Why Legislative Counsel Should Draft All Ballot Measures

Why Legislative Counsel Should Draft All Ballot Measures By Chris Micheli

            I found myself recently discussing initiatives and the common drafting concerns expressed by those who review them. With measures placed on the ballot by the Legislature, the attorneys in the Office of Legislative Counsel (OLC) for the California Legislature draft them, as OLC does for all legislative measures (bills, resolutions, and constitutional amendments). On the other hand, measures placed on the ballot by initiative are almost always drafted by private attorneys, few of whom have received any training in drafting legislative measures.

One suggestion I made to this group of lawyers was to require all ballot measures, whether proposed by the Legislature (which is done today) or by the People (through the initiative), to be written by the attorneys at the Office of Legislative Counsel. Just as the Office of the Attorney General is required by law to write the title and summary of proposed ballot measures, and charges a fee of $2,000 to the proponents of the measure, the OLC could be statutorily required to draft all ballot measures proposed by initiative backers and the state could charge a small fee for providing this service.

Why would such a suggestion be warranted? Three of the most important words to legislative drafting attorneys are clarity, consistency, and conciseness. Readers of ballot measures often complain about the lack of clarity, including vague or ambiguous terms and statements, and often a lack of consistency with existing law. Another noted concern is failure to reconcile provisions of ballot measures with existing law, most often statutes in the same area of law.

What does this lead to? Most often litigation but, at the very least, confusion. Why didn’t the measure reconcile its provisions with existing law? Why didn’t the ballot measure cross-reference particular provisions of existing law? Why does the ballot measure appear inconsistent with other laws on this topic? Confusion, ambiguity, inconsistency. We want to do whatever we can to avoid these problems in our laws.

Now, this does not mean outside counsel cannot draft ballot measures. They can do so with a bill today, as well as any resolution or proposed constitutional amendment by the Legislature. This proposal would simply require all ballot measures, in order to be placed on the ballot, to be “in Legislative Counsel form.” This is the same requirement imposed on every legislative measure that is introduced or amended in the Legislature.

Today, outside attorneys and non-attorneys can and do draft bills that add, amend, or repeal statutes. But then the bill authors must submit that proposed language to the Office of Legislative Counsel. The attorneys there, many of whom have been drafting bills in their issues areas for many years, will ensure consistency, clarity, and concise statutory or constitutional language is being used.

Perhaps the submitted language may require just a few tweaks but, in other instances, the language may require a substantial re-writing. Often the attorneys at OLC readily know about other state laws that may or may not be in the same code sections of the proposed ballot measure. In fact, sometimes those provisions are in entirely different codes. And then there should be a cross-reference or even a notwithstanding clause.

In addition, the attorneys at OLC know and understand the principles of statutory construction and how judges in this state generally interpret California laws. This is an added value because they are most up-to-date on these principles and will review, and perhaps rewrite, the proposed ballot measure language to better protect it from legal challenge and be easier to implement, interpret, and enforce.

Most Capitol observers know that the Legislative Counsel and her deputies serve as the attorneys for the California Legislature. There is an existing provision of state law, Government Code Section 10243, that provides the Legislative Counsel may work with the proponents of an initiative measure in its preparation when requested to do so by 25 or more electors and there is a reasonable probability that the measure will be submitted to the voters of the State under the laws relating to the submission of initiatives. Unfortunately, this is rarely used.

Of note is that there are two other statutes where the OLC plays a role in ballot measures. Elections Code Section 9091, concerning the state voter information guide, states: “The Legislative Counsel shall prepare and proofread the texts of all measures and the provisions which are repealed or revised.” Government Code Section 88005.5 contains the same language, but it applies to the ballot pamphlet. As a result, OLC is responsible for proofreading the text of a ballot measure, which is technical in nature. This proposal would have them do the substantive work as well.

These code sections could be easily amended to require OLC to prepare or review any proposed initiative language before it is given a title and summary by the AG’s office and the proponents begin collecting signatures in their effort to place it on the ballot. I think this approach would benefit lawmaking and our state’s democracy.