UNFINISHED BUSINESS  

Bill No: SB 359

Author: Moorlach (R), et al.

Amended: 6/26/19

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 5-0, 4/23/19

AYES: Umberg, Nielsen, Hertzberg, Leyva, Stern

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 38-0, 5/20/19

AYES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASSEMBLY FLOOR: 78-0, 9/5/19 - See last page for vote

SUBJECT: Elections: referendum

SOURCE: Author

DIGEST:

This bill permits a municipal referendum petition to contain an impartial summary of the ordinance instead of the text of the ordinance or portions of the ordinance that is the subject of the referendum, as specified.

Assembly Amendments

modify and clarify the timeline and procedure for developing an impartial summary for a municipal referendum, and add a coauthor.

ANALYSIS:

1. Provides, pursuant to the California Constitution, the people with the powers of referendum. Defines referendum as “the power of the electors to approve or reject statues or part of statues except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”
2. Extends referendum powers to the electors of each city, except charter cities, in procedures established by the Legislature.
3. Provides that if a petition protesting the adoption of a municipal ordinance is circulated, signed by not less than 10 percent of the voters of the city, and subsequently submitted to the elections official of the legislative body of the city within 30 days of the date the adopted ordinance is attested by the city clerk or secretary, then the effective date of the ordinance is suspended and the legislative body shall reconsider the ordinance, as specified.
4. Requires, across the top of each page of a municipal referendum petition, the following to be printed:

“Referendum Against an Ordinance Passed by the City Council”

1. Requires each section of the county, municipal, or district referendum petition to contain the identifying number or title and the text of the ordinance or the portion of the ordinance that is subject of the referendum. Requires the petitions be designed in the same form, as specified.
2. Requires that if the legislative body does not entirely repeal the ordinance against which the petition is filed, then the legislative body submits the ordinance to the voters, as specified.

This bill:

1. Permits a municipal referendum petition to contain an impartial summary of the referendum instead of the text of the ordinance or the portion of the ordinance subject of the referendum.
2. Requires the impartial summary to not exceed 5,000 words and prepared using the following procedure:
   1. Within three business days of the final passage of the ordinance, the referendum’s proponents must file a copy of the proposed summary with the local elections official who transmits a copy of the proposed summary to the city attorney.
   2. Within 10 business days, the city attorney issues an approved summary to the local elections official and the referendum’s proponents for circulation. Permits the city attorney to edit the summary prior to approval and requires that all edits be true and impartial. Requires the summary not contain argument or any matter likely to cause prejudice in favor of or against the referendum. Permits the city attorney to add the full text of the ordinance, or the portion of the ordinance that is the subject of the referendum, to the summary if doing so would not exceed the 5,000-word limit.
   3. Requires the summary to include a link to a website containing the text of the ordinance or the portion of the ordinance subject of the referendum.
   4. Requires that the 5,000 word limit include all attachments, exhibits, and other supplements to the summary.
   5. Provides that if the city attorney fails to issue an approved summary within 10 business days, the proposed summary submitted by the proponents shall be considered approved.
   6. Provides, notwithstanding a specified section of the Elections Code, that proponents who circulate a referendum petition pursuant to this procedure shall have 30 days from the date the summary is approved to submit a petition with the required number of signatures to the local elections official. Requires the ordinance subject to the referendum petition to not become effective until this period has expired.
3. Requires, after proponents begin circulating a referendum petition, the method used by proponents to circulate a referendum petition to remain consistent and prohibits the circulation of the same referendum petition using the other petition format.
4. Makes technical, clarifying, and corresponding changes.

Background

Museum House and Newport Beach. In November 2016, the Newport Beach City Council approved a 25-story, 100-unit condominium project known as the Museum House project. Following Newport Beach’s approval of the project, members of a political action committee, Line in the Sand, circulated referendum petitions and submitted signatures to the City Clerk. In January 2017, the Orange County Registrar of Voters certified that the referendum petitions contained a sufficient number of valid signatures. Subsequently, in February 2017, the City Council rescinded the approval of the condominium project.

While this referendum process was happening, the Orange County Museum of Art (who owned the land) filed a lawsuit in Orange County Superior Court asking the judge to invalidate the referendum petition because it violated election law requirements. The museum challenged the referendum petition’s small font size and argued that the petition did not include the full text of general plan amendments. Proponents of the referendum noted that the petition weighed roughly 10 pounds and contained about 1,000 pages because the City Council directed that the project’s environmental impact report be attached.

Alleging that the lawsuit was intended to burden opponents unless their opposition was removed, Line in the Sand requested the judge dismiss the case arguing that the museum filed a “strategic lawsuit against public participation,” or SLAPP, suit. Judge Geoffrey Glass informed both sides that the museum did not file a SLAPP suit when it challenged the validity of the referendum petition. In his ruling, Judge Glass additionally noted that state law regarding the form and format of referendum petitions did “not overly burden the 1st Amendment right to petition the government. The statutes are content-neutral and simply require certain things in order to avoid confusing the electorate." Line in the Sand appealed the judge’s ruling, but the entire case was settled in 2018.

Comments

1. According to the author, under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process.

Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal.

1. Different Local Referendum Processes. If enacted, the provisions of SB 359 would only apply to municipalities. County and special district referenda would be required to continue to use the existing referendum process where a referendum petition must contain the ordinance’s title or number as well as the text of the ordinance or the portion of the ordinance that is subject of the referendum.

Related/Prior Legislation

SB 681 (Stern, 2019) authorizes the proponent of a local referendum or charter amendment initiative to withdraw the measure prior to election, as specified.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee, this bill contains negligible state costs.

SUPPORT: (Verified 9/3/19)

Meyer Properties

OPPOSITION: (Verified 9/3/19)

None received

ASSEMBLY FLOOR: 78-0, 9/5/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Kiley

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

9/5/19 16:20:47

**** END ****

SENATE THIRD READING

STR Bill Id:SB 359

Author:(Moorlach)

As Amended Ver:June 26, 2019

Majority vote

SUMMARY:

Permits a municipal referendum petition to contain an impartial summary of the ordinance, as specified, instead of the text of the ordinance or the portion of the ordinance that is the subject of the referendum, as specified.

Major Provisions

1. Requires the impartial summary to not exceed 5,000 words and be prepared using the following procedure:
   1. Requires the referendum's proponents, within three days of the final passage of the ordinance, to file a copy of the proposed summary with the local elections official and requires the local elections official to immediately transmit a copy of the proposed summary to the city attorney.
   2. Requires the city attorney, within ten business days, to issue an approved summary to the local elections official and the referendum's proponents for circulation. Permits the city attorney to edit the summary prior to approval, as specified.
   3. Requires the 5,000-word limit imposed by this bill to include all attachments, exhibits, and other supplements to the summary.
   4. Requires the proposed summary submitted by proponents, if the city attorney fails to issue an approved summary within 10 business days, to be considered approved.
   5. Requires the proponents who circulate a referendum petition pursuant to the provisions of this bill to have 30 days from the date the summary is approved to submit a petition with the required number of signatures to the local elections official. Prohibits an ordinance subject to the referendum petition from becoming effective until this period has expired.
2. Prohibits the proponents, after they begin circulating a referendum petition prepared pursuant to this bill, from circulating another version of the referendum petition prepared using another method.

COMMENTS:

If this bill is signed into law, its provisions would only apply to a city referendum. County and special district referenda would be required to continue to use the existing referendum process that requires a referendum petition to contain the ordinance's title or number as well as the text of the ordinance or the portion of the ordinance that is the subject of the referendum and the referendum proponents would not have the opportunity to avail themselves of the summary option proposed in this bill.

Please see the policy committee analysis for a full discussion of this bill.

According to the Author:

"Under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process. Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal."

Arguments in Support:

In support, Meyer Properties writes: "This bill creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 stems from a referendum issues that occurred in Newport Beach in 2016 when the Newport Beach City Council required the Museum House referendum petition to contain approximately 3,700 pages each. The intent of this legislation is not to weigh in on the subject of the ordinance or take sides on issues; it is simply to provide proponents with a new method to file a referendum and to prevent the future abuse of the referendum process by other city councils. Under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process."

Arguments in Opposition:

None received.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, negligible state costs.

VOTES:

SENATE FLOOR: 38-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASM ELECTIONS AND REDISTRICTING: 6-0-1

YES: Berman, Gallagher, Calderon, Mayes, Mullin, Weber

ABS, ABST OR NV: Low

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: June 26, 2019

CONSULTANT: Nichole Becker / E. & R. / (916) 319-2094 FN: 0001363

Date of Hearing: August 14, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 359

Author:(Moorlach) – As Amended Ver:June 26, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill permits a municipal referendum petition to contain an impartial summary of the referendum, instead of the text of the ordinance or the portion of the ordinance subject to the referendum. Specifically, this bill:

1. Requires the impartial summary to not exceed 5,000 words and be prepared using the following procedure:
   1. Requires the referendum’s proponents to file a copy of the proposed summary, within three days, with the local elections official and requires the local elections official to immediately transmit it to the city attorney.
   2. Requires the city attorney, within 10 business days, to issue an approved summary to the local elections official and the referendum’s proponents for circulation. Permits the city attorney to edit the summary prior to approval. Requires all edits made to the summary to be true and impartial and prohibits the edits from containing argument or any matter likely to cause prejudice for or against the referendum. Permits a city attorney to add the full text of the ordinance, or the portion of the ordinance that is the subject of the referendum, to the summary if doing so would not exceed the 5,000-word limit.
   3. Requires the summary to include a link to a public website containing the text of the ordinance or the portion of the ordinance that is the subject of the referendum.
   4. Requires the 5,000-word limit imposed by this bill to include all attachments, exhibits and other supplements to the summary.
   5. Requires the proposed summary submitted by proponents, if the city attorney fails to issue an approved summary within 10 business days, to be considered approved.
      
   6. Permits the proponents who circulate a referendum petition pursuant to the provisions of this bill to have 30 days from the date the summary is approved to submit a petition with the required number of signatures to the local elections official. Prohibits an ordinance subject to the referendum petition from becoming effective until this period has expired.
2. Prohibits the proponents, after they begin circulating a referendum petition prepared pursuant to this bill, from circulating another version of the referendum petition prepared using another method.

FISCAL EFFECT:

Negligible state costs.

COMMENTS:

1. Purpose of the Bill: According to the author:

Under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process. Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal.

1. Museum House and Newport Beach: In November 2016, the Newport Beach City Council approved a 25-story, 100-unit condominium project known as the Museum House project. Following Newport Beach’s approval of the project, members of a political action committee, Line in the Sand, circulated referendum petitions and submitted signatures to the city clerk. In January 2017, the Orange County Registrar of Voters certified that there were enough valid signatures on the referendum petitions. Subsequently, in February 2017, the city council rescinded the approval of the condominium project.

While this referendum process was happening, the Orange County Museum of Art (who owned the land) filed a lawsuit in the Orange County Superior Court asking the judge to invalidate the referendum petition because it violated election law requirements. The museum challenged the referendum petition’s small font size and argued that the petition did not include the full text of general plan amendments. Proponents of the referendum noted that the petition weighed roughly 10 pounds and contained about 1,000 pages because the city council directed that the project’s environmental impact report be attached.

Alleging that the lawsuit was intended to burden opponents until they drop their opposition, Line in the Sand requested the judge dismiss the case and argued that the museum filed a “strategic lawsuit against public participation, “or SLAPP, suit. Judge Geoffrey Glass informed both sides that the museum did not file a SLAPP suit when it challenged the validity of the referendum petition. In his ruling, Judge Glass additionally noted that state law for the form and format of referendum petitions "does not overly burden the 1st Amendment right to petition the government. The statutes are content-neutral and simply require certain things in order to avoid confusing the electorate." Line in the Sand appealed the judge’s ruling. The case was settled in 2018.

1. Different Local Referendum Processes. If this bill is signed into law, its provisions would only apply to a city referendum. Voters may be confused by the inconsistent referenda processes.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: July 3, 2019

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Marc Berman, Chair

SBPCA Bill Id:SB 359

Author:(Moorlach) – As Amended Ver:June 26, 2019

SENATE VOTE: 38-0

SUBJECT: Elections: referendum.

SUMMARY: Permits a municipal referendum petition to contain an impartial summary of the ordinance, as specified, instead of the text of the ordinance or the portion of the ordinance that is the subject of the referendum, as specified. Specifically, this bill:

1. Permits a municipal referendum petition to contain an impartial summary of the referendum, instead of the text of the ordinance or the portion of the ordinance subject to the referendum.
2. Requires the impartial summary to not exceed 5,000 words and be prepared using the following procedure:
   1. Requires the referendum’s proponents, within three days of the final passage of the ordinance, to file a copy of the proposed summary with the local elections official and requires the local elections official to immediately transmit a copy of the proposed summary to the city attorney.
   2. Requires the city attorney, within ten business days, to issue an approved summary to the local elections official and the referendum’s proponents for circulation. Permits the city attorney to edit the summary prior to approval. Requires all edits made to the summary to be true and impartial and prohibits the edits from containing argument or any matter likely to cause prejudice for or against the referendum. Permits a city attorney to add the full text of the ordinance, or the portion of the ordinance that is the subject of the referendum, to the summary if doing so would not exceed the 5,000-word limit.
   3. Requires the summary to include a link to a public website containing the text of the ordinance or the portion of the ordinance that is the subject of the referendum.
   4. Requires the 5,000-word limit imposed by this bill to include all attachments, exhibits, and other supplements to the summary.
   5. Requires the proposed summary submitted by proponents, if the city attorney fails to issue an approved summary within 10 business days, to be considered approved.
      
   6. Requires the proponents who circulate a referendum petition pursuant to the provisions of this bill to have 30 days from the date the summary is approved to submit a petition with the required number of signatures to the local elections official. Prohibits an ordinance subject to the referendum petition from becoming effective until this period has expired.
3. Prohibits the proponents, after they begin circulating a referendum petition prepared pursuant to this bill, from circulating another version of the referendum petition prepared using another method.

EXISTING LAW:

1. Provides the people with the powers of referendum and defines the term referendum to mean “the power of the electors to approve or reject statues or part of statues except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”
2. Extends referendum powers to the electors of each city, except charter cities, in procedures established by the Legislature.
   
3. Provides that if a petition protesting the adoption of a municipal ordinance is circulated and subsequently submitted to the elections official of the legislative body of the city within 30 days of the date the adopted ordinance is attested by the city clerk or secretary to the legislative body and is signed by not less than 10 percent of the voters of the city, then the effective date of the ordinance is suspended and the legislative body shall reconsider the ordinance, as specified.
   
4. Requires, across the top of each page of a municipal referendum petition, the following to be printed:
   

“Referendum Against an Ordinance Passed by the City Council.”

1. Requires each section of a county, municipal, or district referendum petition to contain the identifying number or title and the text of the ordinance or the portion of the ordinance that is subject of the referendum. Requires the petition to be designed in the same form, as specified.
2. Requires that if the legislative body does not entirely repeal the ordinance against which the petition is filed, then the legislative body submits the ordinance to the voters, as specified.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible costs.

COMMENTS:

1. Purpose of the Bill: According to the author:

Under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process. Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal.

1. Museum House and Newport Beach: In November 2016, the Newport Beach City Council approved a 25-story, 100-unit condominium project known as the Museum House project. Following Newport Beach’s approval of the project, members of a political action committee, Line in the Sand, circulated referendum petitions and submitted signatures to the City Clerk. In January 2017, the Orange County Registrar of Voters certified that there were enough valid signatures on the referendum petitions. Subsequently, in February 2017, the City Council rescinded the approval of the condominium project.

While this referendum process was happening, the Orange County Museum of Art (who owned the land) filed a lawsuit in the Orange County Superior Court asking the judge to invalidate the referendum petition because it violated election law requirements. The museum challenged the referendum petition’s small font size and argued that the petition did not include the full text of general plan amendments. Proponents of the referendum noted that the petition weighed roughly 10 pounds and contained about 1,000 pages because the City Council directed that the project’s environmental impact report be attached.

Alleging that the lawsuit was intended to burden opponents until they drop their opposition, Line in the Sand requested the judge dismiss the case and argued that the museum filed a “strategic lawsuit against public participation”, or SLAPP, suit. Judge Geoffrey Glass informed both sides that the museum did not file a SLAPP suit when it challenged the validity of the referendum petition. In his ruling, Judge Glass additionally noted that state law for the form and format of referendum petitions "does not overly burden the 1st Amendment right to petition the government. The statutes are content-neutral and simply require certain things in order to avoid confusing the electorate." Line in the Sand appealed the judge’s ruling. The case was settled in 2018.

1. Different Local Referendum Processes: If this bill is signed into law, its provisions would only apply to a city referendum. County and special district referenda would be required to continue to use existing referendum process that requires a referendum petition to contain the ordinance’s title or number as well as the text of the ordinance or the portion of the ordinance that is subject of the referendum and referendum proponents would not have the opportunity to avail themselves of the summary option proposed in this bill. The committee may wish to consider whether it is prudent to have inconsistent referenda processes and may consider amending the bill to align all local referenda processes to avoid voter confusion.
2. Arguments in Support: With a support if amended position, the Planning and Conservation League and Friends of Harbors, Beaches and Parks write:

Amendments to SB 359 in print as of yesterday address one of the concerns

raised in our prior letter: the effect that preparing an impartial summary of a referendum might have on the short 30-day window for circulating referendum petitions. While we believe that the amendments we proposed in our prior letter would resolve this same concern clearly and effectively, should the Committee wish to follow the approach taken by the bill as currently in print, we would urge three additional technical changes to the bill (page and line numbers are from the PDF version of the bill as amended June 26, 2019):

1) On page 3, line 7, strike “Notwithstanding Section 9235” and insert

“Notwithstanding anything to the contrary in Sections 9235, 9237, and 9242, and Section 36937 of the Government Code”

This change is necessary to avoid inconsistencies with other statutory sections that prescribe a 30-day window for circulating referendum petitions and dictate when ordinances become effective. This change also attempts to narrow the effect of the “notwithstanding” clause to “contrary” portions of the cross-referenced sections (i.e., portions of those sections stating that proponents have 30 days to circulate referendum petitions and that ordinances become effective 30 days after final passage).

2) On page 3, line 7, strike “summary is approved” and insert “approved summary is provided to the proponents or the time for approval by the city attorney expires”

Because the date on which a summary is “approved” may come before the date on which an approved summary is provided to referendum proponents, this change is necessary to ensure that proponents have the full 30 days allowed by law to circulate petitions containing an approved summary.

3) On page 2, line 14, strike “referendum” and insert “ordinance or the portion of the ordinance that is the subject of the referendum”

As recommended in our prior letter, this technical change could help ensure that

summaries address only the matter they are intended to replace—the text of the ordinance or portion thereof subject to referendum—instead of the “referendum” in general. We believe that this change would go a long way toward avoiding disagreements and disputes over the scope and impartiality of summaries.

We would also again urge the Committee to consider recommending the

other amendments proposed in our prior letter. In particular, we believe that it would be wise to provide a swift and explicit procedure for resolving inevitable legal challenges to summaries. We also believe that a similar alternative approach to attaching the full “text” of an ordinance or resolution to referendum petitions can and should be provided for counties and special districts.

1. Related Legislation: SB 681 (Stern) authorizes the proponent of a county, municipal, or district referendum to withdraw the referendum at any time before the 88th day before the election, as specified. SB 681 is pending in the Assembly Committee on Appropriations.

REGISTERED SUPPORT / OPPOSITION:

Support

Friends of Harbors, Beaches and Parks (if amended)

Meyer Properties

Planning and Conservation League (if amended)

Approximately 93 Individuals

Opposition

None on file.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094

 THIRD READING  

Bill No: SB 359

Author: Moorlach (R)

Amended: 3/26/19

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 5-0, 4/23/19

AYES: Umberg, Nielsen, Hertzberg, Leyva, Stern

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Elections: referendum

SOURCE: Author

DIGEST:

This bill provides proponents of a municipal referendum the option for a referendum petition to contain an impartial summary instead of the text of the ordinance or portions of the ordinance that is subject of the referendum.

ANALYSIS:

Existing law:

1. Provides, pursuant to the California Constitution, the people with the powers of referendum. Defines referendum as “the power of the electors to approve or reject statues or part of statues except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”
2. Extends referendum powers to the electors of each city, except charter cities, in procedures established by the Legislature.
3. Provides that if a petition protesting the adoption of a municipal ordinance is circulated, signed by not less than 10 percent of the voters of the city, and subsequently submitted to the elections official of the legislative body of the city within 30 days of the date the adopted ordinance is attested by the city clerk or secretary, then the effective date of the ordinance is suspended and the legislative body shall reconsider the ordinance, as specified.
4. Requires, across the top of each page of a municipal referendum petition, the following to be printed:

“Referendum Against an Ordinance Passed by the City Council”

1. Requires each section of the county, municipal, or district referendum petition to contain the identifying number or title and the text of the ordinance or the portion of the ordinance that is subject of the referendum. Requires the petitions be designed in the same form, as specified.
2. Requires that if the legislative body does not entirely repeal the ordinance against which the petition is filed, then the legislative body submits the ordinance to the voters, as specified.

This bill:

1. Permits a municipal referendum petition to contain an impartial summary of the referendum instead of the text of the ordinance or the portion of the ordinance subject of the referendum.
2. Requires the impartial summary to not exceed 5,000 words and prepared using the following procedure:
   1. The referendum’s proponents must file a copy of the proposed summary to the local elections official who transmits a copy of the proposed summary to the city attorney.
   2. Within seven days, the city attorney issues an approved summary to the local elections official and the referendum’s proponents for circulation. Permits the city attorney to edit the summary prior to approval and requires that all edits be true and impartial. Requires the summary not contain argument or any matter likely to cause prejudice in favor of or against the referendum.
   3. Requires the summary to include a link to a website containing the text of the ordinance or the portion of the ordinance subject of the referendum.
   4. Requires that the 5,000 word limit include all attachments, exhibits, and other supplements to the summary.
3. Requires, after proponents begin circulating a referendum petition, the method used by proponents to circulate a referendum petition to remain consistent and prohibits the circulation of the same referendum petition using the other petition format.
4. Makes technical, clarifying changes.

Background

Museum House and Newport Beach. In November 2016, the Newport Beach City Council approved a 25-story, 100-unit condominium project known as the Museum House project. Following Newport Beach’s approval of the project, members of a political action committee, Line in the Sand, circulated referendum petitions and submitted signatures to the City Clerk. In January 2017, the Orange County Registrar of Voters certified that the referendum petitions contained a sufficient number of valid signatures. Subsequently, in February 2017, the City Council rescinded the approval of the condominium project.

While this referendum process was happening, the Orange County Museum of Art (who owned the land) filed a lawsuit in Orange County Superior Court asking the judge to invalidate the referendum petition because it violated election law requirements. The museum challenged the referendum petition’s small font size and argued that the petition did not include the full text of general plan amendments. Proponents of the referendum noted that the petition weighed roughly 10 pounds and contained about 1,000 pages because the City Council directed that the project’s environmental impact report be attached.

Alleging that the lawsuit was intended to burden opponents unless their opposition was removed, Line in the Sand requested the judge dismiss the case arguing that the museum filed a “strategic lawsuit against public participation,” or SLAPP, suit. Judge Geoffrey Glass informed both sides that the museum did not file a SLAPP suit when it challenged the validity of the referendum petition. In his ruling, Judge Glass additionally noted that state law regarding the form and format of referendum petitions did “not overly burden the 1st Amendment right to petition the government. The statutes are content-neutral and simply require certain things in order to avoid confusing the electorate." Line in the Sand appealed the judge’s ruling, but the entire case was settled in 2018.

Comments

1. According to the author, under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process.

Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal.

1. Different Local Referendum Processes. If enacted, the provisions of SB 359 would only apply to municipalities. Referenda at the county level and at the special district level would continue to use the existing referendum process where a referendum petition must contain the ordinance’s title or number as well as the text of the ordinance or the portion of the ordinance that is subject of the referendum. Moving forward, the author may want to consider aligning the different approaches for a referendum petition to avoid confusion for local jurisdictions.
2. Is seven days enough? Under the provisions of SB 359, the city attorney has seven days to edit a proponent’s proposed summary and issue an approved summary for a municipal referendum petition. Taking into consideration holidays and weekends, a city attorney would have a limited window to potentially edit a 5,000 word summary. For example, if the proponents of a referendum submit a woefully inaccurate summary on a Friday before a holiday weekend, the city attorney would have less than four days to edit, potentially re-summarize thousands of pages of documents, and approve the summary.

If an amendment to the bill was made to extend the deadline to seven business calendar days, it is also unknown if that is enough time to summarize potentially thousands of pages into a maximum 5,000 word summary. It should also be noted that, unlike municipal initiatives, referendum petitioners have to submit a sufficient number of valid signatures within 30 days of the date the adopted ordinance is attested by the city clerk or secretary to the legislative body. If more days are added for a city attorney to issue an approved summary, it could potentially limit the number of days for petitioners to gather signatures. Finding a balance between the proponent’s submission of a proposed summary, the city attorney’s workload, and a petitioner’s ability to gather signatures is ideal, but might not be feasible under existing timelines. The author should consider these factors as the bill moves through the legislative process.

Related/Prior Legislation

SB 681 (Stern of 2019) authorizes the proponent of a local referendum or charter amendment initiative to withdraw the measure prior to election, as specified.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 5/6/19)

None received

OPPOSITION: (Verified 5/6/19)

None received

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

5/8/19 10:56:18

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SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Thomas Umberg, Chair

2019 - 2020 Regular

Bill No: SB 359 Hearing Date: 4/23/19

Subject: Elections: referendum

DIGEST

This bill provides proponents of a municipal referendum the option for a referendum petition to contain an impartial summary instead of the text of the ordinance or portions of the ordinance that is subject of the referendum.

ANALYSIS

Existing law:

1. Provides, pursuant to the California Constitution, the people with the powers of referendum. Defines referendum as “the power of the electors to approve or reject statues or part of statues except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”
2. Extends referendum powers to the electors of each city, except charter cities, in procedures established by the Legislature.
3. Provides that if a petition protesting the adoption of a municipal ordinance is circulated and subsequently submitted to the elections official of the legislative body of the city within 30 days of the date the adopted ordinance is attested by the city clerk or secretary to the legislative body and is signed by not less than 10 percent of the voters of the city, then the effective date of the ordinance is suspended and the legislative body shall reconsider the ordinance, as specified.
4. Requires, across the top of each page of a municipal referendum petition, the following to be printed:

“Referendum Against an Ordinance Passed by the City Council”

1. Requires each section of the county, municipal, or district referendum petition to contain the identifying number or title and the text of the ordinance or the portion of the ordinance that is subject of the referendum. Requires the petitions be designed in the same form, as specified.
2. Requires that if the legislative body does not entirely repeal the ordinance against which the petition is filed, then the legislative body submits the ordinance to the voters, as specified.

This bill:

1. Permits a municipal referendum petition to contain an impartial summary of the referendum instead of the text of the ordinance or the portion of the ordinance subject of the referendum.
2. Requires the impartial summary to not exceed 5,000 words and prepared using the following procedure:
   1. The referendum’s proponents must file a copy of the proposed summary to the local elections official who transmits a copy of the proposed summary to the city attorney.
   2. Within seven days, the city attorney issues an approved summary to the local elections official and the referendum’s proponents for circulation. Permits the city attorney to edit the summary prior to approval and requires that all edits be true and impartial. Requires the summary not contain argument or any matter likely to cause prejudice in favor of or against the referendum.
   3. Requires the summary to include a link to a website containing the text of the ordinance or the portion of the ordinance subject of the referendum.
   4. Requires that the 5,000 word limit includes all attachments, exhibits, and other supplements to the summary.
3. Requires the method the proponents use to circulate a referendum petition remains consistent and not circulate another version of referendum petition using the other format for referendum petitions.
4. Makes technical, clarifying changes.

BACKGROUND

Museum House and Newport Beach. In November 2016, the Newport Beach City Council approved a 25-story, 100-unit condominium project known as the Museum House project. Following Newport Beach’s approval of the project, members of a political action committee, Line in the Sand, circulated referendum petitions and submitted signatures to the City Clerk. In January 2017, the Orange County Registrar of Voters certified that there was enough valid signatures on the referendum petitions. Subsequently, in February 2017, the City Council rescinded the approval of the condominium project.

While this referendum process was happening, the Orange County Museum of Art (who owned the land) filed a lawsuit in Orange County Superior Court asking the judge to invalidate the referendum petition because it violated election law requirements. The museum challenged the referendum petition’s small font size and argued that the petition did not include the full text of general plan amendments. Proponents of the referendum noted that the petition weighed roughly 10 pounds and contained about 1,000 pages because the City Council directed that the project’s environmental impact report be attached.

Alleging that the lawsuit was intended to burden opponents until they drop their opposition, Line in the Sand requested the judge dismiss the case and arguing that the museum filed a “strategic lawsuit against public participation”, or SLAPP, suit. Judge Geoffrey Glass informed both sides that the museum did not file a SLAPP suit when it challenged the validity of the referendum petition. In his ruling, Judge Glass additionally noted that state law for the form and format of referendum petitions "does not overly burden the 1st Amendment right to petition the government. The statutes are content-neutral and simply require certain things in order to avoid confusing the electorate." Line in the Sand appealed the judge’s ruling, but the entire case was settled in 2018.

COMMENTS

1. According to the author: Under the current referendum process, city councils can force proponents to include thousands of pages of documents within a petition. This can drive up the costs and reduce voter participation during the referendum process.

Senate Bill 359 creates an alternative referendum method for parties who are interested in overturning an ordinance passed by a city council, keeping the current method in code and allowing proponents the opportunity to choose which pathway they prefer. SB 359 outlines the process and procedures required to introduce a referendum under the proposal.

1. Different Local Referendum Processes. If enacted, the provisions of SB 359 would only apply to municipalities. Referenda at the county level and at the special district level would continue to use the existing referendum process where a referendum petition must contain the ordinance’s title or number as well as the text of the ordinance or the portion of the ordinance that is subject of the referendum. Moving forward, the author may want to consider aligning the different approaches for a referendum petition to avoid confusion for local jurisdictions.
2. Is seven days enough? Under the provisions of SB 359, the city attorney has seven days to edit a proponent’s proposed summary and issue an approved summary for a municipal referendum petition. Taking into consideration holidays and weekends, a city attorney would have a limited window to potentially edit a 5,000 word summary. For example, if the proponent’s submit a woefully inaccurate summary on a Friday before a holiday weekend, the city attorney would have less than four days to edit, potentially re-summarize thousands of pages of documents, and approve the summary.

If an amendment to the bill was made to extend the deadline to seven business calendar days, it is also unknown if that is enough time to summarize potentially thousands of pages into a maximum 5,000 word summary. It should also be noted that unlike municipal initiatives, referendum petitioners have to submit a sufficient number of valid signatures within 30 days of the date the adopted ordinance is attested by the city clerk or secretary to the legislative body. If more days are added for a city attorney to issue an approved summary, it could potentially limit the number of days for petitioners to gather signatures. Finding a balance between the proponent’s submission of a proposed summary, the city attorney’s workload, and a petitioner’s ability to gather signatures is ideal, but might not be feasible under existing timelines. The author should consider these factors as the bill moves through the legislative process.

RELATED/PRIOR LEGISLATION

SB 681 (Stern) of 2019, authorizes the proponent of a county, municipal, or district referendum to withdraw the referendum at any time before the 88th day before the election, whether or not the petition has already been found sufficient by the elections official. At the time of this printing, SB 681 was pending in the Senate Committee on Appropriations.

POSITIONS

Sponsor: Author

Support: None received

Oppose: None received

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