In what may be fairly called the first “gut and amend” initiative, the California Supreme Court backed Governor Jerry Brown’s effort to move his judicial reform initiative forward despite initiative proponents offering substantial, altering amendments to the original measure after public comment period closed.
Anyone who follows legislative action is familiar with the term “gut and amend.” It happens every session when a bill making its way through the legislature is stripped of its content and replaced with a completely different subject that does not have to go through the committee obstacle course. Often little time is available for legislators to study the new bill.
An initiative is on course to appear on the November ballot that will allow voters to change this practice.
Brown’s initiative will probably also be on the General Election ballot despite the “gut and amend” nature to the amendments that were given absolution by the court. The question the court faced: Were the amendments to the measure “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”
Legislation intended to improve the initiative process that Gov. Brown signed into law allows for proponents to offer amendments to an initiative that pass the “reasonably germane” test.
The original initiative in question here was designed to “ensure that California’s juvenile and criminal justice system effectively stop repeat offending and improve public safety.” The changes made the initiative effect much broader, no longer being a measure simply about juvenile justice. In fact, the amendments changed the title of the propose initiative, presumably because the content of the proposal was now different.
The recently enacted initiative law allows citizens to comment on initiatives yet the amendments were filed after the comment period. The Supreme Court decided the comment period was not a mandatory action of the reform and only meant to aid initiative proponents finding flaws in the measure.
The court also discussed the argument that the initiative’s alteration was similar to the legislative “gut and amend” practice, a charge made by plaintiffs, the California District Attorneys Association.
The court responded that the “gut and amend” practice was not an “apt analogy” saying that legislative history of the new initiative law allows for substantive changes while the comment period is not mandatory. The court admitted the changes were “extensive” but decided the proponents had the right to do so.
Yet, under the court’s reasoning, citizens signing initiative petitions have signed on to a law that could be substantially different from the final product after amendments. (UPDATE: This sentence, is incorrect. The amendments are applied before signatures are gathered.)
Dissenting Justice Ming Chin called this case a precedent that makes the initiative reform law an “empty shell” that can be “evaded with a little imagination.” He argued under the ruling, initiative proponents could hold off their true intent “finally showing their hand by substituting something dramatically different.”
Chin believed that the centerpiece of the revised initiative, a constitutional amendment, is not germane to the original initiative’s intent.
If amendments to an initiative are substantial and alter the direction of a measure that citizens have already signed on to, how different is that from the “gut and amend” features of the legislature?
Wouldn’t it be ironic if the California Legislative Transparency Act passed ending the practice of “gut and amend” on legislative bills after many years just to see a similar, if not identical practice, transferred to the initiative process?