California Supreme Court's Term: Following The Lead, 0916 CABARJ, CBJ - September 2016 #03

AuthorJ. Clark Kelso, Judge

California Supreme Court's Term: Following the lead

No. 2016 #03

California Bar Journal

September, 2016

J. Clark Kelso, Judge

Some of the most interesting decisions during the California Supreme Court's 2015-16 term were ones where the court essentially followed the lead set by other lawmaking entities, even when that lead may have taken the court in a direction that it otherwise would not have gone by itself.

A court's capacity to follow should not be interpreted as a sign of weakness. After all, the judicial branch is - and is supposed to be - the weakest of the three branches, in part because it lacks any true enforcement power but also because it is the least representative branch.

In a year when, most improbably, a hip-hop musical based on a founding father's life garnered 11 Tony awards, it is appropriate to remember Alexander Hamilton's statement in Federalist No. 78 that courts "have neither force nor will, but merely judgment." Sometimes, the most prudent judgment is to follow along.

Amending proposed initiatives

California's wide-open initiative process has become over the last 35 years a reliable source for some of the state's most hard-fought political battles and substantial changes in law and policy. In Brown v. Superior Court, 63 Cal.4th 335 (2016), the court followed the apparent will of the Legislature to make the initiative process a little more flexible than it has been, notwithstanding a clear risk associated with that new flexibility.

In Brown, the court interpreted for the first time a statute enacted in 2014, Section 9002 of the Elections Code, that changed the process by which a proposed initiative measure can be amended by its proponent. Prior to the 2014 legislation, a proposed initiative would be submitted to the Attorney General, who would provide a copy of the title and summary to the Secretary of State within 15 days of the receipt of the fiscal estimate or opinion. During that 15-day period, the initiative's proponents could make technical, non substantive amendments to the initiative without affecting the initiative's progress through the process. If substantive amendments were made, however, a new 15-day period would begin for the Attorney General to prepare a revised title and summary.

As amended in 2014, Section 9002 now provides for a 30-day public comment period after a proposed initiative is submitted to the Attorney General. After the comment period, the Attorney General prepares the final title and summary. Subdivision (b) of Section 9002 permits the proponents to amend the measure during the 30-day public comment period and for five days after the comment period so long as the amendments "are reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed." If amendments are submitted, the Attorney General prepares the title and summary based on the amended version without conducting a new 30-day public comment period.

In Brown, a proposed initiative was submitted dealing primarily with reform of certain juvenile justice provisions including, among other things, parole suitability review for prisoners under 23 years of age at the time of their controlling offense. After the comment period had closed, the initiative was amended by removing most of the juvenile justice provisions and replacing them with revisions to the adult parole system. The California...

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