds
to a growing trend of local officials using pre-election
declaratory relief to challenge the validity of an initiative,
with their true intent being to deprive voters of the right to
vote on qualified initiatives that the local officials disfavor.
Substantial evidence of various instances of such a problem,
however, has not yet been provided supporting this contention.
Indeed, committee staff has not been able to verify there is a
documented and substantial problem the bill seeks to address of
local officials gaming or abusing the declaratory relief statute
in the way described. Proponents contend that the recent
decision by the Court of Appeal in Mission Springs Water
District v. Verjil (2013) is "exhibit one" of a case that has
"corrupted" the longstanding interpretation of existing law that
requires local officials to either place a duly qualified
initiative on the ballot or to challenge its validity by
utilizing the existing writ of mandate procedures specified by
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the Elections Code. This bill, they argue, would restore the
law to its intended state before Mission Springs , and thus
ensure that the election writ procedure is the sole avenue of
relief for any challenges to an initiative that has already
qualified for the ballot. However the bill is broadly opposed
by the CA State Association of Counties, labor unions, and
police and sheriffs' associations, who all contend that it is
instead appropriate, as the appellate court found in Mission
Springs , for local governments to file declaratory relief
actions to challenge the validity of proposed ballot
initiatives. These opponents contend that the bill is likely to
lead to more invalid initiatives being included on election
ballots because it pigeonholes all legal challenges, regardless
of type, into an expedited election writ process that was simply
not intended to handle more complex legal challenges within its
timeframe. They also note that the prospect of more courts
finding locally approved initiatives invalid after the election
would lead to greater and understandable voter disillusionment
not just with the courts but with their elections system of
government. Should this bill be approved, it will be referred
to the Assembly Elections Committee.
SUMMARY : Reverses a recent appellate decision upholding the
availability of declaratory relief actions in specified election
cases and instead requires local governments seeking to
challenge the qualification or validity of a certified ballot
initiative to use a specified elections writ of mandate
procedure instead of filing a pre-election action for
declaratory relief. Specifically, this bill :
1)Prohibits a public agency from bringing an original action or
a cross-complaint seeking a declaration of rights under a
proposed initiative measure until after the election for which
the initiative measure qualified, if the measure was
previously certified by an elections official as having
qualified for the ballot.
2)Amends the various election writ statutes pertaining to county
elections, municipal elections, district elections, and school
district elections to provide the following:
a) Any county, city, or district entity seeking to prohibit
an initiative measure from being placed on the ballot must
file a writ of mandate or an injunction pursuant to the
appropriate writ statute in the Election Code, and no later
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than the end of a 10-calendar-day public examination
period, as specified.
b) A peremptory writ of mandate or an injunction shall be
issued only upon clear and convincing proof that the
initiative measure does not qualify or is not valid for
placement on the ballot, and that issuance of the writ of
mandate or injunction will not substantially interfere with
the printing or distribution of official election materials
as provided by law.
EXISTING LAW :
1)Authorizes a person to bring an original action or cross
complaint in superior court for a declaration of his or her
rights under any written instrument or contract, including a
determination of any question of construction or validity
arising under the instrument or contract. (Code of Civil
Procedure Section 1060.)
2)Permits the court to make a binding declaration of these
rights or duties, whether or not further relief is or could be
claimed at the time. Further provides that the declaration
may be either affirmative or negative in form and effect;
shall have the force of a final judgment; and may be obtained
by a party before any breach of the obligation giving rise to
the declaration has occurred. (Code of Civil Procedure
Section 1060.)
3)Specifies a writ of mandate procedure under the Election Code
for challenging matters in county elections, municipal
elections, district elections, and school district elections,
that among other things:
a) Requires the elections official to make a copy of any
proposed ordinance or ballot initiative available for
public examination for a period of 10 calendar days
immediately following the submission of those materials.
(Election Code Sections 9190(a), 9295(a), 9380(a),
9509(a).)
b) Permits any voter in the jurisdiction in which the
election is being held to seek a writ of mandate or
injunction requiring any or all of the material to be
amended or deleted, as long as such request is filed no
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later than the end of the 10-day public examination period.
(Election Code Sections 9190(b)(1), 9295(b)(1),
9380(b)(1), 9509(b)(1).)
c) Further provides that the peremptory writ of mandate or
injunction shall be issued only upon clear and convincing
evidence that the material in question is false,
misleading, or inconsistent with specified requirements,
and that issuance of the writ or injunction will not
substantially interfere with the printing or distribution
of official election materials as provided by law.
(Election Code Sections 9190(b)(2), 9295(b)(2), 9380(b)(2),
9509(b)(2).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill, sponsored by the Howard Jarvis Taxpayers
Association, seeks to reverse a recent appellate decision
upholding the availability of declaratory relief actions in
specified election cases and instead seeks to require local
governments seeking to challenge the qualification or validity
of a certified ballot initiative to use a specified elections
writ of mandate procedure instead of filing a pre-election
action for declaratory relief.
Stated Need for the Bill . According to the author:
This bill responds to a trending strategy by local
officials to deny voters their constitutional right to
vote on initiatives that have been cleared for the
ballot by the County Registrar of Voters. This bill
would simply clarify that, when an initiative has
qualified for the ballot, its proponents and the voting
public are entitled to have it presented at the election
for which it qualified.
Despite specific requirements [under the Election Code],
some local officials in recent years have defied their
statutory duty and instead have simply shelved duly
certified initiatives and sued the proponents for
"declaratory relief," a type of lawsuit that is
guaranteed to last years, while the initiative remains
withheld from the voters. (See, e.g., Mission Springs
Water Dist. v. Verjil (2013) 218 Cal.App.4th 892.)
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Using this trick, unscrupulous officials can kill any
time-sensitive initiative they don't like - even one
that is perfectly valid - just by tying it up in
litigation, in violation of the people's constitutional
right of initiative.
AB 2338 will halt this abuse by barring public officials
from filing declaratory relief actions against a
proposed initiative once it has qualified for the
ballot, while preserving officials' right to seek
declaratory relief before a measure has qualified for
the ballot or after it is approved by voters. The bill
similarly provides that, within the time frame between
the Registrar's certification of an initiative and the
holding of the election, any challenge to the
initiative's validity must be brought using the
expedited writ procedure historically provided for such
challenges.
Is This Bill Potentially A Solution In Search Of An As Yet
Undocumented Problem? Proponents contend that this bill
"responds to a trending strategy" by local officials to deny
voters the right to vote on qualified initiatives, and that the
bill will "halt this abuse" allowed under existing law.
However, it is not clear from the materials provided by
proponents that there is a documented problem of local officials
gaming or abusing the declaratory relief statute in this way.
The only case cited by proponents as evidence of the problem
(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th
892) was litigated by the bill's sponsors and decided less than
one year ago. In that case, the court actually agreed with the
plaintiff water district's argument that the initiative at issue
was not properly before the voters, indicating that declaratory
relief was appropriately sought in the case. However a review
of the Mission Springs case does not in fact appear to clearly
demonstrate an example of abuse of the declaratory relief
statute, and committee staff has not yet been able to locate
examples demonstrating that a current problem of abuse of the
declaratory relief statute exists in these local election
contests.
Comparison of Declaratory Relief Actions vs. Election Writ
Procedure: A Primer.
Declaratory Relief Procedure. The declaratory relief actions
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that this bill seeks to limit are authorized by Code of Civil
Procedure Section 1060, which provides in relevant part: "Any
person . . . who desires a declaration of his or her rights or
duties with respect to another . . . may, in cases of actual
controversy relating to the legal rights and duties of the
respective parties, bring an original action . . . in the
superior court for a declaration of his or her rights and
duties."
The statute has long been interpreted to apply to challenges to
both state and local initiative measures. (Senate of the State
of California v. Jones (1999) 21 Cal.4th 1142, 1153-1154.)
California appeals courts have elaborated on the purpose of this
type of declaratory relief, stating that it exists "to liquidate
doubts with respect to uncertainties or controversies which
might otherwise result in subsequent litigation" and "serves to
set controversies at rest before they lead to repudiation of
obligations, invasion of rights, or commission of wrongs; in
short, remedy is to be used in interests of preventive
justice[.]" (Coronado Cays Homeowners Assn. v. City of Coronado
(App. 4 Dist. 2011) 193 Cal.App.4th 602, 608; Jolley v. Chase
Home Finance, LLC (App. 1 Dist. 2013) 213 Cal.App.4th 872, 909.)
Courts have found that the following kinds of pre-election
challenges under Section 1060 are appropriate to be brought
before the measure is placed before the voters:
Declaratory relief actions are appropriately brought
before an election to challenge an initiative measure. In
City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 398,
the Court found that "a question of law may be raised by a
nonvoter seeking declaratory relief under section 1060 as
to the respective rights and duties of the parties and the
construction of a written instrument, where the validity of
a ballot measure is concerned" in finding that the City of
San Diego and the San Diego Padres were within their rights
to bring a declaratory relief action in an attempt to keep
a proposed initiative off the ballot.
Single-subject challenges are appropriately brought
before an election, because the California Constitution
explicitly disallows an initiative measure that embraces
more than one subject to be submitted to the voters. (See,
i.e., Senate v. Jones, (1999) 21 Cal.4th 1142 (pre-election
challenge upheld; removed Proposition 24 from the ballot
because it violated the single-subject rule).)
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Challenges alleging that a proposed initiative measure
is not legislative in character or that it amounts to a
constitutional revision rather than an amendment are
appropriate to consider before the election, because those
types of measures are not within the scope of things that
can be adopted through the initiative process. (Simpson v.
Hite (1950) 36 Cal.2d 125, 129-134 (pre-election challenge
upheld; held that proposed initiative not legislative in
character); McFadden v. Jordan (1948) 32 Cal.2d 330
(pre-election challenge upheld; held that the proposed
initiative amounts to a constitutional revision).)
Proposals that are not legally able to be acted on by
initiative have been found to be appropriate to bring
before an election. (American Federation of Labor v. Eu
(1984) 36 Cal.3d 687 (pre-election challenge upheld; found
that an initiative could not exercise a power that was
delegated solely to the Legislature.)
Challenges to the validity of signatures submitted to
qualify an initiative measure for placement on the ballot
have also been found to be validly brought before an
election. (Costa v. Superior Court (2006) 37 Cal.4th 986,
1006 (pre-election challenge upheld; held that problems
with the validity of submitted signatures may preclude an
initiative from being presented to the voters.)
Election Writ Procedure. In contrast, the Elections Code
currently provides for a procedure under which a voter or
election official (of the jurisdiction in which an initiative is
filed) may seek a writ of mandate or an injunction requiring any
material to be amended or deleted. (Elections Code Section
9380(b)(1).) The Code further provides that a writ of mandate
or an injunction shall be issued only upon clear and convincing
proof that the material in question is false, misleading, or
inconsistent with the chapter. (Elections Code Section
9380(b)(2).) The purpose of this writ procedure is to give
voters or elections officials an opportunity to challenge very
specific types of legal issues, and to do so on a very tight
timetable so as not to delay publication or distribution of
election ballots and materials. To further this purpose, the
statute limits the type of claims that a writ may be issued to
remedy challenges to false or misleading claims, or those that
are inconsistent with the Elections Code.
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Courts have found that the following kinds of pre-election
challenges are appropriately brought under the election writ
procedure:
When the summary of ballot measure is false or
misleading. (Huntington Beach City Council v. Superior
Court (App. 4 Dist. 2002) 94 Cal.App.4th 1417.)
When the written ballot arguments for/against were false
or misleading. (Patterson v. Board of Supervisors (App. 1
Dist. 1988) 202 Cal.App.3d 22.)
When the ballot title of an initiative measure is false
or misleading. (McDonough v. Superior Court (App. 6 Dist.
2012) 204 Cal.App.4th 1169.)
The California Supreme Court Has Already Greatly Limited The
Types Of Claims That May Properly Be Brought Before An Election.
In evaluating the merits of this proposed reversal of the
Mission Springs appellate decision, it is worth noting that the
California Supreme Court has observed it is generally more
appropriate to review constitutional and other challenges to
initiative measures after an election rather than to disrupt the
electoral process by preventing the exercise of the people's
franchise, in the absence of some clear showing of invalidity.
(Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) Subsequent decisions
have clarified that this rule applies primarily when a suit
challenges the constitutionality of a proposed initiative, but
the Court has allowed other types of pre-election challenges.
For example, the Court has held that a proposed measure may not
properly be submitted to the voters because the measure is not
legislative in character or because it amounts to a
constitutional revision rather an amendment. Given that the
Court has already greatly limited the types of pre-election
claims that may be brought, the Committee lacks evidence that
further restrictions to narrow pre-election declaratory relief
are warranted at this time.
The Potentially Serious Harm to Public Confidence In Allowing
Invalid Initiatives To Appear On The Ballot. Proponents contend
that although the bill prohibits pre-election declaratory relief
action contesting the validity of an initiative once it is
certified for the election, any resulting harm is mitigated
because the bill does not prohibit the local agency from
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pursuing declaratory relief after the election. However, it
appears critically important to recall that the California
Supreme Court has strongly criticized the concept of leaving
invalid measures on the ballot for voters to consider. The
Court has noted that: "The presence of an invalid measure on the
ballot steals attention, time, and money from the numerous valid
propositions on the same ballot. It will confuse some voters and
frustrate others, and an ultimate decision that the measure is
invalid, coming after the voters have voted in favor of the
measure, tends to denigrate the legitimate use of the initiative
procedure." (Senate v. Jones, supra, 21 Cal.4th 1142, 1154-1155
(citing American Federation of Labor v. Eu, supra, 36 Cal.3d
687, 697).)
In addition, the Court of Appeal has also stated that "if an
initiative ordinance is invalid, no purpose is served by
submitting it to the voters. The costs of an election - and of
preparing the ballot materials necessary for each measure - are
far from insignificant" and that though "the people's right to
directly legislate through the initiative process is to be
respected and cherished[, it] does not require the useless
expenditure of money and creation of emotional community
divisions concerning a measure which is for any reason legally
invalid." (City of Riverside v. Stansbury (2007), 155
Cal.App.4th 1582, 1592-1593 (citing Citizens for Responsible
Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1024).)
Because of the unsuitability of the election writ process for
some challenges, this bill could increase the number of invalid
initiatives actually appearing on the election ballot.
This Bill Would Appear to Require Any Pre-Election Challenge to
a Proposed Initiative to be Pigeonholed Into An Expedited
Election Writ Process That Was Not Intended To Handle More
Complex Legal Challenges Within Its Timeline. This bill limits
the use of the established declaratory relief statute as a means
of challenging a qualified initiative measure prior to an
election, and instead required the use of a narrow, expedited
type of writ procedure that was designed to address a discrete
set of legal challenges that are distinctly different from the
types of suits addressed by this bill. The California Court of
Appeal, Fourth Appellate District, held explicitly that the type
of writ that this bill tries to mandate use of "is not an
appropriate vehicle" for this type of legal challenge. (Mission
Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 910.)
The writ was originally created to handle specific types of
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challenges that lend themselves to expedient resolution and may
currently be granted "only upon clear and convincing proof that
the material in question is false, misleading, or inconsistent
with this chapter[.]" (Elections Code Section 9380(b)(2)
(emphasis added).) The question of whether an initiative is
false, misleading, or inconsistent with the rest of the chapter
presents a discreet factual issue that can be resolved with
relative ease, thus the appropriateness of a 10-day timeline for
resolving such disputes.
To address this concern raised by the Mission Springs court, the
bill proposes to amend the election writ statutes to broaden the
basis for which a local agency can seek a writ to remove an
initiative from the ballot. Specifically, the bill would allow
the local agency to assert any theory under which "the
initiative measure does not qualify or is not valid for
placement on the ballot." According to proponents, these
theories could include, among other things: (1) whether the
measure impairs a contract; (2) whether the measure is
discriminatory; (3) whether the measure is preempted by state or
federal law; and (4) the measure intrudes on another branch of
government. Under this bill, however, these claims and others
would be subsumed into the election writ procedure and its
expedited timeline, no matter how complex or worthy of
deliberate consideration they may be. The bill would require
the writ petition to be filed within the 10-day public
examination period, and concluded before the ballots are sent to
the printer.
In addition to imposing constraints on the length of time the
court has to examine and resolve the challenge, the bill further
appears to constrain the flexibility offered by the declaratory
relief statute because it prevents the writ petition from being
filed until the 10-day public examination period immediately
preceding printing of ballot materials. If the initiative
qualifies much earlier, a challenge could potentially be brought
much earlier, leaving the court with more time for an in-depth
review of the measure. The limited availability of the writ
procedure--which is tied to the printing of the ballot materials
because of the type of ballot-material challenges it was
designed to handle-means that the court is more likely to get
shortchanged on time for some challenges that it could otherwise
begin to hear weeks earlier if pre-election declaratory relief
were available. Several Supreme Court opinions have strongly
criticized this type of expedited hearing schedule and make
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clear that matters of this type necessitate significant time for
effective judicial consideration. (See, i.e., Senate v. Jones,
supra, 21 Cal.4th at 1169-1172 (dis. opn. of Kennard, J.);
Brosnahan v. Eu, supra, 31 Cal.3d at 5 (conc. opn. of Broussard,
J.).)
Thus the bill's opponents contend that it unfortunately reduces
meaningful options for pre-election review even in those
instances where pre-election review might be appropriate under
prior court precedent. With practical opportunity for
pre-election review reduced, measures that are facially
unconstitutional or likely invalid for a variety of reasons
will, opponents worry, be more likely to be placed on the
ballot.
ARGUMENTS IN SUPPORT : In support of the bill, the Howard Jarvis
Taxpayers Association states:
If a local agency's theory of invalidity is based on
disputed facts, and there's not enough time to sort out
those facts before the election, then a trial on those
facts should wait until after the election. The law
cannot just assume that the agency's version of the
facts is correct, and deny the voters their right to
vote, as was done in Mission Springs. The law must
remain neutral until a judge or jury has heard the
evidence on both sides and rendered a decision. The
law remains neutral by not pre-judging an initiative,
but allowing it to be presented to the voters when
enough of them have supported it with their signatures
to earn it a spot on the ballot.
Even local government would benefit from this bill.
While, at the moment, local government has received
from the Fourth District Court of Appeal an
unprecedented power to veto initiatives, it has
received that power at the expense of the people's
liberty. Because the California Supreme Court has
often referred to the people's right of initiative as
"one of the most precious rights of our democratic
process" (Strauss v. Horton (2009) 46 Cal.4th 364,
453), we expect that the Supreme Court will eventually
reverse Mission Springs, leaving local government with
no net gain.
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This bill, however, presents a compromise that gives
local government something lasting, even while it takes
away something temporary. It broadens the election
writ statutes, which today authorize the removal of an
initiative from the ballot only when the required steps
for qualifying an initiative were not followed or when
the initiative contains false or misleading
information. (Under this bill), a local agency seeking
a writ to remove an initiative from the ballot may
assert any theory under which "the initiative measure
does not qualify or is not valid for placement on the
ballot."
ARGUMENTS IN OPPOSITION : The California State Association of
Counties (CSAC) opposes the bill, asserting that it is quite
appropriate for local governments to file declaratory relief
actions when initiatives clearly violate state or federal law.
CSAC further states that:
Pre-election declaratory relief serves an important
public purpose by allowing local agencies to seek
judicial review of an initiative ordinance before
incurring the expense of an election to consider a
potentially invalid law. The courts have determined
that a pre-election challenge is appropriate (under a
more demanding standard of judicial review) when an
initiative is facially illegal . . .
The initiative power is not absolute. The California
Constitution and case law clearly place restrictions
on the initiative power. A local initiative may not
conflict with state legislation, may not impair
contracts, may not impair essential government
functions, may not violate individual rights protected
by the state and federal Constitutions, and the list
goes on. AB 2338 seeks to place any measure,
regardless of validity, before the electorate and
incur the political, social, and financial expenses
associated with a post-election challenge. We
respectfully disagree with this approach.
The Labor Coalition, representing over one million labor union
members in California, also opposes the bill for similar
reasons, stating that "it is prudent to know whether a measure
is legally invalid prior to the expenditure of tens of thousands
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of dollars by local governments to prepare materials for voters
. . . The expenditure of such funds, coupled with the passage
and subsequent expense of litigating a matter only to find post
hoc that it is legally invalid wastes taxpayer dollars."
REGISTERED SUPPORT / OPPOSITION :
Support
Howard Jarvis Taxpayers Association (sponsor)
Associated Builders and Contractors of California
California Farm Bureau Federation
California Taxpayers Association
Orange County Taxpayers Association
Napa County Taxpayers Association
Opposition
AFSCME
Association for Los Angeles Deputy Sheriffs
California Association of Professional Employees
California Fraternal Order of Police
California State Association of Counties (CSAC)
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Los Angeles Probation Officers' Union (AFSCME Local 685)
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
The Labor Coalition
Analysis Prepared by : Anthony Lew and Drew Williams / JUD. /
(916) 319-2334