CALIFORNIA INITIATIVE RIGHTS INITIATIVE
Halting the erosion of the right to initiative by governments jealous of that right.

(c) 2003, Mike Barkley
October 12, 1994

Section 1. Over the past 82 years the courts have legislated so many exceptions to the reserved right of initiative, and the Legislature has placed so many procedural roadblocks in its path, that the right has been reduced to an expensive, heavily litigated, occasionally-granted privilege. Therefore, we the people of the State of California do hereby adopt this "Initiative Restoration Amendment" and amend the California Constitution as follows:

Section 2. Article 2, Section 8, Subdivision (a) is amended to provide:

(a) The initiative is the power of the electors to propose amendments to the Constitution, or statutes, or any other actions, legislative or otherwise, that may be taken by the legislative body, and to adopt or reject them. No limitation on referendum shall apply to initiative. Any statute that protects prerogatives of the legislative body shall also protect the electorate. Procedures adopted to implement the power of initiative, including those adopted pursuant to Article 2, Section 11, which in any way interfere with this power are void.

Such void interferences in the past have included but have not been limited to:

• requirements that the petition signature precisely match the registration signature in content and sequence of name and initials - it shall be enough that the signature is arguably in the voter's handwriting;
  
  
• requirements that the signer of a petition be an eligible registered voter at any day earlier than the day the appropriate verifying official verifies the signature;
  
  
• requirements that the circulator actually witness the signature being affixed to the petition and that the circulator believes the signature to be the genuine signature of the signer - the appropriate verifying official's signature validation process shall be sufficient validation;
  
  
• requirements that the circulator be registered to vote in any specific jurisdiction within California - it shall be sufficient that the circulator is registered to vote anywhere within California;
  
  
• requirements limiting the circulation period for a petition to less than one year;
  
  
• requirements that petitions be submitted in different counties on the same day;
  
  
• provisions that allow any officer required by law to receive or file in their offices any petition to refuse to accept such receipt or filing for any reason;
  
  
• prohibitions against submitting additional signatures within the specified collection period to make up any shortfall in required number of signatures on previously submitted petitions;
  
  
• provisions that require a vote of the legislative body to place a measure on a ballot, although if the legislative body adopts the measure without change submission of the measure to the voters shall not be required;

Section 2. Article 2, Section 8, Subdivision (b) is amended to read:

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed measure and is certified to have been signed by electors equal in number to 8 percent in the case of an amendment to the Constitution, and 5 percent in the case of any other measure, of the votes for all candidates for Governor at the last gubernatorial election.

Section 3. Article 2, Section 8, subdivision (d) is amended to add:

If an initiative on a subject is placed on a ballot by action of the electorate, any ballot measure regarding the same subject placed on that ballot by action of the legislative body shall be removed, and no ballot measure regarding the same subject shall be placed on that ballot by action of the legislative body. The provisions of an initiative are severable.

Section 4. Article 2, Section 11 is amended to provide:

Sec. 11. The electors of any city, county or district shall have the powers of initiative and referendum for that entity, for which the Legislature may provide procedures for the exercise of these powers. This section does not limit the powers of the electorate of a city having a charter. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DISCUSSION January 6, 1994

From --------.com!mjbarkl Wed Jan 5 13:00:24 PST 1994
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From: mjbarkl@----.--------.COM (Mike Barkley)
Subject: Re: California Initiative Restoration Amendment - line by line (long)
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Date: Wed, 5 Jan 1994 02:55:43 GMT

Re: Initiative Restoration Amendment - line by line rationale

"Section 1. Over the past 82 years the courts have legislated so many exceptions to the reserved right of initiative, and the Legislature has placed so many procedural roadblocks in its path, that the right has been reduced to an expensive, heavily litigated, occasionally-granted privilege."

You see a problem within your government's purview. Your government has shown that it cannot handle it. Fed up, you propose and qualify an initiative. Wham! The same government that was incompetent to solve it fights you tooth and nail to keep you from solving it. Or some developer or other well-heeled bunch goes to court to knock it off the ballot. Over the years the courts have crafted exceptions:

• It's not a statute or an amendment
  
  
• It's an administrative act for a superior governmental entity
  
  
• It's an administrative act for the same entity (yes, you cannot tell a government to do something by initiative if it has already told itself to do it even if it does not do it and has no intention of doing it....)
  
  
• Formerly, the hearing processes were not complied with.
  
  
• Etc.
  
  

The Save Stanislaus Area Farm Economy group racked up a $175,000 tab in legal fees to get its qualified initiative on the ballot a year ago, and wound up losing the election, partly because the court fight sapped its limited resources. This happens over and over again the way it is now. Many initiatives are knocked off the ballot, or never placed on the ballot to begin with, despite the constitutional and statutory requirements.

"Therefore, we the people of the State of California do hereby adopt this "Initiative Restoration Amendment" and amend the California Constitution as follows:"

The goal is to restore the power to what it was in the 1911 Constitution, that is, with the full respect for legislative powers being accorded the electorate, without the funny business.

"Section 2. Article 2, Section 8, Subdivision (a) is amended to provide:

"(a) The initiative is the power of the electors to propose amendments to the Constitution, or statutes, or any other actions, legislative or otherwise, that may be taken by the legislative body, and to adopt or reject them."

As it is now, it is limited to amendments or statutes. The courts have traditionally taken a broad view of "statute" in dealing with acts by the legislature, but in California, at the continual prodding of cities, counties, staffs, legislatures, governors, developers, the entire power structure, they take a very narrow view of "statute" for initiative.

In 1984 a number of organizations including the AFL-CIO, qualified an initiative to force California to start the ball rolling on a Federal Balanced Budget Amendment. Litigation knocked it off the ballot. The holding was twofold: 1) that under the U.S. Constitution only the Legislature could do that (in essence, since the Legislature was required to act by the U.S. Constitution, the electorate could not intervene and do it itself), and 2) the resolution involved did not rise to the level of a "statute".

Over the years there has been a give and take on zoning, general plan, streets and roads, and many other types of initiatives involving whether or not the entity was making law itself, or for the state as an administrator, or whether or not state procedures were or were not required to be followed (some cases yes, some no), and so on. When you dump litigation costs into a process, you kill it for most people. But the most outrageous rule that has developed is, if the Superior Court Judge, in his absolute discretion, is convinced that the initiative is unlawful for ANY reason, he can refuse to order the municipality to comply with Elections Code Section 4011 or the state to comply with the comparable statute, etc. It does not matter whether or not the judge is right or wrong, or cited and applied any of the rules in the cases, it's his absolute discretion. That's a fundamental constitutional right, at the nexus of the right to vote, the right of association, and the right to petition for redress of grievances, that is totally at the whim of the trial court judge, without recourse. And this is too important a right to leave in the hands of the judiciary.

The electorates of San Francisco, Berkeley, and some of the other charter cities have reduced this judicial interference by broadening the powers of what may be covered by initiative. San Francisco voters may consider advisory initiatives whereas the rest of us may not. This Amendment extends to all Californians the rights enjoyed by citizens of such cities.

It will enable us to consider legislation to set California's stand on a Federal Balanced Budget Initiative, on repealing the Second Amendment, on open-space or environmental declarations, on growth control, etc.

"No limitation on referendum shall apply to initiative."

Over the years a line of cases has evolved that states that the electorate cannot accomplish by initiative what it cannot accomplish by referendum. More mischief. Article 2 section 9 subdivision (a) contains three exemptions from referendum:

• urgency statutes,
  
  
• statutes calling elections,
  
  
• and statutes providing for tax levies or appropriations for usual current expenses of the State.

You'd be surprised at how much mischief can fit in the first and third of these exceptions. And the excruciatingly short qualification time, large signature percentages, and mischief with the other detailed provisions required by referendum makes referendum a very difficult and unattractive remedy. The goal of this amendment is to subsume the referendum power into initiative by eliminating the limits. It's our government, and we WILL take it back.

If you don't like legislative pay raises, this is the provision for you.

If you are tired of sweetheart zoning deals, this is the provision for you.

"Any statute that protects prerogatives of the legislative body shall also protect the electorate."

As it is now, there are state code provisions that prohibit the use of writs and injunctions to keep legislatures from considering or voting on legislation, a response by legislatures to tampering by the courts with their separate powers, see for instance, Code of Civil Procedure Section 526 or Civil Code Section 3423. The electorate is the ultimate legislature, with its reserved power (see Article 4 Section 1 "...but the people reserve to themselves the power of initiative...."). We need these protections also, we are entitled to be treated with at least as much respect as the legislature, and we will never get that kind of protection from the State Legislature since it is concerned with protecting its own power, not ours.

It is deliberately vague: if it were to say "protect the prerogatives of the electorate" or "protect the legislative prerogatives of the electorate", some cunning City Attorney could successfully argue that "these are not prerogatives", and we would be back where we started, litigating every initiative just to get it on the ballot.

"Procedures adopted to implement the power of initiative, including those adopted pursuant to Article 2, Section 11, which in any way interfere with this power are void."

Elections Code Section 4011, for instance, requires a city council to either adopt the initiative, or to place it on the ballot, or to send it out for study and then place it on the ballot. On the face of it that would seem to be reasonable: allow them to adopt it and save the cost of the election. What it has actually meant is that Boards of Supervisors and City Councils have been accorded a veto power over the right of initiative which they exercise without regard to their duties under state law or the merits of the initiative itself. Or in the case of my city, where the Council is ignorant, the City Attorney has acquired that veto power. All this guarantees that most initiatives will face a court fight, placing it out of the financial reach of most voters. Enough is enough. If it interferes with the power, it is void.

"Section 3. Article 2, Section 8, subdivision (d) is amended to add:

"If an initiative on a subject is placed on a ballot by action of the electorate, any ballot measure regarding the same subject placed on that ballot by action of the legislative body shall be removed, and no ballot measure regarding the same subject shall be placed on that ballot by action of the legislative body."

The "single subject" rule is the entirety of that subdivision (d) now. It actually makes sense. Although initiative is a legislative process, it does not have the kind of give and take in committee and on the floor of the legislature that considers comments and criticism and makes compromises in the drafting. It is an all or nothing delivery: here is my initiative, take it or leave it. So it is appropriate for the Constitution to provide that each initiative address a single subject to avoid delivering an overhwelming bill of goods to the electorate, which has a limited attention span anyway.

On the other hand, a favorite stunt of legislators who face an initiative is to place their own, competing initiative on the ballot, so that neither will pass and the problem goes away. It happens a lot. It knocks out more initiatives than you might suspect. It is a dirty trick and an abuse of the legislative office.

As long as we are limited to a single subject, our proposals should have a fair opportunity to be considered without competition from the very people who couldn't handle the problem to begin with. That's why we propose initiatives: they can't get it done, or done right, or have their own agenda, or are getting their campaign funds from the developer who opposes the initiative, etc. Nothing would stop the legislature from calling their own special election, but they could not compete with electorate proposals on the same ballot unless they qualified an initiative themselves by collecting signatures and qualifying it in the same manner as any other voter.

"The provisions of an initiative are severable."

There is a line of cases that says they are not, that the voters can only vote on an initiative as an "all or nothing", that a wildly popular but unlawful major provision can conceal a minor but sinister provision that is the actual goal of the initiative. Well, excuse me, but when the legislature votes its final vote on a bill it's an all or nothing proposal, and if they don't like a particular provision they can propose an initiative to repeal it. Enough of this nonsense!

"Section 4. Article 2, Section 11 is amended to provide:

"Sec. 11. The electors of any city, county or district shall have the powers of initiative and referendum for that entity, for which the Legislature may provide procedures for the exercise of these powers."

This reverses the balance of power in this section. As it is, the electors "may" and the Legislature "shall", which yields the inference that the Legislature is doing us all a favor by allowing us to vote. Bunk.

And within their procedures the Legislature has exempted certain districts. At Elections Code Section 5150, the Legislature's procedures specifically exclude from coverage, and by implication, from the right of initiative,

• irrigation districts,
  
  
• a district formed under a law which does not provide for action by ordinance,
  
  
• a district governed by an election procedure which permits voters, in electing the district's directors or trustees, to cast more than one vote per voter,
  
  
• a district in which the directors are empowered to cast more than one vote per director when acting on any matter."

This does away with those exclusions, places such protected fiefdoms within reach of voter wrath, and restores the one-voter, one-vote rule. And it places within reach of cities like mine the resources of the surrounding irrigation district and thus answers the need for long-term surface water sources as the district urbanizes.

"This section does not limit the powers of the electorate of a city having a charter."

This reverses the existing meaning, which provides that electors in a charter city may have greater or lesser powers as they choose. This provides that they will have at least these powers, but may adopt greater powers if they choose.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I hope this explains it all. This is a fundamental, revolutionary amendment. It changes the entire balance of government in California. Once and for all it places the government in its proper role, subservient to the people. It is a declaration of war on the governments that have been tampering with the people's power.

Again, please send comments, criticisms, etc. I am looking for a critical mass of voter-savvy organizations, which has not been easy since the subject seems esoteric on its face. My target is the 1996 ballot, although I will probably make a dry run this year to get the Attorney General statement and any State Legislature comments.

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--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817
mjbarkl@inreach.com
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