BILL ANALYSIS �
AB 2439
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Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2439 (Donnelly) - As Introduced: February 21, 2014
SUBJECT : Secretary of State: initiative information.
SUMMARY : Requires the Secretary of State (SOS) to post on his
or her Internet Web site and include in any SOS publication
describing the initiative process, including the Statewide
Initiative Guide pamphlet, information describing that the
following services are available to the proponents of a proposed
measure:
1)The Legislative Counsel's cooperation in preparing an
initiative measure, as specified by current law; and,
2)The SOS's review of prepared initiatives prior to circulation,
pursuant to current law.
EXISTING LAW :
1)Requires the SOS, upon request of the proponents of an
initiative measure which is to be submitted to the voters, to
review the provisions of the initiative measure after it is
prepared prior to its circulation. Requires the SOS, in
conducting the review, to analyze and comment on the
provisions of the measure with respect to form and language
clarity and request and obtain a statement of fiscal impact
from the Legislative Analyst. Provides that the review
performed shall be for the purpose of suggestion only and
shall not have any binding effect on the proponents of the
initiative measure.
2)Requires the SOS to prepare and make available a pamphlet
describing the procedures and requirements for preparing and
circulating a statewide initiative measure and for filing
sections of the petition, and describing the procedure used in
determining and verifying the number of qualified voters who
have signed the petition.
3)Requires the Legislative Counsel to cooperate with the
proponents of an initiative measure in its preparation when
requested in writing by 25 or more electors proposing the
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measure when, in the judgment of the Legislative Counsel,
there is reasonable probability that the measure will be
submitted to the voters of the State under the laws relating
to the submission of initiatives.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the bill : According to the author:
The initiative process was created as a progressive reform
to break the stranglehold of entrenched economic and
political interests on California's political system. The
initiative has given the People a means of direct control
over their government and has allowed them to enact many
important reforms over the past century. The right of
initiative is reserved by the People under our
constitution, and has been described by the courts as one
of the most precious rights of our democratic process.
Although the initiative system provides a valuable means
for citizens to influence public policy, some critics have
claimed that initiative measures sometimes contain drafting
errors which could create legal ambiguities if adopted by
the voters.
Fortunately, California law already provides two avenues
for optional drafting assistance to initiative proponents.
The first method is through the Legislative Counsel, who
can assist in writing the measure before it receives an
initiative title, and the second is through the Secretary
of State, who must provide a review of a measure's form and
language clarity prior to circulation.
While assistance from the Legislative Counsel requires a
petition signed by 25 voters and a determination that there
is a reasonable probability the measure will be submitted
to the voters, assistance from the Secretary is available
upon request. However, only a few initiative proponents
have ever requested assistance from the Secretary, in part
because so few have been aware of its availability. For
example, while the Secretary's "Statewide Initiative Guide"
notes the assistance offered by the Legislative Counsel, it
makes no mention of the assistance available from her own
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office. This is clearly a missed opportunity to improve
the initiative process for the benefit of all Californians.
Therefore, AB 2439 will ensure that the Secretary of State
publicizes the availability of all assistance offered to
initiative proponents under existing law, by placing
notices in the Statewide Initiative Guide, on her Internet
website, and on any other materials that describe the
initiative process. This initiative reform proposal was
recommended by the non-partisan Center for Governmental
Studies.
2)Current Assistance : As mentioned above, current law requires
the SOS to prepare a Statewide Initiative Guide which provides
an overview of the procedures and requirements for preparing
and circulating initiatives, for filing sections of the
petition, and describing the procedure of verifying signatures
on the petition. However, the guide is for general information
only and does not have the force and effect of law,
regulation, or rule.
Step one of the SOS's Statewide Initiative Guide states that
the "first step in the process of qualifying an initiative
measure is to write the text of the proposed law. The
initiative measure's proponent(s) may obtain assistance from
the Office of the Legislative Counsel in drafting the language
of the proposed law. Proponent(s) must obtain the signatures
of 25 or more electors on a request for a draft of the
proposed law; proponent(s) must then present the idea for the
law to the Legislative Counsel. If the Legislative Counsel
determines that there is a reasonable probability the
initiative measure will eventually be submitted to the voters,
the Legislative Counsel will draft the proposed law.
Proponent(s) may also seek the assistance of their own private
counsel to help draft the text of the proposed law, or they
may choose to write the text themselves." The SOS's guide
also lists the contact information for the Office of the
Legislative Counsel.
The requirement for the Legislative Counsel to assist
proponents in the drafting the language of a proposed
initiative measure became law in 1945 through the passage of
SB 1138 (Fletcher & Burns), Chapter 111, Statutes of 1945.
According to the Legislative Counsel's Office, it is difficult
to quantify how often this request for service has been
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utilized; however, it is not uncommon for the Legislative
Counsel to receive requests for drafting assistance. However,
in practice, the requests tend to come from initiative
proponents with more limited financial resources. Initiative
proponents with greater financial resources tend to use
private counsel or legal firms that specialize in certain
issue areas, such as the Political Reform Act, when drafting
the text of a proposed initiative.
In 1975, the Legislature passed and the Governor signed AB
1142 (Hayden), Chapter 955, Statutes of 1975, which required
the SOS, upon the request of the proponents of an initiative
measure which is intended to be submitted to the voters of the
state, to review the provisions of the initiative measure
after its preparation and before its circulation. The review
consists of analyzing and commenting on the provisions of the
measure with respect to form and language clarity and
obtaining a statement of fiscal impact from the Legislative
Analyst. Additionally, current law provides that the review
would be for the purpose of suggestion only, having no binding
effect on the proponents of the initiative measure. According
to the SOS's office, since its implementation into law, only a
handful of proponents have requested this service.
3)Center for Governmental Studies : The author's statement above
references that this bill originated from a proposal by the
Center for Governmental Studies. In 2008, the Center for
Governmental Studies released a report entitled "Democracy by
Initiative: Shaping California's Fourth Branch of Government."
The report provides a variety of recommended reforms to the
initiative process. One of those recommendations provided by
the report seeks to address problems that arise with poorly
drafted initiatives. According to the report, poorly drafted
initiatives can result in a variety of unpleasant scenarios.
For example, ambiguous or imprecise terminology can result in
implementation problems, drafting omissions and oversights can
result in unintended consequences and interpretation,
excessive length can overwhelm voters with too many issues,
complicated wording can promote voter confusion and
constitutional deficiencies can frustrate voters and cause
proponents to start the enactment process all over again.
The report provides a number of recommendations to reform the
initiative process. This bill includes one of those
recommendations - publicize drafting assistance availability
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through the Legislative Counsel and the SOS's offices.
According to the report, even if a small number of proponents
took advantage of this assistance, it would improve the
quality of statutory and constitutional language put in place
by intiatives. The report does concede that "[m]any
initiative proponents view official review and criticism of
their proposals as a major inconvenience and one that can
sometimes be usurped for political purposes." Additionally,
the report states that "[e]ven supporters of an optional
drafting assistance program concede that review procedures may
be open to political opportunism? Moreover, it is difficult to
prod the authors of legislation into seeking the opinions of
others if they are not required to do so."
4)Technical and Clarifying Amendment : According to the author's
office, the intent of the bill is to better publicize that
initiative proponents may garner assistance in drafting the
text of an initiative measure from the SOS. Specifically, it
is the author's intent to require the SOS to publicize this
service in the SOS's Statewide Initiative Guide. The bill can
be interpreted to require the SOS to publicize this assistance
in more than just the Initiative Guide. As a result, the
committee staff recommends amending the bill to better reflect
the author's intent as follows:
On page 2, in lines 4 -5, strike: include and in any publication
of the Secretary of State describing the initiative process,
including, and insert: and include in.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094
AB 2439
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