Item 21 - Assembly Bill 937 (the “VISION Act”)

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AB 937 Page 11 policies remain in effect, be repealed, or updated by the AG? Should the AG be required to develop updated model policies for all government agencies in light of this bill? The bill is silent on those questions. Potential State Constitutional Concerns Regarding the Reenactment Clause? The fact that this bill does not amend or repeal the Values Act and instead seeks to enact a parallel, more restrictive statute governing non-cooperation by state and local public agencies also may raise state constitutional concerns. Article IV of the California Constitution provides that, “A section of a statute may not be amended unless the section is re -enacted as amended.” (California Const., Art. IV, Section 9.) Under this provision of the State Constitution, the Legislature is required to reenact a code section whenever passing legislation to amend that particular section. One basic purpose of reenacting a statute that is being amended “is to make sure legislators are not operating in the blind when they amend legislation, and to make sure the public can become apprised of changes in the law.” (The Gillette Company, et. al., v. Franchise Tax Board (2015) 62 Cal.4th 468,483.) However, the reenactment rule does not apply to statutes that act to “amend” others only by implication. (The Gillett e Company, et. al., v. Franchise Tax Board, supra, at 483.) In Gillette, the California Supreme Court pointed out that strict enforcement of the reenactment clause is impractical, if nothing else. In that case, it grappled with the question of whether by enacting an alternative tax apportionment formula in Revenue & Tax. Code Section 25128 (a) after the Multistate Tax Compact became binding on the state without “reenacting” the Compact in statute, the Legislature violated the reenactment clause: We reasoned long ago . . . To say that every statute which thus affects the operation of another is therefore an amendment of it would introduce into the law an element of uncertainty which no one can estimate. It is impossible for the wises t legislator to know in advance how every statute proposed would affect the operation of existing laws. . . . Although Taxpayers note that the legislative bill analyses of the amendment did not refer to the Compact or the election provision expressly, reference to the Compact in section 25128(a) itself is strong evidence that the Legislature a cted with the Compact in mind. Even without a reenactment, the legislators and the public have been reasonably notifie d of the changes in the law. (Id. at 483-84 [internal quotations and citations omitted].) The California Supreme Court reached a similar decision three years later when it held that where a statutory provision is only technically reenacted as part of other cha nges made by a voter-approved initiative, the Legislature still retains the power to amend the partially reenacted provision through the ordinary legislative process . (County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 214.) When technical reenactments are required under article IV, section 9 of the Constitution—yet involve no substantive change in a given statutory provision—the Legislature in most cases retains the power to amend the restated provision through the ordinary legislative process. This conclusion applies unless the provision is integral to accomplishing the electorate's goals in enacting the initiative or other indicia support the conclusion that voters reasonably intended to limit the Legislature's ability to amend that part of the statute. (Ibid.) Regardless of whether the bill violates the reenactment clause by altering the Values Act without technically reenacting it, the bill’s impact on current law, including the Values Act is less clear than it could and optimally should be.