Bill Text: CA AB1311 | 2013-2014 | Regular Session | Chaptered
Bill Title: Recall elections and voter registration.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-26 - Chaptered by Secretary of State - Chapter 591, Statutes of 2014. [AB1311 Detail]
Download: California-2013-AB1311-Chaptered.html
BILL NUMBER: AB 1311 CHAPTERED
BILL TEXT
CHAPTER 591
FILED WITH SECRETARY OF STATE SEPTEMBER 26, 2014
APPROVED BY GOVERNOR SEPTEMBER 26, 2014
PASSED THE SENATE AUGUST 21, 2014
PASSED THE ASSEMBLY AUGUST 28, 2014
AMENDED IN SENATE AUGUST 18, 2014
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Bradford
FEBRUARY 22, 2013
An act to amend Sections 2208, 2209, and 11302 of the Elections
Code, and to amend Sections 1823, 1826, 1828, 1851, and 1910 of the
Probate Code, relating to elections.
LEGISLATIVE COUNSEL'S DIGEST
AB 1311, Bradford. Recall elections and voter registration.
(1) Existing law prohibits a person from being registered as a
voter except by affidavit of registration. If a court finds that a
person is not capable of completing an affidavit of voter
registration, as specified, existing law provides that a person shall
be deemed mentally incompetent and disqualified from voting.
Existing law regulates the terms and conditions of
conservatorships and creates various requirements for a court and a
court investigator with regard to informing a proposed conservatee
that he or she may be disqualified from voting if he or she is not
capable of completing an affidavit of voter registration.
This bill would prohibit a person, including a conservatee, from
being disqualified from voting on the basis that the person signs the
affidavit of voter registration with a mark or a cross, signs the
affidavit of voter registration with a signature stamp, or completes
the affidavit of voter registration with the assistance of another
person.
(2) Under existing law, if a vacancy occurs in an office after a
recall petition is filed against the vacating officer, the recall
election is required to proceed. The vacancy in that office is
required to be filled as provided by law, but a person appointed to
fill the vacancy holds office only until a successor is selected and
qualifies for that office.
This bill would provide that upon the occurrence of a vacancy, the
elections official for each county in which a section of the recall
petition has been filed is required to immediately verify the
signatures on the petition submitted to the elections official as of
the date of the vacancy. If the elections official verifies that a
sufficient number of signatures were filed as of the date of the
vacancy, the recall election would be required to proceed. If the
elections official verifies that an insufficient number of
signatures, or no signatures, were filed as of the date of the
vacancy, the recall election would not proceed and the vacancy in the
office that is the subject of the recall election would be filled as
otherwise provided by law. The bill would delete the requirement
that a person appointed to fill the vacancy holds office only until a
successor is selected and instead would prohibit a person who was
subject to a recall petition from being appointed to fill the vacancy
in the office that he or she vacated or to fill any other vacancy in
office on the same governing board for the duration of the term of
office of the vacated seat.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2208 of the Elections Code is amended to read:
2208. (a) A person shall be deemed mentally incompetent, and
therefore disqualified from voting, if, during the course of any of
the proceedings set forth below, the court finds that the person is
not capable of completing an affidavit of voter registration in
accordance with Section 2150 and any of the following apply:
(1) A conservator for the person or the person and estate is
appointed pursuant to Division 4 (commencing with Section 1400) of
the Probate Code.
(2) A conservator for the person or the person and estate is
appointed pursuant to Chapter 3 (commencing with Section 5350) of
Part 1 of Division 5 of the Welfare and Institutions Code.
(3) A conservator is appointed for the person pursuant to
proceedings initiated under Section 5352.5 of the Welfare and
Institutions Code, the person has been found not competent to stand
trial, and the person's trial or judgment has been suspended pursuant
to Section 1370 of the Penal Code.
(4) A person has plead not guilty by reason of insanity, has been
found to be not guilty pursuant to Section 1026 of the Penal Code,
and is deemed to be gravely disabled at the time of judgment as
defined in paragraph (2) of subdivision (h) of Section 5008 of the
Welfare and Institutions Code.
(b) If the proceeding under the Welfare and Institutions Code is
heard by a jury, the jury shall unanimously find that the person is
not capable of completing an affidavit of voter registration before
the person shall be disqualified from voting.
(c) If an order establishing a conservatorship is made and in
connection with the order it is found that the person is not capable
of completing an affidavit of voter registration, the court shall
forward the order and determination to the county elections official
of the person's county of residence.
(d) A person shall not be disqualified from voting pursuant to
this section on the basis that he or she does, or would need to do,
any of the following to complete an affidavit of voter registration:
(1) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150.
(2) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5.
(3) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150.
SEC. 2. Section 2209 of the Elections Code is amended to read:
2209. (a) For conservatorships established pursuant to Division 4
(commencing with Section 1400) of the Probate Code, the court
investigator shall, during the yearly or biennial review of the
conservatorship as required by Chapter 2 (commencing with Section
1850) of Part 3 of Division 4 of the Probate Code, review the person'
s capability of completing an affidavit of voter registration in
accordance with Section 2150.
(b) (1) If the person had been disqualified from voting by reason
of being incapable of completing an affidavit of voter registration,
the court investigator shall determine whether the person has become
capable of completing the affidavit in accordance with Section 2150
and subdivision (d) of Section 2208, and the investigator shall so
inform the court.
(2) If the investigator finds that the person is capable of
completing the affidavit in accordance with Section 2150 and
subdivision (d) of Section 2208, the court shall hold a hearing to
determine whether the person is in fact capable of completing the
affidavit. If the person is found to be capable of completing the
affidavit, the person's right to register to vote shall be restored,
and the court shall so notify the county elections official.
(c) If the person had not been found to be incapable of completing
an affidavit of voter registration, and the court investigator
determines that the person is no longer capable of completing the
affidavit in accordance with Section 2150 and subdivision (d) of
Section 2208, the investigator shall so notify the court. The court
shall hold a hearing to determine whether the person is capable of
completing an affidavit of voter registration in accordance with
Section 2150 and subdivision (d) of Section 2208. If the court
determines that the person is not so able, the court shall order the
person to be disqualified from voting pursuant to Section 2208, and
the court shall so notify the county elections official.
SEC. 3. Section 11302 of the Elections Code is amended to read:
11302. (a) Except as described in paragraph (3) of subdivision
(b), if a vacancy occurs in an office after a recall petition is
filed against the vacating officer, the recall election shall
nevertheless proceed.
(b) (1) Upon the occurrence of the vacancy, the elections official
for each county in which a section of the recall petition has been
filed shall immediately verify the signatures on the petition
submitted to the elections official as of the date of the vacancy.
(2) If the elections official verifies that a sufficient number of
signatures were filed as of the date of the vacancy, the recall
election shall proceed.
(3) If the elections official verifies that an insufficient number
of signatures, or no signatures, were filed as of the date of the
vacancy, the recall election shall not proceed and a vacancy in the
office that is the subject of the recall election shall be filled as
otherwise provided by law.
(4) A person who was subject to a recall petition may not be
appointed to fill the vacancy in the office that he or she vacated
and that person may not be appointed to fill any other vacancy in
office on the same governing board for the duration of the term of
office of the seat that he or she vacated.
SEC. 4. Section 1823 of the Probate Code is amended to read:
1823. (a) If the petition is filed by a person other than the
proposed conservatee, the clerk shall issue a citation directed to
the proposed conservatee setting forth the time and place of hearing.
(b) The citation shall include a statement of the legal standards
by which the need for a conservatorship is adjudged as stated in
Section 1801 and shall state the substance of all of the following:
(1) The proposed conservatee may be adjudged unable to provide for
personal needs or to manage financial resources and, by reason
thereof, a conservator may be appointed for the person or estate, or
both.
(2) Such adjudication may affect or transfer to the conservator
the proposed conservatee's right to contract, in whole or in part, to
manage and control property, to give informed consent for medical
treatment, and to fix a residence.
(3) (A) The proposed conservatee may be disqualified from voting
pursuant to Section 2208 of the Elections Code if he or she is not
capable of completing an affidavit of voter registration in
accordance with Section 2150 of the Elections Code.
(B) The proposed conservatee shall not be disqualified from voting
on the basis that he or she does, or would need to do, any of the
following to complete an affidavit of voter registration:
(i) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(ii) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(iii) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(4) The court or a court investigator will explain the nature,
purpose, and effect of the proceeding to the proposed conservatee and
will answer questions concerning the explanation.
(5) The proposed conservatee has the right to appear at the
hearing and to oppose the petition, and in the case of an alleged
developmentally disabled adult, to oppose the petition in part, by
objecting to any or all of the requested duties or powers of the
limited conservator.
(6) The proposed conservatee has the right to choose and be
represented by legal counsel and has the right to have legal counsel
appointed by the court if unable to retain legal counsel.
(7) The proposed conservatee has the right to a jury trial if
desired.
SEC. 5. Section 1826 of the Probate Code is amended to read:
1826. Regardless of whether the proposed conservatee attends the
hearing, the court investigator shall do all of the following:
(a) Conduct the following interviews:
(1) The proposed conservatee personally.
(2) All petitioners and all proposed conservators who are not
petitioners.
(3) The proposed conservatee's spouse or registered domestic
partner and relatives within the first degree. If the proposed
conservatee does not have a spouse, registered domestic partner, or
relatives within the first degree, to the greatest extent possible,
the proposed conservatee's relatives within the second degree.
(4) To the greatest extent practical and taking into account the
proposed conservatee's wishes, the proposed conservatee's relatives
within the second degree not required to be interviewed under
paragraph (3), neighbors, and, if known, close friends.
(b) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding, to
attend the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(c) Determine whether it appears that the proposed conservatee is
unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.
(d) Review the allegations of the petition as to why the
appointment of the conservator is required and, in making his or her
determination, do the following:
(1) Refer to the supplemental information form submitted by the
petitioner and consider the facts set forth in the form that address
each of the categories specified in paragraphs (1) to (5), inclusive,
of subdivision (a) of Section 1821.
(2) Consider, to the extent practicable, whether he or she
believes the proposed conservatee suffers from any of the mental
function deficits listed in subdivision (a) of Section 811 that
significantly impairs the proposed conservatee's ability to
understand and appreciate the consequences of his or her actions in
connection with any of the functions described in subdivision (a) or
(b) of Section 1801 and identify the observations that support that
belief.
(e) Determine whether the proposed conservatee wishes to contest
the establishment of the conservatorship.
(f) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as conservator.
(g) Determine whether the proposed conservatee wishes to be
represented by legal counsel and, if so, whether the proposed
conservatee has retained legal counsel and, if not, the name of an
attorney the proposed conservatee wishes to retain.
(h) (1) Determine whether the proposed conservatee is not capable
of completing an affidavit of voter registration in accordance with
Section 2150 of the Elections Code and may be disqualified from
voting pursuant to Section 2208 of the Elections Code.
(2) The proposed conservatee shall not be disqualified from voting
on the basis that he or she does, or would need to do, any of the
following to complete an affidavit of voter registration:
(A) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(B) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(C) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(i) If the proposed conservatee has not retained legal counsel,
determine whether the proposed conservatee desires the court to
appoint legal counsel.
(j) Determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect
the interests of the proposed conservatee in any case where the
proposed conservatee does not plan to retain legal counsel and has
not requested the appointment of legal counsel by the court.
(k) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the proposed
conservatee's express communications concerning both of the
following:
(1) Representation by legal counsel.
(2) Whether the proposed conservatee is not willing to attend the
hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator or
prefer that another person act as conservator.
(l) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (k) to all of the following:
(1) The attorney, if any, for the petitioner.
(2) The attorney, if any, for the proposed conservatee.
(3) The proposed conservatee.
(4) The spouse, registered domestic partner, and relatives within
the first degree of the proposed conservatee who are required to be
named in the petition for appointment of the conservator, unless the
court determines that the mailing will result in harm to the
conservatee.
(5) Any other persons as the court orders.
(m) The court investigator has discretion to release the report
required by this section to the public conservator, interested public
agencies, and the long-term care ombudsman.
(n) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(l), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys, and
the court. The court has discretion at any other time to release the
report, if it would serve the interests of the conservatee. The clerk
of the court shall provide for the limitation of the report
exclusively to persons entitled to its receipt.
(o) This section does not apply to a proposed conservatee who has
personally executed the petition for conservatorship, or one who has
nominated his or her own conservator, if he or she attends the
hearing.
(p) If the court investigator has performed an investigation
within the preceding six months and furnished a report thereon to the
court, the court may order, upon good cause shown, that another
investigation is not necessary or that a more limited investigation
may be performed.
(q) Any investigation by the court investigator related to a
temporary conservatorship also may be a part of the investigation for
the general petition for conservatorship, but the court investigator
shall make a second visit to the proposed conservatee and the report
required by this section shall include the effect of the temporary
conservatorship on the proposed conservatee.
(r) The Judicial Council shall, on or before January 1, 2009,
adopt rules of court and Judicial Council forms as necessary to
implement an expedited procedure to authorize, by court order, a
proposed conservatee's health care provider to disclose confidential
medical information about the proposed conservatee to a court
investigator pursuant to federal medical information privacy
regulations promulgated under the Health Insurance Portability and
Accountability Act of 1996.
(s) A superior court shall not be required to perform any duties
imposed pursuant to the amendments to this section enacted by Chapter
493 of the Statutes 2006 until the Legislature makes an
appropriation identified for this purpose.
SEC. 6. Section 1828 of the Probate Code is amended to read:
1828. (a) Except as provided in subdivision (c), prior to the
establishment of a conservatorship of the person or estate, or both,
the court shall inform the proposed conservatee of all of the
following:
(1) The nature and purpose of the proceeding.
(2) The establishment of a conservatorship is a legal adjudication
of the conservatee's inability properly to provide for the
conservatee's personal needs or to manage the conservatee's own
financial resources, or both, depending on the allegations made and
the determinations requested in the petition, and the effect of such
an adjudication on the conservatee's basic rights.
(3) (A) The proposed conservatee may be disqualified from voting
pursuant to Section 2208 of the Elections Code if he or she is not
capable of completing an affidavit of voter registration in
accordance with Section 2150 of the Elections Code.
(B) The proposed conservatee shall not be disqualified from voting
on the basis that he or she does, or would need to do, any of the
following to complete an affidavit of voter registration:
(i) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(ii) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(iii) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(4) The identity of the proposed conservator.
(5) The nature and effect on the conservatee's basic rights of any
order requested under Chapter 4 (commencing with Section 1870), and
in the case of an allegedly developmentally disabled adult, the
specific effects of each limitation requested in such order.
(6) The proposed conservatee has the right to oppose the
proceeding, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(b) After the court so informs the proposed conservatee and prior
to the establishment of the conservatorship, the court shall consult
the proposed conservatee to determine the proposed conservatee's
opinion concerning all of the following:
(1) The establishment of the conservatorship.
(2) The appointment of the proposed conservator.
(3) Any order requested under Chapter 4 (commencing with Section
1870), and in the case of an allegedly developmentally disabled
adult, of each limitation requested in such order.
(c) This section does not apply where both of the following
conditions are satisfied:
(1) The proposed conservatee is absent from the hearing and is not
required to attend the hearing under subdivision (a) of Section
1825.
(2) Any showing required by Section 1825 has been made.
SEC. 7. Section 1851 of the Probate Code is amended to read:
1851. (a) (1) If court review is required pursuant to Section
1850, the court investigator shall, without prior notice to the
conservator except as ordered by the court for necessity or to
prevent harm to the conservatee, visit the conservatee. The court
investigator shall inform the conservatee personally that the
conservatee is under a conservatorship and shall give the name of the
conservator to the conservatee. The court investigator shall
determine all of the following:
(A) Whether the conservatee wishes to petition the court for
termination of the conservatorship.
(B) Whether the conservatee is still in need of the
conservatorship.
(C) Whether the present conservator is acting in the best
interests of the conservatee. In determining whether the conservator
is acting in the best interests of the conservatee, the court
investigator's evaluation shall include an examination of the
conservatee's placement, the quality of care, including physical and
mental treatment, and the conservatee's finances. To the extent
practicable, the investigator shall review the accounting with a
conservatee who has sufficient capacity. To the greatest extent
possible, the court investigator shall interview individuals set
forth in subdivision (a) of Section 1826, in order to determine if
the conservator is acting in the best interests of the conservatee.
(D) (i) Whether the conservatee is not capable of completing an
affidavit of voter registration in accordance with Section 2150 of
the Elections Code and may be disqualified from voting pursuant to
Section 2208 or 2209 of the Elections Code.
(ii) The conservatee shall not be disqualified from voting on the
basis that he or she does, or would need to do, any of the following
to complete an affidavit of voter registration:
(I) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(II) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(III) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(2) If the court has made an order under Chapter 4 (commencing
with Section 1870), the court investigator shall determine whether
the present condition of the conservatee is such that the terms of
the order should be modified or the order revoked.
(3) Upon request of the court investigator, the conservator shall
make available to the court investigator during the investigation for
inspection and copying all books and records, including receipts and
any expenditures, of the conservatorship.
(b) (1) The findings of the court investigator, including the
facts upon which the findings are based, shall be certified in
writing to the court not less than 15 days prior to the date of
review. A copy of the report shall be mailed to the conservator and
to the attorneys of record for the conservator and conservatee at the
same time it is certified to the court. A copy of the report,
modified as set forth in paragraph (2), also shall be mailed to the
conservatee's spouse or registered domestic partner, the conservatee'
s relatives in the first degree, and if there are no such relatives,
to the next closest relative, unless the court determines that the
mailing will result in harm to the conservatee.
(2) Confidential medical information and confidential information
from the California Law Enforcement Telecommunications System shall
be in a separate attachment to the report and shall not be provided
in copies sent to the conservatee's spouse or registered domestic
partner, the conservatee's relatives in the first degree, and if
there are no such relatives, to the next closest relative.
(c) In the case of a limited conservatee, the court investigator
shall make a recommendation regarding the continuation or termination
of the limited conservatorship.
(d) The court investigator may personally visit the conservator
and other persons as may be necessary to determine whether the
present conservator is acting in the best interests of the
conservatee.
(e) The report required by this section shall be confidential and
shall be made available only to parties, persons described in
subdivision (b), persons given notice of the petition who have
requested the report or who have appeared in the proceeding, their
attorneys, and the court. The court shall have discretion at any
other time to release the report if it would serve the interests of
the conservatee. The clerk of the court shall make provision for
limiting disclosure of the report exclusively to persons entitled
thereto under this section.
(f) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2007.
(g) A superior court shall not be required to perform any duties
imposed pursuant to the amendments to this section enacted by Chapter
493 of the Statutes 2006 until the Legislature makes an
appropriation identified for this purpose.
SEC. 8. Section 1910 of the Probate Code is amended to read:
1910. (a) If the court determines the conservatee is not capable
of completing an affidavit of voter registration in accordance with
Section 2150 of the Elections Code, the court shall by order
disqualify the conservatee from voting pursuant to Section 2208 or
2209 of the Elections Code.
(b) The conservatee shall not be disqualified from voting on the
basis that he or she does, or would need to do, any of the following
to complete an affidavit of voter registration:
(1) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(2) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(3) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
