California Courts and the Reenactment Rule

In County of San Diego v. Commission on State Mandates (2018), the California Supreme Court dealt with the Sexually Violent Predators Act (SVPA) which, among other provisions, imposed duties on county governments. The court decision also addressed the California Constitution’s “reenactment rule.”

The California Constitution requires that “[a] section of a statute may not be amended unless the section is re-enacted as amended.” (Cal. Const., art. IV, § 9.) The Supreme Court granted the State respondents’ petition for review to consider whether Proposition 83, by amending and reenacting provisions of the SVPA, constituted a “subsequent change in law” sufficient to modify the Commission’s prior decision, which directed the State of California to reimburse local governments for the costs of implementing the SVPA. (Gov. Code, § 17570, subd. (b).)

The Supreme Court explained, “When an existing statutory section is amended — even in the tiniest part — the state Constitution requires the entire section to be reenacted as amended. (Cal. Const., art. IV, § 9; see Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 990 [“The effect of this section is that voters considering an initiative ․ that seeks to make discrete amendments to selected provisions of an existing statute, are forced to reenact the entire statute as amended in order to accomplish the desired amendments”].)

“The rationale for compelling reenactment of an entire statutory section when only a part is being amended is to avoid ‘the enactment of statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect’ and the risk that ‘the public, from the difficulty of making the necessary examination and comparison, failed to become appr[ ]ised of the changes made in the laws.’ (Hellman v. Shoulters (1896) 114 Cal. 136, 152) Consequently, a substantial part of almost any statutory initiative will include a restatement of existing provisions with only minor, nonsubstantive changes — or no changes at all.”

“Proposition 83 is an example. It reenacted verbatim subdivision (i) of Welfare and Institutions Code section 6601, which the Commission’s 1998 ruling had identified as the source of local government duties 1, 2, and 3. The initiative made changes to individual subdivisions of Welfare and Institutions Code sections 6605 and 6608, which the Commission’s 1998 ruling had identified as the source for local government duties 6 and part of 7. But the minor changes to the procedures governing the filing of a petition for conditional release had no effect on those mandated duties. The ballot measure made only one minor, nonsubstantive change to section 6608, subdivision (a) but otherwise restated the statute verbatim. The voters also reenacted verbatim former subdivisions (c) and (d) of section 6605 and, while amending former subdivision (b), made no changes to the mandated duties. Whatever else Proposition 83 accomplished, it effectively left undisturbed these test claim statutes and the various mandates imposed therein.

“We conclude that the Commission’s approach is at odds with the constitutional requirement that the state reimburse local governments for the costs of complying with state mandates. (Cf. Yoshisato, supra, 2 Cal.4th at p. 989 [rejecting an interpretation that “assigns undue import to the technical procedures for amending statutes”].) If the term ‘ballot measure’ in Government Code section 17556 were defined as automatically including every provision subject to constitutionally compelled restatement in an initiative, it would sweep in vast swaths of the California Code. Neither the Commission nor the other State respondents point to anything indicating that the Legislature intended to terminate reimbursement for existing state mandates simply because the provisions creating the mandate happened to be restated without change in an initiative statute.

“According pivotal significance to a mere technical restatement also would prove difficult to reconcile with Government Code section 9605. What this statute provides is that ‘[w]here a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form. The portions which are not altered are to be considered as having been the law from the time when they were enacted; the new provisions are to be considered as having been enacted at the time of the amendment․’ (Gov. Code, § 9605; see People v. Cooper (2002) 27 Cal.4th 38, 44, fn. 4 [where voter-approved amendments “did not substantively change the credits provision” in existing law, “there were no reenactments”].) As we have long held, ‘[t]he portions of the amended section which are copied without change are not to be considered as having been repealed and again re-enacted, but to have been the law all along.’ (Vallejo etc. R. R. Co. v. Reed Orchard Co. (1918) 177 Cal. 249, 255) Statutory provisions that are not actually reenacted and are instead considered to ‘have been the law all along’ (ibid.) cannot fairly be said to be part of a ballot measure within the meaning of Government Code section 17556, subdivision (f).”

This court decision makes clear that the constitution’s “reenactment rule” applies regardless of wholesale changes or minor, technical amendments to statutory language. This ensures both legislators and the general public can see in context what changes are being made to fully understand how they will apply to an existing statute.