A Law Professor’s Recommendations on California’s Propositions

The following article on California’s Election Propositions is by Mary-Beth Moylan, who is a law professor at the McGeorge School of Law, where she teaches an elective in Initiative Law.  She can be reached at [email protected].

Proposition 51: VOTE No. I find myself wanting to just copy and paste everything I said about Proposition 1 in 2014, although two years ago I reluctantly voted yes on the water bond. Here is what I said then: “I have a real distaste for bond acts. Generally, I think we should figure out as a society how to prioritize what we need to do and then use General Fund money to do it, rather than borrowing against our children’s future.” Not surprisingly, I agree with myself. Proposition 51 is a school facilities bond. We have passed several of these over the last decade or so, and we have a heavy burden on the repayment side of things already. I like schools. I think kids should have buildings where they are safe and can learn, I just really don’t think more bond debt is the way to go. This one is particularly suspect given that the people mainly backing it are the construction companies and developers who would get the contracts to build and remodel the schools.

Proposition 52: VOTE No. This initiative sums up everything that is wrong with the initiative process, in my humble opinion. It is a highly complicated piece of legislation involving a Medi-Cal Hospital Quality Assurance Fee (QAF) that is collected from hospitals, matched with federal funding, and returned to hospitals through Medi-Cal reimbursements. The collection, matching, and redistribution involve complicated formulas and changing federal regulations and requirements. Currently, the Legislature has been doing its job and figuring out what needs to be done to secure the federal matching funds, and they have been legislating responsively in this area.

The Proposition is both a statutory and a constitutional amendment. It would enshrine in the Constitution the requirement for the Legislature to pass changes to this QAF program with a 2/3 vote of both chambers. Changes to the initiative not contemplated by the drafters would have to come back through the initiative process. In other words, passage of this law will make it more difficult for the Legislature to respond quickly to changes in federal requirements and regulations, and it will further clutter our already monstrous California Constitution. To add insult to injury, very few of the people who vote on this measure will have any understanding about what they are voting on, even if they read the full text of the measure or my students’ report. It is just confusing stuff. Ideally, we would let people with some expertise in state and federal budgeting and reimbursements make the decision on the QAF. I do not have such expertise, so I will vote no.

Proposition 53: VOTE No. One of two initiatives this time around that has been fully funded by a single rich person who thinks he can buy himself a law, Proposition 53 is titled the “No Blanks Check Initiative.” It would require state projects (or those financed by the state and another government entity through a joint powers arrangement) to be approved by the people if the price tag for the project will be more than $2 billion. The person behind this is Dean Cortopassi. He is a Central Valley farmer/businessman who does not like high speed rail project and the Delta tunnels project. He wants to require voter approval of revenue bonds in an effort to kill those projects. He has put millions into the campaign and the result will be litigation over the details, which are not crystal clear. If legal challenges are settled and Proposition 53 eventually does take effect, we will end up with an increased need for statewide ballot measures to approve revenue bond projects. I say “no thank” to a proliferation of propositions.

Proposition 54: VOTE No, but somewhat lukewarm and willing to see both sides. This is the other rich guy funded one. Prop 54 would do three things – none of them are nefarious on their face, and one of them has actually already been done. First, the measure aims to have a 72 hour period where a bill is available to the public and the legislators before it is voted on. Second, it creates a requirement that legislative hearings are video recorded and available on line for 20 years. Third, it allows the public to use video content from the legislature for any legitimate purpose. This third change was an attempt to amend a statute that made use of recordings from legislative proceedings a misdemeanor. That statutory section was repealed this summer, so the change to allow use of the recordings is not really necessary. And, of course, since the proposition does not specify what “a legitimate purpose” is, we are likely to see litigation to help interpret that term.  So, focusing just on the first two changes, the measure is all about transparency and sunshine on the legislative process, which is good in theory. It is also an effort to limit the tactic of gutting and amending bills in the 11th hour so that legislators are voting on new text that has not been presented to them for even a day sometimes. The 72 hour publication requirement would give time for review and reflection. The argument against the 72 hour publication requirement is that it will actually allow for lobbying forces to quickly rally and destroy last minute compromises, which are actually helpful to democracy. I am not sure I buy that argument, but I do think there is something to letting the Legislature pass its own rules. And, this is a constitutional amendment, as it must be if the people want to tell the Legislature what to do. As I have mentioned before, we have a lengthy and messy constitution in this state. I am generally opposed to making it longer and messier. On principle then, I am leaning towards no on this one, although I am sure some of you “good government” types might find yourself inclined to vote yes. One last note about this one, State Senator Lois Wolk did have a bill last session that tracked this initiative pretty closely. It almost made it through the Legislature. I think her bill was a good idea and it makes total sense to me for the Legislature to pass something like this in an effort to regulate itself. She came really close, and I bet someone might get it through next time. I would rather give the legislative process one more chance to make it happen then to jump in with the initiative route.

Proposition 55: VOTE Yes. Proposition 55 extends the increase in incomes taxes that Californians approved in Proposition 30.  When Proposition 30 passed, the idea was that we needed a temporary increase in sales tax and income tax on the wealthy, i.e. those making more than $250,000 per year. The sales tax will phase out this year, and Proposition 55 does not attempt to keep that sales tax increase in place. Prop 55 only address the income tax increase. The income tax increase will go for another 12 years if the measure passes. The increased income tax is graduated, and I do think that incomes that are high should have a correspondingly higher burden in the tax department.

Proposition 56: VOTE Yes, I think. I am less enthusiastic about this tax than the Prop 55 tax (and don’t get me wrong, I am not really excited about any taxes, I just see the necessity of them in a functioning society). I am probably going to vote yes on this one because California has actually fallen quite far behind in our cigarette tax rate. It has been almost two decades since we raised the cigarette tax through the initiative process in 1998. And, the important thing about this initiative is that it brings e-cigarettes into the taxing scheme, which is important because more young smokers are going that route. I think we do want to deter that practice by making it more expensive. There is no question that raising the tax on cigarettes helps motivate some people to quit, and the money earned will at least in part go to cessation programs. My only reluctance about this is that raising the tax by $2 per pack, or $2 per unit of non-cigarette tobacco products, is a big hit on poor and addicted people. When a person with a nicotine addiction is facing a $6 per pack price tag on cigarettes and has to decide between the tobacco and the fruit for the kids at home, those extra two dollars can mean the apples do not come home. I am not a fan of “sin” taxes for this reason, but I think at the end of the day, I am going to support this one as it meets my general initiative criteria: first, it may do some good for a sizable segment of the population; and second, it is not something the legislature could likely get done because of the influence of large donors and power special interests.

Proposition 57: VOTE Yes. I am voting for this criminal justice reform measure that will make some amendments to the parole system and good behavior credits. This will place a larger focus on rehabilitation in the criminal justice system, and will make some very modest changes to the ways in which sentences are calculated so that some additional inmates will be eligible for parole release sooner. Not to say that they will get out, just that they will be able to appear before the parole board.

All of that parole stuff is good, but the most significant change of Prop 57 to me, and one that has not been getting much press, is the transfer of the decision to try a minor as an adult from the prosecutor to the trial judge. Too many young people are tried as adults by zealous prosecutors trying to enhance their reputation for being tough on crime or to increase the number of felony trials their office prosecutes. Hopefully, a shift to a judge made decision will reduce this number and kids will get the rehabilitative help they need in the juvenile justice system.

Proposition 58: VOTE Yes. This initiative was placed on the ballot by the Legislature in an effort to amend a prior initiative. It is a great example of how we get stuck with intractable laws when we pass things through the initiative process. Proposition 58 will repeal large parts of Proposition 227, which was passed in 1998. Proposition 227 required children who were new English Learners to be taught in English only. Now, as more people are seeing the benefits of multilingualism, the Legislature would like to let school districts create programs where English is not the only language of instruction. Interestingly, the other thing Proposition 58 will do is allow the Legislature to make additional amendments to this part of the Education Code with a simple majority vote. This is making some people in the Legislature upset (read Republicans, who do not have good numbers). However, from my perspective, this is a great idea and more initiatives should include language that allows amendment without coming back through the initiative process and without a super-majority. Times change, new studies come out, we learn, we want to try a new approach; our Legislature should be able to pass laws without being hamstrung by 18 year old initiative language that cannot be altered.

Proposition 59: VOTE Yes, although I think it is an absurd waste of time. This is an advisory measure that has no binding force. I resent even filling in the bubble, but I will. There is a long history through the courts on this one. It was supposed to be Prop 49 in 2014, but was pulled off the ballot as an advisory measure – which are generally frowned upon. However, the California Supreme Court said that we voters could go ahead and give our opinion about the interest we have in federal constitutional amendments, and so here we are being asked our opinion. In this case the question is do we want our state officials to ask Congress for a federal constitutional amendment to overturn the Citizens United case that held that corporations may make independent expenditures from treasury funds to advocate for or against a candidate leading up to the election. I really would like to see Citizens United fixed, but I think passing an advisory measure is nonsense. Still, I don’t want Prop 59 to fail and have other states (and Congress, for that matter) perceive that Californians are ok with Citizens United. So, although I feel a bit cornered into it, I think I am going to vote yes.

Proposition 60: VOTE No. Oh, the condoms. So much and so little to say about this one. The California Occupational Health and Safety Act (CAL/OSHA) already has the power to require condom use for the adult film industry. The problem is one of enforcement, not the absence of regulation. In fact, the industry is already required by CAL/OSHA to protect employees from Bloodborne pathogens. I really just like writing that term; it is so scientific. Prop 60 would try to put some teeth into the regulations by allowing for civil lawsuits in the event that CAL/OSHA does not act, requiring adult film producers to get licenses to make films, and requiring them to pay for STI testing for performers. I don’t really have any problem with the licensing or the paying for STI testing. The problem is that in this industry, it is sometimes hard to distinguish who is the producer, who is the performer, and who is an employee.  Since the lines are fuzzy, allowing civil suits could be challenging, and the possibility of private citizens getting to keep some of the money made by the film if they bring the suit is likely to encourage these kinds of citizen lawsuits. There is also a concern that the industry will just move out of state if the level of regulation is going to go up.  That might be ok with me, but I suspect that some of the ambiguity of this initiative will result in numerous court challenges. I also think that CAL/OSHA can just up its enforcement of existing regulations before we start placing new difficult to remove laws in our codes.

Proposition 61: VOTE No. Prescription drugs at low prices sounds like a good idea, but this initiative is not the way to achieve it. Prop 61 would mandate that the state pay no more than the Department of Veterans Affairs (VA) pays for prescription drugs. The text of the proposition does not specify if the state is supposed to pay the published rate that the VA pays, or the confidential price. If the latter price, then there is no way to know how the state is going to find that price, because . . . duh, it is confidential. Another flaw of this measure is that while it requires the state to pay no more than the VA, it does not require the pharmaceutical companies to sell to the state at those lower rates. So, we could find ourselves in a pickle. Federal law requires the state to buy any FDA approved medications for patients who are receiving the state version of Medicaid (i.e. Medi-Cal), so refusing to purchase FDA approved drugs will not be an option. One last thing on this one – Congress tried a few years back to tie the cost of prescription drugs purchased by the federal government to the rates that were negotiated by the VA. The legislation was repealed after one year because the pharmaceutical companies raised the prices that they charged to the VA rather than expand the discount to all federal agencies. A similar scenario could happen again if Prop 61 passes.

Proposition 62: VOTE Yes. I strongly oppose the death penalty. Period. This is not a well-crafted initiative, which is really unfortunate, but I will vote to abolish any part of the death penalty that I can. Why the drafters decided to only abolish the death sentence for first degree murder, I do not know. Why they did not make clear that the new restitution and work provisions would apply to all inmates with convictions for murder or other specified crimes, I do not know. Are some of these things likely to end up in litigation? Yes. Could this have been drafted better if it went through the legislative process? Yes. But, again, I just think the death sentence is inhumane, costly, and too finite given the fallibility that exists in the judicial process. Moreover, the Legislature is not likely to get this done. So, I will vote yes for even a flawed abolition initiative. Enough said.

Proposition 63: VOTE Yes. I am voting yes on this gun control proposition even though I have been utterly dismayed by the aggressive, manipulative, and frankly silly fundraising tactics that the “Yes” campaign has employed. I even went so far as to send an email to someone whose name I got off a campaign website complaining about their terrible misfire in terms of motivating their target audience to contribute (both puns in this sentence are intentional). No one responded to my message, so I certainly did not send any money. However, I am not going to hold a grudge or withhold my vote. Like most things, it would be preferable to do most of the legislating that Prop 63 does through the legislative process. And in fact, despite the strength of the NRA, many of the provisions in Prop 63 were passed through the Legislature this summer. This makes parts of Prop 63 redundant and unnecessary – not a ringing endorsement for voting for it. There are still some provisions, particularly addressing the selling of ammunition that have not been passed and should be in my opinion. In addition, for me this is another message one. For better or worse, other states and federal officeholders look to California to see what the trends are and what voters are capable of accomplishing. I want people to see gun control as a reality nationally and I think showing that a comprehensive package of restrictions on magazine and ammunition sales can be supported by the electorate is a good start.

Proposition 64: VOTE Yes or No.  This is my election cycle waffler. I am truly conflicted on the legalization of marijuana. I suspect that most of you reading this have a solid idea of where you stand on this issue, but let me just throw out some of the pros and cons that I am weighing in my own head for those of you who are still up in the air like me. Pros: Prop 64 will generate tax revenue that would be very welcome; it will allow for the regulation of pot and likely make the pot that is out there safer, assuming it is purchased through legitimate businesses; it will provide funding for the study of drugged driving and may lead to research that is very helpful to setting solid standards for California and other states to impose; it will treat pot like alcohol, which is probably the realistic and appropriate thing to do. Cons: Prop 64 does not set up a drugged driving standard; it will encourage a proliferation of marijuana use among people of all ages (if 21 year olds can buy it legally, kids can get it – and if people over 21 are growing 6 plants at home, . . . well someone’s mom or dad or older sibling will have a handy garden at home); the advertising provisions of Prop 64 create the possibility of really opening the door to excessive advertising if federal law ends up shifting; there are not really protections against very large companies coming in to protect small pot businesses in the near future.

Other states that have legalized marijuana for recreational use have not really had consistent experiences with it in terms of increases or decreases in crime rates. There have been upward trends in traffic accidents and car fatalities in some states, but it is hard to know though if they are directly correlated to the change in marijuana laws. I do have a concern about the lack of a clear standard for drugged driving. Other states that have legalized do not have drivers as bad as the ones in California! I shudder to think about how much worse the highways can get with impaired California drivers driving along in the fast lane with no intention of passing while they munch Doritos and cause congestion.

I suppose that because I do strongly believe in the decriminalization of marijuana, I should probably vote yes here. After all, if it is not illegal, we should be finding a way to regulate it and tax it, I suppose. There is a little part of me though – maybe the mom part or maybe the part that recalls some bad experiences with pot as a college student – that just thinks we really don’t need to have pot shops or pot megastores on every corner. I am likely going to walk into the booth undecided on this one on November 8. Maybe my spouse will sway me on our walk to the polls!

Proposition 65: VOTE No. This is the measure placed on the ballot by the plastic bag industry to try to thwart the plastic bag ban, and if they cannot thwart it to at least punish grocers for going along with the ban in the first place. Depending on who you talk to it is either a companion measure to Prop 67 or a conflicting measure that contains a poison pill for Prop 67. The safest thing to do if you are ok with bringing your own bags to the store or paying 10 cents for a paper bag, is to vote no on Prop 65 and yes on Prop 67. Although this measure purports to set up an environmental fund to make grants for environmental causes with the 10 cent bag fee, no environmental groups are supporting this measure. Not only that, but the start-up money for this new grant making fund would be drawn from funds that were set aside for environmental causes in two past initiatives. The siphoning of these funds without express voter approval is a little suspect. An argument can be made that the voters are acquiescing to the loan through this vote, but it is still a little underhanded if you ask me. More importantly, it is possible that the diversion of the fee collected for the bags to a public purpose may make the 10 cent fee a tax, which was part of the reason that SB 270, now Prop 67, allowed the grocers to keep the money to pay for the bags. Really, the plastic bag manufacturers just do not want the grocers to get to keep the 10 cents per bag. This is a petty measure, and I am voting no.   

Proposition 66: VOTE No. See Proposition 66 analysis. I do not care for the death penalty. I affectionately refer to this proposition as the “kill them faster” initiative. All very dark humor aside, the main problem with Proposition 66 is that it is a statutory initiative, not a constitutional amendment initiative.  It seeks to alter the process for death penalty appeals, both through direct appeal and habeas corpus petitions. The California Constitution distributes power for these appeals and petitions, and those provisions cannot be amended by statute. So, this initiative is destined for a challenge if it passes.

As a practical matter, it also does a huge disservice to our courts by attempting to alter the criteria for appointed counsel in death penalty cases. It says that courts should appoint counsel to death penalty cases who do not have expertise in handling these types of criminal cases. It also says that courts should require criminal appellate attorneys to take death cases or else remove them from the appointment list for all cases. The result could be a serious, to the point of paralyzing, reduction in the number of lawyers who are available for appointment. Of course, this will lead to backlog in the appellate courts, and a compete undermining of the supposed purposes of the initiative to speed up the process.

Proposition 67: VOTE Yes. This is the only referendum on the ballot. As I remind people every time, and sorry for those you who are reading this again, referendums are awkward. The proponents of a referendum want you to vote no. A no vote repeals the law that the Legislature passed. A yes vote supports the law and allows it to take effect. I am in support of a statewide ban on single use plastic bags, so I am voting yes. Most of us are already living in jurisdictions where the single use plastic bag ban is in effect, and so far we are surviving. So, vote yes if you want to minimize the number of flimsy plastic bags in our landfills and oceans, and vote no if you are a miser who refuses to remember your reusable bags or you are someone who wants to pollute the earth for generations to come.

Conclusion

I cannot resist saying a word or two about this bizarre election season as a whole. The Presidential election is a three ring circus that features in ring number one a potentially glass ceiling shattering milestone with the most qualified candidate to ever run for office, while in ring number two we are subjected to misogyny, racism, xenophobia, and debate stage stalking, leaving the media in ring number three falling down on the job as they try to draw false equivalencies in the “scandals” and “unfavorable ratings” that both candidates appear to be saddled with.

Our down ticket races also underscore the absurdity of our current system of electoral politics. In the Senate race, two female Democrats are squaring off and one of them thought it would be appropriate to emphasize her debate point by including a “dab” to punctuate her incoherent thought. We have house races where sexual harassment and campaign financing violations are grist for the mill, and, as you have read above, some ballot measures that are deeply cynical and sponsored by the mega-rich or deep pocket corporate interests.

All of this leads me to the conclusion that it is a strange time to be a woman in America and a strange time to be raising teenage boys and a preteen girl in a household that follows political discourse. I wish my kids could see a political process that was focused on issues and civil discourse, rather than personal attacks and mean spiritedness. I wish my daughter could fully embrace the possibilities she has to be anything she works for, without listening to a Presidential candidate who denigrates women and their bodies on a daily basis. The mixed messages are confusing whether you are 12 or 46 (ok, quickly approaching 47). I sincerely hope that enough people get out and vote to make sure that the popular vote reflects a clear and definitive winner. Even if we are Californians and feel confident that our Electoral College votes are secure, we are needed to shore up the popular vote and show a mandate for the candidate of our choice. The baseless allegations of rigging and the call to vigilante poll watching are dangerous. We need to protect the democratic process by voting and ensuring that others can safely vote.