California AG Bonta 'running out the clock' to stop parental rights initiative, appeals court hears

California law required Attorney General Rob Bonta to write a neutral title and summary for a 2024 ballot measure to mandate parental notification when children request to be identified as the opposite sex in school records, limit girls' sports to females and prohibit puberty blockers, cross-sex hormones and genital surgery for gender-confused youth.

Having just sued a school district for the same parental notification policy, the Democratic attorney's title for the Protect Kids of California Act seemed predictable: “Restricts Rights of Transgender Youth." 

His summary used the same framing, referring to males who identify as girls as "transgender female students," claiming the parental notification mandate lacks an "exception for student safety" and referring to medicalized gender transitions as "gender-affirming health care." 

Sixteen months after a trial judge upheld Bonta's phrasing as "accurately and impartially" conveying the substance of the measure, which under Bonta's language fell short of the required signatures for the ballot within the 180-day collection window, Protect Kids California's crusade to give voters a direct say in the matter may founder on a technicality.

Polling suggests voters would approve the measure, with majority support for each of the three prongs, but an appeals panel repeatedly grilled the group's lawyer at a hearing Monday on why the case wasn't moot in light of Protect Kids California's litigation choices.

The three judges essentially made Bonta's argument for him as Liberty Justice Center counsel Emily Rae tried to redirect them toward Bonta's "malfeasance," for what its lawsuit called his "inaccurate, false, and biased" language. The panel, by contrast, asked deputy AG Malcolm Brudigam just a single question during the state's argument.

'Running out the clock while the case is on appeal'

The suit alleged Bonta has a "history of preparing misleading and prejudicial initiative titles" and noted the San Francisco Chronicle editorial board advocated stripping Bonta of that power. It had asked Sacramento County Superior Court Judge Stephen Acquisto to restart the 180-day window to collect the remainder of signatures with "neutral and impartial" descriptions.

Bonta is now both "claiming the power to unilaterally misrepresent any initiative to ensure its defeat" and to "evade judicial review by running out the clock while the case is on appeal," says Protect Kids California's May 19 reply brief to the state. 

The group didn't ask for an extension apart from its merits challenge to Acquisto denying its "writ of mandate," and it had 36 days between the ruling and the collection window ending but did not petition the appeals court directly, Justice Stacy Boulware Eurie said.

The deadline is subject to "equitable tolling," under which a statutory limitations period is presumed flexible to account for factors beyond a plaintiff's control absent contrary indications from the Legislature, Rae responded. 

Her clients made a "strategy call" in light of how far ahead of the election they gave the ballot language to Bonta, waiting to see just how "prejudicial the circulating summary" would be as Protect Kids California collected signatures, Rae said. The group quickly sought legal counsel when the impact of Bonta's language became apparent.

Justice Shama Mesiwala expressed wariness of finding that Bonta committed malfeasance because it might invite subsequent authors of ballot measures to challenge every description the attorney general writes. This is an "extreme case" in which Bonta did a "complete rewrite" of its ballot measure, with "highly argumentative" phrasing, Rae responded.

Under the AG's argument, an initiative petitioner who sued the same day it got a biased summary, got an expedited hearing but lost, then sought an expedited appeal, would still be stuck with fully litigating and collecting signatures within the original 180-day collection window, Rae told Mesiwala and Eurie.

She said Protect Kids California is only asking for "reasonable time" to collect the remainder of signatures required for the ballot, not a full reset, since the next election is a year away. 

The judges then gave Rae breathing room to make her merits argument, that Judge Acquisto only did half the required legal analysis by leaving alone whether Bonta's language and revisions to the proposed measure were "argumentative and prejudicial." This alone constitutes "reversible error" worthy of reversal and remand, she said.

Rather than write a title like "modifies educational and medical laws for transgender youth" and summary along the lines of notifying parents when their children want to be treated by a different gender than in school records, Bonta used "persuasive" rhetoric, Rae said.

Ignoring her argument, Mesiwala asked why the panel shouldn't use its discretion to decide whether Acquisto's ruling is capable of repetition yet evading review, referring to the mootness test in the controlling 9th U.S. Circuit Court of Appeals. Rae said Bonta will try the same stunt again without an order from the panel against his language.

'Sometimes things that sound bad are bad'

Bonta's office raised mootness in civil mediation but Protect Kids California didn't address the argument or even equitable tolling in its opening brief, deputy AG Brudigam told the panel. 

The group is now contradicting itself on when it knew how problematic Bonta's description was for its signature collection, since it told Judge Acquisto it knew immediately that Bonta's language was "illegal," according to Brudigam. 

The panel will encourage "gamesmanship" if it lends credence to a "wait and see" approach, where initiative authors can get a title and summary from the AG and wait until signature collection starts faltering to declare the descriptions are biased, he said. 

Answering Mesiwala's same question about repetition and evading review, Brudigam said this dispute isn't likely to recur because the state has since passed a law (AB 1955) prohibiting schools from reporting students' gender identification to their parents – prompting a federal investigation this spring – so any future title and summary would have to reconcile that.

The title and summary "must be viewed as a whole" under the court's precedent, and Bonta's language simply reflects "the litany of restrictions" on transgender youth in the ballot measure, Brudigam said. 

"The negative reaction they're getting" in collecting signatures is "from the nature of the measure itself," as would be an initiative that required married women to get their husbands' approval to open a bank account, he said. "Sometimes things that sound bad are bad," and it's not Bonta's job to "sugarcoat" an initiative.

Rae used her rebuttal time to reiterate it's up to voters to decide whether an initiative is bad, and that Bonta drafted it to "argue one side of the issue." Protect Kids California can modify the language to account for AB 1955, she said.