Petition For Writ of Mandate in Wilson v. Bowen

Case No.
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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
C. Elimination of Judicial Discretion Regarding Disposition of
Drug Cases 22
D. The Current Crisis in California's Correctional System 22
ARGUMENT 25
1. 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
with Regard to Parole Matters 29
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 37
1. Proposition 5 Materially ImpairsCaJifornia Courts'
Constitutional Authority to Exercise Sound Judicial
Discretion to Fashion Appropriate Dispositions in
Criminal Cases 39
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 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
CERTIFICATE OF WORD COUNT 50'
APPENDIX ' 51
III
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 l'. Department of

Health Sen'ices (1993) 15 Cal.AppAth 841 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 38
In re Pedro Q. (1989) 209 Cal.App.3d 1368 ~ 38
In re Perez (1966) 65 Cal.2d 224 37
In re Rosenkrantz (2002) 29 Cal. 4th 616 26, 27, 28
In re S.H. (2003) III Cal.AppAth 3] 0 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] 34
IV
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. Bll1l11 (2002) 27 Cal.4th 1 d 37
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
People \'. Tenorio (1970) 3 Ca1.3d 89 ~ 34,37
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
Wind v. Hite (1962) 58 Cal.2d 415 44
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 35
Ballot Pamp., General Elect. (November 8, 1988) 26,28
vi
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,
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
·2003. Prior to his election as Governor, Governor Davis served as
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.
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
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.
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
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
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
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
21. Petitioner, the Honorable Birgit Fladager. is the District
Attorney for Stanislaus County and has served in this capacity since 2006.
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
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
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
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
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
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",'
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
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
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
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
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
·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
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
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
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
the elected District Attorney of Mariposa County, he is the County's chief

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
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
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
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
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
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,
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 MEMORANDUM OF POINTS
AND AUTHORITIES IN
CARR, et aI., SUPPORT OF VERIFIED
PETITION FOR .
Petitioner, EXTRAORDINARY RELIEF
INCLUDING WRIT OF
MANDATE AND
v.
REQUEST FOR IMMEDIATE
TEMPORARY STAY
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 of a "Three Track" System fOT Drug
Offenders.
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 responsibility for parole policies and
rehabilitation programs." 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
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
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 alone, Proposition 5 is
unconstitutional on its face.
28
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
4 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.
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 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 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
1. Proposition 5 Materially Impairs California

Courts' Constitutional Authority to Exercise Sound
Judicial Discretion to Fashion Appropriate
Dispositions in Criminal Cases,
Proposition 5 impinges upon the inherent authority of the judicial

branch to fashion an appropriate disposition in criminal cases i~ a number
of instances. 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 ~o review and
approval by the Office of Administrative Law:' (fd.) Significantly, the
av~ilability 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, '<Nonviolent Offender Rehabilitation Act of
2008." December 18, 2007, p. 9 [Exhibit B, p.63-77].) The Legislative
Analyst has stated that the pre-parole rehabilitation programs, required by
Section 20 of Proposition 5, Penal Code § 3000{c)(1) as amended, alone
would likely "result in 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,
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

Petition For Writ of Mandate in Wilson v. Bowen

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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.,

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

PETITION FOR WRIT OF MANDATE 1

PRELIMINARY AND JURISDICTIONAL STATEMENT I

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

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

C. Elimination of Judicial Discretion Regarding Disposition of

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

1. PROPOSITION 5.MATERIALLY IMPAIRS THE EXECUTIVE

POWERS RELATIVE TO PAROLE VESTED IN THE

GOVERNOR BY ARTICLE V OF THE CALIFORNIA

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

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

with Regard to Parole Matters 29

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

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 37

1. Proposition 5 Materially ImpairsCaJifornia Courts'

Constitutional Authority to Exercise Sound Judicial

Discretion to Fashion Appropriate Dispositions in

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

A. Pre-Election Constitutional Review is Warranted in Cases

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

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