Brown's Probation Initiative Gut-and-Amend

Governor Jerry Brown's use of the new “Ballot Initiative Transparency Act” has made the citizen initiative process look more like legislative sausage-making.  

Its first big test will be a suit filed by the California District Attorneys Association over the probation initiative Jerry Brown announced last month.

Instead of filing his initiative with the Attorney General like everyone else does, Brown deleted four pages of an already-filed measure on juvenile justice and replaced them with his adult probation plan.

Why not just propose his own initiative? By merging his plan with a measure filed on December 22, Brown skipped more than a month of wait time before he is able to start gathering signatures. He zipped ahead of five other initiatives that were filed after the juvenile justice measure, but before his amendments. With the signature turn-in deadline for the 2016 ballot rapidly approaching, starting a month earlier is a big advantage.

The new initiative law allows proponents to make amendments to fix errors or unintended consequences in an initiative if the amendments are on essentially the same topic.

Taking it to the gut-and-amend level, however, was Jerry Brown’s interpretive leap. Gut-and-amends are familiar to any Sacramento-watcher. But is it what initiative transparency advocates intended?

As the initiative law was being debated the Assembly Elections committee warned against a rash of “spot” initiatives: Place-holder measures filed with no substantive content that authors could fill in at the last minute. Proponents tried to close this loophole, prohibiting empty initiatives from being amended and requiring amendments to be “reasonably germane to the theme, purpose or subject of the initiative.”

Jerry Brown is pushing the limits of that change with amendments that transform a statutory initiative into a constitutional amendment, and deal with adult probation issues that are unrelated to the juvenile justice of the original measure.

Jumping the line also limited the time the Legislative Analyst’s office has to do an analysis of the measure's fiscal impact, and took away a month of public review and comment that was a new requirement of the initiative law. So long transparency.

And we have to wonder: Was it serendipity that Brown found a public safety-related ballot measure to hijack, whose proponents were willing to give up most of their plan and incorporate all of his? Or was the original juvenile justice initiative a placeholder measure all along, submitted with the governor in mind but with different-enough content to camouflage his intentions until he could choose the right political moment to announce his plan?

The District Attorneys' suit will determine if anything goes until an initiative actually hits the streets, or if the governor will have to re-file and re-start the clock.

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