November 12, 2009
Pursuant to Elections Code Section 9005, we have
reviewed the proposed constitutional initiative related to the
truthfulness of specified state, local, and media employees (A.G. File
No. 09‑0049).
Proposal
This measure amends the State Constitution to
address matters concerning the truthfulness of specified persons who
function "within the 'public trust.'"
Persons Defined as Functioning Within the
Public Trust. The measure defines persons included as
functioning within the public trust to include:
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Candidates
and persons elected or appointed to state or local government
offices.
-
State or local employees, including civil
servants, teachers, and others.
-
Californians elected to the U.S. Senate and the
U.S. House of Representatives, as well as their staff members.
-
Journalists (although the measure appears to
exclude some media entities operating exclusively via the Internet).
Public
Trust Persons Prohibited From Making Certain False Statements.
With certain exemptions, as described below, the measure prohibits
persons functioning within the public trust from knowingly and
intentionally making a "false statement of a material fact to the public
that is reasonably likely to influence the public regarding the passage
or repeal of legislative act(s), election or nonelection of a candidate
for public office, retention of a person in public office, or the
employment or dismissal of a person in a public position including
employment by any California state, county, or local government."
Exemptions From the False Statements
Prohibition. The measure exempts certain false statements by
persons acting within the public trust from its requirements.
Specifically, opinions accompanied by a disclaimer and private
communications, as defined, are exempted.
Criminal and Other Penalties for False
Statements. The measure allows the Attorney General or any
citizen or group in California to criminally prosecute persons
functioning within the public trust for making impermissible false
statements. If convicted, the person having made these false statements
shall be sentenced to prison for two to ten years and/or fined $10,000
to $500,000. That person, if convicted, shall be prohibited for life
from any employment related to the public trust. If the criminal
prosecution is conducted by a private citizen or group, the convicted
person shall be liable for all of the citizen's or group's costs and
attorney fees. If a prosecution by the private citizen or group results
in acquittal, all costs and attorney fees of the defense "shall be
awarded to the accused" from a source that is not defined in the
measure. The measure acknowledges that removal of a U.S. Senator or
Representative or their employees under this measure may conflict with
federal law, but requires any such conviction to be brought to the
attention of the U.S. Congress.
Potential Conflicts With U.S. Constitution.
There are potential conflicts between the proposed measure and the U.S.
Constitution, which is the supreme law of the land. For example, the
Bill of Rights contains guarantees concerning the freedoms of speech and
of the press. Moreover, Congress alone is empowered to pass certain laws
related to interstate commerce, including some parts of the mass media,
which may cover stories and issues and employ persons in various
states—not just California. Given these potential conflicts, among other
factors, courts would have a significant role in determining how exactly
this measure could be implemented lawfully, particularly with regard to
the press.
Fiscal Effects
The direct and indirect fiscal effects of this
measure on state and local governments would depend to a large extent on
how actively the Attorney General and other individuals and groups
pursue officials and media personnel, as well as how the courts
interpret the measure.
Increased Judicial and Prison Costs, Offset
by Fines. This measure would directly increase costs of
California's state-funded criminal justice systems. Specifically,
charges of criminal conduct against persons affected by the measure
would increase court system costs by an unknown amount—perhaps as much
as thousands or millions of dollars per year—depending largely on the
volume of claims pursued by the Attorney General and others. In
addition, if convicted, each person sentenced to prison under this
measure could cost the state several tens of thousands of dollars per
year. These costs could be partially or entirely offset by fines levied
against convicted false statement makers, which could total as much as
$500,000 per convicted individual.
Unknown Indirect Fiscal Effects.
The measure likely would affect the actions and public statements of
state and local office holders and employees in California. These
changes could result in the public receiving different information
regarding public policy issues in California and could, therefore,
affect how individuals vote on public policy matters and candidates.
Convicted office holders, moreover, would be removed from their
political office. This could result in unknown changes to state and
local policies, with an unknown indirect fiscal impact.
Summary of Fiscal Effect
The measure would have the following direct
fiscal effects for state government:
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