Justice Carol Corrigan wrote the decision, joined by Chief Justice Tani Cantil-Sakauye, Justice Kathryn Werdegar and the three judges Brown has appointed in the last five years: Goodwin Liu, Mariano-Florentino Cuellar and Leondra Kruger.

The decision held that changes Brown sought met the Election Code requirement, adopted in 2014, that they be “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.” Even though public comments had been taken on the original version of the measure and could not be sought again before the measure goes on the November ballot, Corrigan found that Brown had acted in good faith and in a manner that didn’t undercut direct democracy.

Ruling allows ballot measures to be ‘hijacked’

But in a sharply worded dissent, Justice Ming Chin questioned whether this would have the effect of turning already-conceived ballot measures that had crossed initial obstacles into much different proposals not subject to public comment — making public review of proposed measures effectively “meaningless.”

The legislative history of the 2014 change to the Election Code shows it was intended to allow for poorly crafted measures to be fixed before being presented to voters, Chin noted. Instead of following that goal, Chin wrote, the majority decision sets “a precedent establishing whether that section [of the 2014 law] can function as a true reform to achieve its intended purpose, or if it is an empty shell — just another rule that can easily be evaded with a little imagination. …

“Under today’s ruling, future initiative proponents can evade the period of public review in the same way the proponents have done here. They merely need to hijack a vaguely similar measure that was in the process of qualifying.”

This parallels the critiques that have been made for decades of the California Legislature’s much-criticized “gut and amend” maneuver in which legislative leaders rewrite bills at the last second and try to adopt them with little review as legislative sessions wrap up each September.

“Dramatically changing the sentencing laws — by permitting early parole for some offenders, contrary to the detailed sentencing scheme currently in effect — is not reasonably germane to changing the treatment of juvenile and youthful offenders in the criminal justice system,” Chin wrote.

DAs: Revisions wipe out two laws approved by state voters

A similar argument was offered in February by Sacramento County Superior Court Judge Shelleyanne Chang when she upheld the California District Attorneys Association’s challenge to Brown’s revisions.

The CDAA depicted Brown’s revisions as anything but minor.

“This initiative effectively repeals Proposition 8, the California’s Victims Bill of Rights law that the voters passed in 1982. It also effectively repeals Marsy’s Law passed by the voters in 2008. The crime victims of this state and the people who voted to protect their rights deserve their due process, at the very least, the statutorily allowed public comment period to express how this would affect them and their families,” said Anne Marie Schubert, Sacramento County district attorney and the official petitioner in the case.

Chin, appointed to the state’s high court in 1996 by Gov. Pete Wilson, is considered a moderate conservative.

He won national attention in December for another dissent. Chin argued that the majority court decision putting up new California Environmental Quality Act obstacles to the massive Newhall Ranch project in north Los Angeles County amounted to a “recipe for paralysis.” He said the decision’s interpretation of CEQA required developers to repeatedly demonstrate they had met mitigation goals, instead of accepting previous clearances as binding and valid.

“No one should lose his or her property without being first convicted of a crime,” said Scott Bullock, a senior attorney with the Institute for Justice, which has pushed for a nationwide reform of asset forfeiture laws. “That’s a basic tenant that most Americans are shocked to learn is being violated daily by law enforcement officials nationwide.”

On Thursday, the state Assembly rejected legislation on a 24-44 vote that would have reformed the state’s rules for seizing assets of those suspected of criminal activity.

A bipartisan coalition of lawmakers urged their colleagues to defend the due process and property rights of those not yet convicted of a crime.

“We have today the opportunity to restore a core principle of American justice, and that is that no person’s property can be taken from him or her without due process of law, without a trial and a conviction,” said Assemblyman David Hadley, R-Torrance, who carried the bill in the lower house. “In California in the last 20 years, tens of thousands of people have had property taken and that property has not been returned – even though those individuals have neither been charged with a crime nor convicted of a crime.”

Asset Forfeiture: Controversial Tool for Targeting Criminals

Under the country’s asset forfeiture system, law enforcement agencies have the legal authority to confiscate property of anyone suspected of a crime. Those agencies are then entitled to keep a percentage of the assets – providing a direct financial incentive for government agents to seize personal property.

Law enforcement agencies defend the practice as a vital tool for stopping organized crime and prosecuting drug dealers.

“Is there anyone who could seriously argue that that dealer should be able to still keep the dirty money derived from those illegal sales?” asked Chula Vista Police Chief David Bejarano, who also serves as president of the California Police Chiefs Association, in a recent Sacramento Bee op-ed piece. “How about the low-level criminals frequently paid by drug dealers to transport dirty money?”

Critics of the practice say it has been widely abused, indiscriminately punishing average citizens alongside criminal masterminds. A multi-year investigation by the Drug Policy Alliance, “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” found that the average value of a state seizure in California in 2013 was $8,542.

“Unfortunately, forfeiture has become a widely abused practice,” explains Steven Greenhut, the San Diego Union-Tribune’s California columnist. “Instead of targeting drug kingpins as intended, police sometimes target average citizens who haven’t been convicted or even accused of a crime.”

California law enforcement agencies circumvent state law

Each state has its own rules governing asset forfeiture. Under federal law, any amount can be seized without a conviction. In California, assets valued at less than $25,000 are exempt from seizure. To evade California’s basic legal protections, law enforcement agencies have partnered with federal agencies, who keep a cut and pass along some of the seized assets to their local counterparts.

Senate Bill 443, authored by Senator Holly Mitchell, D-Los Angeles, would have required a conviction for most asset forfeiture cases and blocked law enforcement agencies in California from using federal agencies as a middleman for circumventing state law.

According to a legislative analysis of the bill, “Under federal law, 20 percent of revenue from forfeited assets is retained by the federal agency involved, and 80 percent is allocated to the local agencies involved in the seizure in proportion to their involvement in the case.”

In the past decade, California law enforcement agencies have seen their share of seized assets more than triple to more than $100 million per year. California law enforcement agencies received $89.6 million in funds from the Federal Equitable Sharing Program in 2014 — on top of approximately $28 million in assets seized at the state level.

Law enforcement lobbying to maintain vested interest

Public safety groups that have a vested interest in maintaining civil asset forfeiture rules waged an intense lobbying campaign to defeat the bill. The California District Attorneys Association launched an effort targeted at individual members.

In one flyer, the group targeted Assemblyman Phil Ting of San Francisco, claiming his support for the measure would cost his district $2.1 million in law enforcement funding.

The scare tactics included dire warnings that Sen. Mitchell’s legislation would jeopardize hundreds of millions of dollars in federal law enforcement funding.

“These requirements would violate federal forfeiture guidelines, and would thus end all federal equitable sharing for over 200 law enforcement agencies and task forces in California,” wrote Sean Hoffman, director of legislation for the California District Attorneys Association. “SB443 will severely reduce valuable resources obtained through drug asset forfeiture that fund investigation and prosecution, drug treatment and prevention, training, and community based organizations.”