McGeorge Adjunct Professor Chris Micheli

The referendum is one of the three forms of direct democracy in California. It is the power of the voters to approve or reject statutes either in part or in whole. So, what is subject to a referendum?

Pursuant to Article II, Section 9 of the California  Constitution, any statute – either in part or in whole – can be subjected to referendum except for:

  • Urgency statutes,
  • Statutes calling elections,
  • Statutes providing for tax levies, or
  • Statutes providing for appropriations for usual current expenses of the state.

The courts in California have several times explained further what types of measures are subject to a referendum. The scope of the referendum power is generally treated as coextensive with the scope of the legislative authority. As a result, any legislative decision made by a representative type body is subject to referendum.

That said, the courts have said that a referendum may only review legislative matters. The power of referendum does not extend to matters that are strictly executive or administrative. This came of the 1998 decision in Empire Waste Management v Town of Windsor.

Other appellate courts have also ruled that the power of the referendum conferred by Article II, Section 9 applies only to acts that are legislative in character and not to executive or administrative acts.

What makes an act legislative in nature? 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 ones as well bearing on the government entity’s intent. This was discussed at length in a 1991 California Appellate Court decision called Southwest Diversified, Inc. versus the City of Brisbane.

As a result of this court guidance, we know that the power of referendum applies only to legislative enactments and not administrative agency regulations or other executive branch actions.

You can find the full transcript of today’s podcast here.

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