November Propositions |California Ballot Initiatives’ Pros & Cons Part 2

Attorney Stephen T. Holzer

Stephen T. Holzer | Shareholder

September 21, 2012

Los Angeles Business Litigation Lawyer

Stephen T. Holzer
September 21, 2012

Last week we took a look at Propositions 30 through 35 – the first six of the 11 new ballot measures Californians will see when they head to the voting booths in November. In this blog, we’ll review the remaining five, Propositions 36 through 40.

If you want to read the Official Title and Summary for each measure prepared by the Attorney General, click on the blue text of each proposition and you’ll be hyperlinked to the Secretary of State website where those documents are hosted.

We’ve also included hyperlinks to the main opposition and support sites for each proposition.

Proposition 36  – Three Strikes Law. Repeat Felony Offenders. Penalties. Initiative Statute.

If enacted, this measure would revise the “three-strikes” law, requiring a third-strike life sentence only in cases where the third-strike conviction is for a serious or violent felony.

If the third offense is for a non-violent crime like shoplifting, repeat offenders would be punished by receiving twice the normal sentence for the crime instead of life imprisonment. However, rapists, murderers and child molesters would be exceptions—if convicted of even a minor third-strike crime, these persons would receive life sentences.

Prop 36 Opposition:

Current and former District Attorneys and law enforcement seem to be divided on this one. But key opposition members to the measure include the California GOP. The “Save Three Strikes” movement says:

1. The 1994 Three Strikes law cut crime rates in half when it passed in 1994.

2. Prop 36 would allow nearly half of the state’s current 3-strike inmates to be re-sentenced and then released.

3. Low-level criminals released under AB109 are already causing enough crime – worse criminals with two or more convictions could be released under this new ballot measure.

Prop 36 Support:

Again, law enforcement and DAs fall on both sides of this argument. Drafters of the measure include legal eagles from Stanford Law School, the Legal Defense Fund, and the NAACP. Proponents say:

1. Prop 36 will make room in California prisons for more dangerous prisoners, as non-violent third-strikers will have their life sentences reduced.

2. The Legislative Analyst’s Office estimates Prop 36 potentially saves the state $100 million each year – funds that would help schools, prevent crime and decrease the need for tax increases.

3. The current law is too harsh in awarding 25 years to life sentences for repeat, non-violent felons, for such crimes as possession of small amounts of marijuana, writing bad checks, or theft of inexpensive items.

Proposition 37  – Genetically Engineered Foods. Labeling. Initiative Statute.

This Proposition would prohibit claims that food is “natural” where such engineering has taken place and, additionally, would require labeling indicating such engineering had occurred.  There would be a number of exemptions offered, including exemptions for food that has been certified as organic, food that is made from animals fed with genetically–engineered materials and food containing minimally-engineered materials.

Prop 37 Opposition:

Various California farm bureaus and agricultural associations, the California Republican Party and quite a few heavy hitters of the food industry are opposed to this one, arguing that 37 is deceptive and flawed, and will:

1. Ban perfectly safe foods only in California, unless they’re specially relabeled and/or remade with higher cost ingredients.

2. Result in higher food costs for consumers, as manufacturers will be forced to use more organics and implement new record-keeping and other operations. Billions of dollars in costs will be passed on to families.

3. Institute more costly bureaucracy as government agencies will need to monitor food, growers, packagers, retailers, etc.

Prop 37 Support:

The “Right to Know” movement is supported by the California Public Interest Research Group (CALPIRG), the California Nurses Association and other health groups, United Farm Workers and such companies as Amy’s Kitchen and Whole Foods. They claim:

1. Genetically Modified Organisms (GMOs) are genetically engineered foods and other products that have not been subjected to long-term health studies and are not proven safe.

2. A growing body of studies links GMOs to allergies, organ toxicity and other health problems, as well as environmental concerns such as a loss in biodiversity, increase in pesticide use and the emergence of “super weeds”.

3. Companies revise their labeling all the time so there shouldn’t be a cost increase in food as the Prop 37 opposition claims. A study shows there was no increase in food costs in Europe when their countries switched to GMO labeling.

Proposition 38  – Tax to Fund Education and Early Childhood Programs. Initiative Statute.

This measure offers an alternative to Governor Brown’s proposal (Proposition 30) to increase the income tax on individuals earning over $250,000/year and to increase the sales tax.  Proposition 38 would, for a 12-year period, increase income taxes on virtually everyone, from a .4 percent increase on very low earners ($7,316/year) to a 2.2 percent increase on individuals earning over $2.5 million annually.  The monies raised would be devoted exclusively to schools, early childhood education programs and repayment of State debt.

Prop 38 Opposition:

The primary opposition comes from the supporters of Governor Brown’s Proposition 30, and the California Democratic Party, as well as the California Teachers Association. The No on 38 crowd says the measure will:

1. Kill jobs in small and family businesses and imposes a significant tax hike on most Californians.

2. Not allow for change – this law if enacted, will continue for 12 years.

3. Force schools through complex red tape to receive basic funding and creates new programs even though necessary school functions have been cut back.

Prop 38 Support:

Supporters of this ballot include the California State PTA and various school districts and school boards around the state. They claim Prop 38:

1. Restores budget cuts to schools, allowing teachers to be re-hired and programs to be restored.

2. Ensures that funds raised will go straight to the schools – state politicians won’t be able to touch it.

3. Guarantees local control: parents and teachers decide how to spend the money.

Proposition 39  – Tax Treatment for Multistate Businesses. Clean Energy and Energy Efficiency Funding. Initiative Statute.

This Prop would require businesses with multistate sales to pay State income taxes according to the businesses’ percentage of total sales being made in California.  Presently, multistate businesses can base their California tax liability on a formula that gives weight to payroll and property outside the State, usually resulting in more favorable tax treatment than would exist if Prop 39 becomes law.

Prop 39 Opposition:

The opposition to Prop 39 is primarily lead by the California Manufacturers & Technology Association (CMTA), who says that, the measure:

1. Makes California’s hostile business climate and uncertain regulatory environment worse, by raising taxes on job creators.

2. The three factor formula for determining tax liability has been in place since 1966, including through California’s “boom” years in the 1980s and 1990s.

3. Is a job-killer because it’s a $1 billion tax increase on job-creating, multi-state companies.

Prop 39 Support:

The “Close the Loophole” faction is supported by California’s National Organization for Women (NOW), The American Lung Association/California, the American Federation of State, County and Municipal Employees (AFSCME) and various environmental and conservation groups. Supporters say Prop 39:

1. Closes loophole created in 2009 costs the state $1 billion per year and tens of thousands of jobs.

2. Creates 20k – 30k construction-related jobs because of the direct investment in energy efficiency and clean energy projects.

3. Will help reduce the state budget deficit by generating an additional $500 million in annual General Fund revenue starting next year, and $1 billion after five years.

Proposition 40  –  Redistricting. State Senate Districts. Referendum.

If enacted, this measure would have held the 2010 realignment of State Senate Districts by the “Citizens Redistricting Commission” in abeyance, and would have had the judiciary set interim districts until the 2010 realignment could be voted upon in a future State-wide election.

This one gets a little confusing. If you vote “yes,” you’re voting to maintain the State Senate maps drawn by the Citizens Redistricting Commission. A “no” vote indicates you want the State Senate maps redrawn.

To further cloud the issue, the original backers of Prop 40 – the ones who wanted a “no” vote, mostly the GOP – have withdrawn, though the measure will remain on the ballot. And now the original “No” movement wants you to vote “Yes.” The OC Register has something of an explanation in this editorial:  Prop. 40 (redistricting): Yes.

Prop 40 Opposition:

The Yes on 40 coalitions is the initial ballot writers’ opposition, and consists of the California Chamber of Commerce, League of Women Voters/California, California Forward, and other groups. Yes on 40 says the prop will:

1. Uphold the will of the California voters, who passed Proposition 11 in 2008 which created the Independent Citizens Redistricting Commission.

2. Hold politicians accountable by ending “backroom deals” and ensuring transparency.

3. Uphold a unanimous California Supreme Court decision to protect the Citizens Redistricting Commission.

Prop 40 Support:

Remember, the initial supporters of this measure wanted a “no” vote, but have now backed out and cannot get the Prop 40 removed from the ballot. The GOP could get the vote they initially campaigned for and now no longer want, just because most voters will be confused.

Read California Ballot Initiatives Pros & Cons Part I, posted last week. Or continue with a look at ballot measures that will affect Angelenos: Los Angeles County Measure by Measure.

Stephen T. Holzer is a Business Litigation Attorney and Chair of our Environmental Law Practice Group. You may reach him at 818.990.2120.

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This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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