Court Upholds Election Official’s Refusal to Qualify Initiative Based on “Full Text” Rule
by Derek P. Cole on March 18, 2017
posted in Elections, Recent Court Decisions,
In Napa County, a group of voters proposed an initiative that would enact a number of measures to protect the quality of watersheds and oak resources. In Wilson v. County of Napa, an appellate court recently found their initiative proposal defective because it did not comply with an important procedural requirement known as the “full text” rule.
Wilson is a good reminder to initiative proponents that the rules for qualifying initiatives can be unforgiving. Proponents must take great care to make sure they satisfy all the procedural requirements before submitting their proposed measures.
The Full-Text Rule
In elections law, the full-text rule requires proponents of initiatives to include in their initiative petitions all of the text their measure would enact into law. The rule serves to allow voters to review all of the initiative’s language to understand what they are being asked to sign.
Usually, the full-text requirement is easy to meet: most measures propose to add new language, so there is no dispute about what text is being added to a city or county code. But sometimes initiatives amend or incorporate existing codes or enactments (such as a general plan). In these cases, courts have often wrestled with whether the existing codes or enactments must be included in the initiative petitions along with the new proposed text. Generally, courts have held that if the existing language will be substantively affected in some way, that language is considered part of the text of the initiative and must, along with the new text, be included in the petitions voters are asked to sign.
The Proponents’ Violation of the Full-Text Rule
A key feature of the proposed Napa County initiative was the requirement that owners of agricultural properties obtain a permit before removing certain oak trees. The initiative required, in turn, that the tree-removal permits comply with portions of a voluntary oak woodland management plan the County had adopted a number of years before. This separate plan specified several “best management practices,” or “BMPs,” that should be implemented to guide the mitigation of oak-tree loss and replacement.
The initiative’s downfall was its failure to include the oak woodland management plan as part of its text. As the Court noted, a reasonable voter might have wanted to review the plan to understand how its BMP requirements would affect the ability to obtain a tree-removal permit. A voter could not have gained that information from just the text the initiative proponents had included.
Equally, the County elections official could not have been expected to ignore the initiative’s failure to include the plan. Because the election official’s duties concerning the proposed measure were ministerial (non-discretionary), he was not empowered to make a judgment call as to the significance of the BMPs in the initiative’s overall scheme. (The initiative proponents had attempted to downplay the significance of the BMPs in their arguments to the court.)
A Technicality?
One may be tempted to argue that the failure to include the relevant portions of the oak woodland management plan was a technical error that should have been overlooked. But the standard the legislature has established for qualifying initiatives is “substantial” compliance. As mentioned, the purpose of the full-text requirement is to give voters an opportunity to educate themselves about a proposed measure so they may know exactly what they are being asked to sign. As the court stated, errors that frustrate the achievement of this purpose cannot be excused.
The lesson of Wilson is that initiative proponents should be very careful about referencing existing ordinances or enactments in their proposed initiatives. If their measures reference existing legislative texts, prudence dictates including those texts in their initiatives, even if that may significantly increase the measures’ sizes.
Note: The author wrote an Amicus Brief for the League of California Cities and California State Association of Counties in support of Napa County’s position in this case.
