Patterico's Pontifications


A Fatal Flaw in Proposition 66?

Filed under: No on 66 — Patterico @ 3:57 pm

The version of Proposition 66 that we will vote on Tuesday is not the same version that was shown to voters when signatures were being collected. How different the two versions are in substance remains to be seen. But if the proposition passes, opponents should look into this issue further. The differences between the two versions could be significant enough to give opponents a legal challenge to the measure if it passes.

Here is my evidence:

Here is the version of Proposition 66 that was circulated to voters, as evidenced by the first paragraph:

We, the undersigned, registered, qualified voters of the State of California, residents of the afore-described County (or City and County), hereby propose amendments to Penal Code Sections 289, 667, 667.1, 667.5, 1170.12, 1192.7 and 707 of the Welfare and Institutions Code, relating to the sentencing of individuals for a third serious or violent felony after having been convicted of two prior serious or violent felonies, and petition the Secretary of State to submit the same to the voters of California for their adoption or rejection at the next succeeding primary or general election or at any special statewide election held prior to that primary or general election or as otherwise provided by law. The proposed statutory initiative reads as follows:

And here is the most recent version included in the voter’s guide.

If you take a look at them, you’ll see that they are not exactly the same.

For example, on August 29, I did an in-depth analysis of Section 11 of the proposition, based on the version submitted to the voters. One of my criticisms was that there were numerous typographical and other errors in the initiative. But the newest version fixes most of these. If you look at the typographical errors cited in my post, you’ll see that many of them are gone from the version on Tuesday’s ballot.

If the only differences are that some typographical errors have been cleaned up, then I imagine this is not that big a deal. I have not done a side-by-side comparison of every provision in the two versions, to see if there are any substantive differences.

But I can tell you one difference that is arguably substantive (and arguably cosmetic, depending on which side you’re on). Take a look at Section 9 of the version submitted to the voters, on page 11 at this link. Like every other section, it opens with this statement:

(This format presents struck wording in [italics and strikeout] and new wording in italics.)

In other words, voters were supposed to be notified of changes in the law, either by a strikeout (when the proposition removed language from existing law), or by italics (when the proposition added language to existing law).

Now look further down the page, at the amendment to section 1192.7(c)(19) of the Penal Code. This is the section that defines “serious felonies.” There are no italics to denote any changes to the law in subsection (19). But look at the version on the ballot. The word “[a]rmed” in “[a]rmed robbery” is now italicized — as it must be, because it’s a change to the law.

In other words, simple robbery was removed from the list of serious felonies — but there were no italics in the version shown to voters signing the petition, to put them on notice of this fact.

In fact, when I did my original analyses of the law, I totally missed the fact that the word “[a]rmed” had been added to section 1192.7(c)(19) — precisely because of the lack of italics.

The italics were snuck into the final version.

Unfortunately, this is probably a legal “so what?” — because the nincompoops who wrote this dog forgot to remove simple robbery from the list of violent felonies in section 667.5(c). Section 667.5(c)(9) still lists robbery as a violent felony. So the fact that it is no longer a serious felony is meaningless. [UPDATE: Actually, it’s not! A commenter points out that attempted serious felonies are strikes, but attempted violent felonies are not — so this provision effectively removed attempted robbery as a strike, without giving adequate notice of that fact to voters signing the petition. It also removes robbery as a crime that adds five years for a prior conviction. All of this may not be a ground for invalidating the whole proposition, but it’s an argument (albeit perhaps not a very compelling one) for leaving robbery in the list of serious felonies. Thanks to my commenter for the observation.]

But it makes me wonder:

Has anything else of substance been changed between the version shown to voters and the version that is on the ballot?

Even minor changes in wording in controversial and ambiguous provisions — like Section 11 (governing resentencing) — could have an effect on the interpretation of the initiative.

If you have a lazy hour, you might compare the two to see if there are any real differences. If there are, make a note and tell me what they are. This could become a basis to challenge the initiative in court if it passes.

5 Responses to “A Fatal Flaw in Proposition 66?”

  1. Find someone working at a law firm to redline a copy of the two for you.

    Technology works wonders.

    The Angry Clam (c96486)

  2. Any volunteers out there? The two versions are linked in the post . . .

    Patterico (756436)

  3. This should cause the Prop to be voided, period. The chances it will have any repercussions is, sadly, doubtful.

    clark (866957)

  4. It does have the effect of eliminating attempted robbery from the “strike” list unless it is an attempted armed robbery or attempted bank robbery.
    The violent felony list does not include attempts, but the serious felony list does.

    Steve Moawad (0f514a)

  5. I’ll sign up to overturn this POS

    Frank G (78c097)

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