Petition for Writ of Mandate in Wilson v. Bowen

8/14/2019 Petition for Writ of Mandate in Wilson v. Bowen

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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 RELIEFINCLUDING WRIT OF MANDATE ANDREQUEST FOR IMMEDIATE TEMPORARY STAY

EMERGENCY ELECTION MATTERIMMEDIATE RELIEF REQUESTED

JAl\iIES F. SWEENEY, No. 124527STEPHEN J. GREENE, JR. No. 178098LAURA BORDEN RIDDELL,No. 225065SWEENEY & GREENE LLP9381 E. Stockton Blvd., Suite 218Elk Grove, California 95624Telephone: (916) 753-1300Facsimile: (916) 753-1333Attorneys for Petitioners


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TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ivPETITION FOR WRIT OF MANDATE 1PRELIMINARY AND JURISDICTIONAL STATEMENT IPRAYER 15VERIFICATION 17MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTOF VERIFIED PETITION FOR EXTRAORDINARY RELIEFINCLUDING WRIT OF MANDATE AND R ~ Q U E S T FORIMMEDIATE TEMPORARY STAy 18STATEMENT OF FACTS 19A. Imposition of a "Three Track" System for Drug Offenders 19B. Transfer of Parole Authority from the Governor to a NewSecretary of Rehabilitation and Parole and Parole Refonn

Oversight and Accountability Board 20C. Elimination of Judicial Discretion Regarding Disposition of

Drug Cases 22D. The Current Crisis in California's Correctional System 22

ARGUMENT 251. PROPOSITION 5.MATERIALLY IMPAIRS THE EXECUTIVEPOWERS RELATIVE TO PAROLE VESTED IN THEGOVERNOR BY ARTICLE V OF THE CALIFORNIA

CONSTITLTTION 25A. Proposition S's Vesting of "Primary Responsibility for Parole

Policies" in the Proposed Secretary of Corrections andRehabilitation Materially Impairs the Governor's Parole


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Authority Granted in Article V, Section 8(b) of theCalifornia Constitution 27B. The Six Year Fixed Term for the Secretary ofRehabilitation

and Parole Deprives the Governor of Supervisorial ExecutivePower Over Parole Policy and Review and Material Impairsthe Governor's "Primary and ]nherent" Executive Powerwith Regard to Parole Matters 29

C. Proposition S's Restriction of the Governor's AppointmentPower Relative to the Board of Parole Hearings MaterialImpairs the Governor's "Primary and Inherent" PowersApplicable to Parole Policy and Review 31

II. PROPOSITION 5 IMPERMISSIBLY DELEGATES JUDICIALAUTHORITY IN VIOLATION OF ARTICLE VI, SECTION I, OF THE CALIFORNIA CONSTITUTION : 32A. Under the Separation ofPowers Doctrine, the Judicial Power

of the State is Delegated to the Judicial Branch, Not theExecutive Branch 33B. The Separation of Powers Doctrine, Respecting theIndependence of the Judicial Branch, ProhibitsAdministrative Agencies from Materially Impairing the

Essential Duty of the Courts to Resolve SpecificControversies and to Regulate the Disposition of LitigationPending Before Them 35C. Proposition 5 Impermissibly Delegates Core Judicial

Responsibility to an Administrative Bureaucracy That IsNot Subject to Judicial Review 371. Proposition 5 Materially ImpairsCaJifornia Courts'Constitutional Authority to Exercise Sound JudicialDiscretion to Fashion Appropriate Dispositions in

Criminal Cases 392. Proposition 5 Deprives the Judiciary ofAnySupervisorial Oversight Over Administrative Agenciesthat Are Vested by Proposition 5 with Formulating

Binding Recommendations Regarding the DispositionofCriminal Cases 41

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III. ADOPTION OF THIS CLEARLY UNCONSTITUTIONALBALLOT INITIATIVE MEASURE WILL RESULT INIMMEDIATE AND IRREPARABLE HARM TOCALIFORNIA'S ALREADY-IMPERILED STATE ANDCOUNTY CORRECTIONAL SYSTEMS 43A. Pre-Election Constitutional Review is Warranted in Cases

Involving Manifest Constitutional Invalidity 44B. Implementation of Proposition 5, IfApproved, Would Be

Immediate 45C. The Financial Damage Likely to Be Done to State and Local

Correctional Systems As a Result of the ImmediateImplementation of Proposition 5, If Enacted, Would beStaggering and Irreparable 47

CONCLUSION : 49CERTIFICATE OF WORD COUNT 50'APPENDIX ' 51

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TABLE OF AUTHORITIES

Cases20th Centll1y Ins. Co. v. Quackenbush (1998) 64 Cal.AppAth 13 36Boags v. Municipal Court (1987) 197 Cal.App.3d 65 34Brosnahan v. Eu (1982) 31 Cal. 3d 1 44California Radioactive Materials Management Forum l' . Department ofHealth Sen'ices (1993) 15 Cal.AppAth 841 36Clark v. First Union Securities, Inc. (2007) 153 Cal.AppAth 1595 33Costa v. Superior Court (2006) 37 tal. 4th 986 44Da'vis v. Municipal Court (1988) 46 Ca1.3d 64 34Gayle v. Hamm (1972) 25 Cal. App.3d 250 44In re Cortez (1971) 6 Cal.3d 78 37In re Danielle W. (1989) 207 Cal.App.3d 1227 36, 38In re Julie M. (1999) 69 Cal.AppAth 41 38In re Pedro Q. (1989) 209 Cal.App.3d 1368 38In re Perez (1966) 65 Cal.2d 224 37In re Rosenkrantz (2002) 29 Cal. 4th 616 26, 27, 28In re S.H. (2003) III Cal.AppAth 3] 0 36, 38

Kerns v. CSE Ins. Group (2003) ]06 Cal.AppAth 368, 33Kollander Construction. Inc. v. Superior Court (2002)98 Cal.App.4th 304 35Laisne v. Bd. qrOptometly (1942) 19 Cal.2d 83] 34

IV


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Constitution, Statutes and RulesCal. Const. Art. III, 3 13,27Cal. Const. Art. V l 12,20Cal. Const. Art. V, 2 29Cal. Const. Art. V, 7 , 25Cal. Const., Art. V, 8 20Cal. Const. Art. V 8(b) passimCal. Const. Art. VI, 1 13, 33,42,43Gov. Code 12838 27Gov. Code 12838.4 26

Miscellaneous7 Witkin. Summary of Cal. Law, (9th cd. 1988) 'Constitutional Law;'

1I 3 35Ballot Pamp., General Elect. (November 8, 1988) 26,28

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PETITION FOR WRIT OF MANDATE

PRELIMINARY AND JURISDICTIONAL STATEMENTTO THE HONORABLE CHIEF JUSTICE AND ASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OFCALIFORNIA: .

Petitioners the Honorable Pete Wilson, Gray Davis, Steve Cooley,Bonnie M. Dumanis, Rod Pacheco, Michael Ramos, Dolores Carr, ThomasOrloff, Jan Scully, Robert Kochly, Elizabeth A. Egan, Gregory Totten,Edward R. Jagels, James Fox, Birgit Fladager, David W. Paulson, ChristieStanley, Edward Berberian, Jeff Reisig, Vernon Pierson, Gilbert Otero,Ronald Calhoun, Ernest LiCalsi, Gary Lieberstein, Clifford Newell, CarlAdams, Patrick McGrath, Gregg Cohen, James Kirk Andrus, Todd Riebe,John Poyner, Robert Brown, Arthur Maillet, George Booth, GaryWoolverton, William Richmond, Jerry Dyer, Harriet Salamo and CharlieParsons, upon Verified Petition for Writ of Mandate allege and aver asfollows:

1. By this original Verified Petition for Writ of Mandate,Petitioners, a coalition led by former California Governors Pete Wilson andGray Davis, and consisting of 34 elected District Attorneys, professionallaw enforcement leaders, and crime victims' rights' leaders, petition theCourt to issue a peremptory writ of mandate, directing RespondentSecretary of State to refrain from taking any steps to place Proposition 5 onthe November 4, 2008, Statewide General Election ballot or to include themeasure in the ballot pamphlet.

2. Petitioners submit that the principal provisions of Proposition5 are manifestly and facially unconstitutional, infringing upon theconstitutional powers and authority of the Governor and the judiciary, and,


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i f adopted at the General Election, would infl ict immediate and irreparableinjury upon California's already-fragile and financia.lly-imperiJedcorrectional system.

3. In order to avert imminent and severe damage to California'scriminal justice and correctional system, Petitioners earnestly submit thatimmediate, emergency action by this honorable Court is required.

4. There are no administrative remedies or other legalproceedings available to Petitioners to compel Proposition 5 to be deletedfrom the November 4, 2008, Statewide General Election ballot. CaliforniaElections Code section 133 J4 specifically provides for a Writ of Mandateas the exclusive remedy for the violations alleged herein.

,5. Petitioners respectfully invoke the original jurisdiction of thishonorable Court pursuant to the California Constitution, Article VI, Section10; California Code of Civil Procedure section 1085; and Rule 8.490 of theCalifornia Rules of Court. Petitioners invoke such jurisdiction in light ofthe fact that the time available between now and the submission of thestatewide ballot pamphlet to the State Printer, which Petitioners arei ~ f o n n e d , believe, and thereupon allege is to occur on or about August 1.1,2008, is insufficient to allow full and adequate consideration of the issuesraised through,this Petition by the Superior Court or the Court of Appeal.

6. This Petition presents no questions of fact for the Court toresolve in order to issue the relief sought.

7. Petitioner, the Honorable Pete Wilson, is the 36th Governorof the State of California. He served as Governor of California from 19911999. Prior to his election as Governor, Governor Wilson was the UnitedStates Senator from California. He also previously served as Mayor of theCity of San Diego and as a Member of the California State Assembly fromSan Diego. Governor Wilson is presently a resident and registered voter inthe County of Los Angeles. Throughout his career in public service,

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Governor Wilson has been a strong and outspoken supporter of lawenforcement, promoting public safety, holding criminals accountable fortheir crimes, and protecting the rights of crime victims. As a fonnerCalifornia Governor, Governor Wilson remains interested in preserving theconstitutional integrity of the office of Governor of California and ensuringthat the constitutional powers, perogatives, and a'uthority ofhis successorsin this important constitutional office are not impaired.

8. Petitioner, the Honorable Gray Davis, is the 37th Governor ofthe State of California. He served as Governor of California from 1999-

2003. Prior to his election as Governor, Governor Davis served asLieutenant Governor and State Controller. He also previously served as aMember of the California State Assembly and Chief of Staff to theGovernor Edmund G. Brown, Jr. Governor Davis is a presently a residentand registered voter in the County of Los Angeles. Throughout his careerin public service, Governor Davis has also been a strong and outspokensupporter of law enforcement, promoting public safety, holding criminalsaccountable for their crimes, and protecting the rights of crime victims.During his tenn as Governor ~ California, Governor Davis successfullydefended the constitutional parole authority of the Governor in the case ofIn re Rosenkrantz. As a fonner California Governor, Governor Davislikewise remains interested in preserving the constitutional integrity of theoffice of Governor of Califomia and ensuring that the constitutionalpowers, prerogatives, and authority of his successors in this importantconstitUtional office are not impaired.

9. Petitioner, the Honorable Stephen Cooley, is the DistrictAttorney for Los Angeles County and has served in this capacity since2000. Petitioner is a resident and registered voter in the County of LosAngeles. As the elected District Attorney of Los Angeles County, he is theCounty's chief law enforcement official.

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10. Petitioner, the Honorable Bonnie M. Dumanis, is the DistrictAttorney 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 AttorneysAssociation. As the elected District Attorney in San Diego County, she isthe County's chief law enforcement official.

II . Petitioner, the Honorable Rod Pacheco, is the DistrictAttorney for Riverside County and has served in this capacity since 2007.Petitioner is a resident and registered voter in the County of Riverside. Asthe elected District Attorney in Riverside County. he is the County?s chieflaw enforcement official.

12. Petitioner, the Honorable Michael Ramos, is the DistrictAttorney for San Bernardino County and has served in this capacity since2002. Petitioner is a resident and registered voter in the County of SanBernardino. As the elected District Attorney of San Bernardino County, heis the County's chief law enforcement official.

13. Petitioner, the Honorable Dolores Carr, is the DistrictAttorney for Santa Clara County and has served in this c a p a c i ~ y since 2006.Petitioner is a resident and registered voter in the County of Santa Clara. Ast h elected District Attorney of Santa Clara County. she is the County'.schief law enforcement official.

14. Petitioner, the Honorable Thomas Orloff, is the DistrictAttorney for Alameda County and has served in this capacity since 1994.Petitioner is a resident and registered voter in the County of Alameda. Asthe elected District Attorney of Alameda County, he is the County's chieflaw enforcement official.

15. Petitioner, the Honorable Jan Scully, is the District Attorneyfor Sacramento County and has served in this capacity since 1994.Petitioner is a resident and registered voter in the County of Sacramento.

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As the elected District Attorney of Sacramento County, she is the County'schief law enforcement official.

\6. Petitioner, The Honorable Robert Kochly, is the DistrictAttorney for Contra Costa County and has served in this capacity since200 I. Petitioner is a resident and registered voter in the County of ContraCosta. As the elected District Attorney of Contra Costa County, he is theCounty's chief law enforcement official.

17. Petitioner, the Honorable Elizabeth A. Egan, is the DistrictAttorney for Fresno County and has served in this capacity since 2002.Petitioner is a resident and registered voter in the County ofFresno. As theelected District Attorney of Fresno County, she is the County's chief lawenforcement official.

l8. Petitioner, the Honorable Gregory Totten, is the DistrictAttorney for Ventura County and has served in this capacity since 2002.Petitioner is a resident and registered voter in the County of Ventura. As theelected District Attorney of Ventura County. he is the County's chief lawenforcement official.

19. Petition,er, the Honorable Edward R. Jagels, is the DistrictAttorney for Kern County and has served in this capacity since 1982.Petitioner is a resident and r e g i s t ~ r e d voter in the County of Kern. As theelected District Attorney of Kern County, he is the County's chief lawenforcement official.

20. Petitioner, the Honorable James Fox, is the District Attorneyfor Sari Mateo County and has served in this capacity for more than twentyyears. Petitioner is a resident and registered voter in the County of SanMateo. As the ejected District Attorney of San Mateo Gounty, he is theCounty's chief law enforcement official.

21. Petitioner, the Honorable Birgit Fladager. is the DistrictAttorney for Stanislaus County and has served in this capacity since 2006.

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Petitioner is a resident and registered voter in the County of Stanislaus. Asthe elected District Attorney of Stanislaus County. she is the County's chieflaw enforcement official.

22. Petitioner, the Honorable David W. Paulson, is the DistrictAttorney for Solano County and has served in this capacity since 1993.Petitioner is a resident and registered voter in the County of Solano. As theelected District Attorney of Solano County. he is the County's chief lawenforcement official.

23. Petitioner, the Honorable Christie Stanley, is the DistrictAttorney for Santa Barbara County and has served in this capacity since2007. Petitioner is a resident and registered voter in the County of SantaBarbara. As the elected District Attorney of Santa Barbara County, she isthe County's chief law enforcement official.

24. Petitioner, the Honorable Edward Berberian, is the DistrictAttorney for Marin County and has served in this capacity since 2004.Petitioner is a resident and registered voter in the County of Marin. As theelected District Attorney of Marin County, he is the County's chief lawenforcement official.

25. Petitioner, the Honorable Jeff Reisig, is the District Attorneyfor Yolo County and has served in this capacity since 2007. Petitioner is aresident and registered voter in the County of Yolo. As the elected DistrictAttorney of Yolo County, he is the County's chief law enforcement official.

26. Petitioner, The Honorable Vernon Pierson, is the DistrictAttorney 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. Asthe elected District Attorney of El Dorado County, he is the County's chieflaw enforcement official.

27. Petitioner, the Honorable Gilbert Otero, is the DistrictAttorney for Imperial County and has served in this capacity since 1995.

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Petitioner is a resident and registered voter in the County of Imperial. Asthe elected District Attorney of Imperial County, he is the County's chieflaw enforcement official.

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

29. Petitioner, the Honorable Ernest LiCalsi, is the DistrictAttorney for Madera County and has served in this capacity since 1992.Petitioner is a resident and registered voter in the County of Madera. As theelected District Attorney of Madera County, he is the County's chief lawenforcement official.

30. Petitioner, the Honorable Gary Lieberstein, is the DistrictAttorney for Napa County and has served in this capacity since 1999.Petitioner is a resident and registered voter in the County of Napa. As theelected District Attorney of Napa County, he is the County's chief lawenforcement official.

31. Petitioner, the Honorable Clifford Newell, is the DistrictAttorney for Nevada County and has served in this capacity since 2007.Petitioner is a resident and registered voter in the County of Nevada. As theelected District Attorney of Nevada County, he is the County's chief lawenforcement official.

32. Petitioner, the Honorable Carl Adams, is the District Attorneyfor Sutter County and has served in this capacity since 1982. Petitioner is aresident and registered voter in the County of Sutter. As the elected DistrictAttorney of Sutter County, he is the County's chief law enforcementofficial.

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33. Petitioner, The Honorable Patrick McGrath, is the DistrictAttorney for Yuba County and has served in this capacity since 1998.Petitioner is a resident and registered voter in the County of Yuba. As theelected District Attorney of Yuba County, he is the County's chief lawenforcement official.

34. Petitioner, the Honorable Gregg Cohen, ~ the DistrictAttorney for Tehama County and has served in this capacity since 2002.Petitioner is a resident and registered voter in the County of Tehama. Asthe elected District Attorney in Tehama County, he is the County's chieflaw enforcement official.

35. Petitioner, the Honorable James Kirk Andrus, is the DistrictAttorney for Siskiyou County and has served in this capacity since 2005.Petitioner is a resident and registered voter in the County of Siskiyou. Asthe elected District Attorney of Siskiyou County. he is the County's chieflaw enforcement official.

36. Petitioner, the Honorable Todd Riebe, is the District Attorneyfor Amador County and has served in this capacity since 1991. Petitioner isa resident and registered v o t e ~ in the County of Amador. As the electedDistrict Attorney of Alameda County, he is the County's chief lawenforcement official.

37. Petitioner, the Honorable John Poyner, is the DistrictAttorney for Colusa County and has served in this capacity since 1986.Petitioner is a resident and registered voter in the County of Colusa. As theelected District Attorney of Colusa County, he is the County's chief lawenforcement official.

38. Petitioner, the Honorable Robert Brown, is the DistrictAttorney for Mariposa County and has served in this capacity since 2003.Petitioner is a resident and registered voter in the County of Mariposa. As

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the elected District Attorney of Mariposa County, he is the County's chieflaw enforcement official.

39. Petitioner, the Honorable Arthur Maillet, is the DistrictAttorney for lnyo County and has served in this capacity since 2003.Petitioner is a resident and registered voter in the County of Inyo. As theelected District Attorney of Inyo County, he is the County's chief lawenforcement official.

40. Petitioner, the Honorable George Booth, is the DistrictAttorney for Mono County and has served in this capacity since 1999.Petitioner is a resident and registered voter in the County of Mono. As theelected District Attorney of Mono County, he is the County's chief lawenforcement official.

41. Petitioner, the Honorable Gary Woolverton, is the DistrictAttorney for Modoc County and has served in this capacity since 2007.Petitioner is a resident and registered voter in the County of Modoc. As theelected District Attorney of Modoc County, he is the County's chief lawenforcement official.

42. . Petitioner, the Honorable William Richmond} is the DistrictAttorney for Alpine County and has served in this capacity since 2002.~ e t i t i o n e r is a resident and registered voter in the County of Alpine. As theelected District Attorney of Alpine County, he is the County's chief lawenforcement official.

43. The aforementioned elected district attorneys are eachcorrimitted to protecting the safety of the public, ensuring equal justiceunder the law in prosecution of crimes with regard to both those accused ofcrimes and their respective victims, requiring accountability from thoseconvicted of committing crimes in their respective counties, andmaintaining the integrity of California's criminal justice system. includingspecifically the constitutional authority of the judiciary to fashion

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appropriate dispositions to ensure that justice IS done in criminal casesbrought before California courts.

44. Petitioner, Jerry Dyer, is the Chief of Police of the FresnoPolice Department and the President of the California Police ChiefsAssociation. Petitioner is a resident and registered voter in the County ofFresno. He is a career law enforcement officer and is a sworn peace officer.Chief Dyer is committed to enforcement of the lavis, promoting andensuring public safety, and facilitating fun, fair, and effective enforcementof state and federal drug laws.

45. Petitioner, Harriet Salamo, is the Chair of Crime VictimsUnited of California. Petitioner is a resident and registered voter in theCounty of Placer. Crime Victims United of California promotes andengages in education, legislative advocacy and political action to enhancepublic safety, promote effective crime-reduction measures, and strengthenthe rights of crime victims. Consistent with the mission of Crime VictimsUnited of California, and as a victim of violent crime herself, Mrs. Salamois an advocate of the promotion of public safety laws to protect Californiacitizens from becoming the victims of crimes and for justice for the victimsof crime in California.

. 46. Petitioner Charlie Parsons, is the President and CEO ofD.A.R.E. America. Petitioner is a resident and registered voter in theCounty of Los Angeles. D.A.R.E., which is an acronym for Drug AbuseResistance Education, is a. highly acclaimed program that gives childrenand teenagers the skills they need to avoid involvement in drugs, gangs, andviolence. The D.A.R.E. program is designed to be taught by police officerswhose training and experience provide the background needed to answerthe sophisticated questions often posed by young people about drugs andcrllne.

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47. Respondent Debra Bowen, is the Secretary of State of theState of California. She is being sued in her official capacity asCalifornia's chief elections officer. By virtue of her office, Respondent hasa legal duty, among other things, to prepare the State ballot pamphlet, tocause an adequate number of ballot pamphlets to be printed, to disseminatethe state ballot pamphlet, to certify and declare the results of all matterssubmitted to vote by initiative filed in her office, and to make an official

.declaration of the vote upon all initiatives. Respondent is the custodian ofthe laws of the State of California.

48. Petitioners are infonned, believe, and thereupon allege thatReal Party in Interest Daniel N. Abrahamson is the proponent Of theinitiative measure, recently designated as Proposition 5.

49. Petitioners are infonned and believe, and on such infonnationand belief allege, that, unless directed otherwise by this Court, Respondentintends to cause the proposed initiative to be submitted to and published bythe State Printer, and to cause the proposed initiative to be submitted to thevoters in the November 4, 2008, general election.

50. A p r o p ~ s e d ballot initiative measure, captioned by itsproponents as the "Nonviolent Offender Rehabilitation Act of 2008" anddesignated by Respondent Secretary of State as "Proposition 5," has beenqualified by the Secretary of State to appear on the November 4, 2008,Statewide General Election ballot. A true and correct copy of Proposition5 is attached hereto as Exhibit A,' [po 1-62] and is incorporated herein bythis reference, and shall be referred to in the instant Verified Petition forWrit of Mandate as "Proposition 5."

5] . If approved by California voters on November 4, 2008,Proposition 5 would impose broad and comprehensive statutory revisionsrestructuring California's criminal justice system and the correctionalsystem. Proposition 5 would also revise and constrict the authority of the

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judiciary to adjudicate and fashion dispositions in criminal cases, as well asdrastically limit and undermine the Governor's constitutional authority overparole 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 ofthe analysis of Proposition 5 prepared by the Legislative Analyst onDecember 17, 2007, is attached hereto as Exhibit .. B' [po 63-77] andincorporated herein by this reference.

53. If approved by California voters on November 4, 2008,Proposition 5 would enact statutes that would unconstitutionally restructurethe executive branch of the State govemment, materiaBy impairing theGovernor of California in the exercise of his primary and inherentconstitutional authority to review the Board's decisions concerning theparole of individuals convicted of crimes in California.

54. Proposition 5's vesting of "primary responsibility for parolepolicies" in the proposed Secretary of Rehabilitation and Parole, whichwould be created by the initiative. would materiaBy ~ m p a i r the Governor'sparole authority granted in Article V, section 8(b) of the CaliforniaConstitution. The vesting of such "primary responsibility" for parolepolicy and review in the Secretary of Rehabilitation and Parole violates theCalifornia 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 theGovernor of exercising his supervisorial executive power over parolepolicy and review, as the California Constitution requires. Such being thecase, Proposition 5 materially impairs the Governor's "primary andinherent" executive power with regard to parole matters. The materialimpairment of the Governor's primary and inherent authority over parole

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

56. Proposition 5 restricts the Governor's appointment powerrelative to the Board of Parole Hearings and materially impairs theGovernor's 'primary and inherent" powers applicable to parole policy andreview. The material impairment of the Governor's primary and inherentauthority over parole policy and review, by the provisions of Proposition 5in this regard, violates the California Constitution, Article V, sections 1 and8.

57.. Proposition 5 unconstitutionally and improperly delegatesinherent judicial authority to an administrative executive bureaucracy, inviolation of the separation of powers doctrine enunciated in the CaliforniaConstitution, Article III, section 3.

58. Proposition 5 deJegates to an unelected executive branchbureaucracy, criminal sentencing functions that are deeply embedded intraditional notions of judicial authority, and does so without fonnalprovisions for any explicit fonn of judicial review. Accordingly,Proposition 5 facially violates Article VI, section 1, and Article III, section3 of the California Constitution.

59. Proposition 5 materially impairs the constitutional authorityof California courts to exercise sound and independent judicial discretion tofashion appropriate dispositions in criminal cases. As a result, Proposition5 facially violates Article VI, section l, and Article III; section 3 of theCalifornia Constitution.

60. Proposition 5 deprives the judiciary of any supeIVisorialoversight over administrative agencies that are vested by Proposition 5 withfonnulating binding recommendations regarding the disposition of criminalcases. As a result, Proposition 5 facially violates Article VI, section 1, andArticle III, section 3 of the California Constitution.

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61. Petitioners are informed, believe, and thereupon allege thatadoption of Proposition 5, which is facially invalid on the aforementionedconstitutional grounds, will result in immediate and irreparable hann toCalifornia'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 s y s t ~ m ispresently in a state of financial crisis, facing a multi-billion dollar

,operational deficit, significant overcrowding, and a federally-imposedreceivership over the correctional health system. Petitioners are furtherinfonned, believe, and thereupon allege that, as has been reported in themedia, the California State budget itself is experiencing multi-billion dollarrevenue shortfalls. True and correct copies of pertinent newspaper reportsregarding these financial problems are attached hereto as Exhibit 'C ' [p.7893] and incorporated by reference herein. Further, true and correct copiesof orders recently issued by the federal multi-district panel overseeinglitigation pertaining to California's correctional system crises is appendedhereto as Exhibit 'D ' [po 94-124] and incorporated herein by this reference.

63. . The Legislative Analyst has projected that Proposition 5 willresult in an increase in state costs exceeding $] billion annually mainly foradministration of an expansion of drug treatment. and other servicesprovided for eligible offenders. Petitioners are infonned, believe, andthereupon allege that imposing enormous new financial pressures on acorrectional system already experiencing unprecedented financial crisis willdo severe and irreparable damage to the correctional system.

64. Implementation of Proposition 5 will occur immediately uponapproval, requiring a profound and pervasive restructuring of California'scriminal justice and correctional system beginning immediately afterElection Day. Petitioners are infonned, believe, and thereupon allege that,unless removed from the ballot pursuant to a writ of mandate issued by this

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

65. Unless the constitutional review of Proposition 5 by thishonorable Court occurs immediately, Petitioners are infonned, believe, andthereupon allege that C a ~ i f o r n i a ' s already-troubled correctional system willbe irreparably hanned.

66. Petitioners incorporate herein by this reference theMemorandum of Points and Authorities in Support of the Petition for WritofMandate attached hereto.

PRAYERWherefore Petitioners request the following relief:

I. That this Court forthwith issue an alternative writ of mandatedirecting Respondent:

a. not to include the Proposed Initiative in the ballotmaterials to be sent to the State Printer on or beforeAugust 11, 2008, not to submit the Proposed Initiativeto the electors at the general election to be held onNovember 4, 2008, and to desist frolll any act in aid ofthe submission of the Proposed Initiative to theelectors at that election or, in the alternative,

b. to show cause before this Court at a specified time andplace why Respondenthas not done so;

2. That, upon Respondent's return to the alternative writ, ahearing be held before this Court at the earliest practicable time so that theissues involved in this Petition may be adjudicated promptly;

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3. That, pending such return and hearing, the Court grant aninterim stay, prohibiting Respondent from causing ballot materialscontaining the Proposed Initiative to be published;

4. That, following the hearing upon this Petition, the Court issuea peremptory writ of mandate directing Respondent not to submit theProposed Initiative to the electors at the general election to be held onNovember 4, 2008, and to desist from any act in aid of the submission ofthe Proposed Initiative to the electors at that election;

5. That Petitioners be awarded their attorneys' fees and costs ofsuit; and

6. For such other and further relief as the Court may deem justand equitable.

Respectfully submitted,SWEENEY & GREENE LLP

DATE: July 17, 2008

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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 ofMandate and know the

contents thereof. The same is true of my own knowledge, except as to those matterswhich are therein stated on information and belief, and, as to those matters, I believe it tobe true.

I declare under penalty of perjury under the laws of the State ofCalifornia that theforegoing is true and correct.

Executed on, Julyl .L, 2008, at Los Angeles County, California.

Governor Pete Wilson

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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PETE WILSON, GRAY DAVIS,STEVE COOLEY, BONNIEDUMANIS, RODRIC PACHECO,MICHAEL RAMOS, DOLORESCARR, et aI.,Petitioner,

v.DEBRA BOWEN, in her officialcapacity as Secretary of State,Respondent.

DANIEL N. ABRAHAMSON, ESQ.,Real Party in Interest.

MEMORANDUM OF POINTSAND AUTHORITIES INSUPPORT OF VERIFIEDPETITION FOR .EXTRAORDINARY RELIEFINCLUDING WRIT OFMANDATE ANDREQUEST FOR IMMEDIATETEMPORARY STAY

. Petitioners, a coalition led by fonner California Governors PeteWilson 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, directingRespondent Secretary of State to refrain from taking any steps to placeProposition 5 on the November 4, 2008, Statewide General Election ballotor to include the measure in the ballot pamphlet. Petitioners submit thatthe principal provisions of Proposition 5 are manifestly and faciallyunconstitutional, infringing upon the constitutional powers and authority ofthe Governor and the judiciary, and, if adopted at the General Election,

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would inflict immediate and irreparable injury upon California's alreadyfragile and financially-imperiled correctional system. Consequently, inorder to avert imminent and severe damage to California's criminal justiceand correctional system, Petitioners earnestly submit that immediate,emergency action by this Court is required.

STATEMENT OF FACTSThe proposed ballot initiative measure, captioned by its proponents

as the "Nonviolent Offender Rehabilitation Act of 2008" and designated byRespondent Secretary of State as "Proposition 5" to appear on theNovember 4, 2008, Statewide General Election ballot (hereinafter 'Prop. 5"[Exhibit A, p. 1-62]), would impose broad and comprehensive statutoryrevisions restructuring California's criminal justice system and thecorrectional system. Proposition 5 would' also revise and constrict theauthority of the judiciary to adjudicate and fashion dispositions in criminalcases, as well as drastically limit and undermine the Governor'sconstitutional authority over parole policy and review.

A. 1m position of a "Three Track" System fOT DrugOffenders.Proposition 5 contains provIsIons that expand drug treatment

diversion programs for nonviolent offenders, creating a proposed "threetrack" 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 wouldenter into a state-funded drug treatment diversion program and a deferredentry of judgment with the court requiring no supervision. (See Prop. 5, 14 (adding Penal Code 1210.03) [Exhibit A, p. 1-62].) Track Il wouldrequire probation and diversion to treatment for offenders convicted of anonviolent drug possession offense, including those convicted of a nondrug related offense at the same time. (See Prop. 5, 17 (amending Penal

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Code 1210.1) [Exhibit A, p. 1-62].) Offenders cannot participate in TrackII 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 registrationunder Health and Safety Code Section 11590. (ld.) Track III creates asystem of treatment and probation supervision for nonviolent drugoffenders who have also committed other crimes. (See Prop. 5, 18(adding Penal Code 1210.2) [Exhibit A, p. 28-30].) Under all threetracks, judicial discretion is curtailed, as Proposition 5 mandates that trialcourts accept and rely upon the clinical assessments and recommendationsmade .by independent drug treatment professionals certified by theDepartment of Alcohol and Drug Programs. (See e.g., Prop. 5, 13 (addingPenal Code 1210.02) [Exhibit A, p. 45-46]

According to the Legislative Analyst's report, the creation andimplementation of this three track system would likely increase costs to thestate due to the funding that will be required to pay for the services, andlimits the circumstances under which judicial sanctions can be imposed onthose who violate drug treatment diversion programs, limiting the power ofthe courts in these cases. (See Legis. Analyst's Report, "NonvioJentOffender Rehabilitation Act of 2008," December 18, 2007, pp. 9-11[Exhibit B, p. 63-77].) Proposition 5 further appropriates $150 mi1lion tothe Substance Abuse Treatment Trust Fund for 2008-09 and $460 millionin 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 NewSecretary of Rehabilitation and Parole and Parole ReformOversight and Accountability Board.Proposition 5 also makes sweeping changes to California's parole

system. Currently, primary authority for parole matters is vested in theGovernor, who has plenary power under the Constitution with regard to

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parole policy and review. (Cal. Const., Art. V, 8, subd. (b).) Proposition5 provides for the appointment of a Secretary of Rehabilitation and Parolefor a fixed six year term who is charged with "primary responsibility" forparole policies and rehabilitation programs, and for a Secretary ofCorrections, who, in contrast to the Secretary of Rehabilitation and Parole,would serve at the pleasure of the Governor. (See Prop. 5, 4 (amendingGov. Code . 12838, subd. (a [Exhibit A, p. 7-8].) Proposition 5 alsorestricts the unfettered ability of a Governor to make appointments to theBoard of Parole Hearings, providing that all future gubernatorialappointments to the Board shall be made "upon recommendation of theSecretary 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 andAccountability Board, with 21 members and the sole authority to direct,review, and approve all regulations governing parole policy andrehabilitation programs, a charge currently expressly delegated to theGovernor. (See Prop. 5, 23 (adding Penal Code 3063.03) [Exhibit A, p.39-41).) The regulations p r o m u l g a ~ e d by the Parole Refonn Oversight andAccountability Board would be exempt from the Administrative ProceduresAct and would not be subject to administrativ(f review by the Office ofAdministrative Law, which again transfers parole policy-making awayfrom 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 Oversightand Accountability Committee consisting of 23 members to review andapprove all regulations regarding county implementation issues and the useof funds to implement the "three track" programs, providing thatregulations subject to Commission approval would not be subject toadministrative review-again depriving the Governor of any oversight

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responsibilities. (See Prop. 5, 38 (adding Health & Safety Code 11999.5.2) [Exhibit A, p. 49-53].)

C. Elimination of Judicial Discretion Regarding Dispositionof Drug Cases.

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

D. The Current Crisis in California's C o r r e c t i o ~ a l System.At the present time, California's correctional system faces an

unprecedented, multi-dimensional crisis that presents enonnous challengesto both the criminal justice system and the finances of the. Stategovernment. The California Legislature is presently struggling with a$15.2 billion shortfall in the 2008-2009 budget. (See Thompson, AgingInmates Add to Prison Strain in C a ' ~ f o r n i a , 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 receivershipby the Federal court and the court-appointed receiver has demandedconstruction of new facilities estimated to cost the State more than $7

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billion. (/d.) This additional $7 billion in budgetary demands merelycompounds the financial problems of California's correctional system,which has overspent its budget by several billion dollars since 1999. (Jailedby a Prison Crisis, The San Francisco Chronicle (June 25, 2008) p. B10Wednesday [Exhibit "C" p. 78-93]; Delsohn, Problems, Blame Abound inPrison 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 ofProposition 5 are potentially colossal, resulting in an increase in state coststhat 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 successbased upon the State's experience with Proposition 36. Indeed, based uponthe results produced as a result of Proposition 36, which was approved byvoters in 2000, the massive expansion of court-imposed drug treatmentprograms may well prove to be a massive financial boondoggle. (SeeLeonard, U s e r ~ Kicking Prop. 36, Not Drugs: With Offenders Failing toEnroll 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-inthe-sky" claims regarding taxpayer savings due to court-imposed drugtreatment are illusory. (ld.)

The Los Angeles Times reported in April, 2007, that "nearly half ofoffenders sentenced under [the Proposition 36 drug treatment] program failto complete rehab and more than a quarter never show up for treatment.'This failed experiment has cost California taxpayers more than $600million as of April, 2007. (See Leonard, Users Kicking Prop. 36, NotDrugs: With Offenders Failing to Enroll In or Complete Treatment, TheInitiative is a "Get Out of Jail Free' Card, Critics Say. (April I, 2007) L.A,Times, p. I [attached as Exhibit C].)23


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Proposition 5 would further deprive an already financially-troubledcorrectional system of critically needed funds for increased !medical facilityconstruction and prison expansion to accommodate a growing prisonpopulation. For the 2009-10 budget year, Proposition 5 would require morethan $300 million in expenditures from the General Fund more than wasprovided 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 donot end there. There are other requirements contained in the measure thatare likely to amount to costs in the tens of millions of dollars annually, suchas state reimbursement to counties; establishment of pilot projects;reorganization of COeR management and programs; a new parole refonnboard; and required expediency of parole hearings. (ld.)

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ARGUMENT

I. PROPOSITION 5 MATERIALLY IMPAIRS THEEXECUTIVE POWERS RELATIVE TO PAROLE VESTEDIN THE GOVERNOR BY ARTICLE V OF THECALIFORNIA CONSTITUTION.Proposition 5 would enact statutes that would unconstitutionally

restructure the executive branch. of the State government, materiallyirnpairing the Governor of California in the exercise of his primary andinherent constitutional authority to review the Board's decisions concerningthe parole of individuals convicted of crimes in California. Section 4 ofProposition 5 creates a Secretary of Rehabilitation and Parole, who isappointed to a fixed six year tern1 not subject to ,gubernatorial oversight andis charged with "primary responsibility for parole policies andrehabilitation programs." As a consequence, Proposition 5 proposes toenact statutes tefonning the executive branch of State government in amanner directly contrary to express provisions of Article V of theCalifornia 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 theCalifornia Constitution is oversight over parole in the State of California.2Article V, Section 8(b) provides:

No decision of the parole authority of this state with respectto the granting, denial, revocation, or suspension of parole ofa person sentenced to an indeterminate term upon convictionof murder shall become effective for a period of 30 days,during which the Governor may review the decision subjectto 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 Californiamilitia. (See Cal. Const., Art. V, 7.)25


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affinn, modify, or reverse the decision of the parole authorityon the basis of the same factors which the parole authority isrequired to consider. The Governor shall report to theLegislature each parole decision affinned, modified, orreversed, 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 theNovember Statewide General Election. The Article, expressly vested theGovernor with broad review and policy-making authority over parolematters. As the proponents noted in their ballot pamphlet argument in favorof Proposition. 89, the constitutional amendment made by Proposition 89"provides that no decision of the parole board releasing a convictedmurderer shall become effective until it is first reviewed by theGovernor. ... We believe that the state's top elected official should also begiven the power to protect the public from the early release of stilldangerous killers.',3 (Ballot Pamp., General Elect. (November 8, 1988)argument in favor of Prop. 89, p. 46.) There is no question, both from theplain meaning of the text of the Section 8(b) and the stated intention of thep r o p o n ~ n t s of Proposition 89, that the constitution was amended to vestparole policy-making and review authority in the Governor.

Consequently, this Court, in In re Rosenkrantz (2002) 29 Cal. 4th616, 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 theBoard of Prison Tenns. In 2005, the Board of Prison Tenns was absorbedinto the Board of Parole Hearings. (See Gov. Code 12838.4 (added byGovernor'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 5amends Government Code section 12838.4, which pertains to thecomposition and appointment of the Board of Parole Hearings. (See Prop.5, 7 (amending Gov. Code 12838.4) [Exhibit A).)

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"constitutional authority to review" decisions concerning the parole ofindividuals serving indeterminate prison sentences, subject only to a limitedcheck on that authority by the judiciary to ensure that the Governor's actionin this regard complies with any constitutional limitations. This Court notedthat the Governor's role in matters pertaining to the review of parole were"primary and inherent," such that any material impainnent of t,hose powersby another branch of government would constitute a violation of theseparation of powers principle enshrined in Article III, Section 3. (See Inre Rosenkrantz, supra., 29 Cal. 4th at p. 662.)

A. Proposition 5's Vesting of "Primary Responsibility forParole Policies" in tbe Proposed Secretary of Correctionsand Rehabilitation Materially Impairs tbe Governor'sParole Authority Granted in Article V, 'Section 8(b) of theCalifornia Constitution.The legislation that would be enacted by Proposition 5 would

materially impair the Governor's "primary and inherent" constitutionalauthority over California's parole system. Section 4 of Proposition 5 wouldamend Government Code section 2838 to provide, in pertInent part, that:

There is hereby created in state government the Departmentof Corrections and Rehabilitation, to be headed by twosecretaries who shall be known as the Secretary ofRehabilitation and Parole and the Secretary of Corrections.The Secretary of Rehabilitation and Parole shall be appointedby the Governor no later than February 1, 2009, subject toSenate continnation, and shall serve a six-year term. TheSecretary ofCorrections shall be appointed by the Governor,subject to Senate continuation, and shall serve at the pleasureof the Governor.... The Secretary of Rehabilitation andParole shall have primary responsibility for parole policiesand rehabilitation programs, including all such programsoperated by the Department, whether inside prison or outside.[Emphasis added.]

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(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 considerableviolence to the California Constitution's vesting of "supreme executivepower" in the office of the Governor of California. Proposition 5 wouldcreate an extra-constitutional executive officer charged by statute with"primary responsibility" for parole and parole policy, despite the fact thatsuch responsibility constitutes one of the two expressly enumeratedconstitutional responsibilities of the Governor. (See Cal. Const., Art. V, 8, subd. (b).) The plenary parole powers vested in the Secretary ofRehabilitation and Parole by Proposition 5 are breathtaking in their scopeand would materially impair the Governor's expressly enumeratedconstitutional authority over parole and parole policy.

This Court has stated that authority over the policies related to theparole of convicted felons serving indetenninate sentences, and theconcomitant review of parole decisions, is a "primary and inherent'" powerallocated by the California Constitution to the Governor. (See Rosen,kralltz,supra., 29 Cal. 4th at p. 662.) Yet, Proposition 5 would enact a statute thatassigns .primary responsibility for parole policies" to an appointedexecutive officer, the Secretary for Rehabilitation and Parole, who is notsubject to meaningful gubernatorial supervision. On its face, Section 4 ofProposition 5 manifestly violates the letter and intent of Article V, Section8(b) of the California Constitution, which vests such primary responsibilityin 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 alone, Proposition 5 isunconstitutional on its face.

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B. The Six Year Fixed Term for the Secretary ofRehabilitation and Parole Deprives the Governor ofSupervisorial Executive Power Over Parole Policy andReview and Material Impairs the Governor's "Primaryand Inherent" Executive Power with Regard to ParoleMatters.

The constitutional defects regarding the material impairment byProposition 5 of constitutional gubernatorial prerogatives are even morenumerous. According to Section 4 of Proposition 5, the Secretary ofRehabilitation and Parole would serve a fixed term of six (6) years. (SeeProp. 5, 4 (amending Gov. Code 12838, subd. (a,[Exhibit A, p. 7-8].)This provision of Proposition 5 materially impairs the authority of theGovernor to implem,ent meaningful policies and practices regarding parolebecause (1) the Secretary of Rehabilitation and Parole serves a fixed tennand not at 'the pleasure of the Governor;" and, (2) the six year fixed termof the appointment exceeds the' constitutionally-prescribed four yeargubernatorial term. (See Cal. Const., Art. V, 2; compare Prop. 5, 4(amending Gov. Code 12838, subd. (a). This means that an incumbentGovernor would, in effect, set the parole policies of his or her successor.This provision 'runs afoul of the constitutional vesting of


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4

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 suchlegislative legerdemain is to deprive the Governor of the ability tomeaningfully supervise the Secretary of Parole and Rehabilitation, as thatofficeholder cannot be dismissed by the Governor at his or her pleasure ifthe Secretary's performance or policy decisions do not meet gubernatorialexpectations. The Secretary of Parole and Rehabilitation is, as a practicalmatter, neither subject to gubernatorial supervision nor policy directiondespite the fact that the Secretary would presumably be a member of theGovernor's cabinet.

Worse yet, the fixed SIX year term not only irnposes the policychoices and direction of a Governor upon his or her successor, but also'renders a robust quadrennial electoral debate regarding parole policylargely perfunctory. Were this initiative measure to become effective,future newly-elected Governors could not respond to an electoral mandateto implement policy changes because, upon assuming office, the newGovernor could not appoint a new Secretary of Parole and Rehabilitationthat shares his or her policy views-or, more importantly, the v ~ e w s mandated during the election by California voters. Indeed, a newly-electedGovernor "Yould be saddled with his or her predecessor's Secretary forParole and Rehabilitation, who may well take a very different approach to

Petitioners hasten to point out that Section 4 also establishes twoundersecretaries, three chief deputy secretaries, the Chief of Adult ParoleOperations, and the Chiefof the Division of Research fOf Recovery and ReEntry Matters of the Department of Rehabilitation and Correction, each ofwhom are also appointed by the Governor to fixed tenns of five years. (SeeProp. 5, 4 (amending Gov. Code 12838, subds. (b), (c).), 6 (amendingGov. Code 12838.2, subd. (b [Exhibit A].) The intention of theproponents clearly appears directed at depriving a newly-elected Governorfrom "'cleaning house" at the executive, policymaking level and to impairthe Governor's ability to exercise his or her constitutional primacy overparole policy and review.

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the important issue of parole than the newly-elected Governor, for at leastthe first half of his or her gubernatorial tenn (and potentially for theGovernor's entire four year term of office). Such an arrangement clearlyderogates 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'sAppointment Power Relative to the Board of ParoleHearings Materially Impairs the Governor's "Primaryand Inherent" Powers Applicable to Parole Policy andReview.Proposition 5, in Section 7, also restricts the unfettered ability of aGovernor 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, forthree-year terms," (Id.) Section 7 amends Government Code section12838.4 to provide that the Commissioners "shall be appointed by theGovernor, upon recommendation C?f the Secretary C?f Rehabilitation andParole," restricting the Governor's appointment prerogatives regardingparole to those candidates '"recommended" by the Secretary ofRehabilitation and Parole. (Id.) Again, this restriction materially impairs"primary and inherent" gubernatorial power regarding parole review andpolicy. (See Cal. Const., Art. V, 8, subd. (b).) The Governor's policymaking prerogatives are subservient to the Secretary of Rehabilitation andParole, 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 regularquadrennial election because he is perceived by the electorate as being "soft

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on crime" and "far too willing to grant parole to dangerous criminals."Newly-elected Governor B ran as a "law and order" candidate. pledging toimplement "tough parole policies." Upon taking office. four vacanciesarise on the Board of Parole Hearings. Governor B desires to appointcommissioners who share her ""get tough" parole policy views. However,the Secretary of Parole and Rehabilitation, who was appointed by GovernorA just a year before he was turned out of office (and' will remain asSecretary throughout Governor B's entire tenn of office), recommends aslate of appointees, each of whom takes a diametrically opposed view onthe issue from Governor B. Governor B, although possessing primary andinherent constitutional authority over parole policy and review, cannot'implement the mandate to refonn parole policies that she received from'theelectorate at statewide general election and would be precluded byProposition 5 from doing so throughout the duration of her term in office.

Under Article V of the California Constitution, this statutoryrestructuring of gubernatorial power and authority cannot stand.Ultimately, the plenary executive power regarding parole is vested in anunelected, appointed, and unaccountable Secretary of Parole andRehabilitation contrary to Article V of the California Constitution.P r o p o s i ~ i o n 5 is facially defective.II. 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 ofpowers doctrine enunciated in the California Constitution. Proposition 5designates to an unelected executive branch bureaucracy, criminalsentencing functions that are deeply embedded in traditional notions ofjudicial authority, and does so without formal provisions for any explicit

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

A. Under the Separation of Powers Doctrine, the JudicialPower 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 beyondthe powers vested in that branch-is entirely the province of the judiciary.(Schabarum v. Cal!fornia Legislature (1998) 60 Ca1.A ppAth 1205, 1213.)This inherent judicial authority is derived from the State Constitution and isnot dependent on statute. (Clark v. First Union Securities. Inc. (2007) 153Cal.App.4th 1595, 1608; People v. Castello (.l998) 65 Cal.AppAth 1242,.1247-1248.)

.''The powers of state govemment are legislative, executive, andjudicial. Persons charged with the exercise of one power may not exerciseeither of the others except as permitted by this Constitution:' (Cal. Const.,Art. III, 3.) The judicial power of this State is vested in the SupremeCourt, courts of appeal, -and superior courts, all of which are courts ofrecord. (Cal. Canst., Art, VI, 1.) "[A]rticle VI disposes of all judicialpower not expressly disposed of 'elsewhere in the Constitution ....[A]lthough the Legislature retains the authority to grant a multitude ofpowers to local bodies pursuant to article XI, powers of ajudicial nature areno longer at its disposaL" (Strumsky v. San Diego County Retirement Assn.(1974) 11 Cal.3d 28,42. italics in original.) Although the Legislature mayenact statutes regulating the inherent powers of the courts, it may not do soin a way that would defeat or materially impair the courts' exercise of theircore constitutional powers and functions. (Kerns v. CSE Ins. Group (2003)106 CaLApp.4th 368, 388.)

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Generally speaking, executive or administrative officers cannotexercise or interfere with judicial functions. (Boags v. Municipal Court(1987) 197 Cal.App.3d 65, 67.) In other words, legislative enactments maynot subordinate the exercise of inherent judicial discretion to the approvalof executive branch officials. (People v. Tenorio (1970) 3 Cal.3d 89, 91-92.) When one department, agency, or branch of govenunent exercises thecomplete power that has been. constitutionalIy limited to another, theseparation of powers doctrine is violated. (Laisne v. Bd. Of Optometly(1942) 19 Cal.2d 831, 835.) The primary purpose of the separation ofpowers doctrine is to prevent the combination of the fundamental powers ofgovernment in the hands of a single person or group. (Manduley v. SuperiorCourt (2002) 27 Ca1.4th 537, 557; Davis v. Municipal Court (1988) 46Cal.3d 64, 76.)

In view of the tripartite arrangement of powers provided in Article. . . .HI, section 3, the legislative branch may not ordinarily confer judicialfunctions upon any statewide administrative agency which the legislaturehas created. However, (1) where the Constitution itself has explicitlyauthorized creation of such an agency, and (2) has fUl1her authorized thelegislative branch to vest judicial powers in that agency, then legislativeauthority may validly create such functions in such limited circumstances.(PeITY Farms. Inc. v. Agricultural Labor Relations Rd. of State (1978) 86Cal.App.3d 448, 460.)

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B. The Separation of Powers Doctrine, Respecting theIndependence of the Judicial Branch, ProhibitsAdministrative Agencies from Materially Impairing theEssential Duty of the Courts to Resolve SpecificControversies and to Regulate the Disposition ofLitigation Pending Before Them.

With the growth of administrative agencies, the fonnerly rigidlimitations proscribing the exercise of judicial powers by the executivebranch have admittedly been softened: accordingly, a non-judicial board orofficer may be authorized to perform limited "quasi-judiciar' powers todetennine facts and exercise discretion in appropriate circumstances. (See 7Witkin, Summary of Cal. Law, (9th ed. 1988) "Constitutional Law," 113,p. 166.) N o n e t h ~ l e s s , the separation of powers doctrine clearly prohibitsthe Legislature from arrogating to itself core functions of the executive orjudicial branch: just as the courts may not encroach upon the Legislature'sfunction to define social policy through its enactments, the Legishiture maynot materially impair the essential duty of the courts to resolve specificcontroversies and regulate the litigation "10 ensure the orderly and effectiveadministration of justice." (Scott Co. ofCalifornia v. United States Fidelity& Guarantee'Ins. Co. (2003) 107 Ca1.App.4th 197,210, quoting KollanderConstructioll, fllc. v. Superior Court (2002) 98 Cal.App.4th 304, 312.)The resolution of specific controversies is reserved as a core or essentialfunction 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 casesdealing with the separation of powers seems to be that even the primary

function of any of the three departments may be exercised by any othergovernmental department or agency so long as (1) the exercise thereof isincidental or subsidiary to a function or power otherwise properly exercised

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by such department or agency, and (2) the department to which the functionso exercised is primary retains some sort of ultimate control over itsexercise, as by court review in the case of the exercise of a power judicialin nature." (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1236; In reS.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 issubsidiary to the power otherwise property exercised by the court, and (2)the court retains ultimate control over its exercise, generally as the result ofcourt 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 isproperly defined and limited by the Legislature and the exercise of thosepowers is subject to appropriate judicial review, the exercise of limitedlegislative and judicial powers by an administrative agency does not offendthe Constitution:' (CaNfornia Radioactive Materials Management Forum v.Department ofHealth Services (1993) 15 Cal.App.4th 841, 870.) Again,an administrative officer or agency may exercise quasi-judicial orlegislative powers only if those p o w e ~ s are clearly defined' by theLegislature, and only if they are.subject to judicial review. (20th CenturyIns. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 141.)

In McHugh v. Santa Monica Rent Control Board (1989) 49 Cal.3d348, perhaps the leading case addressing the issue of the constitutionallimits on quasi-judicial adjudication, this Court developed the "principle ofcheck"; .the presence or absence of such "check" is determinative as towhether the exercise of quasi-judicial functions by an agency represents anunconstitutional arrogation of judicial power within the meaning of ArticleVI, section 1. Hence, under McHugh an administrative agency !Dayconstitutionally exercise quasi-judicial authority only so long as (1) suchactivities are authorized by statute or legislation and are reasonably

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necessary to effectuate the administrative agency's pnmary, legitimateregulatory purposes, and (2) the "essential" judicial power remainsultimately in the courts, through some fonn of the review of agencydetenninations. (Id. at p. 372.)

C. . Proposition 5 Impermissibly Delegates Core JudicialResponsibility to an Administrative Bureaucracy That IsNot 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 exercisediscretion in the imposition of an individualized sentence, based on thesingular 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 anddisposition 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" judicialfunction under our tripartite system of state government. (People v. Bunn(2002) 27 CaL4th 1, 14.) The imposition of a sentence and the correlativeexercise of sentencing discretion are fundamentally and inherently judicialfunctions. (People v. Thomas (2005) 35 Ca1.4th 635, 640; People v.Navarro (1972) 7 Ca1.3d 248, 258.) Indeed, after the jurisdiction of thecourt has been invoked by the tiling of a criminal pleading, the dispositionof 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 drugdiversion are considered judicial acts. (People v. Superior COUIt [On TaiHol. supra. 11 Cal.3d at p. 66.)

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Under the foregoing principles a court violated the separation ofpowers doctrine in a dependency proceeding when it delegated its judicialdiscretion over the issue of all.v parental visitation to social workers andtherapists. (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'sorder that a third party would determine parental visitation was held to be aclear violation of the separation of powers. Accordingly, while the interestsof judicial economy may require the delegation of some quasi-adjudicatorypowers to a member of the executive branch dedicated to the dependent

.child's welfare, that role must be limited and always subject to supervisionor judicial review in order to avoid a violation of the separation of powersdoctrine. (In re Danielle w.. supra, 207 Cal.App.3d at p. 1237.) "Thediscretion to detennine whether any visitation occurs at all 'must remainwith 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 sentencingalternative is not inherently 3!1 exclusive judicial branch function, thedetermination of individualized fitness or treatment, once the jurisdiction ofthe court has been invoked, implicates the .power of the judicial branch.(Manduley v. Superior Court, supra, 27 CaL4th at p. 552-553.) TheLegislature remains free to eliminate particular sentencing alternatives, solong as there is no attempt to override judicial sentencing discretion wherethat discretion resides to be exercised. (People v. Superior [Romero] (1996)13 CaL4th 497, 511-512.) The judicial branch alone has the sentencingauthority to set conditions of probation and this sentencing discretioncannot be delegated to the probation department, or any otheradministrative body. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.)

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1. Proposition 5 Materially Impairs CaliforniaCourts' Constitutional Authority to Exercise SoundJudicial Discretion to Fashion AppropriateDispositions in Criminal Cases,

Proposition 5 impinges upon the inherent authority of the judicialbranch to fashion an appropriate disposition in criminal cases i a numberof instances. Thus, Section 13 addresses, inter alia, drug treatmentplacement and monitoring conditions. It initially announces that "[i]ndetennining an appropriate treatment program, the court must rely upon theclinical assessment of the defendant:' (Prop. 5. 13 (adding Penal Code 1210.02, subd. (a)(I (emphasis added) [Exhibit A, p. 14-16].) "Clinicalassessment"' has however already been defined and limited in a foregoingprovision as "an evaluation perfonned by a qualified health careprofessional or drug treatment professional certified by the stateDepartment of Alcohol and Drug Programs, pursuant to regulationsapproved 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 judicialdisagreement 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 "detoxification services:' (Prop. 5, ) 1 (amending Penal Code 1210,subd. (b [Exhibit A, p. 1113].) Again, the court is limited to thedesignated types of therapies, without any provision for special conditionsor atypical circumstances.

Furthennore, in detennining the appropriate conditions formonitoring 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

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discretion to find a defendant ineligible for treatment despite the existenceof a psychiatric or psychological disorder. (Prop. 5, 13 (adding PenalCode 1210.02, subd. (a)(6)) [Exhibit A, p. 14-16].) While the court isconcededly free to order additional community service, health careintervention, and participation in literacy projects, (Prop. 5, 13 (addingPenal 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 necessarilydefined 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 toopioid agonist treatment or other medication-assisted treatments . . . : '(Prop. 5, 13 (adding Penal Code 1210.02, subd. (a)(2)) (emphasisadded) [Exhibit A, p. 14-16].)

Accordingly. with respect to the "Track I" treatment programprovided for in the initiative, once an eligible defendant enters the deferredentry of judgment program. the trial court "shall t h e r e ~ f i e , . place thedefendc:nt in treatmellt and set monitoring conditions consistent with theterms and requirements 0.[ Section 1210.02:' (Prop. 5, 14 (adding PenalCode 1210.03, s u ~ d . (i)) (Exhibit A, p. 16-18).) In other words, the courtis limited to those treatment and monitoring conditions already announcedin the initiative as an approved "drug treatment program," which is in tumbased on the legally prescribed and circumscribed "clinical assessment:'

Section 15 (adding proposed Penal Code section 1210.(4) lists thecircumstances under which a defendant may be terminated from the "TrackI" treatment program. In determining whether the defendant has perfonnedsatisfactorily, notwithstanding judicial sentencing discretion, "the courtshall be guided by the evaluation provided for the court by the qualifiedtreatment professional in charge of the defendanfs treatment program, and

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the treatment provider's opinion . . : ' (Prop. 5. 15 (adding Penal Code 1210.04) (emphasis added) [Exhibit A, p. 18-19].) Indeed, if the courtultimately decides not to terminate "Track I : ' reinstatement of thedefendant'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 newviolent offenses have been committed, "the court shall sentence thedefendant to Track II probation and treatment:' (ld,) (emphasis added).

Section 17 of the initiative outlines the "Track [I" diversionprogram. which applies to those defendants ineligible for "Track J"treatment and who have been convicted of a "non-violent" drug possessionoffense; this provision announces that, under all circumstances, suchdefendants "shall receive probation." (Prop. 5. ]7 (amending Penal Code 1210.1, subd. (a [Exhibit A, p. 19-28].) As a further and mandatorycondition of that court-supervised probation in "Track II"". the court mustorder "the defendant to appear for a clinical assessment . . . and shallthereafter order the defendant to. attend and complete an appropriatetreatment program." (ld.). Again, the initiative places upon the court amandatory obligation to "place the defendant in 1reatment" --- i.e. to set upa monitoring program that must consist of an approved "drug treatmentprogram," which is again necessarily infonned by the initia tive's prescribed"clinical assessment:' (ld.)

2. Proposition 5 Deprives the Judiciary of AnySupervisorial Oversight Over AdministrativeAgencies that Are Vested by Proposition 5 withFormulating Binding Recommendations Regardingthe Disposition ofCriminal Cases,

The administrative oversight provided for these monitoringprograms is to be provided by the California Department of Drug and

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seen, individualized judicial sentencing discretion, in a case in which thejurisdiction of the court has been properly invoked, is a core judicialfunction. While the propriety of any delegation of quasi-judicial power isadmittedly a matter of degree, this proposal exceeds clear constitutionallimits in replacing judicial discretion with standardized bureaucraticjudgment. In' so doing, the initiative violates Article VI, I, of the StateConstitution.III. ADOPTION OF THIS CLEARLY UNCONSTITUTIONAL

BALLOT INITIATIVE MEASURE WILL RESULT INIMMEDIATE AND IRREPARABLE HARM TOCALIFORNIA'S ALREADY-IMPERILED STATE ANDCOUNTY CORRECTIONAL SYSTEMS.Although Petitioners readily acknowledge that pre-election

challenges to the constitutionality of ballot initiative measures are generallydisfavored by this Court, the present situation is markedly different thanthat which has ever previously arisen or been presented to this Court.California's correctional system is presently in a state of serious, financialcrisis. I f Proposition 5 is enacted, it mandates immediate implementationof its radical and profound refonns, which the Legislative Analyst hasconservatively predicted shall cost more than $1 billion. Requiring acorrectional system already strained to the financial limit to expend $ Ibillion implementing a plainly unconstitutional ballot initiative measurewill irreparably harm California's state and county correctional systems. Asystem already strained to its financial limits will be required to expendenonnous resources to implement an unconstitutional banot initiativemeasure that is, Petitioners respectfully submit, destined for eventualinvalidation by this Court,

By the time, however, that this Court could ultimately review thesemultiple and manifest constitutional defects, the damage will have beendone. A billion dollars of precious public resources wilJ have been wasted

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

A. Pre-Election Constitutional Review is Warranted in CasesInvolving Manifest Constitutional Invalidity.This Court has held that "it is usually more appropriate to review

constitutional and other challenges to ballot propositions or initiativemeasures after an election rather than to disrupt the electoral process bypreventing the exercise of the people's franchise, in the absence of someclear 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 bynoting that '"this general rule applies primarily when a challenge rests uponthe alleged u n c o n s t i t u t i o n a l ~ t y of the substance of the proposed initiative,and that the rule does not preclude preelection, review when the challenge isbased upon a claim, for example, that the proposed measure may notproperly be submitted to the voters because the measure is not legislative incharacter or because it amounts to a constitutional revision rather anamendment." . (Senate v. Jones (1999) 21 Cal.4th 1142, '1153; cited inCosta v. Supe1'ior Court (2006) 37 Cal. 4th 986.)

This Court, however, has always been careful never to make acategorical detennination that pre-election review is improper, noting thatpost-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

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adhere to it." (Legislature v. Deukmejian (I 983) 34 Cal. 3d 658, 665-666(granting pre-election relief when initiative measure violated onereapportionment-per-decade rule).} "However, where the requisite showingof invalidity has been made, departure from the general rule is compelled:'(ld.) Under the present circumstances, Petitioners believe that both themanifest constitutional invalidity, coupled with the irreparable harmenactment of Proposition 5 may do to California's criminal justice andcorrectional system, warrant pre-election judicial intervention. Indeed,Petitioners respectfully submit that, if ever there were a situation justlywarranting pre-election review, this is it.

B. Implementation of Proposition 5, If Approved, Would BeImmediate.Implementation of Proposition 5 will occur immediately upon

approval. requiring a profound and pervasive restructuring of California'scriminal justice and correctional system beginning immediately afterElection Day. Although the "effective date" of Proposition 5 is stated inSection 53 of the measure, to be July I, 2009, the effective date of theinitiative measure is qualified as "except as otherwise provided" and thetext of the measure liberally provides for nearly immediate implementation.(See Prop. 5, 53 [Exhibit A, p. 6l).} There is little question that, in orderto implement as fundamental a restructuring of the criminal justice andcorrectional system as Proposition 5 would require, the process ofimplementation would need to commence immediately upon approval bythe voters.

Consider some of the following mandated items to be implementedprior to July 1, 2009:

The Secretary of Rehabilitation and Parole must be appointed by theGovernor by February 1, 2009. (Section 10 of Proposition 5, Gov.Code 12838.13 [Exhibit A, p. 10-11].)

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The Parole Reform Oversight and Accountability Board must beappointed and empanelled not later than March 31, 2009. (Section23 of Proposition 5, Penal Code 3063.02(b) [Exhibit A,

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