Are Legislative Findings in Voters FIRST Act Bills Sufficient?
Are Legislative Findings in Voters FIRST Act Bills Sufficient? By Chris Micheli
In reviewing recent legislation that proposes changes to the California Voters FIRST Act, as enacted by the voters by Prop. 11 in 2008, the same legislative finding and declaration is made in each bill. It is a simplistic statement that raises the question whether this language meets the requirements of Prop. 11.
Prop, 11 enacted the Voters FIRST Act, an initiative measure approved by the electors at the November 4, 2008 statewide general election. It requires the Citizens Redistricting Commission to draw district lines for the election of members of the State Senate, Assembly, Congress, and the State Board of Equalization.
Prop. 11 amended the California
Constitution, as well as added numerous sections to the California Government
Code. Section 4 of Prop. 11 added Chapter 3.2 (commencing with Section 8251) to
Division 1 of Title 2 of the Government Code.
Of interest to this matter, Government Code Section 8251(c)
provides:
(c) The Legislature may not amend
this chapter unless all of the following are met: (1) By the same vote required
for the adoption of the final set of maps, the commission recommends amendments
to this chapter to carry out its purpose and intent. (2) The exact language of
the amendments provided by the commission is enacted as a statute approved by a
two-thirds vote of each house of the Legislature and signed by the Governor.
(3) The bill containing the amendments provided by the commission is in print
for 10 days before final passage by the Legislature. (4) The amendments further
the purposes of this act. (5) The amendments may not be passed by the
Legislature in a year ending in 0 or 1
As a result, Prop. 11 was a
constitutional and statutory initiative enacted by the People and allows the
Act’s statutory provisions contained in the Government Code to be amended by
the Legislature. The Act provides that any provision of the Act may be amended
by a 2/3 vote of the Legislature, so long as the remaining requirements are
met.
Recall that Article II, Section 10
of the California Constitution provides in Subdivision (c)
The Legislature may amend or
repeal a referendum statute. The Legislature may amend or repeal an initiative
statute by another statute that becomes effective only when approved by the
electors unless the initiative statute permits amendment or repeal without the
electors’ approval.
This constitutional provision only
allows an initiative that was adopted by the state’s voters to be amended by
the Legislature (such as Prop. 11) if the initiative permits amendment without
the electorate’s approval. Prop. 11 does allow amendment by the Legislature as
described above, assuming the five specified requirements are met.
As a result, the Legislature may amend Prop. 11. So, when the Legislature desires to amend Prop. 11, it includes in a “plus section” (which can be seen at the end of a bill that proposes to amend the Voters FIRST Act) a legislative finding and declaration. The following is an example of what is contained in these Prop. 11 amendment bills:
The Legislature finds and declares that Section 1 of this bill furthers the purposes of the Voters FIRST Act within the meaning of paragraph (4) of subdivision (c) of Section 8251 of the Government Code.
The question to address is whether
the language in the above example is sufficient or if there should be some
explanation why the Legislature believes that Prop. 11’s stated purposes are
being furthered by the proposed amendment and that the proposed amendment is
consistent with Prop. 11.
What are those stated purposes? In
Section 2 of the Act, the following language can be found:
SEC. 2. Findings and Purpose.
The People of the State of
California hereby make the following findings and declare their purpose in
enacting this act is as follows:
(a) Under current law, California
legislators draw their own political districts. Allowing politicians to draw
their own districts is a serious conflict of interest that harms voters. That
is why 99 percent of incumbent politicians were reelected in the districts they
had drawn for themselves in the recent elections.
(b) Politicians draw districts
that serve their interests, not those of our communities. For example, cities
such as Long Beach, San Jose and Fresno are divided into multiple oddly shaped
districts to protect incumbent legislators. Voters in many communities have no
political voice because they have been
Unfortunately, bills amending
Prop. 11 generally contain a simple statement as set forth above and those
statements do not in any way explain why the Legislature actually believes the
proposed amendment “furthers the purposes” of the Voters FIRST Act. Instead,
the bill merely states the legislative finding and declaration without any
further justification or explanation provided.
So, as with other bills that
require legislative findings and declarations, should the bills that propose
amendments to Prop. 11 include reference to any of Prop. 11’s specified
declarations or purposes? I believe they should to withstand possible judicial
scrutiny.
This approach, providing a short
explanation, is the approach often taken with urgency clauses and special
statutes. If courts examine the urgency clause or special statute findings,
there is at least a short sentence or paragraph that explains why the Legislature
has determined a particular bill needs an urgency clause or why the bill
qualifies as a special statute.
As another example, California’s
AUMA (allowing the adult use of cannabis) initiative statute similarly allows
legislative amendment if those amendments further the purposes of the AUMA. A
recent bill amending the AUMA contains what could be an example for Prop. 11
amendment bills:
The Legislature finds and declares
that this act furthers the purposes and intent of the Control, Regulate and Tax
Adult Use of Marijuana Act (AUMA) by accomplishing all of the following:
(a) Preventing the illegal
diversion of cannabis to other states by providing legal and regulated channels
for multistate commercial cannabis activities.
(b) Reducing barriers to
entry into the legal, regulated market by providing additional legal outlets
for cannabis and cannabis products produced in California.
(c) Ensuring that cannabis
and cannabis products produced in other states and sold in this state meet the
same testing and packaging requirements required under AUMA.
So, perhaps the bills that propose
to amend Prop. 11 should also provide some rationale for their proposed
amendment(s) so that, if the legislation were challenged in litigation, courts
would have a basis for understanding why the Legislature determined the bill
made an amendment to Prop. 11 that furthered its purposes. As a result, the
Legislature should consider adding some explanatory language to their simple
statements in Prop. 11-amendment bills going forward.
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