It’s a bird, it’s a plane… It’s a super statute

In high school civics, we learn that legislatures – as the voters’ representatives – make laws. In California, the voters themselves also make laws through the initiative process. And although Legislature- and voter-enacted statutes sit side-by-side in the statute books, those statutes are not created equal.

A Legislature-enacted statute may be amended or repealed by a subsequent Legislature so long as the second Legislature follows the usual rules for enacting statutes.

A statute enacted by voter initiative, by contrast, can be far less susceptible to amendment or repeal. That is because the California Constitution prohibits the Legislature from “amend[ing] or repeal[ing] an initiative statute . . . unless the initiative statute permits amendment or repeal . . . .” Cal. Const., art. II, section 10(c) (emphasis added); People v. Cooper, 27 Cal.4th 38, 44 (2002). The “prohibition exists “to ‘protect the people’s initiative powers by precluding the Legislature from undoing what the [voters] have done, without the electorate’s consent.’” County of San Diego v. Commission on State Mandates, 6 Cal.5th 196, 211 (2018).

Because the Constitution lets voters specify how impervious their enactment is to subsequent alteration, the voters get to specify the type of kryptonite for each “super statute.” There are four types – namely, that the initiative-based statute may be amended or repealed:

1. Only by another voter initiative.

2. By the Legislature, but only if the Legislature clears a procedural hurdle – typically, a supermajority vote (of two-thirds or three-quarters).

3. By a simple legislative majority, but the new statute must be consistent with the “intent” of the voter initiative.

4. Like any other Legislature-enacted statute.

Because these restrictions on the Legislature’s power curtail its ability to respond to new challenges and changing sensibilities, the courts have construed such restrictions narrowly. Only those portions of an initiative-based statute that are genuinely new – as opposed to restating or carrying forward existing statutory law – are accorded “super strength.” Cal. Gov. Code section 9605(a); Commission on State Mandates at 214. Further, not all subsequent changes to an initiative-based statute are deemed to “amend” it (and thus must overcome its super strength): The Legislature is deemed to “amend” an initiative only if it changes what the initiative “specifically authorize[s] or prohibit[s]”; a new law does not “amend” merely because it touches on a “related but distinct area” covered by the initiative. People v. Superior Court (Pearson), 48 Cal.4th 564, 571 (2010) (emphasis omitted).

Sometimes, the potential clash between new Legislature-enacted laws and prior voter initiatives is obvious, and the Legislature uses the proper type of kryptonite. In this vein, the Supreme Court recently held that a bill that flatly prohibits treating 14- and 15-year-olds as adults in criminal cases did not impermissibly “amend” voter-enacted Proposition 57 (which gave judges, not prosecutors, discretion to charge and sentence 14- and 15-year-olds as juveniles or adults) because Proposition 57 permitted any amendment consistent with its “intent” and the court found the later bill to be consistent. O.G. v. Superior Court, 11 Cal.5th 82 (2021). The intermediate appellate courts have also largely agreed that a bill that eliminates murder liability for accomplices who were not the actual killer absent proof that the accomplice personally harbored a “malicious” intent did not impermissibly “amend” Proposition 7 (which fixed the punishment for murder) or Proposition 115 (which added new felonies triggering felony-murder liability) because the change to accomplice liability did not change what either prior initiative specifically authorized or prohibited. E.g., People v. Superior Court (Ferraro), 51 Cal.App.5th 896 (2020). And the intermediate appellate courts are currently split on whether recently enacted AB 333 (which altered the prerequisites for applying the gang enhancement) “amended” Proposition 21 (which added murders with a gang enhancement to the list of crimes eligible for death or life without the possibility of parole). Compare People v. Rojas, 80 Cal.App.5th 542 (2022) (AB 333 is invalid) with People v. Lee, 81 Cal.App.5th 232 (2022) (AB 333 is valid); People v. Lopez, 82 Cal.App.5th 1 (2022) (same).

But sometimes the clash is harder to see. For instance, is there a clash between portions of the Racial Justice Act of 2020 (as amended in 2022) (the Act), and Proposition 115?

As amended, the Act enacted Penal Code section 745. That section recognizes four new grounds for challenging an ongoing prosecution or overturning a final conviction. Two of those grounds authorize a defendant to attack the prosecutor’s charging and sentencing decisions as being discriminatory on the basis of race, ethnicity, or national origin. Specifically, the Act now declares it a violation of law if (1) the prosecution has been charging or convicting persons of defendant’s race, ethnicity, or national origin with more serious crimes “more frequently” than persons of other races, ethnicities, or national origins when their offenses are similar and the defendants are otherwise similarly situated, or (2) if the prosecution has been seeking longer or more severe sentences “more frequently” for persons who are otherwise similarly situated on the basis of the defendant’s or the victim’s race, ethnicity, or national origin. Penal Code section 745(a)(3), (a)(4). Although the Act initially defined “more frequently” by reference to “statistical evidence or aggregate data demonstrat[ing] a significant difference” Id. section 745(h)(1) (2020), the 2022 amendment made “[s]tatistical significance” optional, Ibid. (2022). In short, the Act permits a selective prosecution claim to be brought on the basis of discriminatory effect. This marks a significant departure from prior California law, which paralleled federal equal protection law and thus required a showing of discriminatory intent. Baluyet v. Superior Court, 12 Cal.4th 826, 833 (1996); Murgia v. Municipal Court, 15 Cal.3d 286, 300 (1975), overruled on other grounds.

Most pertinent to this article, the Act also authorizes a defendant to seek discovery from the prosecution in support of a claim that its charging and sentencing decisions have been racially discriminatory; a showing of “good cause” is required. Penal Code section 745(d). Young v. Superior Court, 79 Cal.App.5th 138 (2022) held that this “good cause” standard is very permissive: A defendant is entitled to look through the prosecution’s files if she “advance[s] a plausible factual foundation, based on specific facts, that a violation of the . . . Act ‘could or might have occurred’” – even if that factual foundation is neither “probable” nor “credible” – unless the court makes a discretionary call, after balancing seven factors usually applicable to disclosure of evidence from third parties, that disclosure is not warranted. Young at 159-68; accord, People v. Garcia, 85 Cal.App.5th 290, 296-297 (2022). This standard is far more permissive than the prior, equal protection-based standard followed by the California courts (which required a showing of “some evidence” of discriminatory intent). People v. Montes, 58 Cal.4th 809, 830 (2014); People v. Superior Court (Baez), 79 Cal.App.4th 1177, 1187 (2000). It is also more permissive than the standard used to obtain law enforcement personnel records under Pitchess v. Superior Court, 11 Cal.3d 531 (1974).

Discovery between the prosecution and defense in a criminal case is, in California, governed by the Criminal Discovery Act (the CDA). Penal Code section 1054 et seq. The CDA itself does not authorize “[d]iscovery related to a claim of discriminatory prosecution.” Montes at 828.

The CDA was enacted as part of Proposition 115, a voter initiative. What is more, Proposition 115 specifies in an uncodified section that it can “not be amended by the Legislature” except by a “two-thirds” supermajority. Pearson at 568-569. The 2020 version of the Act passed the Assembly by 49 out of 80 votes (61.3%) and passed the Senate by 26 out of 40 votes (65%). The 2022 amendment to the Act passed the Senate by 30 out of 40 votes (75%), but passed the Assembly by only 46 out of 80 votes (57.5%).

Because neither passed by a two-thirds majority of both chambers of the Legislature, the question then becomes: Do the criminal discovery portions of the Act “amend” Proposition 115? In Pearson, our Supreme Court held that the CDA only regulates “pretrial discovery” (Id. at 570), so the Act’s provisions allowing for discovery in support of postconviction relief would not seem to “amend” Proposition 115. But what about section 745(d)’s discovery provisions when applied to pretrial discovery? Does that section change what the CDA “specifically authorize[s] or prohibit[s]?” Id. at 571 (emphasis omitted).

This is a subtle and complex question, one that highlights how California’s “super statutes” can possess as much super stealth as super strength.