Court of Appeal Clarifies "Full Text" Rule

When a local governing body approves a plan, but the approving ordinance merely incorporates the plan by reference rather than as an attached exhibit, does the plan have to be attached to a referendum petition seeking to submit the ordinance to the electorate? In a decision clearly foreshadowed by prior cases, the Court of Appeal for the First Appellate District, Division One, has answered this question "yes." In Defend Bayview Hunters Point Committee v. City and County of San Francisco (available here), the court held that the referendum petition failed to comply with the "full text" rule embodied in Elections Code Section 9238. Interestingly, the court expressly stopped short of holding that all documents incorporated by reference must be attached to a referendum petition. Instead, it summarized its holding as follows: "We do not hold here that all documents a local legislative body chooses to incorporate by reference in or attach to an ordinance must be included in a referendum petition. We hold only that when a central purpose of the ordinance is to adopt and enact into law the contents of an incorporated or attached document, a referendum petition on the ordinance does not satisfy Elections Code section 9238 unless it includes a copy of that document." The court also rejected the claim that this interpretation of Section 9238 violated the First Amendment, holding that the full text requirement did not reduce the number of available petition circulators, while serving the important state interest in providing information to potential referendum signers.

The decision is not particularly novel, inasmuch as prior cases such as Nelson v. Carlson, 17 Cal. App. 4th 732 (1993), had applied the full text rule and invalidated referendum petitions that did not contain exhibits to the challenged ordinances. However this was the first case that expressly considered the effect on the full text rule of incorporating by reference rather than by attachment. As such, its an important clarification of referendum law and one that referendum campaigns must heed at their peril