John G. Barisone Atchison, Barisone, Condotti & Kovacevich 333 Church Street Santa Cruz, CA 95060 THE INITIATIVE PROCESS AFTER PROPOSITION 218
T ABLE OF CONTENTS 1. INTRODUCTION 2. CONSTITUTIONAL PROVISION (PROPOSITION 218) 3. GENERAL INITIATIVE REQUIREMENTS 4. SIGNATURE REQUIREMENT ALTERED TO 5% 5. PETITION CONTENT AND PROCEDURAL REQUIREMENTS a. Notice of Intent to Circulate b. Request for Ballot Title and Summary c. Publication or Posting d. Circulation of Petition e. Declaration f. Filing g. Qualification h. Opportunity for Input from City Agencies 6. UPON VERIFICATION AND QUALIFICATION FOR THE BALLOT a. Arguments For/Against b. Rebuttal Arguments For/Against c. City Attorney's Impartial Analysis 7. SAMPLE BALLOT ARGUMENTS 8. CHALLENGES a. Ballot Title and Summary b. Ballot Arguments 9. THE CITY'S ROLE VIS A VIS ELECTORAL CAMPAIGNS IN SUPPORT OF OR IN OPPOSITION TO BALLOT INITIATIVES a. Expenditure of Public Funds Prohibited to Influence b. Expenditure of Public Funds Permitted to Educate c. Resolution in Support or Opposition to Measure 10. CONCLUSION
T ABLE OF EXHIBITS Exhibit 1- Sample Tax Repeal Initiative Exhibit 2- Sample Tax Repeal Initiative Ballot Arguments Exhibit 3- Sample Writ of Mandate To Amend or Delete Tax Repeal Proponents Ballot Arguments and Corresponding Pleadings Exhibit 4- Sample Factual Statement in Response to Tax Repeal Initiative Exhibit 5- Partisan Campaign Information In Opposition to the Tax Repeal
1. INTRODUCTION THE INITIATIVE PROCESS AFTER PROPOSITION 218 This paper addresses the procedural and content requirements to circulate, publish, and file an initiative petition after Proposition 218. In the 2002 general election, voters in the City of Santa Cruz were asked to vote on a utility tax repeal initiative. The tax repeal initiative failed with 75% of the electorate voting against it, and this only seven months after voters in Santa Cruz County voted to repeal, by a substantial margin, the County's nearly identical utility tax. Attached to this paper are initiative petitions, ballot arguments, the city attorney's impartial analysis of the initiative, city-disseminated informational brochures and partisan campaign information in opposition to the tax repeal -all of which illustrate one city's successful recipe for preserving its tax base. 2. CONSTITUTIONAL PROVISION (PROPOSITION 218) California Constitution, Article 13C section 3 was enacted by voter initiative on November 5, 1996. It is entitled "Power of Initiatives" and provides Notwithstanding any other provision of this Constitution, including, but not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives. (Emphasis added.) ~
Section 8 of Article n provides that in order to qualify for the ballot, initiative measures require signatures of5% of the number of votes cast for all candidates for governor in the last gubernatorial election and 8% to propose a constitutional amendment. Section 9 of Article II provides that referendum measures require the signatures of 5% of the voters to qualify the measure for the ballot. 3. GENERAL INITIATIVE REQUIREMENTS Under the terms of Elections Code sections 9214 and 9215, in order to qualify an initiative measure for the ballot, signatures of 15% of the voters in the city are required for a special election and signatures of 10% of the voters in the city are required for a general election. In cities with populations of fewer than 1000 registered voters, signatures of the lesser of 100 or 25% of the registered voters are required to qualify initiative measures for special or general elections. 4. SIGNATURE REQUIREMENT ALTERED TO 5% Under the terms of Proposition 218, which as a constitutional amendment applies to both general law and charter cities, the required number of signatures for a local tax repeal initiative is 5% of all the votes cast for all candidates for governor within the local government jurisdiction involved. This 5% requirement is a significant reduction in the number of signatures required when compared to the number of signatures (a minimum of 10% of the voters in the city) required for all other local initiative petitions.
In the 2002 Santa Cruz general election, for example, a utility tax repeal initiative measure qualified for the ballot with signatures from only 5% of the registered voters in the City, i.e., 1102 valid petition signatures. Had the measure been a normal, non-tax, fee or assessment related initiative, in order to qualify for the ballot, the initiative would have required 10% of the registered voters, i.e., a minimum of 2204 petition signatures. 5. PETITION CONTENT AND PROCEDURAL REQUIREMENTS Elections Code sections 9200 et seq. outline the procedural and content requirements to circulate, publish and file a petition. (Note that under the terms of Elections Code section 9222, the city may submit to the voters without a petition a proposition for the repeal, amendment, or enactment of any ordinance.) A sample tax repeal initiative petition is attached as Exhibit I. a. Notice of Intent to Circulate Before an initiative petition is circulated, the petition's proponents must file a notice of intention to circulate the petition with the local elections official. The notice of intention to circulate must be accompanied by the written text of the initiative, and may be accompanied by a written statement of not more than 500 words that sets forth the reasons for the petition. The notice must be signed by at least one but not more than three proponents. Any person filing a notice of intent must pay a fee established by the local jurisdiction of not more than $200.00, which amount is to
be refunded to the filer if the petition is certified within a year of the filing date. Elec. Code section 9202. b. Request for Ballot Title and Summary In addition to the notice of intent to circulate, the proponent of an initiative must file a copy of the proposed measure with the local elections official and request that a ballot title and summary be prepared. The city attorney must provide a ballot title and summary of the initiative measure within 15 days after the notice of intent is filed. The ballot title must express in 500 words or less the purpose of the proposed measure, but must not be "an argument, nor be likely to create prejudice, for or against the proposed measure. " The summary must be "true and impartial." Each page of the petition must include the ballot title prepared by the city attorney. Elec. Code section 9203. c. Publication or Posting A notice of intention and the title and summary of the proposed measure must be published or posted. Elec. Code section 9205. d. Circulation of Petition After publication or posting, the proponents may circulate the petition among the registered voters of the city. Elec. Code section 9207,
e. Declaration Each section of the petition must have the declaration of the person soliciting the signatures attached. The declaration must include language that the circulator is a voter or is qualified to register as a voter of the city and must include the circulator's residence address at the time of the declaration' s execution. Elec. Code section 9209. f. Filing Under the terms of Elec. Code section 9208, signatures must be obtained and the petition filed within 190 days from the date of receipt of the title and summary, or after termination of any action for a writ of mandate pursuant to Section 9204 (discussed below). If the petitions are not timely filed, they are void for all purposes. In addition, under the terms of Elections Code section 9210, all sections of the petition must be filed at one time, and must be filed by the proponents or by any person or persons authorized in writing by the proponents. g. Qualification Once the petition has been filed, the elections officer must determine if the petition contains the requisite number of signatures to qualify for the ballot. As explained above, the number required depends on the subject matter of the initiative. The timing of the election, whether general or special, depends on the number of signatures on the petition. Elec. Code section 9210.
h. Opportunity for Input from City Agencies During the circulation of the petition the city may refer the proposed initiative measure to any city agency or agencies for a report on such things as: the measure's fiscal impact; its effect on the internal consistency of the city's general and specific plans, including the housing element and the consistency between planning and zoning; its effect on land use and affordable housing; its impact on infrastructure funding, including transportation, schools, parks and open space; whether the measure would likely result in increased infrastructure costs or savings to current residents and businesses; and its impact on the community's ability to attract and retain business and employment. Elec. Code section 9212. 6. UPON VERIFICATION AND QUALIFICATION FOR THE BALLOT a. Arguments For/Against Upon verification and qualification of the initiative measure for the ballot, the city council or initiative proponents may file a written argument in favor of the ordinance, and the city council or initiative opponents may submit an argument against the ordinance. Elec. Code sections 9219, 9282. Neither argument may exceed 300 words, and both arguments must be printed on the same sheet of paper and mailed to the voter with the sample ballot for the election.
b. Rebuttal Arguments For/Against Although submission of a rebuttal argument is not required, the person filing the initiative petition may prepare and submit a rebuttal argument not exceeding 250 words, and the city or initiative opponents may prepare and submit a rebuttal to the proponent's argument, also not exceeding 250 words. If filed, rebuttal arguments must be filed with the elections official not more than 10 days after the final date for filing direct arguments. Rebuttal arguments must be printed in the same manner as the direct arguments, and each rebuttal argument must immediately follow the direct argument, which it seeks to rebut. Elec. Code sections 9220,9285. c. City Attorney's Impartial Analysis Upon qualification of the measure for the ballot, the city council may ask the city attorney to prepare an impartial analysis of the measure showing the effect of the measure on existing law and the operation of the measure. The analysis must be printed preceding the arguments for and against the measure and must not exceed 500 words in length. Elec. Code section 9280. 7. SAMPLE BALLOT ARGUMENTS Sample tax repeal initiative ballot arguments and a city attorney's impartial analysis are attached as Exhibit 2.
8. CHALLENGES a. Ballot Title and Summary Under the terms of Elections Code section 9204, any elector of the city may seek a writ of mandate requiring the ballot title or summary prepared by the city attorney to be amended if "upon clear and convincing proof' the ballot statement or summary either is "false, misleading or inconsistent" with the "impartiality" requirements of Elections Code section 9203 b. Ballot Arguments Under the terms of Elections Code section 9295, any voter of the city in which the election is being held, or the elections official, may seek a writ of mandate or an injunction requiring any or all of the official election materials (i.e., the ballot arguments for or against the proposal, the rebuttal arguments, the text of the ordinance itself, and the city attorney's impartial analysis) to be amended or deleted. A peremptory writ of mandate or an injunction shall issue only upon "clear and convincing proof' that the material in question is "false, misleading, or inconsistent" with the statutory requirements and that issuance of the writ or injunction will not "substantially interfere" with the printing or distribution of official election materials. In response to ballot arguments submitted by Santa Cruz tax repeal proponents in support of their
2002 utility tax repeal initiative, the Santa Cruz City Clerk sought a writ of mandate to amend or delete a number of statements made in those arguments. Copies of this Writ, and corresponding pleadings, are attached as Exhibit 3. As can be seen from a review of these pleadings, there is a fine line between what is considered normal, hyperbolic electoral rhetoric and what is considered "clearly and convincingly" false and misleading. 9. THE CITY'S ROLE VIS-A-VIS ELECTORAL CAMPAIGNS IN SUPPORT OF OR IN OPPOSITION TO BALLOT INITIATIVES The courts have generally concluded that it is improper for a city council to authorize a substantial (i.e., other than incidental) expenditure of public funds to finance a partisan campaign in support of or in opposition to a ballot initiative. The courts have ruled that any expenditure of public funds incurred in connection with activities engaged in routinely at regularly scheduled city council meetings such as the adoption of resolutions is merely incidental and does not rise to the level of an impermissible expenditure of public funds. a. Expenditure of Public Funds Prohibited to Influence The city council may not spend public funds in an effort to influence electors with regard to whether or not they should sign initiative petitions or with regard to how they should vote on an initiative, which has qualified for the ballot. Accordingly, the council cannot authorize the use of public funds to underwrite the publication and dissemination of partisan campaign literature, to purchase partisan political advertisements or to underwrite organizations formed to campaign for or against the ballot initiative. Stanson v. Mott (1976) 17 Cal.3d 206; Miller v. Miller (1978) 87 Cal.App.3d 762.
b. Expenditure of Public Funds Permitted to Educate The city council may authorize the expenditure of public funds to disseminate, via newspaper, published literature, or other media, strictly factual information designed to educate the electorate with regard to the initiative. To protect itself against allegations of improper influence, the council should strive to assure that any such information is presented in an impartial and unbiased manner, is readily verifiable as a matter of public record and that any such informational message contains no suggestion or request regarding how a person should vote or regarding whether or not a person should sign the initiative petitions. The City of Santa Cruz factual statement in response to the 2002 utility tax repeal initiative is attached as Exhibit 4. Partisan fliers and mailers prepared by the citizens committee opposed to the utility tax repeal initiative are attached as Exhibit 5. c. Resolution in Support or Opposition to Measure The city council may, as a body, adopt a resolution setting forth its support of, or opposition to, an initiative measure whether or not that initiative has yet qualified for the ballot, provided that all discussion pertaining to the resolution, and the adoption of the resolution itself, takes place at a duly noticed public meeting at which members of the public are given an opportunity to publicly express their agreement or disagreement with the city council's position. In adopting such a resolution, the council should refrain from urging their constituents to vote for or against the initiative, or to sign or not sign initiative petitions. Choice in Education League v. Los Angeles Unified School District (1993) 17 Cal.App.4th 415
10. CONCLUSION The passage of Proposition 218 resulted in a constitutional amendment that significantly reduced the number of signatures required for a local tax repeal initiative to qualify for the ballot. As a result of the 5% reduction, only half as many signatures are required for tax repeal initiatives as are required for all other local initiative petitions. Election Code sections 9200 et seq. outline the procedural and content requirements to circulate, publish, and file an initiative petition. Upon verification and qualification for the ballot, the city and the proponents of the measure can draft arguments for or against the measure. The city attorney is responsible for preparing a ballot title and summary and an impartial analysis of the measure. The impartial analysis, arguments for or against, and ballot title and summary, all can be challenged in a writ of mandate proceeding to amend or delete on the ground that the language used is "false, misleading or inconsistent." The expenditure of public funds is prohibited to influence the voters, but may be used to educate the voters of the impact of the proposal. The city council may also draft a resolution in support or opposition of the measure as part of its regular course of business. Additional infoni1ation addressing-what a city mayor may not do in connection with an initiative measure is contained in the League of California Cities' Proposition 218 Implementation Guide (2000).