Are Legislative Findings in ‘No Place Like Home’ Bills Sufficient?

In reviewing recently-passed legislation that proposes amendments to the “No Place Like Home Program,” as enacted by the voters by Prop. 2 in 2018, 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 requirements of Prop. 2.

Prop. 2 enacted the No Place Like Home Program, which added Part 3.9 (commencing with Section 5849.1) to Division 5 of the Welfare and Institutions Code. Section 7 of Prop. 2 provides the following:

The provisions of this act may be amended by a two-thirds vote of the Legislature so long as such amendments are consistent with and further the intent of this act.

Prop. 2 was a statutory initiative enacted by the People and allows the No Place Like Home Act of 2018’s Welfare and Institutions Code provisions to be amended by the Legislature. The act 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 the intent of this act.”

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 constitutional provision only allows an initiative that was adopted by the state’s voters to be amended by the Legislature (such as Prop. 2) if the initiative permits amendment without the electorate’s approval. Prop. 2 does allow amendment by the Legislature as described above.

As a result, the Legislature may amend Prop. 2. So, when the Legislature desires to amend Prop. 2, it includes in a “plus section” (which can be seen at the end of a bill that proposes to amend the No Place Like Home Act) a legislative finding and declaration. The following is an example of what is contained in these Prop. 2 amendment bills:

The Legislature finds and declares that the amendments to the No Place Like Home Program (Part 3.9 (commencing with Section 5849.1) of Division 5 of the Welfare and Institutions Code) made by this act are consistent with and further the intent of Proposition 2, as approved by the voters at the November 6, 2018, statewide general election, within the meaning of Section 7 of Proposition 2.

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. 2’s stated purposes are consistent with and being furthered by the proposed amendment and that the proposed amendment is consistent with Prop. 2. What are those stated purposes? In Section 1 of Prop. 2, the following language can be found in the act:

The voters hereby find and declare that housing is a key factor for stabilization and recovery from mental illness and results in improved outcomes for individuals living with a mental illness. The Mental Health Services Act, an initiative measure enacted by the voters as Proposition 63 at the November 2, 2004, statewide general election, must therefore be amended to provide for the expenditure of funds from the Mental Health Services Fund to the No Place Like Home Program established pursuant to Part 3.9 (commencing with Section 5849.1) of Division 5 of the Welfare and Institutions Code, which finances the acquisition, design, construction, rehabilitation, or preservation of permanent supportive housing for individuals living with a severe mental illness who are homeless or at risk of chronic homelessness.

Unfortunately, bills amending Prop. 2 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 furthers the purpose” the No Place Like Home Act. Instead, the bill merely states the legislative finding and declaration without any further justification or explanation provided.

So, as with other bills that require legislative findings and declarations, should the bills that propose amendments to Prop. 2 include reference to any of Prop. 2’s specified 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 future Prop. 2 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. 2 should also provide some rationale for their proposed amendment(s) 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. 2 that is consistent with and furthers its purposes. As a result, the Legislature should consider adding some explanatory language to their simple statements in Prop. 2-amendment bills going forward.