Are Legislative Findings in Prop. 63 (Mental Health) Bills Sufficient?

In reviewing recently-passed legislation that proposes amendments to California’s Mental Health Services Act, as enacted by the voters by Prop. 63, the same legislative finding and declaration is made in each bill. It is a simplistic statement that raises the question whether this language meets the requirement of Prop. 63.

Prop. 63 enacted the Mental Health Services Act, which is funded by a millionaire’s surcharge on income above $1 million. Section 18 of Prop. 63 provides the following:

This act shall be broadly construed to accomplish its purposes. All of the provisions of this Act may be amended by a 2/3 vote of the Legislature so long as such amendments are consistent with and further the intent of this act. The Legislature may by majority vote add provisions to clarify procedures and terms including the procedures for the collection of the tax surcharge imposed by Section 12 of this act.

Prop. 63 was a statutory initiative enacted by the People and allows the Mental Health Services Act to be amended by the Legislature. Note that there are two, separate amendment procedures.

The first provides that any provision of the Act may be amended by a 2/3 vote of the Legislature, so long as that amendment is “consistent with and further[s] the intent of this act.” The second provides that a provision may be added to clarify procedures and terms related to the tax surcharge, if the additional provision is done by a majority vote.

Recall that Article II, Section 10 of the California Constitution provides in Subdivision (c):

The Legislature may amend or repeal a referendum statute. The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.

This provision only allows an initiative that was adopted by the state’s voters to be amended by the Legislature (such as Prop. 63) if the initiative permits amendment without the electorate’s approval. Prop. 63 does allow amendment by the Legislature as described above.

As a result, the Legislature may amend Prop. 63. So, when the Legislature desires to amend Prop. 63, it includes in a “plus section” (which can be seen at the end of a bill that proposes to amend the Mental Health Services Act) a legislative finding and declaration. The following is an example of what is contained in almost every Prop. 63 amendment bill:

The Legislature finds and declares that this act is consistent with, and furthers the intent of, the Mental Health Services Act within the meaning of Section 18 of the Mental Health Services Act.

The question to address is whether the language in the above example is sufficient or if there should be some explanation why the Legislature believes that Prop. 63’s stated purposes are being furthered by the proposed amendment and that the proposed amendment is consistent with Prop. 63.

Unfortunately, bills amending Prop. 63 that contain a simple statement as set forth above do not in any way explain why the Legislature actually believes the proposed amendment is “consistent with, and further the intent of, the Mental Health Services Act. Instead, the bill merely states the legislative finding and declaration without any further justification or explanation provided.

As with other bills that require legislative findings and declarations, should the bills that propose amendments to Prop. 63 include reference to any of Prop. 63’s specified findings and declarations or purposes?

This approach, providing a short explanation, is the approach often taken with urgency clauses and special statutes. If courts examine the urgency clause or special statute findings, there is at least a short sentence or paragraph that explains why the Legislature has determined a particular bill needs an urgency clause or why the bill qualifies as a special statute.

As another example, California’s AUMA (allowing the adult use of cannabis) initiative statute similarly allows legislative amendment if those amendments further the purposes of the AUMA. A recent bill amending the AUMA contains what could be an example for Prop. 63 amendment bills:

The Legislature finds and declares that this act furthers the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) by accomplishing all of the following:

(a) Preventing the illegal diversion of cannabis to other states by providing legal and regulated channels for multistate commercial cannabis activities.

(b) Reducing barriers to entry into the legal, regulated market by providing additional legal outlets for cannabis and cannabis products produced in California.

(c) Ensuring that cannabis and cannabis products produced in other states and sold in this state meet the same testing and packaging requirements required under AUMA.

So, perhaps the bills that propose to amend Prop. 63 should also provide some rationale for their proposed amendments so that, if the legislation were challenged in litigation, courts would have a basis for understanding why the Legislature determined the bill made an amendment to Prop. 63 that was consistent with that act and that furthered its purposes. As a result, the Legislature should consider adding some explanatory language to their simple statements in Prop. 63-amendment bills going forward.