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What Is Subject to Referendum?

The power of referendum applies only to legislative enactments

By Chris Micheli, January 3, 2020 6:14 am

Pursuant to Article II, Section 9 of the California 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.” As such, all statutes are subject to a referendum, except those four types of bills that are specified in this section.

The courts in California have also explained what types of measures are subject to the referendum. The scope of the referendum power is generally treated as co-extensive with the scope of the legislative authority; thus, any legislative decision made by a representative body is subject to referendum. A referendum may review only legislative decisions, but not matters that are strictly executive or administrative. Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4th 714

Similarly, another appellate court ruled that the power of referendum conferred by California Constitution Article II, Section 9 applies only to acts that are legislative in character, and not to executive or administrative acts. An act is legislative in nature if it prescribes a new policy or plan. The distinction between legislative and administrative action may sometimes present not only legal issues but factual issues bearing on the governmental entity’s intent. Southwest Diversified, Inc. v. City of Brisbane (1991) 229 Cal.App.3d 1548

As a result of this court guidance, we know that the power of referendum applies only to legislative enactments, not administrative agency regulations or other executive branch actions. Nonetheless, there are four types of statutes that are not subject to a referendum: urgency statutes, elections bills, tax levy measures, and current state expenses bills.

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