Peittioners' Reply Memo In Wilson V. Bowen

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SWEENEY & GREENE LLP ATTORNEYS AT LAW LIBERI) CENTER 11

JAMES F. SWEENEY'

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STEPHEN 1. GREENE. IR .

LI.KGROVL. CALIFORNIA 95624

LAURA BORDEN RIDDELL

PHONE: (916)753-1300 OF COUNS11:

FAX (916)7,53-1333

ERIC GRAND

IA9NSSVEENEY-GREEN E.C)M '

AUV AI>,MI`II IJ 11 I I II lll 110( 1 Of COILIMHIA

FACSIMILE TRANSMISSION Date:

To:

July 29, 2008

Steven L. Mayer, Esq. - Howard Rice Nemerovski Canady Falk & Rabkin Attorneys for RPI Daniel N. Abrahamson

Fax:

To:

(415) 217-5910

Edmund G. Brown, Jr., Attorney General of the State of California Christopher E. Krueger, Senior Assistant Attorney General Jason E. Rios, Depute Attorney General Attorneys for Respondent Debra Bowen, Secretary of State

Fax:

(916) 324-8835

From: James F. Sweeney, Esq. Attorneys for Petitioners Fax:

Re:

(916) 753-1300

Case No. 5165180 - Wilson v. Bowen - Reply in Support of Petition for Writ of Mandate

X Urgent _I Reply ASAP

Please conwlent

Please review

For your information

Total pages, including cover: 18 Comments: Please see Petitioner's Reply in Support of their Petition for Writ of Mandate in the abovereferenced matter.

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SWEENEY & GREENE LLP ATTORNEYS AT LAW LIBERTY CENTER n

JAMES F. SWEENEY'

9381 EAST STOCKTON BLVD., STE. 218

STEPHEN J. GREENE, JR.

ELK GRocE. CALIFORNIA 95624

LAURA BORDEN RIDDELL"

PHONE: (916) 753-1300 OF COUNSEL:

FAR: (916) 753-1333

ERIC GRANT'

W W W.SW EENEY-GREEN 6COM

ALSO ADMITTED IN THE DISTRICT OE COLUMBIA ** ALSO ADMITTED IN LOUISIANA

July 29, 2008 VIA FACSIMILE TRANSMISSION The Honorable Ronald M. George, Chief Justice of California, And Honorable Associate Justices SUPREME COURT OF CALIFORNIA 350 McAllister Street San Francisco, California 94102-4797 Fax: (415) 865-7183 Re: Pete Wilson, et al. v. Debra Bowen, as Secretary of State, Respondent; Daniel N. Abrahamson, Real Party in Interest Case No. 5165180

Dear Chief Justice George and Honorable Associate Justices: Petitioners, Governor Pete Wilson, Governor Gray Davis, and the coalition of thirty-four elected District Attorneys and law enforcement community leaders, appreciate the Court's willingness to permit them to reply to the letter of opposition received from the Real Party in Interest, Daniel N. Abrahamson (hereinafter "the Proponent').' Proponent's verbose, preliminary opposition letter brief is unavailing and, despite its rhetorical excesses, fails to respond adequately to the serious constitutional defects regarding Proposition 5 and the obvious urgency warranting a preelection review by this Court. Petitioners accordingly request that the

Respondent Secretary of State Debra Bowen, consistent with her responsibility as California's chief elections officer, has taken no position on the merits of this Petition. Hence, this reply is addressed to the opposition letter brief submitted by the Proponent.

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Petition for Writ of Mandate be granted and Respondent be directed to refrain from taking any steps to place Proposition 5 on the November 4, 2008, Statewide General Election ballot or to include the measure in the ballot pamphlet.

I. PRE-ELECTION REVIEW IS WARRANTED IN THIS EXCEPTIONAL AND UNPRECEDENTED CASE. Proponent's twenty-two pages of misguided legal argument and rambling political rhetoric essentially distill down to a single central argument: i.e., Petitioners' request is unprecedented and thus should simply be denied. While the vast majority of Proponent's argument is unavailing, there is, ironically, a grain of truth in his core assertion that this case is completely unprecedented. Indeed, it is unprecedented that two former California governors (of opposing political parties, no less) and nearly twothirds of the state's elected district attorneys, as well as law enforcement and public safety leaders from across California, have joined together to petition this Court to intervene to prevent a manifest abridgement of the California Constitution that would wreak immediate and catastrophic damage to California's already-imperiled correctional system. Proposition 5's unconstitutional revision of the criminal justice and correctional system, its raw impairment of core executive and judicial constitutional prerogatives, and the staggering short teen financial cost of implementing its constitutionally-defective mandates, threaten to immediately collapse a correctional system already facing the most grave financial crisis to afflict an institution of state government since the admission of the State to the Union in 1849. To be sure, Petitioners have not made this request lightly, nor are they unmindful of the importance of the people's reserved power of initiative to our constitutional system of

2

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state government. Petitioners recognize that this Court has an obligation to respect this reserved power and must act with prudence and restraint when it comes to intervening in electoral matters. The Court must justly give careful consideration to these important competing interests. As discussed at length in Petitioner's Memorandum of Points and Authorities, the Court's policy has always generally disfavored pre-election review absent some sound and compelling reason for doing so and has, over time, articulated some exceptions warranting deviation from this general principle. (See Brosnahan v. Eu (1982) 31 Cal. 3d 1, 3 (citing Mulkey v. Reitman (1966) 64 Cal.2d 529, 535; Wind v. Hite (1962) 58 Cal.2d 415, 417; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-257).) But, if ever there has been a need for the scrutiny and consideration of this Court in reviewing an initiative measure prior to an election, Petitioners submit that this is just such an occasion. Because of the unique and unprecedented circumstances involved with regard to Proposition 5 and the crisis facing California's correctional system, Petitioners submit that constitutional review of Proposition 5 is an absolute necessity and that this Court must intervene, in the interests of constitutional government and public safety, to avert imminent and irreparable hann to the state and its people. Accordingly, Petitioners urge the Court to grant the instant Petition for Writ of Mandate.

II. PETITIONERS CHALLENGE THE ENTIRETY OF PROPOSITION 5, WHICH WOULD ENACT A COMPLEX INTERRELATED REVISION OF THE EXECUTIVE AND JUDICIAL BRANCHES OF GOVERNMENT. Proponent makes the clever, but disingenuous, argument that Petitioners are challenging only a "small portion" of Proposition 5. This is simply not true. Proposition 5 is a complex, interrelated legislative

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enactment that cannot easily be severed or untangled, as most parts of the enactment have a profound effect or relationship with regard to the remainder of the enactment. Simply stated, Proposition 5 is a proverbial "three-legged" stool, which cannot stand when one of the "legs" is kicked out from underneath it. The constitutional defects-in this case affecting at least two legs of the proverbial three-legged stool-render the entire enactment inoperable as a practical matter. Fundamentally, the parties appear to agree that Proposition 5 purports to revise the constitutional framework of state government in two basic respects. First, it restructures the state's parole system by creating an extra-constitutional state officer, the Secretary of Rehabilitation and Parole, with plenary executive power to control all aspects of the state parole system, from basic policymaking to appointments to the Board of Parole Hearings. Second, it restructures the judicial system in criminal cases by withdrawing independent judicial discretion with regard to fashioning dispositions in cases involving so-called "non-violent offenders" and transferring ultimate responsibility for exercising discretion from the judiciary to independent, non-judicial "drug treatment professionals." These two fundamental revisions to the executive and judicial branches of government pervade virtually every aspect of Proposition 5. While the Proponent may dismiss Petitioners' challenge to a purportedly "small portion" of Proposition 5, Petitioners, in fact, are challenging the fundamental underlying constitutional premises of the entire enactment. In other words, if transferring "supreme executive authority" over parole from the Governor to an unelected, unaccountable, appointed official violates the California Constitution, as Petitioners believe the case to be, then all of the revisions made to the system suffer from a similar, underlying constitutional defect and are inoperative. For example, the Secretary of Rehabilitation and Parole enjoys exceptionally broad power

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and control over virtually every aspect of the correctional system. (See Prop. 5, § 4 (vesting primary responsibility for all of the state's parole policies and rehabilitation programs); § 6 (Secretary of Rehabilitation and Parole directs and supervises Division of Parole Policy); § 7 (Board of Parole Hearings appointed on the Secretary's recommendation); § 20 (oversees all rehabilitation programs); § 29 (Secretary of Rehabilitation and Parole recommends appointees for Chief Deputy Warden for Rehabilitation, who shall be subject to removal by the Secretary); § 32 (Oversight Commission, which oversees all drug court programs for adult felons in Track III, is under direction of the Secretary of Rehabilitation and Parole) .) Thus, if the transfer of supreme executive authority over parole policy and review from the Governor to the Secretary of Rehabilitation and Parole violates Article V of the California Constitution, virtually the entire legislative enactment to be made by Proposition 5 would be affected and inoperative. The same is also true with regard to the transfer of the exercise of independent judicial discretion with regard to fashioning dispositions in criminal cases to non-judicial "drug treatment professionals." This principle pervades Proposition 5's "three tier" system. (See Prop. 5, § 13 (court must rely upon the clinical assessment in fashioning disposition in Track I, II, or III matters); § 17 (court shall order the defendant to attend and complete an appropriate treatment program).) Although Proposition 5 includes a severability clause, Prop. 5, § 57, "[s]uch a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it." (Gerken v. Fair Political Practices Conzni'n (1993) 6 CalAth 707, 714-716.) "The cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable." (See Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822.) In this case, the constitutional defects, as already noted, pervade Proposition 5 rendering it

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virtually impossible to functionally sever the constitutionally defective provisions from the entire enactment. In a word, whatever would be left over after the unconstitutional underlying provisions are excised would be essentially nugatory.

111. PROPOSITION 5 MATERIALLY IMPAIRS THE PRIMARY ND INHERENT POWER OF THE GOVERNOR TO A OVERSEE PAROLE POLICY AND REVIEW AND UNDERMINES THE GOVERNOR'S ABILITY TO EXERCISE THE "SUPREME EXECUTIVE POWER" ENTRUSTED BY THE CONSTITUTION TO THE GOVERNOR. The Proponent erroneously relies upon this Court's decision in Marine Forests Society v. California Coastal Commission (2005) 36 CalAth 1, to argue that that the provision giving the Secretary of Rehabilitation and Parole a fixed six year tern "stands on...firm ground." (Opposition Letter Brief, July 25, 2008, p. 12.) In fact, Marine Forests is inapposite. The Proponent has utterly failed to provide any pertinent authority or reasonable argument to justify Proposition 5's pervasive material impairment of the constitutionally-vested executive power of the Governor to protect public safety exercised by making parole policy and reviewing parole decisions. Marine Forests addressed the creation of the California Coastal Commission by adoption of the California Coastal Act enacted by ballot initiative measure in 1972 and concluded that the California constitution did not categorically preclude the Legislature from enacting a statutory provision authorizing itself to appoint a member or members of an executive commission or board. The question presented to the Court in Marine Forests was not material impairment of inherent and enumerated gubernatorial constitutional authority, as is the case here, but rather whether

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appointment of Coastal Commissioners violated the separation of powers clause of Article III, section 3. The Court concluded that the power to appoint executive officers is not an exclusively executive function that may be exercised only by the Governor or another executive official, but rather is a power that may be exercised--either in general or in appropriate circumstances--by the Legislature. (Marine Forests, supra, 36 Cal.4th at p.42-43.) Here, the situation is quite different. Prior to the adoption of the Coastal Act, primary responsibility for coastal planning and management was shared between local city and county governments and the United States Department of the Interior. Coastal management was not a traditional and primary executive responsibility of the Governor-or, for that matter, the Legislature. In this case, the issue is not the propriety of legislative appointments being made to executive agencies, but rather the material impairment by a statute of an inherent executive power vested in the Governor, to wit: the authority vested in the Governor to make parole policies in furtherance of public safety and to review parole decisions. (Cal. Const., Art. V, §§ 1, 8.) In this regard, Marine Forests addresses a very different question and resolves a very distinct issue not before the Court in the context of this Petition. To be sure, as this Court noted: "there is nothing in the California Constitution that grants the Governor (or any other executive official) the exclusive or paramount authority to appoint all executive officials," as the California Constitution provides for independently elected executive officers, such as the Lieutenant Governor, Attorney General, Controller, Secretary of State, and Treasurer. (See Cal. Const., Art. V, § 11.) Each of these constitutional officers has, in contrast to the federal executive branch of govermnent, independently-derived constitutional authority, which

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necessarily presumes power of appointment within their respective constitutional areas of authority. To this end, the Constitution expressly vests "supreme executive power" in the Governor, who is responsible for, among other things, ultimately advancing public safety. (See Cal. Const., Art. V, § 1.) Indeed, Petitioners submit that there is no executive responsibility of the Governor of California more essential or fundamental than the obligation of the Governor, as the State's "supreme executive," to ensure the safety of the public and to protect the citizens of California from becoming the victims of crime. The Constitution, in order to facilitate the Governor's ability to protect public safety, vests the Governor with the plenary power to review parole. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 686.) Such being the case, Petitioners contend that the creation of an extra-constitutional, appointed Secretary of Rehabilitation and Parole, who independently exercises primary authority over parole with no meaningful gubernatorial oversight, materially impairs the Governor's constitutional authority to advance and protect public safety and to make and review parole policies.2 A constitutional amendment (or quite possible a revision)-not a statute-

2 Petitioners note that the Proponent fails to offer any explanation or rationale for the fact that the Secretary of Corrections serves at "the pleasure of the Governor," while the Secretary of Rehabilitation and Parole serves a fixed tern and does not serve at the Governor's pleasure. Clearly, the Proponent is attempting to create an office that is not subject to executive oversight by aM constitutional officer, even though the issue of parole policy is intimately related to public safety and crime prevention, or to the voters of California. Thus, Proposition 5 vests a primary public safety function in the hands of an unelected, extra-constitutional appointee, who is unsupervised and answers to no one once he or she is appointed. All other officials having primary responsibility for public safety (e.g., the Governor, the Attorney General, district attorneys, and county sheriffs) are all elected and must answer directly to the people every four years. This is a radical change in direction that is distinctly undemocratic and wholly outside the constitutional framework in California. 8

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is required to make such an organic change to the constitutional executive authority of the Governor. For these reasons and the reasons already stated in Petitioners' Memorandum of Points and Authorities, Proposition 5 unconstitutionally impairs the Governor's primary and inherent authority regarding public safety, to wit: the Governor's authority to make parole policy and meaningfully review parole issues.

IV. PROPOSITION 5 IMPERMISSABLY TRANSFERS A CORE CONSTITUTIONAL FUNCTION OF THE JUDICIAL BRANCH TO AN UNACCOUNTABLE, QUASIADMINISTRATIVE AGENCY. The Proponent conveniently ignores the "inconvenient truth" that Proposition 5 seriously curtails and largely eliminates the meaningful exercise of independent judicial discretion in the cases involving drug offenses subject to the provisions of Proposition 5. As noted in Petitioners' brief, the imposition of a sentence and the correlative exercise of sentencing discretion are fundamentally and inherently judicial functions (People v. Thomas (2005) 35 CalAth 635, 640; People v. Navarro (1972) 7 Cal.3d 248, 258) and represent a "critical state" in a criminal case. (In re Cortez (1971) 6 Cal.3d 78, 88.) Ignoring prior case law, the Proponent erroneously concludes the trial court has control over each critical stage in the process. (Opposition Letter Brief, July 25, 2008, p. 16.) The Proponent is simply wrong in this regard, as it is obvious from the face of Proposition 5 that the proposed legislative enactment divests the trial court of discretion regarding imposition of sentencing in criminal cases. The Proponent relies heavily on the authority of the court to hold an evidentiary hearing if there is a dispute as to a defendant's eligibility for Track 1. However, the Proponent ignores that the court has no authority to

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find a defendant ineligible because the court believes a defendant is "unamenable" for treatment. The court is limited to finding the defendant ineligible based on whether or not the defendant has ever been convicted of a serious or violent felony or whether the defendant has only one felony conviction in the last five years.3 ((See Prop. 5, § 14 (adding Penal Code § 1210.03.) Track II gives the court no discretion to exclude a defendant from participation, even those convicted of serious and violent felonies under some circumstances. ((See Prop. 5, § 17 (amending Penal Code § 1210.1, subd. (f).) Further, Track III does not permit a court to exclude a defendant from participation, if the defendant in the last 30 months has been convicted five times or more of any offense or combination of offenses (excluding serious or violent felonies). ((See Prop. 5, § 18 (adding Penal Code § 1210.2, subd. (c).) Only in Track III, can the court exclude some defendants from a treatment program on the basis that diverting such a defendant is not "in furtherance of justice." ((See Prop. 5, § 18 (adding Penal Code § 1210.2, subd. (b).) The Proponent also fails to discuss the provision in Track III that allows someone with a serious or violent felony conviction to be admitted to Track III only if the district attorney wants a defendant in that particular track. (See Prop. 5, § 18 (adding Penal Code § 1210.2, subd. (d)(1).) This occurs clearly at a stage in the proceedings after charges have been filed, yet the court cannot admit these defendants without the permission of the district attorney. More than just another example of impermissible restraint on judicial discretion, this provision of Proposition 5 subordinates the judicial authority of the court to executive authority of the district attorney. 3 The other two eligibility requirements do not require the presentation of evidence, i.e. whether the pleading charges the defendant only with NVDP offenses or whether the defendant is pending concurrent charge(s). The court may take judicial notice of court records of concurrent charges. (See Evid. Code § 452.) 10

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As this Court has noted, "[a] judge wishing to exercise judicial power at the judicial stage of a proceeding never should be required to "`bargain with the prosecutor"' before doing so. [citations omitted]"

(Manduley v.

Superior Court (2002) 27 CalAth 537, 554.) Yet, that is precisely what Proposition 5 would require. Moreover, Penal Code section 1210.2(d)(1) clearly violates the separation of powers doctrine enunciated in People v. Tenorio (1970) 3 Cal.2d 89. Such a provision, where the judicial act is dependant on the consent of the executive (e.g., the district attorney), violates California Constitution Article III, and Article VI, section 1. In Tenorio, this Court dealt with a provision of the Health and Safety Code that forbade probation to a defendant charged with a prior felony, and forbade the trial court from striking the prior unless the prosecution had so moved. This Court held that such a provision, requiring the judiciary to obtain the consent of the executive to make a judicial act, was unconstitutional. The proposed section 1210.2(d)(1) creates precisely the same situation, and thus is unconstitutional under Tenorio. Not only is the court's discretion to exclude defendants from the tracks severely limited, but the court, in every track, "must rely upon the clinical assessment of the defendant" "[i]n determining the appropriate treatment program..." (See Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(1).) If the "clinical assessment indicates" that "opioid agonist" treatment or other medication-assisted treatments4 are needed, the court "shall" refer defendants to this type of drug treatment. (See Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(2).) Thereafter, the court "must rely" "upon the criminal history evaluation and clinical assessment" when "determining the appropriate monitoring conditions and requirements" for 4 Section 11, 1210(b) includes such treatments in the definition of "drug treatment program." 11

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every defendant. (See Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(3).) Were a comparable system imposed with regard to the sentencing of serious or violent felons, for example, trial courts would be required to sentence a defendant, pursuant to Penal Code § 1170, according to the Probation Department's recommendation with no discretion to deviate from that recommendation. But, the limitations upon judicial discretion do not stop there. In every track, the court may order urine testing. But if the tests show continued drug usage, the court cannot find that a violation of probation occurred-no matter how many times the tests show continued drug usage-nor can the court use those tests to enter judgment. (See Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(5).) Neither can the court refer the defendant to a program or require the defendant as a condition to successfully completing the program to terminate or detox from medication-assisted treatments or medications "taken" consistent with state law" (presumably marijuana). (See Prop. 5, § 13 (adding Penal Code § 1210, subd. (e).) Although the court can order a Track I defendant to complete a drug treatment program, Prop. 5, § 14 (adding Penal Code § 1210.03, subd. (i)), the court must dismiss the charges and permanently seal the defendant's arrest records if the defendant has merely "performed satisfactorily" during the period of diversion. (See Prop. 5, § 14 (adding Penal Code § 1210.03, subd. (p).) Further, a court cannot terminate a defendant's probation if he or she violates the drug-related conditions of probation before entering "appropriate" treatment. (See Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(1).) In other words, the defendant can use drugs from the time diversion or probation is granted until he enters treatment without fear of sanctions, graduated or otherwise, because there is simply nothing a court can do to the offender. The Proponent conveniently

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fails to mention this important detail or, for that matter, that Proposition 5 would effectively tie the hands of the judge. As the Proponent concedes, in every track the court can inquire when the defendant has not started treatment within 30 days (response p. 16), but the court cannot terminate the defendant from the program or find him "unamenable" to treatment. The court can only re-refer him to treatment and impose "graduated sanctions" (e.g. more treatment sessions) or tenninate and sentence the Track I defendant to Track II treatment. (See Prop. 5, § 14 (adding Penal Code § 1210.03, subd. (j).) A court cannot even terminate diversion or probation if the defendant is convicted of a misdemeanor, a felony, or engages in "criminal conduct"which makes him unsuitable for treatment without holding a hearing. (See Prop. 5, § 15 (adding Penal Code § 1210.04); § 17 (amending Penal Code § 1210.1).) At that point in Track I, the court can only re-refer the defendant to treatment or sentence the defendant to Track II. (See Prop. 5, § 15 (adding Penal Code § 1210.04) In Track II, if a defendant commits a new drug offense or violates a drug-related condition of probation, the court can only revoke if the prosecutor proves the defendant is "a danger to the safety of others." (Id.) The court cannot impose jail sanctions in Track I, Prop. 5, § 14 (adding Penal Code § 1210.03, subd. (o)), and cannot impose jail sanctions in Track II or III if the defendant is receiving medication-assisted drug treatment and such treatment is not available in jail. (See Prop. 5, § 17 (amending Penal Code § 1210.1, subd. (j)(2).) In fact, a court cannot even impose jail sanctions until the defendant, for the fourth (or more) time during probation, has committed a nonviolent drug possession offense or violated a drug-related condition of probation. And then, it may do so only after finding the defendant is not a danger to the community and is not

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"unamenable" to treatment. (See Prop. 5, § 17 (amending Penal Code § 1210.1, subd. 0)(3)(C).) Thus, were Proposition 5 to be enacted, a trial court cannot exercise discretion to: (1) determine the eligibility of all defendants for Track II & some for Track III; (2) select any defendant's drug treatment program; (3) prohibit any defendant from certain types of drug treatment; (4) set monitoring conditions for defendants; (5) determine the sentence for defendants who fail Track I; (6) determine what constitutes successful completion of probation; or (7) automatically tenninate someone who commits anew misdemeanor or felony. The regimen imposed upon judges by Proposition is something quite different from the one cited by the Proponent in In re Chantal S. (2003) 13 CalAth 196, 213-214. Under Proposition 5, the court has not elected to delegate some of its authority to another agency or individual, but rather has been stripped of its discretion to exercise its well- recognized authority to exercise sentencing options or set conditions of probation. (Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(1)); § 11 (amending Penal Code § 1210, subd. (g); § 11 (amending Penal Code § 1210, subd. (b); § 13 (adding Penal Code § 1210.02, subd. (a)(3).) All judicial discretion to determine appropriate treatment, monitoring conditions, and probation conditions has been transferred to the person performing the clinical assessment.

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CONCLUSION

Despite the Proponent's unavailing effort to trivialize the profound constitutional defects that pervade Proposition 5 and to discount the catastrophic damage that enactment of this facially invalid initiative measure will do to California's correctional system, Petitioners Governor Pete Wilson, Governor Gray Davis, the 34 elected district attorneys, and the law enforcement and public safety leaders listed on the instant petition, respectfully submit that the instant Petition is legally warranted and welltaken. They again urge the Court to grant the instant Petition and issue a peremptory writ of mandate, directing Respondent to refrain from taking any steps to place Proposition 5 on the November 4, 2008, Statewide General Election ballot or to include the measure in the ballot pamphlet. Respectfully submitted, SWEENEY & GREENE LLP

ames F. Attorneys fi Gov. Pete WiXon,,6ov. Gray bavis, et al.

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CERTIFICATE OF WORD COUNT

I, James F. Sweeney counsel of record for Petitioners as fully set forth above, certify that the foregoing Reply in Support of Petition for Writ of Mandate and Request for Immediate Temporary Stay contains approximately 4,098 words (including footnotes, and exclusive of this certificate). This approximation is based upon the "word count" tool contained in Microsoft Word, the word processing program used to prepare this pleading. The typeface used herein is Times New Roman, and the size is 13 point. Dated: July 29, 2008

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PROOF OF SERVICE I, Nicole D. Bayne, declare as follows: 1 am over the age of eighteen years and not a party to the within action. My business address is 9381 E. Stockton Blvd., Suite 218, Elk Grove, California, 95624. On July 29, 2008 by 9:00 a.m., I served the attached REPLY IN SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF INCLUDING WRIT OF MANDATE AND REQUEST FOR IMMEDIATE TEMPORARY STAY via facsimile transmission to the parties set forth below at the facsimile number(s) indicated: Attorneys for Respondent - Debra Bowen Secretary of State Edmund G. Brown, Jr., Attorney General of the State of California Christopher E. Krueger, Senior Assistant Attorney General Jason E. Rios, Depute Attorney General OFFICE OF THE ATTORNEY GENERAL 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Phone: (916) 324-53 10 Fax: (916) 324-8835

Attorneys for Real Parties in Interest- Daniel N Abrahamson Steven L. Mayer, Esq. HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero, Seventh Floor San Francisco, CA 94111-4024 Phone: (415) 434-1600 Fax: (415) 217-5910

I declare under penalty of perjury that the foregoing is true and correct and that this document was executed on July 29, 2008.