Brent E. Zepke
I remember the day outside a mall when an approaching woman with a proposition caused me to raise my flag of caution.
Not that she appeared threatening, but rather, it was a response developed in Philadelphia where the types of “propositions” offered usually promised experiences much different than I thought was promised by signing a proposition for an inclusion on a voting ballot.
While I listened to this clipboard carrier, my thoughts were that this could be a real demonstration of democracy-in-action.
As a second-generation American whose grandfather was so proud to be here that he named my father “George Washington Zepke,” and a mother whose father was “Grover Cleveland Stackhouse,” I was a strong believer in the opening words of the Constitution: “We the people.”
Back to the proposition. The short blip at the top of the signature page sounded reasonable but too vague to assign much meaning as my experience in practicing law was that the intentions are usually contained in the details. However, when the woman reasonably said, “Sign it, and decide once it is on the ballot,” I did.
Is that how it worked out for Proposition 47?
Propositions in California begin when a group with sufficient funds and support obtain a petition signed by at least 8% for a Constitutional amendment and 5% for a statute. The percentage is taken from the number who voted in the last gubernatorial election.
These signatures are often obtained by a person with a sign-up sheet with a very short summary at the top of the first page. The signature gatherers explain in a few words their understanding of the proposed proposition.
The petition is submitted to the California secretary of state, who in 2014 was Alex Padilla (D), who reviews it. If the petition includes more than 110% of the minimum signatures required, it qualifies; less than 95% it fails. If the number is between 110% and 95% the signatures are checked to determine that all the signers were citizens, a process that can take up to three months.
Qualified petitions go to the California attorney general, who in 2014 was Kamala Harris (D), to perform the rewrite that appears on the ballot, including the measure’s title. Proposition 47’s title was “Criminal Sentences. Misdemeanor Penalties.”
Then the parties’ campaign with “talking points,” during which the party supporting Proposition 47 called it the “Safe Neighborhoods and Schools Act,” which would “recategorize some offenses as misdemeanors rather than felonies.” Notice the inclusion of the warm sounding words of “Safe, neighborhoods, schools,” in addition to substituting “offenses” for “crimes.”
The information pamphlet that came with the ballots used the label “Safe Neighborhoods and Schools Act” and stated that a “Yes” vote meant “State savings used to support school truancy and dropout prevention, victim services, mental health and drug treatment, and other designated programs designed to keep offenders out of prisons or jails.” The fiscal result was to be “Savings to state and county criminal justice systems in the high hundreds of millions of dollars annually.”
A “No” vote was simply stated to lead to no reduction in penalties.
What were the details of Proposition 47?
It converted certain nonviolent property crimes, where the value does not exceed $950, from felonies to misdemeanors (emphasis added).
My experiences beginning in law school showed me that nothing is as easy as it sounds.
In appellate arguments, one student is required on appeal to argue in favor of a trial court holding, and another student must argue against it. When I read the court holding, I laughed and said, “I can win this with my suit on backward.” But when I learned I had the “other” side, I also learned that there always is” another” side.
Applying this to the proposition leads to questions such as: “nonviolent?” Sounds good, but the details are that every theft is “assumed” to be “nonviolent” even when guns are involved. What about “property” crimes? Is it a property crime when a watch is ripped off your wrist?
Who determines the “value?” If it is the retailer, is it the price tag in the store? The lost profit? The cost? Financing charges? Advertising charges? Rental charges for the floor space to display it? Damage to displays? Lost opportunities? Replacement costs during inflation? The time for employees to repair damages and restock the shelves? Increases in the cost of insurance coverage, if the policy is not canceled?
Even this list does not include the cost of the potential loss of customers or employees if the thieves become violent, as well as the emotional toll on everyone.
If the “value” is determined by the criminals, is it the amount paid by the “fences”? What do the fences charge in resale? Cumulative for all the items taken by a team of thieves striking together? This thief striking multiple times?
You get the point: Assigning values is open to interpretations. Yet that is what law enforcement must immediately do when a suspect is arrested for theft.
There was an exception in Proposition 47 that appeared to offer voters some protections from habitual criminals by providing that those criminals lost their protection after their third conviction for the crimes covered by the Proposition. However, this offered false hope since prosecutors, like in L.A., declined to prosecute 12,000 cases where the police handed them probable cause.
The details proved to be that achieving three or more of imaginary convictions remains trapped in the meta-world.
Proposition 47 also included a very unusual provision that provided if someone was in jail for a felony that was made a misdemeanor by Proposition 47, they could apply to the courts for that reduction. Some 200 immediately did. An Interesting provision since “ex post facto” laws prohibit the making of laws today that affect actions yesterday.
Voters passed Proposition 47 in November 2014.
Did Proposition 47 offer the voters an “experience much different” than might be offered on the streets of Philadelphia?
Was its ballot title “Criminal Sentences: Misdemeanor Penalties” accurate?
Was labeling it the “Safe Neighborhoods and Schools Act” misleading? Ever hear of any details on how it made neighborhoods and schools safer?
Was voting “Yes” for “State savings used to support school truancy and dropout prevention, victim services, mental health and drug treatment, and other designated programs designed to keep offenders out of prisons or jails” misleading? Notice any improvements or new programs?
Was the claimed Fiscal Result of “Savings to state and county criminal justice systems in the high hundreds of millions of dollars annually” misleading? Notice any reductions in taxes based on the promised savings?
Maybe my caution flag was appropriate as the experiences were not so different from those promised in Philadelphia where, like hit-and-run drivers, the proponents are never held accountable. Doubt it? Can you name any accomplishments, including Proposition 47, mentioned by either the current president or vice president or questioned about by the mainstream media? Favorite ice cream does not count.
Until voters demand accomplishments, they can expect the results to reflect the wisdom of Albert Einstein: “Insanity is doing the same thing, over and over again, but expecting different results.”
The author lives in Santa Barbara.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. He formerly taught at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer,” and “Law for Non-Lawyers.”
