When Did SB 1137 Take Effect After the Referendum Was Withdrawn?

Some have posted the question, when does or did Senate Bill 1137 by Senator Lena Gonzalez (D-Long Beach) take effect after the referendum was withdrawn on Thursday, June 27? SB 1137 prohibits the issuance of new permits for oil and gas wells and the construction and operation of new production facilities within a health protection zone of 3,200 feet from a sensitive receptor.

SB 1137 was signed into law by Governor Gavin Newsom on September 16, 2022 as Chapter 365 of the Statutes of 2022. Shortly thereafter, opponents of SB 1137 filed the referendum to challenge the new statute. On January 1, 2023, the provisions of the law were in effect. However, on February 3, 2023, the provisions of SB 1137 were suspended after the California Secretary of State certified that a sufficient number of signatures had been submitted for the referendum to become duly qualified for the ballot.

Pursuant to state law, a statute that has been challenged in its entirety by a duly qualified referendum is stayed until it has been approved by the voters at the required election. (Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 656; Cal. Const., art. II, §§ 9, 10.) By operation of state law, as a result, the implementation of SB 1137 was stayed on February 3, 2023.

Under normal circumstances, until a referendum challenge has been resolved by a vote of the electorate, the underlying statute is “stayed” from taking effect. However, what happens when the qualified referendum is withdrawn by its proponents? Does the stayed statute take effect then? Or does it take effect the prior January 1 as would have been the case but for the referendum had qualified?

Under Article II, Section 9(a) of the state Constitution, “the referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”

Under Article II, Section 10(a), if a referendum is approved by a majority of voters at the statewide election, then it “takes effect on the fifth day after the Secretary of State files the statement of the vote for the election at which the measure is voted on…” In this case, however, a vote was never taken.

In California Elections Code Section 9604(b), the proponents of a referendum measure are permitted to withdraw the measure prior to the date the Secretary issues a certificate of qualification. That is what happens here. The proponents of the referendum against SB 1137 withdrew the ballot measure on the last possible day, June 27.

Under Elections Code Section 9033(d), “the statute that is the subject of the referendum measure shall cease to have effect unless and until one of the following occurs:

(1) The Secretary of State or a court of competent jurisdiction concludes that the petition was not signed by the requisite number of qualified voters.

(2) The proponents of the referendum measure withdraw the measure under Section 9604.

(3) The voters vote to keep the statute that is the subject of the referendum at the statewide election in which the referendum measure appears on the ballot.

As a result of Section 9033(d)(2), the referendum stayed SB 1137 until the referendum measure was withdrawn, which was June 27. As a result, under operation of law, the “stay” of SB 1137 was lifted on June 27 and the statute took effect on that day.