Petition For Writ Of Mandate In Wilson V. Bowen

Case No.

~----

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PETE WILSON, GRAY DAVIS, STEVE COOLEY,

BONNIE DUMANIS, ROD PACHECO,

MICHAEL RAMOS, DOLORES CARR, et aI.,

Petitioners,

v. DEBRA BOWEN, in her official capacity as Secretary of State,

Respondent;

DANIEL N. ABRAHAMSON, ESQ.

Real Party in Interest

VERIFIED PETITION FOR EXTRAORDINARY RELIEF

INCLUDING WRIT OF MANDATE AND

REQUEST FOR IMMEDIATE TEMPORARY STAY

EMERGENCY ELECTION MATTER

IMMEDIATE RELIEF REQUESTED

JAl\iIES F. SWEENEY, No. 124527 STEPHEN J. GREENE, JR. No. 178098 LAURA BORDEN RIDDELL,No. 225065 SWEENEY & GREENE LLP 9381 E. Stockton Blvd., Suite 218 Elk Grove, California 95624 Telephone: (916) 753-1300 Facsimile: (916) 753-1333 Attorneys for Petitioners

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

iv

PETITION FOR WRIT OF MANDATE

1

PRELIMINARY AND JURISDICTIONAL STATEMENT

I

PRAYER

15

VERIFICATION

17

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF VERIFIED PETITION FOR EXTRAORDINARY RELIEF

INCLUDING WRIT OF MANDATE AND R~QUEST FOR

IMMEDIATE TEMPORARY STAy

18

STATEMENT OF FACTS

19

A.

Imposition of a "Three Track" System for Drug Offenders

19

B.

Transfer of Parole Authority from the Governor to a New

Secretary of Rehabilitation and Parole and Parole Refonn

Oversight and Accountability Board

20

Elimination of Judicial Discretion Regarding Disposition of

Drug Cases

22

The Current Crisis in California's Correctional System

22

C.

D.

ARGUMENT 1.

25

PROPOSITION 5.MATERIALLY IMPAIRS THE EXECUTIVE

POWERS RELATIVE TO PAROLE VESTED IN THE

GOVERNOR BY ARTICLE V OF THE CALIFORNIA

CONSTITLTTION 25

A. Proposition S's Vesting of "Primary Responsibility for Parole Policies" in the Proposed Secretary of Corrections and Rehabilitation Materially Impairs the Governor's Parole

Authority Granted in Article V, Section 8(b) of the

California Constitution

27

B. The Six Year Fixed Term for the Secretary of Rehabilitation

and Parole Deprives the Governor of Supervisorial Executive

Power Over Parole Policy and Review and Material Impairs

the Governor's "Primary and ]nherent" Executive Power

29

with Regard to Parole Matters C. Proposition S's Restriction of the Governor's Appointment

Power Relative to the Board of Parole Hearings Material

Impairs the Governor's "Primary and Inherent" Powers

Applicable to Parole Policy and Review 31

II.

PROPOSITION 5 IMPERMISSIBLY DELEGATES JUDICIAL

AUTHORITY IN VIOLATION OF ARTICLE VI, SECTION I,

OF THE CALIFORNIA CONSTITUTION : 32

A. Under the Separation of Powers Doctrine, the Judicial Power

of the State is Delegated to the Judicial Branch, Not the

Executive Branch 33

B. The Separation of Powers Doctrine, Respecting the

Independence of the Judicial Branch, Prohibits

Administrative Agencies from Materially Impairing the

Essential Duty of the Courts to Resolve Specific

Controversies and to Regulate the Disposition of Litigation

Pending Before Them 35

C. Proposition 5 Impermissibly Delegates Core Judicial

Responsibility to an Administrative Bureaucracy That Is

Not Subject to Judicial Review

1.

2.

Proposition 5 Materially ImpairsCaJifornia Courts'

Constitutional Authority to Exercise Sound Judicial

Discretion to Fashion Appropriate Dispositions in

Criminal Cases

37

39

Proposition 5 Deprives the Judiciary of Any

Supervisorial Oversight Over Administrative Agencies

that Are Vested by Proposition 5 with Formulating

Binding Recommendations Regarding the Disposition

of Criminal Cases 41

11

III.

ADOPTION OF THIS CLEARLY UNCONSTITUTIONAL BALLOT INITIATIVE MEASURE WILL RESULT IN IMMEDIATE AND IRREPARABLE HARM TO CALIFORNIA'S ALREADY-IMPERILED STATE AND COUNTY CORRECTIONAL SYSTEMS

43

A. Pre-Election Constitutional Review is Warranted in Cases Involving Manifest Constitutional Invalidity

44

B. Implementation of Proposition 5, If Approved, Would Be Immediate

45

C. The Financial Damage Likely to Be Done to State and Local Correctional Systems As a Result of the Immediate Implementation of Proposition 5, If Enacted, Would be Staggering and Irreparable 47 CONCLUSION

~

:

49

50'

CERTIFICATE OF WORD COUNT APPENDIX

'

III

51

TABLE OF AUTHORITIES

Cases 20th Centll1y Ins. Co. v. Quackenbush (1998) 64 Cal.AppAth 13

36

Boags v. Municipal Court (1987) 197 Cal.App.3d 65

34

Brosnahan v. Eu (1982) 31 Cal. 3d 1

44

California Radioactive Materials Management Forum Health Sen'ices (1993) 15 Cal.AppAth 841

l'.

Department of 36

Clark v. First Union Securities, Inc. (2007) 153 Cal.AppAth 1595

33

Costa v. Superior Court (2006) 37 tal. 4th 986

44

Da'vis v. Municipal Court (1988) 46 Ca1.3d 64

34

Gayle v. Hamm (1972) 25 Cal. App.3d 250

44

In re Cortez (1971) 6 Cal.3d 78

37

In re Danielle W. (1989) 207 Cal.App.3d 1227

36, 38

In re Julie M. (1999) 69 Cal.AppAth 41 In re Pedro Q. (1989) 209 Cal.App.3d 1368

38 ~

In re Perez (1966) 65 Cal.2d 224

38 37

In re Rosenkrantz (2002) 29 Cal. 4th 616 In re S.H. (2003) III Cal.AppAth 3] 0

26, 27, 28 36, 38

Kerns v. CSE Ins. Group (2003) ]06 Cal.AppAth 368,

33

Kollander Construction. Inc. v. Superior Court (2002) 98 Cal.App.4th 304

35

Laisne v. Bd.

qr Optometly (1942)

19 Cal.2d 83]

IV

34

Legislature v. Deukmejian (1983) 34 Cal. 3d 658

45

Manduley v. Superior Court (2002) 27 Cal.4th 537

34,38

McHugh v. Santa MOllica Rent Control Board (1989) 49 Cal.3d 348 .36, 37 Mulkey v. Reitman ( 1966) 64 Ca1.2d 529

44

People v.

37

Bll1l11

(2002) 27 Cal.4th 1

d

People v. Castello (1998) 65 Cal.App.4th 1242

33

People v. Cheatham (1979) 23 Ca1.3d 829

37

People v. Lock (1981) 30 Cal.3d 454

37

People v. Navqrro (] 972) 7 Ca1.3d 248

37

People v. Superior [Romero] (1996) 13 Cal.4th 497

;

38

People v. Superior Court [On Tai Hol (1974) 11 Ca1.3.d 59

37

~

34,37

People \'. Tenorio (1970) 3 Ca1.3d 89 People v. Thomas (2005) 35 CalAth 635

37

Peny Farms. Inc. v. Agricultural Labor Relations Rd. o.fState (1978) .86 Cal.App.3d 448

·.34

Schabarum v. California Legislature (1998) 60 Cal.AppAth 1205

33

Scott Co. o.lCalifornia v. United States Fidelity & Guarantee Ins. Co. (2003) ]07 Ca1.App.4th ]97

35

Senate v. Jones (1999) 21 CalAth 1142

44

,

;

Strumsky v. San Diego County Retirement Assn. (1974) 11 Cal.3d 28 ...... 33

44

Wind v. Hite (1962) 58 Cal.2d 415

v

Constitution, Statutes and Rules Cal. Const. Art. III, § 3

13,27

Cal. Const. Art. V § l

12,20

Cal. Const. Art. V, § 2

29

Cal. Const. Art. V, § 7

,

~

25

Cal. Const., Art. V, § 8

20

Cal. Const. Art. V § 8(b)

passim

Cal. Const. Art. VI, § 1

13, 33,42,43

Gov. Code § 12838

27

Gov. Code § 12838.4

26

Miscellaneous 7 Witkin. Summary of Cal. Law, (9th cd. 1988) ·'Constitutional Law;'

§ 1I 3 Ballot Pamp., General Elect. (November 8, 1988)

vi

35

26,28

PETITION FOR WRIT OF MANDATE

PRELIMINARY AND JURISDICTIONAL STATEMENT TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: . Petitioners the Honorable Pete Wilson, Gray Davis, Steve Cooley, Bonnie M. Dumanis, Rod Pacheco, Michael Ramos, Dolores Carr, Thomas Orloff, Jan Scully, Robert Kochly, Elizabeth A. Egan, Gregory Totten, Edward R. Jagels, James Fox, Birgit Fladager, David W. Paulson, Christie Stanley, Edward Berberian, Jeff Reisig, Vernon Pierson, Gilbert Otero, Ronald Calhoun, Ernest LiCalsi, Gary Lieberstein, Clifford Newell, Carl Adams, Patrick McGrath, Gregg Cohen, James Kirk Andrus, Todd Riebe, John Poyner, Robert Brown, Arthur Maillet, George Booth, Gary Woolverton, William Richmond, Jerry Dyer, Harriet Salamo and Charlie Parsons, upon Verified Petition for Writ of Mandate allege and aver as follows: 1.

By this original Verified Petition for Writ of Mandate,

Petitioners, a coalition led by former California Governors Pete Wilson and Gray Davis, and consisting of 34 elected District Attorneys, professional law enforcement leaders, and crime victims' rights' leaders, petition the Court to issue a peremptory writ of mandate, directing Respondent Secretary of State 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. 2.

Petitioners submit that the principal provisions of Proposition

5 are manifestly and facially unconstitutional, infringing upon the constitutional powers and authority of the Governor and the judiciary, and,

if adopted at the General Election, would infl ict immediate and irreparable

injury

upon

California's

already-fragile

and

financia.lly-imperiJed

correctional system. 3.

In order to avert imminent and severe damage to California's

criminal justice and correctional system, Petitioners earnestly submit that immediate, emergency action by this honorable Court is required. 4.

There are no administrative remedies or other legal

proceedings available to Petitioners to compel Proposition 5 to be deleted from the November 4, 2008, Statewide General Election ballot. California Elections Code section 133 J4 specifically provides for a Writ of Mandate as the exclusive remedy for the violations alleged herein. ,5.

Petitioners respectfully invoke the original jurisdiction of this

honorable Court pursuant to the California Constitution, Article VI, Section 10; California Code of Civil Procedure section 1085; and Rule 8.490 of the California Rules of Court. Petitioners invoke such jurisdiction in light of the fact that the time available between now and the submission of the statewide ballot pamphlet to the State Printer, which Petitioners are i~fonned, believe, and thereupon allege is to occur on or about August 1.1,

2008, is insufficient to allow full and adequate consideration of the issues raised through,this Petition by the Superior Court or the Court of Appeal. 6.

This Petition presents no questions of fact for the Court to

resolve in order to issue the relief sought. 7.

Petitioner, the Honorable Pete Wilson, is the 36th Governor

of the State of California. He served as Governor of California from 1991­ 1999. Prior to his election as Governor, Governor Wilson was the United States Senator from California. He also previously served as Mayor of the City of San Diego and as a Member of the California State Assembly from San Diego. Governor Wilson is presently a resident and registered voter in the County of Los Angeles. Throughout his career in public service, 2

Governor Wilson has been a strong and outspoken supporter of law enforcement, promoting public safety, holding criminals accountable for their crimes, and protecting the rights of crime victims.

As a fonner

California Governor, Governor Wilson remains interested in preserving the constitutional integrity of the office of Governor of California and ensuring that the constitutional powers, perogatives, and a'uthority ofhis successors in this important constitutional office are not impaired. 8.

Petitioner, the Honorable Gray Davis, is the 37th Governor of

the State of California. He served as Governor of California from 1999­ Prior to his election as Governor, Governor Davis served as

·2003.

Lieutenant Governor and State Controller. He also previously served as a Member of the California State Assembly and Chief of Staff to the Governor Edmund G. Brown, Jr. Governor Davis is a presently a resident and registered voter in the County of Los Angeles. Throughout his career in public service, Governor Davis has also been a strong and outspoken supporter of law enforcement, promoting public safety, holding criminals accountable for their crimes, and protecting the rights of crime victims. During his tenn as Governor ~f California, Governor Davis successfully defended the constitutional parole authority of the Governor in the case of

In re Rosenkrantz.

As a fonner California Governor, Governor Davis

likewise remains interested in preserving the constitutional integrity of the office of Governor of Califomia and ensuring that the constitutional powers, prerogatives, and authority of his successors in this important constitUtional office are not impaired. 9.

Petitioner, the Honorable Stephen Cooley, is the District

Attorney for Los Angeles County and has served in this capacity since 2000. Petitioner is a resident and registered voter in the County of Los Angeles. As the elected District Attorney of Los Angeles County, he is the County's chief law enforcement official. 3

10.

Petitioner, the Honorable Bonnie M. Dumanis, is the District

Attorney for San Diego County and has served in this capacity since 2003. Petitioner is a resident and registered voter in the County of San Diego. She currently serves as President of the California District Attorneys Association. As the elected District Attorney in San Diego County, she is the County's chief law enforcement official. II.

Petitioner, the Honorable· Rod Pacheco, is the District

Attorney for Riverside County and has served in this capacity since 2007. Petitioner is a resident and registered voter in the County of Riverside. As the elected District Attorney in Riverside County. he is the County?s chief law enforcement official. 12.

Petitioner, the Honorable Michael Ramos, is the District

Attorney for San Bernardino County and has served in this capacity since 2002. Petitioner is a resident and registered voter in the County of San Bernardino. As the elected District Attorney of San Bernardino County, he is the County's chief law enforcement official. 13.

Petitioner, the Honorable Dolores Carr, is the District

Attorney for Santa Clara County and has served in this

capaci~y

since 2006.

Petitioner is a resident and registered voter in the County of Santa Clara. As th~

elected District Attorney of Santa Clara County. she is the County'.s

chief law enforcement official. 14.

Petitioner, the Honorable Thomas Orloff, is the District

Attorney for Alameda County and has served in this capacity since 1994. Petitioner is a resident and registered voter in the County of Alameda. As the elected District Attorney of Alameda County, he is the County's chief law enforcement official. 15.

Petitioner, the Honorable Jan Scully, is the District Attorney

for Sacramento County and has served in this capacity since 1994. Petitioner is a resident and registered voter in the County of Sacramento. 4

As the elected District Attorney of Sacramento County, she is the County's chief law enforcement official. \ 6.

Petitioner, The Honorable Robert Kochly, is the District

Attorney for Contra Costa County and has served in this capacity since 200 I. Petitioner is a resident and registered voter in the County of Contra Costa. As the elected District Attorney of Contra Costa County, he is the County's chief law enforcement official. 17.

Petitioner, the Honorable Elizabeth A. Egan, is the District

Attorney for Fresno County and has served in this capacity since 2002. Petitioner is a resident and registered voter in the County ofFresno. As the elected District Attorney of Fresno County, she is the County's chief law enforcement official. l8.

Petitioner, the Honorable Gregory Totten, is the District

Attorney for Ventura County and has served in this capacity since 2002. Petitioner is a resident and registered voter in the County of Ventura. As the elected District Attorney of Ventura County. he is the County's chief law enforcement official. 19.

Petition,er, the Honorable Edward R. Jagels, is the District

Attorney for Kern County and has served in this capacity since 1982. Petitioner is a resident and

regist~red

voter in the County of Kern. As the

elected District Attorney of Kern County, he is the County's chief law enforcement official. 20.

Petitioner, the Honorable James Fox, is· the District Attorney·

for Sari Mateo County and has served in this capacity for more than twenty years. Petitioner is a resident and registered voter in the County of San Mateo. As the ejected District Attorney of San Mateo Gounty, he is the County's chief law enforcement official. 21.

Petitioner, the Honorable Birgit Fladager. is the District

Attorney for Stanislaus County and has served in this capacity since 2006. 5

Petitioner is a resident and registered voter in the County of Stanislaus. As the elected District Attorney of Stanislaus County. she is the County's chief law enforcement official. 22.

Petitioner, the Honorable David W. Paulson, is the District

Attorney for Solano County and has served in this capacity since 1993. Petitioner is a resident and registered voter in the County of Solano. As the elected District Attorney of Solano County. he is the County's chief law enforcement official. 23.

Petitioner, the Honorable Christie Stanley, is the District

Attorney for Santa Barbara County and has served in this capacity since 2007. Petitioner is a resident and registered voter in the County of Santa Barbara. As the elected District Attorney of Santa Barbara County, she is the County's chief law enforcement official. 24.

Petitioner, the Honorable Edward Berberian, is the District

Attorney for Marin County and has served in this capacity since 2004. Petitioner is a resident and registered voter in the County of Marin. As the elected District Attorney of Marin County, he is the County's chief law enforcement official. 25.

Petitioner, the Honorable Jeff Reisig, is the District Attorney

for Yolo County and has served in this capacity since 2007. Petitioner is a resident and registered voter in the County of Yolo. As the elected District Attorney of Yolo County, he is the County's chief law enforcement official. 26.·

Petitioner, The Honorable Vernon Pierson, is the District

Attorney for EI Dorado County and has served in this capacity siIice 2007. Petitioner is a resident and registered voter in the County of EI Dorado. As the elected District Attorney of El Dorado County, he is the County's chief law enforcement official. 27.

Petitioner, the Honorable Gilbert Otero, is the District

Attorney for Imperial County and has served in this capacity since 1995. 6

Petitioner is a resident and registered voter in the County of Imperial. As the elected District Attorney of Imperial County, he is the County's chief law enforcement official. 28.

Petitioner, the Honorable Ronald Calhoun, is the District

Attorney for Kings County and has served in this capacity since 1999. Petitioner is a resident and "registered voter in the County of Kings. As the elected District Attorney of Kings County, he is the County's chief 1a",' enforcement official. 29.

Petitioner, the Honorable Ernest LiCalsi, is the District

Attorney for Madera County and has served in this capacity since 1992. Petitioner is a resident and registered voter in the County of Madera. As the elected District Attorney of Madera County, he is the County's chief law enforcement official. 30.

Petitioner, the Honorable Gary Lieberstein, is the District

Attorney for Napa County and has served in this capacity since 1999. Petitioner is a resident and registered voter in the County of Napa. As the elected District Attorney of Napa County, he is the County's chief law enforcement official. 31.

Petitioner, the Honorable Clifford Newell, is the District

Attorney for Nevada County and has served in this capacity since 2007. Petitioner is a resident and registered voter in the County of Nevada. As the elected District Attorney of Nevada County, he is the County's chief law enforcement official. 32.

Petitioner, the Honorable Carl Adams, is the District Attorney

for Sutter County and has served in this capacity since 1982. Petitioner is a resident and registered voter in the County of Sutter. As the elected District Attorney of Sutter County, he is the County's chief law enforcement official.

7

33.

Petitioner, The Honorable Patrick McGrath, is the District

Attorney for Yuba County and has served in this capacity since 1998. Petitioner is a resident and registered voter in the County of Yuba. As the elected District Attorney of Yuba County, he is the County's chief law enforcement official. 34.

Petitioner, the Honorable Gregg Cohen,

~s

the District

Attorney for Tehama County and has served in this capacity since 2002. Petitioner is a resident and registered voter in the County of Tehama. As the elected District Attorney in Tehama County, he is the County's chief law enforcement official. ·35.

Petitioner, the Honorable James Kirk Andrus, is the District

Attorney for Siskiyou County and has served in this capacity since 2005. Petitioner is a resident and registered voter in the County of Siskiyou. As the elected District Attorney of Siskiyou County. he is the County's chief law enforcement official. 36.

Petitioner, the Honorable Todd Riebe, is the District Attorney

for Amador County and has served in this capacity since 1991. Petitioner is a resident and registered

vote~

in the County of Amador. As the elected

District Attorney of Alameda County, he is the County's chief law enforcement official. 37.

Petitioner, the Honorable John Poyner, is the District

Attorney for Colusa County and has served in this capacity since 1986. Petitioner is a resident and registered voter in the County of Colusa. As the elected District Attorney of Colusa County, he is the County's chief law enforcement official. 38.

Petitioner, the Honorable Robert Brown, is the District

Attorney for Mariposa County and has served in this capacity since 2003. Petitioner is a resident and registered voter in the County of Mariposa. As

8

the elected District Attorney of Mariposa County, he is the County's chief law enforcement official. 39.

Petitioner, the Honorable Arthur Maillet, is the District

Attorney for lnyo County and has served in this capacity since 2003. Petitioner is a resident and registered voter in the County of Inyo. As the elected District Attorney of Inyo County, he is the County's chief law enforcement official. 40.

Petitioner, the Honorable George Booth, is the District

Attorney for Mono County and has served in this capacity since 1999. Petitioner is a resident and registered voter in the County of Mono. As the elected District Attorney of Mono County, he is the County's chief law enforcement official. 41.

Petitioner, the Honorable Gary Woolverton, is the District

Attorney for Modoc County and has served in this capacity since 2007. Petitioner is a resident and registered voter in the County of Modoc. As the elected District Attorney of Modoc County, he is the County's chief law enforcement official. 42.

. Petitioner, the Honorable William Richmond} is the District

Attorney for Alpine County and has served in this capacity since 2002. ~etitioner

is a resident and registered voter in the County of Alpine. As the

elected District Attorney of Alpine County, he is the County's chief law enforcement official. 43.

The aforementioned elected district attorneys are each

corrimitted to protecting the safety of the public, ensuring equal justice· under the law in prosecution of crimes with regard to both those accused of crimes and their respective victims, requiring accountability from those convicted of committing crimes in their respective counties, and maintaining the integrity of California's criminal justice system. including specifically the constitutional authority of the judiciary to fashion 9

appropriate dispositions to ensure that justice

IS

done in criminal cases

brought before California courts. 44.

Petitioner, Jerry Dyer, is the Chief of Police of the Fresno

Police Department and the President of the California Police Chiefs Association. Petitioner is a resident and registered voter in the County of Fresno.

He is a career law enforcement officer and is a sworn peace officer.

Chief Dyer is committed to enforcement of the lavis, promoting and ensuring public safety, and facilitating fun, fair, and effective enforcement of state and federal drug laws. 45.

Petitioner, Harriet Salamo, is the Chair of Crime Victims

United of California. Petitioner is a resident and registered voter in the County of Placer. Crime Victims United of California promotes and engages in education, legislative advocacy and political action to enhance public safety, promote effective crime-reduction measures, and strengthen the rights of crime victims. Consistent with the mission of Crime Victims United of California, and as a victim of violent crime herself, Mrs. Salamo is an advocate of the promotion of public safety laws to protect California citizens from becoming the victims of crimes and for justice for the victims of crime in California. . 46.

Petitioner Charlie Parsons, is the President and CEO of

D.A.R.E. America. Petitioner is a resident and registered voter in the County of Los Angeles. D.A.R.E., which is an acronym for Drug Abuse Resistance Education, is a. highly acclaimed program that gives children and teenagers the skills they need to avoid involvement in drugs, gangs, and violence. The D.A.R.E. program is designed to be taught by police officers whose training and experience provide the background needed to answer the sophisticated questions often posed by young people about drugs and crllne.

10

47.

Respondent Debra Bowen, is the Secretary of State of the

State of California.

She is being sued in her official capacity as

California's chief elections officer. By virtue of her office, Respondent has a legal duty, among other things, to prepare the State ballot pamphlet, to cause an adequate number of ballot pamphlets to be printed, to disseminate the state ballot pamphlet, to certify and declare the results of all matters submitted to vote by initiative filed in her office, and to make an official . declaration of the vote upon all initiatives. Respondent is the custodian of the laws of the State of California. 48.

Petitioners are infonned, believe, and thereupon allege that

Real Party in Interest Daniel N. Abrahamson is the proponent Of the initiative measure, recently designated as Proposition 5.

49.

Petitioners are infonned and believe, and on such infonnation

and belief allege, that, unless directed otherwise by this Court, Respondent intends to cause the proposed initiative to be submitted to and published by the State Printer, and to cause the proposed initiative to be submitted to the voters in the November 4, 2008, general election. 50.

A

prop~sed

ballot initiative measure, captioned by its

proponents as the "Nonviolent Offender Rehabilitation Act of 2008" and designated by Respondent Secretary of State as "Proposition 5," has been qualified by the Secretary of State to appear on the November 4, 2008, Statewide General Election ballot. A true and correct copy of Proposition 5 is attached hereto as Exhibit •A,' [po 1-62] and is incorporated herein by this reference, and shall be referred to in the instant Verified Petition for Writ of Mandate as "Proposition 5."

5] .

If approved by California voters on November 4, 2008,

Proposition 5 would impose broad and comprehensive statutory revisions restructuring California's criminal justice system and the correctional system. Proposition 5 would also revise and constrict the authority of the 11

judiciary to adjudicate and fashion dispositions in criminal cases, as well as drastically limit and undermine the Governor's constitutional authority over parole policy and review. 52.

The California State Legislative Analyst, Elizabeth Hill,

prepared an analysis of Proposition 5, which she transmitted to the Attorney . General of California on December 17, 2007. A true and correct copy of the analysis of Proposition 5 prepared by the Legislative Analyst on December 17, 2007, is attached hereto as Exhibit . B' [po 63-77] and incorporated herein by this reference. 53.

If approved by California voters on November 4, 2008,

Proposition 5 would enact statutes that would unconstitutionally restructure the executive branch of the State govemment, materiaBy impairing the Governor of California in the exercise of his primary and inherent constitutional authority to review the Board's decisions concerning the parole of individuals convicted of crimes in California. 54.

Proposition 5's vesting of "primary responsibility for parole

policies" in the proposed Secretary of Rehabilitation and Parole, which would be created by the initiative. would materiaBy ~mpair the Governor's parole authority granted in Article V, section 8(b) of the California Constitution.

The vesting of such "primary responsibility" for parole

policy and review in the Secretary of Rehabilitation and Parole violates the California Constitution, Article V, sections I and 8. 55.

Proposition 5 establishes a fixed six (6) year tenn for the.

Secretary of Rehabilitation and Parole, which provision deprives the Governor of exercising his supervisorial executive power over parole policy and review, as the California Constitution requires. Such being the case, Proposition 5 materially impairs the Governor's "primary and inherent" executive power with regard to parole matters. The material impairment of the Governor's primary and inherent authority over parole 12

policy and review, by the provisions of Proposition 5 in this regard, violates the California Constitution, Article V, sections land 8. 56.

Proposition 5 restricts the Governor's appointment power

relative to the Board of Parole Hearings and materially impairs the Governor's ·'primary and inherent" powers applicable to parole policy and review. The material impairment of the Governor's primary and inherent authority over parole policy and review, by the provisions of Proposition 5 in this regard, violates the California Constitution, Article V, sections 1 and

8. 57..

Proposition 5 unconstitutionally and improperly delegates

inherent judicial authority to an administrative executive bureaucracy, in violation of the separation of powers doctrine enunciated in the California Constitution, Article III, section 3. 58.

Proposition 5 deJegates to an unelected executive branch

bureaucracy, criminal sentencing functions that are deeply embedded in traditional notions of judicial authority, and does so without fonnal provisions for any explicit fonn of judicial review. Accordingly, Proposition 5 facially violates Article VI, section 1, and Article III, section 3 of the California Constitution. 59.

Proposition 5 materially impairs the constitutional authority

of California courts to exercise sound and independent judicial discretion to fashion appropriate dispositions in criminal cases. As a result, Proposition 5 facially violates Article VI, section l, and Article III; section 3 of the California Constitution. 60.

Proposition 5 deprives the judiciary of any supeIVisorial

oversight over administrative agencies that are vested by Proposition 5 with fonnulating binding recommendations regarding the disposition of criminal cases. As a result, Proposition 5 facially violates Article VI, section 1, and Article III, section 3 of the California Constitution. 13

61.

Petitioners are informed, believe, and thereupon allege that

adoption of Proposition 5, which is facially invalid on the aforementioned constitutional grounds, will result in immediate and irreparable hann to California's already-imperiled State and county correctional systems. 62.

Petitioners are infonned, believe, and thereupon allege that,

as has been reported in the media, California's correctional

syst~m

is

presently in a state of financial crisis, facing a multi-billion dollar ,operational deficit, significant overcrowding, and a federally-imposed receivership over the correctional health system. Petitioners are further infonned, believe, and thereupon allege that, as has been reported in the media, the California State budget itself is experiencing multi-billion dollar revenue shortfalls. True and correct copies of pertinent newspaper reports regarding these financial problems are attached hereto as Exhibit 'C' [p.78­ 93] and incorporated by reference herein. Further, true and correct copies of orders recently issued by the federal multi-district panel overseeing litigation pertaining to California's correctional system crises is appended hereto as Exhibit 'D' [po 94-124] and incorporated herein by this reference. 63. . The Legislative Analyst has projected that Proposition 5 will result in an increase in state costs exceeding $] billion annually mainly for administration of an expansion of drug treatment. and other services provided for eligible offenders.

Petitioners are infonned, believe, and

thereupon allege that imposing enormous new financial pressures on a correctional system already experiencing unprecedented financial crisis will do severe and irreparable damage to the correctional system. 64.

Implementation of Proposition 5 will occur immediately upon

approval, requiring a profound and pervasive restructuring of California's criminal justice and correctional system beginning immediately after Election Day. Petitioners are infonned, believe, and thereupon allege that, unless removed from the ballot pursuant to a writ of mandate issued by this 14

Court, the State will expend hundreds of millions of dollars over the course of time during which a post-election challenge to the constitutional validity of Proposition 5 would be litigated. 65.

Unless the constitutional review of Proposition 5 by this

honorable Court occurs immediately, Petitioners are infonned, believe, and thereupon allege that Ca~ifornia's already-troubled correctional system will be irreparably hanned. 66.

Petitioners

incorporate

herein

by

this

reference

the

Memorandum of Points and Authorities in Support of the Petition for Writ of Mandate attached hereto.

PRAYER Wherefore Petitioners request the following relief: I.

That this Court forthwith issue an alternative writ of mandate

directing Respondent: a.

not to include the Proposed Initiative in the ballot materials to be sent to the State Printer on or before August 11, 2008, not to submit the Proposed Initiative to the electors at the general election to be held on November 4, 2008, and to desist frolll any act in aid of the submission of the Proposed Initiative to the electors at that election or, in the alternative,

b.

to show cause before this Court at a specified time and place why Respondenthas not done so;

2.

That, upon Respondent's return to the alternative writ, a

hearing be held before this Court at the earliest practicable time so that the issues involved in this Petition may be adjudicated promptly;

15

3.

That, pending such return and hearing, the Court grant an

interim stay, prohibiting Respondent from causing ballot materials containing the Proposed Initiative to be published; 4.

That, following the hearing upon this Petition, the Court issue

a peremptory writ of mandate directing Respondent not to submit the Proposed Initiative to the electors at the general election to be held on November 4, 2008, and to desist from any act in aid of the submission of the Proposed Initiative to the electors at that election;

5.

That Petitioners be awarded their attorneys' fees and costs of

suit; and

6.

For such other and further relief as the Court may deem just

and equitable. Respectfully submitted,

SWEENEY & GREENE LLP

DATE: July 17, 2008

16

VERIFICATION

I, Governor Pete Wilson declare: I am one of the Petitioners in the above-captioned Verified Petition for Writ of

Mandate.. I have read the foregoing Verified Petition for Writ of Mandate and know the

contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and, as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on, Julyl.L, 2008, at Los Angeles County, California.

Governor Pete Wilson

17

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PETE WILSON, GRAY DAVIS, STEVE COOLEY, BONNIE DUMANIS, RODRIC PACHECO, MICHAEL RAMOS, DOLORES CARR, et aI.,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VERIFIED PETITION FOR . EXTRAORDINARY RELIEF INCLUDING WRIT OF MANDATE AND REQUEST FOR IMMEDIATE TEMPORARY STAY

Petitioner,

v.

DEBRA BOWEN, in her official

capacity as Secretary of State,

Respondent.

DANIEL N. ABRAHAMSON, ESQ.,

Real Party in Interest.

. Petitioners, a coalition led by fonner California Governors Pete Wilson and Gray Davis and consisting of 34 elected District Attorneys, professional law enforcement leaders, and crime victims' rights' leaders, petition the Court to issue a peremptory writ of mandate, directing Respondent Secretary of State 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.

Petitioners submit that

the principal provisions of Proposition 5 are manifestly and facially unconstitutional, infringing upon the constitutional powers and authority of the Governor and the judiciary, and, if adopted at the General Election,

]8

would inflict immediate and irreparable injury upon California's already­ fragile and financially-imperiled correctional system.

Consequently, in

order to avert imminent and severe damage to California's criminal justice and correctional system, Petitioners earnestly submit that immediate, emergency action by this Court is required.

STATEMENT OF FACTS The proposed ballot· initiative measure, captioned by its proponents as the "Nonviolent Offender Rehabilitation Act of 2008" and designated by Respondent Secretary of State as "Proposition 5" to appear on the November 4, 2008, Statewide General Election ballot (hereinafter ·'Prop. 5" [Exhibit A, p. 1-62]), would impose broad and comprehensive statutory revisions restructuring California's criminal justice system and the correctional system.

Proposition 5 would' also revise and constrict the

authority of the judiciary to adjudicate and fashion dispositions in criminal cases, as well as drastically limit and undermine the Governor's constitutional authority over parole policy and review.

A.

1m position Offenders.

of a

"Three Track" System fOT

Drug

Proposition 5 contains provIsIons that expand drug treatment diversion programs for nonviolent offenders, creating a proposed "three track" system. ("The Nonviolent Offender Rehabilitation Act of 2008," known as Prop. 5, Gen. Elee. (Nov. 4, 2008) §§ 14-18. [Exhibit A, p. 1-62]) Under Track I, offenders with no prior violent or serious offenses would enter into a state-funded drug treatment diversion program and a deferred entry of judgment with the court requiring no supervision. (See Prop. 5, § 14 (adding Penal Code § 1210.03) [Exhibit A, p. 1-62].) Track Il would require probation and diversion to treatment for offenders convicted of a nonviolent drug possession offense, including those convicted of a non­ drug related offense at the same time. (See Prop. 5, § 17 (amending Penal 19

Code § 1210.1) [Exhibit A, p. 1-62].) Offenders cannot participate in Track II if they have had a violent or serious offense within the preceding 5 years, and offenders placed in Track II are exempt from drug offender registration under Health and Safety Code Section 11590. (ld.)

Track III creates a

system of treatment and probation supervision for nonviolent drug offenders who have also committed other crimes. (See Prop. 5, § 18 (adding Penal Code § 1210.2) [Exhibit A, p. 28-30].)

Under all three

tracks, judicial discretion is curtailed, as Proposition 5 mandates that trial courts accept and rely upon the clinical assessments and recommendations made .by independent drug treatment professionals certified by the Department of Alcohol and Drug Programs. (See e.g., Prop. 5, § 13 (adding Penal Code § 1210.02) [Exhibit A, p. 45-46] According to the Legislative Analyst's report, the creation and implementation of this three track system would likely increase costs to the state due to the funding that will be required to pay for the services, and limits the circumstances under which judicial sanctions can be imposed on those who violate drug treatment diversion programs, limiting the power of the courts in these cases.

(See Legis. Analyst's Report, "NonvioJent

Offender Rehabilitation Act of 2008," December 18, 2007, pp. 9-11 [Exhibit B, p. 63-77].) Proposition 5 further appropriates $150 mi1lion to the Substance Abuse Treatment Trust Fund for 2008-09 and $460 million in 2009-10, with annual adjustments for inflation.

(See Prop. 5, § 36

(amending Health & Safety Code § 11999.5) [Exhibit A, p; 48-49].)

B.

Transfer of Parole Authority from the Governor to a New Secretary of Rehabilitation and Parole and Parole Reform Oversight and Accountability Board.

Proposition 5 also makes sweeping changes to California's parole system. Currently, primary authority for parole matters is vested in the Governor, who has plenary power under the Constitution with regard to

20

parole policy and review. (Cal. Const., Art. V, § 8, subd. (b).) Proposition 5 provides for the appointment of a Secretary of Rehabilitation and Parole for a fixed six year term who is charged with "primary responsibility" for parole policies and rehabilitation programs, and for a Secretary of Corrections, who, in contrast to the Secretary of Rehabilitation and Parole, would serve at the pleasure of the Governor. (See Prop. 5, § 4 (amending Gov. Code §. 12838, subd.· (a» [Exhibit A, p. 7-8].) Proposition 5 also restricts the unfettered ability of a Governor to make appointments to the Board of Parole Hearings, providing that all future gubernatorial appointments to the Board shall be made "upon recommendation of the Secretary of Rehabilitation and Parole." (See Prop. 5, § 7 (amending Gov. Code § 12838.4) [Exhibit A, p. 9].) Proposition 5 proposes to create a Parole Refonn Oversight and Accountability Board, with 21 members and the sole authority to direct, review, and approve all

regulations governing parole policy and

rehabilitation programs, a charge currently expressly delegated to the Governor. (See Prop. 5, § 23 (adding Penal Code § 3063.03) [Exhibit A, p. 39-41).) The regulations promulga~ed by the Parole Refonn Oversight and Accountability Board would be exempt from the Administrative Procedures Act and would not be subject to administrativ(f review by the Office of Administrative Law, which again transfers parole policy-making away from the Governor. (See Prop. 5, § 23 (adding Penal Code § 3063.03, subd. (a» [Exhibit A, p. 39-41].) Proposition 5 would create a new Treatment Diversion Oversight and Accountability Committee consisting of 23 members to review and approve all regulations regarding county implementation issues and the use of funds to implement the "three track" programs, providing that regulations subject to Commission approval would not be subject to administrative review-again depriving the Governor of any oversight 21

responsibilities.

(See Prop. 5, § 38 (adding Health & Safety Code §

11999.5.2) [Exhibit A, p. 49-53].)

C.

Elimination of Judicial Discretion Regarding Disposition of Drug Cases.

Proposition 5 would also materially alter the role of the courts in fashioning dispositions in criminal cases and largely eliminate the exercise of judicial discretion in the context of.substance abuse-related issues. The ballot initiative measure would require that, in fashioning the disposition of a criminal case, trial courts would be required to rely exclusively upon a "clinical assessment" of the defendant prepared by a drug treatment professional certified by the Department of Alcohol and Drug Programs. (See Prop. 5, § 13 (adding Penal Code § 1210.02).) Similarly, the discretion of the trial court would be further circumscribed by the provision, included in Section 15 of Proposition 5, which requires trial courts to adhere to treatment evaluations with regard to sentencing and court-ordered treatment. (See Prop. 5, § 15 (adding Penal Code § 1210.04). [Exhibit A, p. 18-19])

D.

The Current Crisis in California's

Correctio~al System.

At the present time, California's correctional system faces an unprecedented, multi-dimensional crisis that presents enonnous challenges to both the criminal justice system and the finances of the. State government.

The California Legislature is presently struggling with a

$15.2 billion shortfall in the 2008-2009 budget. (See Thompson, Aging

Inmates Add to Prison Strain in

Ca'~fornia,

Associated Press (July 5, 2008)

[Exhibit 'C', p. 78-93].) Complicating matters even more, since 2006, California's correctional health system has been placed under receivership by the Federal court and the court-appointed receiver has demanded construction of new facilities estimated to cost the State more than $7

22

billion. (/d.) This additional $7 billion in budgetary demands merely compounds the financial problems of California's correctional system, which has overspent its budget by several billion dollars since 1999. (Jailed by a Prison Crisis, The San Francisco Chronicle (June 25, 2008) p. B10

Wednesday [Exhibit "C" p. 78-93]; Delsohn, Problems, Blame Abound in Prison s..vstem, The Sacramento' Bee (May 2, 2004) p. A I [Exhibit "C', p.

78-93]:) According to the Legislative Analyst, the likely fiscal effects of Proposition 5 are potentially colossal, resulting in an increase in state costs that may exceed $1. billion annually.

(See Legis. Analyst's Report

"'Nonviolent Offender Rehabilitation Act of 2008," December 18,2007, pp. 9-11 [Exhibit B, p. 63-77].) Proposition 5 would dramatically increase costs , for expanded drug treatment programs, which promise no particular success based upon the State's experience with Proposition 36. Indeed, based upon the results produced as a result of Proposition 36, which was approved by voters in 2000, the massive expansion of court-imposed drug treatment programs may well prove to be a massive financial boondoggle. I

(See

Leonard, User~ Kicking Prop. 36, Not Drugs: With Offenders Failing to Enroll In or Complete Treatment, The Initiative is a "Get Out of Jail Free' Card, Critics Say. (April 1, ,2007) L.A. Times, p. I [Exhibit 'C', p. 78-93].) Certainly. prior experience with Proposition 36 suggests that the "pie-in­ the-sky" claims regarding taxpayer savings due to court-imposed drug treatment are illusory. (ld.) The Los Angeles Times reported in April, 2007, that "nearly half of offenders sentenced under [the Proposition 36 drug treatment] program fail to complete rehab and more than a quarter never show up for treatment.'· This failed experiment has cost California taxpayers more than $600 million as of April, 2007. (See Leonard, Users Kicking Prop. 36, Not Drugs: With Offenders Failing to Enroll In or Complete Treatment, The Initiative is a "Get Out of Jail Free' Card, Critics Say. (April I, 2007) L.A, Times, p. I [attached as Exhibit C].) 23

Proposition 5 would further deprive an already financially-troubled correctional system of critically needed funds for increased !medical facility construction and prison expansion to accommodate a growing prison population. For the 2009-10 budget year, Proposition 5 would require more than $300 million in expenditures from the General Fund more than was provided for in the 2007-08 Budget Act. (See Legis. Analyst's Report, "Nonviolent Offender Rehabilitation Act of 2008." December 18, 2007, p. 10 (Exhibit B, p. 63-77].)

But, the outlays required by Proposition 5 do

not end there. There are other requirements contained in the measure that are likely to amount to costs in the tens of millions of dollars annually, such as state reimbursement to counties; establishment of pilot projects; reorganization of COeR management and programs; a new parole refonn board; and required expediency of parole hearings. (ld.)

24

ARGUMENT

I.

PROPOSITION 5 MATERIALLY IMPAIRS THE EXECUTIVE POWERS RELATIVE TO PAROLE VESTED IN THE GOVERNOR BY ARTICLE V OF THE CALIFORNIA CONSTITUTION. Proposition 5 would enact statutes that would unconstitutionally

restructure the executive branch. of the State government, materially irnpairing the Governor of California in the exercise of his primary and inherent constitutional authority to review the Board's decisions concerning the parole of individuals convicted of crimes in California. Section 4 of Proposition 5 creates a Secretary of Rehabilitation and Parole, who is appointed to a fixed six year tern1 not subject to ,gubernatorial oversight and is

charged with

"primary

rehabilitation programs."

responsibility

for

parole

policies

and

As a consequence, Proposition 5 proposes to

enact statutes tefonning the executive branch of State government in a manner directly contrary to express provisions of Article V of the California Constitution. Article V, Section I of the California Constitution provides that "[t]he supreme executive power of this State is vested in the Governor." One of the two executive powers expressly vested in the Governor by the California Constitution is oversight over parole in the State of California. 2 Article V, Section 8(b) provides: No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only The· other expressly enumerated power is set forth in Article V, Section 7, making the Governor the commander in chief of the California militia. (See Cal. Const., Art. V, § 7.) 25

affinn, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affinned, modified, or reversed, stating the pertinent facts and reasons for the action. Article V, Section 8(b) was added to the California Constitution in November of 1988, when California voters approved Proposition 89 at the November Statewide General Election. The Article, expressly vested the Governor with broad review and policy-making authority over parole matters. As the proponents noted in their ballot pamphlet argument in favor of Proposition. 89, the constitutional amendment made by Proposition 89 "provides that no decision of the parole board releasing a convicted murderer shall become effective until it is first reviewed by the Governor. ... We believe that the state's top elected official should also be given the power to protect the public from the early release of still dangerous killers.',3

(Ballot Pamp., General Elect. (November 8, 1988)

argument in favor of Prop. 89, p. 46.) There is no question, both from the plain meaning of the text of the Section 8(b) and the stated intention of the propon~nts

of Proposition 89, that the constitution was amended to vest

parole policy-making and review authority in the Governor. Consequently, this Court, in In re Rosenkrantz (2002) 29 Cal. 4th 616, 659, observed that the people had conferred upon the Governor the

At the time of the adoption of Proposition 89 in 1988, parole' hearings for inmates serVing indetenninate sentences were conducted by the Board of Prison Tenns. In 2005, the Board of Prison Tenns was absorbed into the Board of Parole Hearings. (See Gov. Code § 12838.4 (added by Governor's Reorganization Plan No. 1 of 2005 § 6, effective May 5, 2005, operative July 1, 2005; Stats 2005 ch 10 § 6 (SB 737), effective May 10, 2005, operative July 1, 2005).) As discussed at length below, Proposition 5 amends Government Code section 12838.4, which pertains to the composition and appointment of the Board of Parole Hearings. (See Prop. 5, § 7 (amending Gov. Code § 12838.4) [Exhibit A).)

26

"constitutional authority to review" decisions concerning the parole of individuals serving indeterminate prison sentences, subject only to a limited check on that authority by the judiciary to ensure that the Governor's action in this regard complies with any constitutional limitations. This Court noted that the Governor's role in matters pertaining to the review of parole were "primary and inherent," such that any material impainnent of t,hose powers by another branch of government would constitute a violation of the separation of powers principle enshrined in Article III, Section 3. (See In

re Rosenkrantz, supra., 29 Cal. 4th at p. 662.) A.

Proposition 5's Vesting of "Primary Responsibility for Parole Policies" in tbe Proposed Secretary of Corrections and Rehabilitation Materially Impairs tbe Governor's Parole Authority Granted in Article V, 'Section 8(b) of the California Constitution.

The legislation that would be enacted by Proposition 5 would materially impair the Governor's "primary and inherent" constitutional authority over California's parole system. Section 4 of Proposition 5 would amend Government Code section ~ 2838 to provide, in pertInent part, that: There is hereby created in state government the Department of Corrections and Rehabilitation, to be headed by two secretaries who shall be known as the Secretary of Rehabilitation and Parole and the Secretary of Corrections. The Secretary of Rehabilitation and Parole shall be appointed by the Governor no later than February 1, 2009, subject to Senate continnation, and shall serve a six-year term. The Secretary ofCorrections shall be appointed by the Governor, subject to Senate continuation, and shall serve at the pleasure of the Governor.... The Secretary of Rehabilitation and Parole shall have primary responsibility for parole policies and rehabilitation programs, including all such programs operated by the Department, whether inside prison or outside. [Emphasis added.]

27

(Prop. 5, § 4 (amending Gov. Code § 12838, subd. (a» [Exhibit A, p. 7-8].) The constitutional defects associated with Proposition Ys statutory restructuring of the executive branch are manifest and do considerable violence to the California Constitution's vesting of "supreme executive power" in the office of the Governor of California. Proposition 5 would create an extra-constitutional executive officer charged by statute with "primary responsibility" for parole and parole policy, despite the fact that such responsibility constitutes one of the two expressly enumerated constitutional responsibilities of the Governor. (See Cal. Const., Art. V, § 8, subd. (b).) The plenary parole powers vested in the Secretary of Rehabilitation and Parole by Proposition 5 are breathtaking in their scope and would materially impair the Governor's expressly enumerated constitutional authority over parole and parole policy. This Court has stated that authority over the policies related to the parole of convicted felons serving indetenninate sentences, and the concomitant review of parole decisions, is a "primary and inherent'" power allocated by the California Constitution to the Governor. (See Rosen,kralltz,

supra., 29 Cal. 4th at p. 662.) Yet, Proposition 5 would enact a statute that assigns ·..primary responsibility for parole policies" to an appointed executive officer, the Secretary for Rehabilitation and Parole, who is not subject to meaningful gubernatorial supervision. On its face, Section 4 of Proposition 5 manifestly violates the letter and intent of Article V, Section 8(b) of the California Constitution, which vests such primary responsibility in the ··state's top elected official" (i.e., the Governor). (See Ballot Pamp., General Elect. (November 8, 1988) argument in favor of Prop. 89, p. 46 (emphasis

originaJ).)

For this

reason

unconstitutional on its face.

28

alone,

Proposition

5

is

B.

The Six Year Fixed Term for the Secretary of Rehabilitation and Parole Deprives the Governor of Supervisorial Executive Power Over Parole Policy and Review and Material Impairs the Governor's "Primary and Inherent" Executive Power with Regard to Parole Matters.

The constitutional defects regarding the material impairment by Proposition 5 of constitutional gubernatorial prerogatives are even more numerous.

According to Section 4 of Proposition 5, the Secretary of

Rehabilitation and Parole would serve a fixed term of six (6) years. (See Prop. 5, § 4 (amending Gov. Code § 12838, subd. (a»,[Exhibit A, p. 7-8].) This provision of Proposition 5 materially impairs the authority of the Governor to implem,ent meaningful policies and practices regarding parole because (1) the Secretary of Rehabilitation and Parole serves a fixed tenn and not at ·'the pleasure of the Governor;" and, (2) the six year fixed term of the appointment exceeds the' constitutionally-prescribed four year gubernatorial term. (See Cal. Const., Art. V, § 2; compare Prop. 5, § 4 (amending Gov. Code § 12838, subd. (a).»

This means that an incumbent

Governor would, in effect, set the parole policies of his or her successor. This provision 'runs afoul of the constitutional vesting of <'primary and inherent" parole policymaking and greatly diminishes the Governor's authority over such important constitutional responsibilities regarding parole. The fixed six year tenn for the Secretary of Parole, and Rehabilitation provided in Section 4 is a deliberate effort by the proponents of Proposition 5 to deprive the Governor of his or her primary constitutional authority over parole policy-making and review of parole decisions. The very same provision of Section 4 states that the Secretary of Corrections shall serve '''at the pleasure of the Governor,'" but the Secretary

29

of Parole and Rehabilitation serves a fixed six year term. 4 (See Prop. 5, § 4 (amending Gov. Code § 12838, subd. (a).» The practical effect of such legislative legerdemain is to deprive the Governor of the ability to meaningfully supervise the Secretary of Parole and Rehabilitation, as that officeholder cannot be dismissed by the Governor at his or her pleasure if the Secretary's performance or policy decisions do not meet gubernatorial expectations. The Secretary of Parole and Rehabilitation is, as a practical matter, neither subject to gubernatorial supervision nor policy direction­ despite the fact that the Secretary would presumably be a member of the Governor's cabinet. Worse yet, the fixed

SIX

year term not only irnposes the policy

choices and direction of a Governor upon his or her successor, but also' renders a robust quadrennial electoral debate regarding parole policy largely perfunctory.

Were this initiative measure to become effective,

future newly-elected Governors could not respond to an electoral mandate to implement policy changes because, upon assuming office, the new Governor could not appoint a new Secretary of Parole and Rehabilitation that shares his or her policy views-or, more importantly, the v~ews mandated during the election by California voters. Indeed, a newly-elected Governor "Yould be saddled with his or her predecessor's Secretary for Parole and Rehabilitation, who may well take a very different approach to Petitioners hasten to point out that Section 4 also establishes two undersecretaries, three chief deputy secretaries, the Chief of Adult Parole Operations, and the Chief of the Division of Research fOf Recovery and Re­ Entry Matters of the Department of Rehabilitation and Correction, each of whom are also appointed by the Governor to fixed tenns of five years. (See Prop. 5, §§ 4 (amending Gov. Code § 12838, subds. (b), (c).), 6 (amending Gov. Code § 12838.2, subd. (b» [Exhibit A].) The intention of the proponents clearly appears directed at depriving a newly-elected Governor from "'cleaning house" at the executive, policymaking level and to impair the Governor's ability to exercise his or her constitutional primacy over parole policy and review.

4

30

the important issue of parole than the newly-elected Governor, for at least the first half of his or her gubernatorial tenn (and potentially for the Governor's entire four year term of office). Such an arrangement clearly derogates and materially impairs the Governor's "primary and inherent" authority in the area of parole policy and review.

C.

Proposition .5's Restriction of the Governor's Appointment Power Relative to the Board of Parole Hearings Materially Impairs the Governor's "Primary and Inherent" Powers Applicable to Parole Policy and Review.

Proposition 5, in Section 7, also restricts the unfettered ability of a Governor to make appointments to the ,Board of Parole Hearings.

(See

Prop. 5, § 7 (amending Gov. Code § 12838.4) [Exhibit A,p. 9].) Currently, Government Code section 12838.4 provides that that the Commissioners "shall be appointed by the Governor, subject to Senate confirmation, for three-year terms,"

(Id.) Section 7 amends Government Code section

12838.4 to provide that the Commissioners "shall be appointed by the Governor, upon recommendation C?f the Secretary C?f Rehabilitation and

Parole," restricting the Governor's appointment prerogatives regarding parole to

those

candidates '"recommended"

by

the

Secretary

of

Rehabilitation and Parole. (Id.) Again, this restriction materially impairs "primary and inherent" gubernatorial power regarding parole review and policy. (See Cal. Const., Art. V, § 8, subd. (b).) The Governor's policy­ making prerogatives are subservient to the Secretary of Rehabilitation and Parole, who, as Proposition 5 mandates, possesses "primary responsibility" for parole policy. A hypothetical example illustrates the materiality of this impairment. Consider the case of Governor A, who is turned out of office at the regular quadrennial election because he is perceived by the electorate as being "soft

31

on crime" and "far too willing to grant parole to dangerous criminals." Newly-elected Governor B ran as a "law and order" candidate. pledging to implement "tough parole policies."

Upon taking office. four vacancies

arise on the Board of Parole Hearings.

Governor B desires to appoint

commissioners who share her ""get tough" parole policy views. However, the Secretary of Parole and Rehabilitation, who was appointed by Governor A just a year before he was turned out of office (and' will remain as Secretary throughout Governor B's entire tenn of office), recommends a slate of appointees, each of whom takes a diametrically opposed view on the issue from Governor B. Governor B, although possessing primary and inherent constitutional authority over parole policy and review, cannot 'implement the mandate to refonn parole policies that she received from'the electorate at statewide general election and would be precluded by Proposition 5 from doing so throughout the duration of her term in office. Under Article V of the California Constitution, this statutory restructuring of gubernatorial

power and

authority

cannot

stand.

Ultimately, the plenary executive power regarding parole is vested in an unelected, appointed,

and unaccountable

Secretary of Parole and

Rehabilitation contrary to Article V of the California Constitution. Proposi~ion

II.

5 is facially defective.

PROPOSITION 5 IMPERMISSIBLY DELEGATES JUDICIAL AUTHORITY IN VIOLATION OF ARTICLE VI, SECTION I, OF THE CALIFORNIA CONSTITUTION. Proposition 5 would bring about an unconstitutional and improper

delegation of inherent judicial authority, in violation of the separation of powers doctrine enunciated in the California Constitution. Proposition 5 designates to an unelected executive branch bureaucracy, criminal sentencing functions that are deeply embedded in traditional notions of judicial authority, and does so without formal provisions for any explicit

32

fonn of judicial review. As a result, Proposition 5 facially violates Article VI, section 1, of the State Constitution.

A.

Under the Separation of Powers Doctrine, the Judicial Power of the State is Delegated to the Judicial Branch, Not the Executive Branch.

It has long been established in this State that the determination of the

constitutionality of a legislative act or proposal-and whether it is beyond the powers vested in that branch-is entirely the province of the judiciary.

(Schabarum v. Cal!fornia Legislature (1998) 60 Ca1.AppAth 1205, 1213.) This inherent judicial authority is derived from the State Constitution and is not dependent on statute. (Clark v. First Union Securities. Inc. (2007) 153 Cal.App.4th 1595, 1608; People v. Castello (.l998) 65 Cal.AppAth 1242, .1247-1248.) .''The powers of state govemment are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution:' (Cal. Const., Art. III, § 3.)

The judicial power of this State is vested in the Supreme

Court, courts of appeal, -and superior courts, all of which are courts of record. (Cal. Canst., Art, VI, § 1.) "[A]rticle VI disposes of all judicial power not expressly disposed of 'elsewhere in the Constitution .... [A]lthough the Legislature retains the authority to grant a multitude of powers to local bodies pursuant to article XI, powers of ajudicial nature are no longer at its disposaL" (Strumsky v. San Diego County Retirement Assn. (1974) 11 Cal.3d 28,42. italics in original.) Although the Legislature may enact statutes regulating the inherent powers of the courts, it may not do so in a way that would defeat or materially impair the courts' exercise of their core constitutional powers and functions. (Kerns v. CSE Ins. Group (2003) 106 CaLApp.4th 368, 388.)

33

Generally speaking, executive or administrative officers cannot exercise or interfere with judicial functions. (Boags v. Municipal Court (1987) 197 Cal.App.3d 65, 67.) In other words, legislative enactments may not subordinate the exercise of inherent judicial discretion to the approval of executive branch officials. (People v. Tenorio (1970) 3 Cal.3d 89, 91­ 92.) When one department, agency, or branch of govenunent exercises the complete power that has been. constitutionalIy limited to another, the separation of powers doctrine is violated. (Laisne v. Bd. Of Optometly (1942) 19 Cal.2d 831, 835.) The primary purpose of the separation of powers doctrine is to prevent the combination of the fundamental powers of government in the hands of a single person or group. (Manduley v. Superior

Court (2002) 27 Ca1.4th 537, 557; Davis v. Municipal Court (1988) 46 Cal.3d 64, 76.) In view of the tripartite arrangement of powers provided in Article .

.

.

.

HI, section 3, the legislative branch may not ordinarily confer judicial functions upon any statewide administrative agency which the legislature has created. However, (1) where the Constitution itself has explicitly authorized creation of such an agency, and (2) has fUl1her authorized the legislative branch to vest judicial powers in that agency, then legislative authority may validly create such functions in such limited circumstances. (PeITY Farms. Inc. v. Agricultural Labor Relations Rd. of State (1978) 86

Cal.App.3d 448, 460.)

34

B.

The Separation of Powers Doctrine, Respecting the Independence of the Judicial Branch, Prohibits Administrative Agencies from Materially Impairing the Essential Duty of the Courts to Resolve Specific Controversies and to Regulate the Disposition of Litigation Pending Before Them.

With the growth of administrative agencies, the fonnerly rigid limitations proscribing the exercise of judicial powers by the executive branch have admittedly been softened: accordingly, a non-judicial board or officer may be authorized to perform limited "quasi-judiciar' powers to detennine facts and exercise discretion in appropriate circumstances. (See 7 Witkin, Summary of Cal. Law, (9th ed. 1988) "Constitutional Law," § 113, p. 166.)

Noneth~less,

the separation of powers doctrine clearly prohibits

the Legislature from arrogating to itself core functions of the executive or judicial branch: just as the courts may not encroach upon the Legislature's function to define social policy through its enactments, the Legishiture may not materially impair the essential duty of the courts to resolve specific controversies and regulate the litigation "10 ensure the orderly and effective administration of justice." (Scott Co. of California v. United States Fidelity & Guarantee'Ins. Co. (2003) 107 Ca1.App.4th 197,210, quoting Kollander

Constructioll, fllc. v. Superior Court (2002) 98 Cal.App.4th 304, 312.) The resolution of specific controversies is reserved as a core or essential function of the judicial branch, and may not be usurped by another branch.

(Scott Co. of California v. United States Fidelity & Guarantee Ins. Co., . supra, 107 Cal.App.4th at p. 208.) '"The correct principle deducible from the better-reasoned cases dealing with the separation of powers seems to be that even the primary function of any of the three departments may be exercised by any other governmental department or agency so long as (1) the exercise thereof is incidental or subsidiary to a function or power otherwise properly exercised

35

by such department or agency, and (2) the department to which the function so exercised is primary retains some sort of ultimate control over its exercise, as by court review in the case of the exercise of a power judicial in nature." (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1236; In re S.H. (2003) II I Cal.AppAth 310, 318.) Thus, a non-judicial agency can

.perfonn quasi-judicial powers as long as (1) the exercise o(such powers is subsidiary to the power otherwise property exercised by the court, and (2) the court retains ultimate control over its exercise, generally as the result of court review or oversight. (In re Danielle W, supra, 207 Ca1.App.3d at p. 1236} "So long as the scope of an agency's quasi-judicial powers is properly defined and limited by the Legislature and the exercise of those powers is subject to appropriate judicial review, the exercise of limited legislative and judicial powers by an administrative agency does not offend the Constitution:' (CaNfornia Radioactive Materials Management Forum v. Department of Health Services (1993) 15 Cal.App.4th 841, 870.)

Again,

an administrative officer or agency may exercise quasi-judicial or legislative powers only if those powe~s are clearly defined' by the Legislature, and only if they are.subject to judicial review. (20th Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 141.)

In McHugh v. Santa Monica Rent Control Board (1989) 49 Cal.3d 348, perhaps the leading case addressing the issue of the constitutional limits on quasi-judicial adjudication, this Court developed the "principle of check"; .the presence or absence of such "check" is determinative as to whether the exercise of quasi-judicial functions by an agency represents an unconstitutional arrogation of judicial power within the meaning of Article VI, section 1.

Hence, under McHugh an administrative agency !Day

constitutionally exercise quasi-judicial authority only so long as (1) such activities are authorized by statute or legislation and are reasonably 36

necessary to effectuate the administrative agency's pnmary, legitimate regulatory purposes, and (2) the "essential" judicial power remains ultimately in the courts, through some fonn of the review of agency detenninations. (Id. at p. 372.) C. . Proposition 5 Impermissibly Delegates Core Judicial Responsibility to an Administrative Bureaucracy That Is Not Subject to Judicial Review.

It is well-settled that in detennining the appropriate sentence and disposition for a criminal defendant, a trial judge is required to exercise discretion in the imposition of an individualized sentence, based on the singular aspects of the case. (People v. Lock (1981) 30 Ca1.3d 454, 457, fn. 5; People v. Cheatham (1979) 23 Ca1.3d 829, 835.) The sentencing and

disposition in a criminal case represent a '''critical stage" of that proceeding. (1n re Cortez (1971) 6 Ca1.3d 78, 88;.in re Perez (1966) 65 Ca1.2d 224,

229-230.) The resolution of criminal offenses represents a "core" judicial function under our tripartite system of state government. (People v. Bunn (2002) 27 CaL4th 1, 14.) The imposition of a sentence and the correlative exercise of sentencing discretion are fundamentally and inherently judicial functions.

(People v. Thomas (2005) 35 Ca1.4th 635, 640; People v.

Navarro (1972) 7 Ca1.3d 248, 258.)

Indeed, after the jurisdiction of the

court has been invoked by the tiling of a criminal pleading, the disposition of that charge becomes a fundamental judicial responsibility. (People v. Superior Court [On Tai Hol (1974) 11 Ca1.3d 59, 66; People v. Tenorio. supra, 3 Ca1.3d at p. 94.).

Special judicial proceedings such as drug

diversion are considered judicial acts. (People v. Superior COUIt [On Tai Hol. supra. 11 Cal.3d at p. 66.)

37

Under the foregoing principles a court violated the separation of powers doctrine in a dependency proceeding when it delegated its judicial discretion over the issue of

all.v

parental visitation to social workers and

therapists. (Ill re S.H., supra, 111 Cal.App.4th at pp. 317-318.) Similarly, in the case of In re James R. (2007) 153 Cal.App.4th 413, a juvenile court's order that a third party would determine parental visitation was held to be a clear violation of the separation of powers. Accordingly, while the interests of judicial economy may require the delegation of some quasi-adjudicatory powers to a member of the executive branch dedicated to the dependent . child's welfare, that role must be limited and always subject to supervision or judicial review in order to avoid a violation of the separation of powers doctrine. (In re Danielle

w..

supra, 207 Cal.App.3d at p. 1237.) "The

discretion to detennine whether any visitation occurs at all 'must remain with the court. not social workers and therapists ...". (In re S.H. supra, 111 Cal.App.4th at p. 318, quoting In re Julie M. (1999) 69 Cal.App.4th 41, 51.) While the detennination of eligibility for a particular sentencing alternative is not inherently 3!1 exclusive judicial branch function, the determination of individualized fitness or treatment, once the jurisdiction of the court has been invoked, implicates the .power of the judicial branch.

(Manduley v. Superior Court, supra, 27 CaL4th at p. 552-553.)

The

Legislature remains free to eliminate particular sentencing alternatives, so long as there is no attempt to override judicial sentencing discretion where that discretion resides to be exercised. (People v. Superior [Romero] (1996) 13 CaL4th 497, 511-512.)

The judicial branch alone has the sentencing

authority to set conditions of probation and this sentencing discretion cannot be delegated to the probation department, or any other administrative body. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.)

38

Proposition 5 Materially Impairs California Courts' Constitutional Authority to Exercise Sound Judicial Discretion to Fashion Appropriate Dispositions in Criminal Cases,

1.

Proposition 5 impinges upon the inherent authority of the judicial branch to fashion an appropriate disposition in criminal cases of instances.

i~

a number

Thus, Section 13 addresses, inter alia, drug treatment·

placement and monitoring conditions.

It initially announces that "[i]n

detennining an appropriate treatment program, the court must rely upon the clinical assessment of the defendant:' (Prop. 5. § 13 (adding Penal Code § 1210.02, subd. (a)(I» (emphasis added) [Exhibit A,

p.

14-16].) "Clinical

assessment"' has however already been defined and limited in a foregoing provision as "an evaluation perfonned by a qualified health care professional or drug treatment professional certified by the state Department of Alcohol and Drug Programs, pursuant to regulations approved by the Oversight Commission, using a standardized tool ...... (Prop. 5, § I I (amending Penal Code § 1210, subd. (g» [Exhibit A, p. 1)­ 13].)

No provision is made either for the unusual case or for judicial

disagreement with the appointed experts. The "drug treatment program" created by these statutes is limited to prescribed categories of therapy, including "science-based drug education," "medication-assisted treatment," and "detoxi fication services:' (Prop. 5, § ) 1 (amending Penal Code § 1210, subd. (b»

[Exhibit A, p. 11·13].) Again, the court is limited to the

designated types of therapies, without any provision for special conditions or atypical circumstances. Furthennore,

in

detennining

the

appropriate conditions for

monitoring and treatment, it is provided that the court again "must rely" upon the clinical assessment. (Prop, 5, § 13 (adding Penal Code § 1210.02, subd. (a)(3») [Exhibit A, p. 14-16],) The trial court is further divested of the

39

discretion to find a defendant ineligible for treatment despite the existence

of a psychiatric or psychological disorder. (Prop. 5, § 13 (adding Penal

Code § 1210.02, subd. (a)(6)) [Exhibit A, p. 14-16].) While the court is

concededly free to order additional community service, health care

intervention, and participation in literacy projects, (Prop. 5, § 13 (adding

Penal Code § 1210.02', subd. (a)(8)) [Exhibit A, p. 14-16], the core

. treatment program options available to the court are, by statutory mandate,

limited to the prescribed categories of ·'treatment programs," as necessarily

defined by a standardized "clinical assessment." Where, "clinical assessment indicates the need for such treatment." Proposition 5 requires that the court again "shall refer the defendant to opioid agonist treatment or other medication-assisted treatments . . . :' (Prop. 5, § 13 (adding Penal Code § 1210.02, subd. (a)(2)) (emphasis added) [Exhibit A, p. 14-16].) Accordingly. with respect to the "Track I" treatment program provided for in the initiative, once an eligible defendant enters the deferred entry of judgment program. the trial court "shall

there~fie,.

place the

defendc:nt in treatmellt and set monitoring conditions consistent with the terms and requirements 0.[ Section 1210.02:' (Prop. 5, § 14 (adding Penal Code § 1210.03,

su~d.

(i)) (Exhibit A, p. 16-18).) In other words, the court

is limited to those treatment and monitoring conditions already announced in the initiative as an approved "drug treatment program," which is in tum based on the legally prescribed and circumscribed "clinical assessment:' Section 15 (adding proposed Penal Code section 1210.(4) lists the circumstances under which a defendant may be terminated from the "Track I" treatment program. In determining whether the defendant has perfonned satisfactorily, notwithstanding judicial sentencing discretion, "the court

shall be guided by the evaluation provided for the court by the qualified treatment professional in charge of the defendanfs treatment program, and

40

the treatment provider's opinion .. :' (Prop. 5. § 15 (adding Penal Code §

1210.04) (emphasis added) [Exhibit A, p. 18-19].)

Indeed, if the court

ultimately decides not to terminate "Track I:' reinstatement of the defendant's treatment program is only permissible so long as it is "consistent with the recommendation of the treatment provider." (Prop. 5, §

15 (adding Penal Code § 1210.04) [Exhibit A, p. 18-1'9].) And if "Track I"" is terminated as the result of unsatisfactory perfonnance, and no new violent offenses have been committed, "the court shall sentence the defendant to Track II probation and treatment:' (ld,) (emphasis added). Section 17 of the initiative outlines the "Track [I"

diversion

program. which applies to those defendants ineligible for "Track J" treatment and who have been convicted of a "non-violent" drug possession offense; this provision announces that, under all circumstances, such defendants "shall receive probation." (Prop. 5. § ] 7 (amending Penal Code

§ 1210.1, subd. (a» [Exhibit A, p. 19-28].) As a further and mandatory condition of that court-supervised probation in "Track II"". the court must order "the defendant to appear for a clinical assessment . . . and shall thereafter order the defendant to. attend and complete an appropriate treatment program." (ld.). Again, the initiative places upon the court a mandatory obligation to "place the defendant in 1reatment" --- i.e. to set up a monitoring program that must consist of an approved "drug treatment program," which is again necessarily infonned by the initiative's prescribed "clinical assessment:' (ld.)

2.

Proposition 5 Deprives· the Judiciary of Any Supervisorial Oversight Over Administrative Agencies that Are Vested by Proposition 5 with Formulating Binding Recommendations Regarding the Disposition of Criminal Cases,

The administrative

oversight

provided

for these

monitoring

programs is to be provided by the California Department of Drug and 41

Alcohol Programs. (Prop. 5, § 37 (adding Health and Safety Code § 11999.5.1) [Exhibit A, p. 49].)

The California Department of Drug and

Alcohol Programs is an established administrative agency that is a part of the executive branch of state government. (Health & Saf. Code, §§ 11750 et seq.)

Under the provisions of the initiative, each county shall in tum

appoInt, as a "local lead agency:' an alcohol and drug programs administrator; this agency will be subject to the supervision of a statewide "Oversight Commission" which will review, direct, and approve the treatment programs of Tracks I, II, and III. (Prop. 5, § 38 (adding Health and Safety Code § 11999.5.2, subd. (a» [Exhibit A, p. 49-53].) Under the initiative, this statewide Oversight Commission is clearly tasked with the responsibility for the determination of content and regulation of the entire diversion program embodied in the proposal.

Indeed, "[r]egulations of

general applicability" that pertain to clinical assessments as well as treatment'programs "shall not take effect without approval by the Oversight Commission:' (ld.) Finally, the regulations promulgated by the Oversight Commission "shall not be subject to the Administrative Procedures Act or approval by the Office of Administrative Law:' av~ilability

~o

review and

(fd.) Significantly, the

of judicial --- as opposed to administrative --- remedies for

review of the actions taken by the Oversight Commission or the Department of Drug and Alcohol Programs with respect to the procedures envisioned by the initiative is nowhere addressed in the proposal. , Proposition 5 represents more than mere drug diversion, since it substantially takes the control of the disposition, treatment, and sentence in affected cases out of the hands of the judiciary, removes individualized sentencing discretion in tenns of treatment modalities, and in effect places affected cases under the control of a statewide administrative authority, without any provision for judicial review or judicial oversight. As has been 42

seen, individualized judicial sentencing discretion, in a case in which the jurisdiction of the court has been properly invoked, is a core judicial function. While the propriety of any delegation of quasi-judicial power is admittedly a matter of degree, this proposal exceeds clear constitutional limits in replacing judicial discretion with standardized bureaucratic judgment. In' so doing, the initiative violates Article VI, § I, of the State Constitution. III.

ADOPTION OF THIS CLEARLY UNCONSTITUTIONAL BALLOT INITIATIVE MEASURE WILL RESULT IN IMMEDIATE AND IRREPARABLE HARM TO CALIFORNIA'S ALREADY-IMPERILED STATE AND COUNTY CORRECTIONAL SYSTEMS. Although

Petitioners

readily

acknowledge

that

pre-election

challenges to the constitutionality of ballot initiative measures are generally disfavored by this Court, the present situation is markedly different than that which has ever previously arisen or been presented to this Court. California's correctional system is presently in a state of serious, financial crisis. If Proposition 5 is enacted, it mandates immediate implementation of its radical and profound refonns, which the Legislative Analyst has conservatively predicted shall cost more than $1 billion.

Requiring a

correctional system already strained to the financial limit to expend $ I billion implementing a plainly unconstitutional ballot initiative measure will irreparably harm California's state and county correctional systems. A system already strained to its financial limits will be required to expend enonnous resources to implement an unconstitutional banot initiative measure that is, Petitioners respectfully submit, destined for eventual invalidation by this Court, By the time, however, that this Court could ultimately review these multiple and manifest constitutional defects, the damage will have been done. A billion dollars of precious public resources wilJ have been wasted 43

to implement a complex and costly, but constitutionally defective, social experiment to be perfonned upon California's criminal justice system. The only means to ensure that such harm be avoided is an immediate and complete constitutional review of Proposition 5 by this Court and, if the Court agrees that Proposition 5 violates the California Constitution, to direct that it be removed from the November General Election ballot.

A.

Pre-Election Constitutional Review is Warranted in Cases Involving Manifest Constitutional Invalidity.

This Court has held that "it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity,'" (Brosnahan v. Eu (1982) 31 Cal. 3d 1, 3 (citing Mulkey v. Reitman (1966) 64 Cal.2d 529, 535; Wind v. HUe (1962) 58 Ca1.2d 415,417; Gayle

l'.

Hamm (1972) 25 Cal. App.3d 250, 256-257).)

Over the years, this Court has elaborated upon this general principle by noting that '"this general rule applies primarily when a challenge rests upon the alleged

unconstitutional~ty

of the substance of the proposed initiative,

and that the rule does not preclude preelection, review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather an amendment." . (Senate v. Jones (1999) 21 Cal.4th 1142, '1153; cited in Costa v. Supe1'ior Court (2006) 37 Cal. 4th 986.)

This Court, however, has always been careful never to make a categorical detennination that pre-election review is improper, noting that post-election review is "usually more appropriate" and that this principle is "generally" the nonn with regard to the review ofbalJot initiative measures, noting that this '"principle is a salutary one, and where appropriate we 44

adhere to it." (Legislature v. Deukmejian (I 983) 34 Cal. 3d 658, 665-666 (granting pre-election relief when initiative measure violated one­ reapportionment-per-decade rule).} "However, where the requisite showing of invalidity has been made, departure from the general rule is compelled:' (ld.)

Under the present circumstances, Petitioners believe that both the

manifest constitutional invalidity, coupled with the irreparable harm enactment of Proposition 5 may do to California's criminal justice and correctional system, warrant pre-election judicial intervention.

Indeed,

Petitioners respectfully submit that, if ever there were a situation justly warranting pre-election review, this is it.

B.

Implementation of Proposition 5, If Approved, Would Be Immediate.

Implementation of Proposition ·5 will occur immediately upon approval. requiring a profound and pervasive restructuring of California's criminal justice and correctional system beginning immediately after Election Day. Although the "effective date" of Proposition 5 is stated in Section 53 of the measure, to be July I, 2009, the effective date of the initiative· measure is qualified as "except as otherwise provided" and the text of the measure liberally provides for nearly immediate implementation. (See Prop. 5, § 53 [Exhibit A, p. 6l).} There is little question that, in order to implement as fundamental a restructuring of the criminal justice and correctional system as Proposition 5 would require, the process of implementation would need to commence immediately upon approval by the voters. Consider some of the following mandated items to be implemented prior to July 1, 2009: • The Secretary of Rehabilitation and Parole must be appointed by the Governor by February 1, 2009. (Section 10 of Proposition 5, Gov. Code § 12838.13 [Exhibit A, p. 10-11].) 45

• The Parole Reform Oversight and Accountability Board must be appointed and empanelled not later than March 31, 2009. (Section 23 of Proposition 5, Penal Code § 3063.02(b) [Exhibit A, p. 39].) • Rehabilitation programs for incarcerated inmates eligible for parole on or after July 1,2009, must be in place and operating not later than April 1, 2009. These programs must include "drug treatment

programs, mental health services, alcohol abuse treatment, re-entry services,

cognitive

skills

development,

housing

assistance,

education, literacy training, life skills, job skills, vocational training, victim impact awareness, restorative justiCe programs, anger management, family and relationship counseling, and· provision of infonnation involving publicly-funded health, social security and other benefits."

(Section 20 of Proposition 5, Penal Code §

3000(c)(l) as amended, [Exhibit A, p. 32-37]) • $150,000,000 shall be appropriated from the General Fund to the Substance Abuse Treatment Trust Fund for January 1 to June 30, 2009. (Section 36 of Proposition 5, Health & Safety Code § 11999.5(a), [Exhibit A, p. 48-49]J Clearly, this aggressive Proposition 5 timeline contemplates immediate implementation..

As a further example, in order for the

extensive pre-parole rehabilitation programs to be implemented not later than April 1, 2009, (as Section 20 of Proposition 5, Penal Code § 3000(c)(I) as amended requires) implementation would necessarily need to commence without delay should the initiative be approved on Election Day. Thus, by the time a post-election challenge to Proposition 5 could be fully reviewed and adjudicated by this Court, implementation of Proposition 5 would be well under way and hundreds of millions of dollars in public funds expended in the process.

46

C.

The Financial Damage Likely to Be Done to State and Local Correctional Systems As a Result of the Immediate Implementation of Proposition 5, If Enacted, Would be Staggering and Irreparable.

In view of the scope of Proposition 5 and its profound restructuring of California's criminal justice and correctional system, it is hardly

surprising that the non-partisan analysis of Proposition 5 prepared by the Legislative Analyst has projected that the Proposition "could eventually result in an increase in state costs exceeding $1 billion annually:' (See Legis. Analyst's Report, '
an increase of several hundreds of millions of dollars

annually in state costs for expanded rehabilitation programs for offenders in state prisons, on parole, and in the community. These costs would be paid for primarily from the state General Fund and would not be paid for through the SAITF:' (See Legis. Analyst's Report, "Nonviolent Offender Rehabilitation Act of 2008," December·18, 2007, p. 10 [Exhibit B, p.63­ 77].)

There is little question that the State prison' system in California already faces a major financial crisis, as it struggles to increase prison construction and implement necessary refonns. Just last month, a three judge federal multi-district panel set a November hearing date to consider early release as an option to concerns regarding overcrowding. [Exhibit '0', p. 94-124] Additionally, the state prison health system is currently in a

federally-imposed receivership.

With the State facing a $17.2 billion

deficit in a $101 billion General Fund, and a prison health system in federal receivership claiming the need for $7 billion in funding to address the

47

crisis, the State simply cannot afford to expend $1 billion to implement a restructuring program that, Petitioners respectfully submit; wi1J not survive a post-election constitutional challenge. Petitioners believe that it is plainly obvious that imposing such enonnous new financial pressures on a system already experiencing unprecedented finanCial crisis will do severe and irreparable damage to the correctional system. s There is little doubt that California's correctional system requires thoughtful, measured, and reasonable refonn.

But such

refonn must pass muster under the California Constitution and must place public safety, justice for crime victims, and full accountability for offenders at the heart of such refonn. Proposition 5, if enacted in November, will likely result in the infliction of financial chaos for no valid reason-the initiative measure is constitutionally defective and will likely be held by a future reviewing court to be inoperative. But unless this review occurs immediately, the people of California will find themselves in a much deeper financial crisis than already exists-and for no good reason.

As for the financial effect upon California's 58 county government, the Legislative Analyst simply could not assess the financial impact upon county government, noting only that the magnitude of Proposition 5's impact on additional county governmental expenditure, though apparently sizeable, is "unknown.'" (See Legis. Analyst's Report, "Nonviolent Offender Rehabilitation Act of 2008," December 18, 2007, pp. 12-13 [Exhibit B].)

48

CONCLUSION

Accordingly, because a showing of constitutional invalidity can be made and the threat of irreparable harm to California's criminal justice and correctional system appears likely, Petitioners believe that the instant Petition for Writ of Mandate is appropriate, timely, and well-taken. Petitioners earnestly and respectfully 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

Dated: July 17, 2008

49

CERTIFICATE OF WORD COUNT

I, James F. Sweeney counsel of record for Petitioners as fully set forth above, certify that the foregoing Petition for Writ of Mandate and Request for Immediate Temporary Stay conta.ins approximately 13,113 words (including footnotes, and exclusive of tables and 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

)3 point. Dated: July 17,2008

50