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The Honorable Ronald M. George, Chief Justice of California,

and Honorable Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, California 94102-4797

Re: Wilson v. Bowen (Abrahamson)

Case No. S165180

Dear Chief Justice George and Honorable Associate Justices:

Pursuant to the Court's Order dated July 18, 2008, Real Party in Interest Daniel M.
Abrahamson, the proponent of Proposition 5, files this Preliminary Opposition to the Petition for
Writ of Mandate. Real Party respectfully reserves the right to file further opposition should the
Court issue an alternative writ.

One thing should be clear at the outset: The relief Petitioners seek is unprecedented. The
Court has infrequently removed a measure from the statewide ballot when it was beyond the
power of the electorate to adopt, because it violated the "once a decade" rule for reapportionment
(Legislature v. Deukmejian, 34 Cal. 3d 658 (1983)), because it did not enact a statute (AFL-CIO
v. Eu, 36 Cal. 3d 687 (1984)) or because it violated the single-subject rule (Senate v. Jones, 21
Cal. 4th 1142 (1999)). But it has never removed a measure from the statewide ballot on the
ground that some of its provisions, though within the power of the electorate to adopt, were
substantively unconstitutional.1

The reasons for this disparate treatment were addressed in Independent Energy Producers
Ass 'n v. McPherson, 38 Cal. 4th 1020 (2006). There the Court recognized that "preelection
review of an initiative measure may be appropriate when the challenge is not based on a claim
that the substantive provisions of the measure are unconstitutional, but rests instead on a
contention that the measure is not one that properly may be enacted by initiative." Id. at 1029

'The Court has also held that measures could not qualify for the statewide ballot for failure to
comply with the statutes governing ballot qualification. See, e.g., Boyd v. Jordan, 1 Cal. 2d 468 (1934).
This ground has no relevance here. The cases invalidating local initiatives that were precluded by
legislative action are equally irrelevant. See, e.g., Comm. of Seven Thousand v. Superior Court, 45 Cal.
3d 491 (1988).
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 2

(first emphasis added). Nevertheless, even in these cases, "a court should take into consideration
the availability of postelection relief in deciding whether it is preferable to resolve the issue in
the often charged and rushed atmosphere of an expedited preelection review, or instead to leave
the challenge for resolution with the benefit of the full, unhurried briefing, oral argument, and
deliberation that generally will be available after the election." Id. at 1025. Indeed, in such
cases, "deferring judicial resolution until after the election . . . often will be the wiser course."
Id. at 1030.
The balance is much more unfavorable to preelection review in cases like this one, where
there is no contention that the voters lack power to adopt the challenged initiative. In such cases,
as Independent Energy Producers stated, there is a "strong presumption against preelection
review." Id. Indeed, resolving such cases prior to an election is "presumptively improper." Id.
at 1025. Yet Petitioners neither cite Independent Energy Producers nor recognize that they must
overcome a "strong presumption" to obtain preelection review.

Instead, Petitioners argue that preelection review is proper where there is a "clear showing
of invalidity," citing the twenty-six-year-old decision in Brosnahan v. Eu, 31 Cal. 3d 1 (1982).
Petition Memorandum Of Points And Authorities In Support Of Verified Petition ("Pet. Mem.")
44. Even assuming arguendo that this case still enunciates the standard applicable to preelection
challenges such as this one, Petitioners have fallen far short of making the "clear showing of
invalidity" that Brosnahan demands. To begin with, Petitioners challenge only a small portion
of Proposition 5; even if those provisions were invalid (which they are not), that would not
justify the relief Petitioners seek. Moreover, Petitioners' claim that preelection review is
necessary to avoid a post-election financial crisis ignores the Legislative Analyst's conclusion
that implementation of Proposition 5 will save the State billions of dollars. Finally, even if they
could somehow justify removing the entire measure from the ballot for the sake of a few
assertedly invalid provisions, Petitioners have failed to show that the handful of provisions they
challenge are unconstitutional or that the constitutional issues they raise could not be resolved by
judicial interpretation of the measure after the election. For all these reasons, the Court should
refrain from interfering with the electoral process and summarily deny the Petition.

STATEMENT OF FACTS

Proposition 5, the Nonviolent Offender Rehabilitation Act of 2008, aims to improve public
health and safety by expanding community-based treatment and rehabilitation programs for
nonviolent offenders, providing effective re-entry programs for nonviolent inmates, establishing
county-based programs for at-risk youth and increasing the accountability of the agencies
charged with implementing the measure's reforms.

Proposition 5 seeks to accomplish these goals by (among other things) (1) creating
comprehensive, and functionally interrelated, treatment programs for different levels of
nonviolent drug offenders; (2) adequately funding treatment programs for such offenders;
(3) requiring the California Department of Corrections and Rehabilitation (CDCR) to invest
more resources in proven re-entry and rehabilitation programs tailored to inmates' and parolees'
needs; (4) providing incentives to nonviolent inmates and parolees to participate in rehabilitation
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 3

programming; (5) reducing parole agent caseloads by shortening parole supervision for
nonviolent parolees; (6) alleviating state prison overcrowding by halting the re-imprisonment of
nonviolent parolees for minor violations of parole; and (7) creating opportunities for at-risk
youth to turn their lives around before they become entwined in the criminal justice system.2

To achieve these interrelated reforms, Proposition 5 amends several dozen statutory

provisions spanning four separate codes: the Government Code, the Penal Code, the Health and
Safety Code, and the Welfare and Institutions Code. Though the measure's text occupies 60
single-space printed pages, its main provisions can be summarized as follows:

A. Diversion To Treatment For Nonviolent Drug Offenders.

The diversion portion of Proposition 5 takes as its starting point Proposition 36, the
Substance Abuse and Crime Prevention Act of 2000. Proposition 36 mandated probation and
community-based drug treatment, rather than incarceration, for nonviolent drug offenders. Penal
Code §1210.1. It also mandated community-based drug treatment for nonviolent parolees who
commit nonviolent drug possession offenses while on parole. Id. §3063.1.

Proposition 5 seeks to build upon the successes and address the shortcomings of
Proposition 36 by following many of the recommendations identified by researchers from the

'These reforms were not created out of whole cloth by Proposition 5's drafters. To the
contrary, they incorporate many of the core recommendations advanced in recent years by
numerous expert panels, blue ribbon commissions and independent analysts who have studied
California's corrections system. See, e.g., California Department of Corrections and
Rehabilitation, Expert Panel on Adult Offender Reentry and Recidivism Reduction Programs,
Report to the California State Legislature: A Roadmap for Effective Offender Programming in
California (June 29, 2007), available at http://www.cdcr.ca.govinews/ExpertPanel.html;
University of California, Los Angeles Integrated Substance Abuse Program, Evaluation of the
Substance Abuse and Crime Prevention Act: Final Report (April 13, 2007), available at
http://www.uclaisap.org/prop36/documents/SACPAEvaluationReport.pdf; Office of the
Inspector General, Special Review into In-Prison Substance Abuse Programs Managed by the
California Department of Corrections and Rehabilitation (February 2007), available at
http ://www.nationalinstituteofcorrections.gov/Library/022181; Joan Petersilia, California Policy
Research Center, Understanding California Corrections (May 2006), available at
http://www.ucop.edu/cprc/documents/understand_ca_corrections.pdf; Douglas Longshore,
Ph.D., et al., University of California, Los Angeles Integrated Substance Abuse Program,
Evaluation of the Substance Abuse and Crime Prevention Act: 2004 Report (July 22, 2005),
available at http://www.uclaisap.org/prop36/documents/sacpa080405.pdf; Corrections
Independent Review Panel ("The Deukmejian Commission"), Reforming Corrections (June
2004), available at http://cpr.ca.gov/report/indrpt/corr/; Little Hoover Commission, For Our
Health & Safety: Joining Forces to Defeat Addiction (March 2003), available at
http ://www. lhc. ca. gov/lhcdir/169/report169.pdf.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 4

University of California, Los Angeles who were charged by the State with evaluating the
initiative's impact. See, e.g., Douglas Longshore, Ph.D., et al., University of California, Los
Angeles Integrated Substance Abuse Program, Evaluation of the Substance Abuse and Crime
Prevention Act: 2004 Report (July 22, 2005), available at http://www.uclaisap.org/prop36/
documents/sacpa080405.pdf (accessed July 23, 2008).

To this end, Proposition 5 creates and adequately funds a continuum of community-based

treatment and court supervision for nonviolent drug offenders. Specifically, Proposition 5
creates three separate tracks—Tracks I, II and III—for the treatment and supervision of
offenders. Petition Exhibit ("Pet. Ex.") A at 14-30 (Prop. 5, §§13-18 (proposed Penal Code
§§1210.02(a), 1210.03, 1210.04, 1210.05, 1210.1, 1210.2). Offenders are assigned to a track
based on the severity of their drug-related offenses and their criminal histories. Courts can offer
a broad range of treatment and rehabilitation services, and impose a wide range of levels of
supervision, to offenders in each track.

Track I is a deferred entry of judgment program modeled closely on Penal Code

Section 1000 that diverts into treatment the lowest level drug offenders. Pet. Ex. A at 16-18
(Prop. 5, §14 (proposed Penal Code §1210.03)). Under Track I, offenders can receive treatment
services for up to 18 months. Those who perform satisfactorily shall have their criminal charge
dismissed and case records permanently sealed; those who perform unsatisfactorily can have
judgment entered against them and, depending on the circumstances, be sentenced under existing
law or referred to treatment under Track II. Id. at 16-19 (Prop. 5, §§14, 15 (proposed Penal Code
§§1210.03, 1210.04)).

Track II is a post-conviction diversion program for mid-level nonviolent drug offenders.

The eligibility requirements for this track are similar to those for Proposition 36, as is the process
for adjudicating probation violations, though the length of treatment under Track II is extended
to a maximum of 24 months, or double the length of treatment currently available under
Proposition 36. See Penal Code §1210.1(c)(3). Notably, Track II confers upon courts far greater
discretion than does Proposition 36 to retain offenders in treatment for longer periods
notwithstanding problems, and provides courts with the authority to impose graduated sanctions
and jail on various offenders in order to improve treatment retention. Pet. Ex. A at 13 (Prop. 5,
§11 (proposed Penal Code §1210(j), (1), (m)). By contrast, courts have no power to impose jail
sanctions upon a person in treatment under Proposition 36. See People v. Tanner, 129 Cal. App.
4th 223, 234 (2005); In re Taylor, 105 Cal. App. 4th 1392, 1397-98 (2003).

Track III basically reenacts the current "drug courts" by a different name. It provides a
post-conviction diversion program for slightly more serious nonviolent drug offenders who are
ineligible for Tracks I and II but who courts believe could benefit from probation and treatment.
Participation in and the rules governing Track III are contained in the measure. Pet. Ex. A at 28-
30 (Prop. 5, §18 (proposed Penal Code §1210.2)).

Proposition 5 permits offenders to move from Track I to Tracks II or III, or from Track II
to Track III, depending on their circumstances. The measure also insures that nonviolent drug
offenders who suffer co-occurring psychiatric disorders are not deprived of treatment services
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 5

under the act—a particular failing of the current treatment delivery system. Pet. Ex. A at 15, 60
(Prop. 5, §§13, 50 (proposed Penal Code §1210.02(a)(6); proposed Welf. & Inst. Code
§5600.33)).

B. Parole And CDCR Reforms.

Virtually all analysts of California's corrections system agree that extreme overcrowding
in the State's prisons prevents the CDCR from effectively providing rehabilitation and re-entry
programming for its inmates. See, e.g., California Department of Corrections and Rehabilitation,
Expert Panel on Adult Offender Reentry and Recidivism Reduction Programs, Report to the
California State Legislature: A Roadmap for Effective Offender Programming in California
(June 29, 2007), available at http://www.cdcr.ca.gov/news/ExpertPanel.html; Office of the
Inspector General, Special Review into In-Prison Substance Abuse Programs Managed by the
California Department of Corrections and Rehabilitation (February 2007), available at
http://www.nationalinstituteofcorrections.gov/Library/022181; Corrections Independent Review
Panel ("The Deukmejian Commission"), Reforming Corrections (June 2004), available at
http://cpr.ca.gov/report/indrptkore. Indeed, California prisons currently are at 170 percent of
capacity. Prison overcrowding is exacerbated by the fact that 67 percent of parolees return to
prison for violation of their terms of parole (more than twice the national average). Because of
acute overcrowding and chronic churning of the inmate population, most inmates currently
receive no rehabilitation or re-entry programming before their release. See, e.g., Little Hoover
Commission, Solving California's Corrections Crisis: Time is Running Out (January 2007),
available at http ://www. lhc. ca . gov/lhalir/185/Report185.pdf. Moreover, as the Deukmej ian
Commission observed, "[t]oday's correctional system has little accountability . . . and no
transparency." Corrections Independent Review Panel ("The Deukmejian Commission"),
Reforming Corrections,

According to independent experts, several interrelated factors are to blame for the high
recidivism rate among California parolees. These include unusually long terms of parole
supervision for low-risk inmates, parole board practices whereby parole is revoked and parolees
are returned to prison for committing technical and minor violations of parole, parole agents'
crushing caseloads that prevent them from properly supervising parolees, and the lack of
adequate re-entry services for parolees, including substance abuse and mental health treatment,
vocational training and literacy programs. See, e.g., Little Hoover Commission, Solving
California's Corrections Crisis: Time is Running Out; Corrections Independent Review Panel
("The Deukmejian Commission"), Reforming Corrections; California Department of Corrections
and Rehabilitation, Expert Panel on Adult Offender Reentry and Recidivism Reduction
Programs, Report to the California State Legislature: A Roadmap for Effective Offender
Programming in California.

Proposition 5 addresses each of these issues. Specifically, the measure cuts the parole-to-
prison pipeline in several different ways: it requires counties, not prisons, to handle technical
and misdemeanor violations of parole for nonviolent offenders (Pet. Ex. A at 37-38 (Prop. 5, §21
(proposed Penal Code §3063.01(c), (d)))); it provides nonviolent parolees access to appropriate
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 6

re-entry services to help them become productive and healthy citizens (id. at 35 (Prop. 5, §20
(proposed Penal Code §3000(c)(2)))); it reduces the length of parole supervision for nonviolent
offenders (id. (proposed Penal Code §3000(c)(3)))); it provides community-based substance
abuse treatment for nonviolent parolees who commit nonviolent drug possession offenses (id. at
37 (Prop. 5, §21 (proposed Penal Code §3063.01(a)))); and it allows nonviolent offenders to
access rehabilitation programs for an additional year beyond the expiration of their parole term.
Id. at 37 (Prop. 5, §20(proposed Penal Code §3000(d))).
To ensure that these reforms are adequately implemented and monitored, and given
appropriate priority, Proposition 5 creates several leadership positions within CDCR that are
devoted to advancing the agency's rehabilitation mission. For example, the measure establishes
the Secretary of Rehabilitation and Parole to co-lead the agency (id. at 7 (Prop. 5, §4 (proposed
Gov't Code §12838(a)))), and creates Rehabilitation Wardens to oversee rehabilitation efforts in
each of CDCR's institutions. Id. at 43 (Prop. 5, §29 (proposed Penal Code §6050.1(a))).
Furthermore, Proposition 5 would require CDCR to provide rehabilitation programs for inmates
(id. at 33, 34 (Prop. 5, §20 (proposed Penal Code §3000(a)(1), (c)(1)))) and to promote
participation of nonviolent inmates in such programs by awarding good behavior and worktime
credits towards terms of confinement. Id. at 31-32 (Prop. 5, §19 (proposed Penal Code
§2933 (b)-(d))).

Proposition 5 also attempts to promote transparency of CDCR's operations, budget,

spending and program outcomes by establishing a 21-member Parole Reform Oversight and
Accountability Board to review the implementation of the measure's requirements by the
Department. Id at 39-41 (Prop. 5, §23 (proposed Penal Code §3063.03)). The initiative also
requires the State Inspector General to publish a report annually detailing the prevalence and
types of rehabilitation programs available at each California prison, and to rank and rate the
state's prisons and facilities in terms of their rehabilitation efforts. Id. at 43-44 (Prop. 5, §30
(proposed Penal Code §6126.01)).

C. Opportunities For Youth.

Drug dependence and addiction often start early. Yet California currently offers virtually
no publicly funded substance abuse treatment options for youth under the age of 18.
Proposition 5 aims to correct this imbalance by creating a system of care for at-risk youth. It
would do so by dedicating annual funding to counties of at least $65 million per year, as well as
millions of dollars more from fines collected from adults for low-level marijuana offenses in
order to establish a new system of care that meets the spectrum of youth needs, including family
therapy, mental health interventions, educational and employment stipends, and more. The
measure would also require science-based educational programs and counseling, instead of a
misdemeanor conviction for youths arrested for possession of one ounce or less of marijuana.
Pet. Ex. A at 45, 46-47, 54 (Prop. 5, §§31, 35, 39 (proposed Health & Safety Code §§11357(e),
(f); 11999.6(c)(1); 11999.30(a))).
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 7

ARGUMENT

I.

REMOVAL FROM THE BALLOT IS UNWARRANTED WHERE

PETITIONERS CHALLENGE ONLY A SMALL PORTION OF A
STATEWIDE MEASURE.

Petitioners contend that Proposition 5 should be removed from the ballot merely because a
small minority of its provisions are substantively unconstitutional. Even if these challenges were
meritorious—and (as we show below) they are not—they would not justify removing the
initiative from the ballot.

At most, the challenged provisions amount to a dozen or so isolated sentences in a measure

that comprises 60 pages of single-spaced text in Petitioners' Exhibits. For example, the measure
contains page after page of unchallenged provisions addressing the parole and rehabilitation of
incarcerated inmates. Pet. Ex. A at 30-44, 55-56, 59-60. In contrast, Petitioners challenge only
three provisions that have any bearing on these subjects: two provisions defining the duties and
term of the Secretary of Rehabilitation and Parole (and a few subsidiary officials) and one
provision requiring that appointments to the Board of Parole Hearings be made on the
Secretary's recommendation. Pet. Mem. 25-32. Accordingly, Proposition 5 contains scores of
provisions regarding rehabilitation and parole of state prisoners that Petitioners do not challenge
and that can be given independent effect regardless of any supposed defects in the few provisions
Petitioners challenge.3

3 For example, Petitioners do not challenge the measure's provisions that, inter alia: establish
rehabilitation programs within the CDCR for inmates prior to their release (Pet. Ex. A at 32-34 (Prop. 5,
§20 (proposed Penal Code §3000(a)(1), (c)(1)))); encourage nonviolent inmates to reap the benefits of
such programs by awarding credit reductions towards terms of confinement for nonviolent inmates who
participate in them (id. at 31-32 (Prop. 5, §19 (proposed Penal Code §2933(b)-(d)))); require CDCR to
conduct case assessments to "determine the inmate's needs" for programs "most likely to result in . . .
successful reintegration" into society (id. at 34 (Prop. 5, §20 (proposed Penal Code §3000(c)(1))));
mandate CDCR to "provide rehabilitation programs tailored to the parolee's needs as defined by the case
assessment" (id. at 35 (Prop. 5, §20 (proposed Penal Code §3000(c)(2)))); reduce the term of parole
supervision for nonviolent offenders to six months (id. (proposed Penal Code §3000(c)(3))); permit the
six-month parole supervision to be extended under certain circumstances (id. (proposed Penal Code
§3000(c)(3)(C))); permit increased parole supervision, up to a term of five years, for offenders who
committed serious or violent felonies (id. (proposed Penal Code §3000(c)(4))); provide community-based
substance abuse treatment for nonviolent parolees who commit nonviolent drug possession offenses (id.
at 37 (Prop. 5, §21 (proposed Penal Code §3063.01(a)))); prohibit the re-incarceration in state prison of
nonviolent parolees who commit technical or misdemeanor violations of parole (id. (proposed Penal Code
§3063.01(c), (d))); allow nonviolent offenders to access rehabilitation programs for an additional year
beyond the expiration of their parole term (id. at 37 (Prop. 5, §20 (proposed Penal Code §3000(d))));
establish a notice hearing within three business days for parolees alleged to have committed a violation of
parole, and provide for a right to counsel at this hearing (id. at 38 (Prop. 5, §21 (proposed Penal Code
( . . . continued)
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 8

The same is true for the portion of the measure addressing the treatment of nonviolent drug
offenders. Of all these proposed statutes, Petitioners challenge only a handful, which either limit
judicial sentencing discretion or provide that, in exercising that discretion, a judge "must rely" on
or "be guided" by clinical evaluations made by licensed personnel. Pet. Mem. 39-41.
Accordingly, Proposition 5 contains dozens of provisions relating to drug treatment that
Petitioners do not challenge. 4 And even if this were not true, as just discussed, Proposition 5
contains numerous unchallenged provisions dealing with the parole and rehabilitation of state
prisoners that could readily be implemented regardless of Petitioners' constitutional attack on the
portions of the measure addressing the treatment of nonviolent drug offenders. See n.3, supra.
Finally, Proposition 5 also contains numerous provisions dealing with at-risk youth (see p.6,
supra), none of which are challenged by Petitioners.

These undisputed and indisputable facts require denial of the Petition. In AFL-CIO v. Eu,
36 Cal. 3d 687 (1984), this Court removed an initiative from the ballot where two of its three
provisions were beyond the power of the electorate to adopt. However, the availability of this
remedy was due to the Court's finding that the third provision ("section 2") had only one
function: to implement the first provision, which was constitutionally invalid. "Consequently, if
section 1 is invalid, section 2 falls with it; it cannot be severed to obtain independent life." Id. at
715.

(Continued . . . )
§3063.01(f)))); require the parole authority to collect and report data about parole violations (id.
(proposed Penal Code §3063.01(g))); direct CDCR to help develop an annual international conference
addressing prisoner and parolee rehabilitation (id. at 40 (Prop. 5, §23 (proposed Penal Code
§3063.03(a)(15)))); and require the State Inspector General to publish a report annually detailing the
prevalence and types of rehabilitation programs available at each California prison, and to rank and rate
the state's prisons and facilities in terms of their rehabilitation efforts. Id. at 43-44 (Prop. 5, §30
(proposed Penal Code §6126.01)).
tor example, Petitioners do not challenge the measure's provisions that newly define which
offenders are eligible for treatment diversion (Pet. Ex. A at 11 (Prop. 5, §11 (proposed Penal Code
§1210(a)))); expand the types of treatment programs and services to be funded by the State (id. (proposed
Penal Code §1210(b))); create addiction training programs for persons working with offenders subject to
the measure (id. at 12 (Prop. 5, §11 (proposed Penal Code §1210(i)))); circumscribe the use of drug test
results administered to offenders in treatment (id. at 15 (Prop. 5, §13 (proposed Penal Code
§1210.02(a)(5)))); set forth rules governing courts' response to offenders who fail to pay court-ordered
costs of treatment (id. (proposed Penal Code §1210.02(a)(7)(A)-(E))); empower courts to require
offenders to participate in educational programs, vocational or literacy training, "and any other services
that may be identified as appropriate" (id. (proposed Penal Code §1210.02(a)(8))); provide for the drug
treatment of adults with co-occurring psychiatric disorders (id. at 60 (Prop. 5, §50 (proposed Welf. & Inst.
Code §5600.33; proposed Penal Code §1210.02(a)(6)))); include drug treatment stakeholders in mental
health service planning (id. at 60 (Prop. 5, §51 (proposed Welf. & Inst. Code §5848(a)))); appropriate
annual ongoing funding for Track III diversion programs (id. at 46 (Prop. 5, §34 (proposed Health &
Safety Code §11970.3))); and require independent evaluation of courts and programs operating under
Tracks I, II and III. Id. at 46 (Prop. 5, §33 (proposed Health & Safety Code §11970.2.1))).
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 9

In this case, by contrast, Petitioners do not even attempt to show—nor could they—that the
provisions of the initiative they do not challenge would be incapable of implementation if their
challenges to a handful of the measure's other provisions prevail. Accordingly, they have shown
no reason why these provisions—which are unquestionably within the power of the electorate to
adopt and which do not even arguably suffer from any constitutional defect—should not be
submitted to the voters. Their silence speaks volumes.

Because Proposition 5 contains scores of provisions that would have "independent life"
even if Petitioners' challenge to a few of the measure's provisions were successful, the only
course consistent with the hallowed place of the initiative process in our system of government is
to permit the electoral process to go forward and let the courts grapple with issues of
interpretation, constitutionality and (if necessary) severability after the election. 5 That is
undoubtedly why there is no case in which the court removed from the ballot a measure that
contained dozens of provisions that were not even alleged to be unconstitutional.6

H.
THE REASONS PETITIONERS GIVE TO JUSTIFY
PREELECTION REVIEW ARE INSUBSTANTIAL.
Instead of attempting to show why their challenge to a few of Proposition 5's provisions
requires removal of the entire measure from the ballot prior to the election, Petitioners argue that
removal is justified because the Department of Corrections is in a financial crisis, and passage of
the measure will require the state to expend billions of dollars to implement a constitutionally
flawed measure before this Court could grant effective post-election relief. While one factual

51n this regard, the post-passage history of Proposition 36 is instructive, particularly because
Proposition 5 incorporates and builds upon many of the provisions of the earlier initiative. Compare
proposed Penal Code §1210.1 with Penal Code §1210.1. Once enacted, Proposition 36 spawned
numerous cases concerning the scope and propriety of many of its provisions. See, e.g., People v. Alice,
41 Cal. 4th 668 (2007); People v. Guzman, 35 Cal. 4th 577 (2005); People v. Canty, 32 Cal. 4th 1266
(2004); People v. Floyd, 31 Cal. 4th 179 (2003); In re Varnell, 30 Cal. 4th 1132 (2003). In each instance,
the courts resolved these disputes without striking down the statute, in whole or in part. Petitioners offer
no reason to believe that the courts would be unable to achieve a similar result in any litigation brought
after the passage of Proposition 5.
6Even after an election, the Court has repeatedly refused to invalidate whole initiatives simply
because some—or even most—of their provisions were invalid. See, e.g., Hotel & Rest. Employees Int?
Union v. Davis, 21 Cal. 4th 585, 614-15 (1999) (holding most of Proposition 5 invalid but severing a
valid provision waiving the State's sovereign immunity); Legislature v. Eu, 54 Cal. 3d 492, 534-35
(1991) (severing invalid provision of Proposition 140 from remainder); Raven v. Deukmejian, 52 Cal. 3d
336, 356 (1990) (severing one invalid portion of Proposition 115 from remainder); Ca/farm Ins. Co. v.
Deukmejian, 48 Cal. 3d 805, 822, 836-37 (1989) (severing invalid provisions of Proposition 103 from
remainder).
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 10

premise of this argument is correct—the State in general and the correctional system in particular
face serious financial problems—every other point made by Petitioners is wrong.

First, Petitioners claim, relying on the Legislative Analyst's analysis, "that Proposition 5
will result in an increase in state costs exceeding $1 billion annually." Verified Petition ("Pet.")
14. This contention is seriously misleading. The Legislative Analyst did say that enactment of
Proposition 5 would result in "[i]ncreased state costs that could exceed $1 billion annually
primarily for expanding drug treatment and rehabilitation programs." Pet. Ex. B at 77. But she
also made two other projections that Petitioners ignore. First, she projected that passage of
Proposition 5 would result in Isjavings to the state that could exceed $1 billion annually due
primarily to reduced prison and parole operating costs." Id. Second, she estimated that the
measure would also produce "[n]et state savings on a one-time basis on capital outlay costs for
prison facilities that could exceed $2.5 billion." Id. Hence, the $1 billion in annual costs for
drug treatment and rehabilitation that Petitioners trumpet so loudly is matched by a $1 billion
annual savings in prison operating costs and dwarfed by a savings of $2.5 billion in capital
outlays. Accordingly, preelection review cannot be justified by Petitioners' "Chicken Little"
claims of financial distress.7

Second, Petitioners claim that Proposition 5's effective date will require the state to
implement the measure before a court could conduct postelection review. This contention is
equally wrong. As Petitioners grudgingly concede (Pet. Mem. 45 (quoting Pet. Ex. A at 61
(Prop. 5, §53))), Proposition 5 by its terms will become effective on July 1, 2009, except as the
measure otherwise provides. Moreover, its provisions apply only prospectively, thus ensuring
that implementation will not be burdened by issues of retroactive application. Id.

Accordingly, there will be almost eight months between Election Day and the date on
which Proposition 5 becomes effective, should it pass. That is enough time for the Court to
consider a postelection challenge to the constitutionality of a handful of the measure's
provisions, particularly compared to the few weeks available to decide Petitioners' preelection
challenge. See, e.g., Legislature v. Eu, 54 Cal. 3d 492 (1991) (petition for postelection review
filed on Feb. 21, 1991, opinion issued on Oct. 10, 1991); Raven v. Deukmejian, 52 Cal. 3d 336
(1990) (petition for postelection review filed on June 21, 1990, opinion issued on Dec. 24, 1990).

To be sure, as Petitioners note, Proposition 5 contains a few provisions that require action
before July 1, 2009. Thus, the Secretary of Rehabilitation and Parole must be appointed by
February 1, 2009, the Parole Oversight and Accountability Board must be appointed by

'Moreover, it bears mentioning that Petitioners do not claim that Proposition 5's provisions
requiring expanded rehabilitation services for parolees and treatment services for nonviolent drug
offenders are themselves unconstitutional. Plainly the electorate, like the Legislature, has the power to
prioritize among permissible uses of state funds and decide, for example, that expanding drug treatment
and rehabilitation programs is both more cost-effective and more humane than building additional prisons
to house nonviolent offenders. Petitioners offer no reason why the electorate should be deprived of the
ability to make this choice.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 11

March 31, 2009, and $150 million shall be appropriated from the General Fund to the Substance
Abuse Treatment Trust Fund. Pet. Mem. 45-46; Pet. Ex. A at 10-11 (Prop. 5, §10 (proposed
Gov't Code §12838.13)), 40 (Prop. 5, 23 (proposed Penal Code §3063.03(b))), 48-49 (Prop. 5,
§36 (proposed Health & Safety Code §11999.5(a))). 8 But Petitioners do not allege that any of
these provisions are constitutionally infirm. 9 Consequently, Proposition 5's implementation
schedule provides no justification for preelection review.

HI.
PETITIONERS' CONSTITUTIONAL CLAIMS DO NOT
JUSTIFY REMOVING PROPOSITION 5 FROM THE BALLOT.
Even if a meritorious challenge to a few of Proposition 5's provisions could somehow
justify removing the entire measure from the ballot, notwithstanding the strong presumption
against preelection review, Petitioners would not be helped. They have fallen far short of the
clear showing of invalidity that even they admit is necessary under Brosnahan v. Eu.

A. Petitioners Cannot Show That The Provisions Governing The Duties And
Term Of The Secretary Of Rehabilitation And Parole Are Clearly
Unconstitutional.
Petitioners first challenge the provisions of Proposition 5 that give the newly created
Secretary of Rehabilitation and Parole "primary responsibility for parole policies and
rehabilitation programs" and that give this official a six-year term. Pet. Mem. 25-31. The first
provision does not say what Petitioners claim it does and the second is no different than other
statutes of unquestioned constitutionality. Neither provision is unconstitutional, much less so
clearly invalid as to justify removing the entire measure from the ballot.

Like all statutes, the provision of Proposition 5 giving the Secretary of Rehabilitation and
Parole "primary responsibility for parole policies and rehabilitation programs" must be
interpreted in its statutory context. Proposition 5 changes the leadership structure of the

'Petitioners also contend that the provision of Proposition 5 requiring that rehabilitation programs
be in place for incarcerated inmates who are eligible for parole becomes effective on April 1, 2009. There
is no textual support for this claim. While the provision in question requires that such services be in place
90 days before an inmate's release, this provision does not contain its own effective date and, thus,
becomes effective with the rest of Proposition 5 on July 1, 2009. In all events, because Petitioners do not
claim that this provision is constitutionally invalid, its effective date is irrelevant.
9While Petitioners do allege that the Secretary of Rehabilitation and Parole cannot constitutionally
be given a six-year term, there would be an immediate need to rule on the constitutionality of this
provision only in the unlikely event that the Governor tried to fire the Secretary that he had appointed
only a few months earlier. This is extremely unlikely to occur before a court could rule on a post-election
challenge to this provision.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 12

Department of Corrections and Rehabilitation by creating two heads, rather than one: a
Secretary of Corrections and a Secretary of Rehabilitation and Parole. As one would expect, the
measure then defines each official's scope of authority over the Department whose leadership
they share: "The duties of the two secretaries shall be divided as follows: (1) The Secretary of
Rehabilitation and Parole shall have primary responsibility for parole policies and rehabilitation
programs . . . ; (2) The Secretary of Corrections shall have primary responsibility for
institutions. . . ." Pet. Ex. A at 7-8 (Prop. 5, §4 (proposed Gov't Code §12838(a)(1), (2))).

As the context indicates, these provisions simply divide the duties currently given to the
single top official of the Department of Corrections and Rehabilitation between the two officials
who would share the Department's leadership if the measure passes. One of these officials, the
Secretary of Corrections, would have "primary responsibility" for one of the Department's two
primary concerns—correctional institutions—while the Secretary for Rehabilitation and Parole
would have "primary responsibility" for the Department's other main concern—rehabilitation
and parole. Neither provision raises any constitutional issue, because neither gives either
Secretary any power vis-a-vis the Governor. Instead, as just noted, the two provisions simply
divide the existing responsibilities of the current head of the Department between the two
Secretaries. There is nothing unconstitutional about that, as Petitioners implicitly recognize by
their failure to challenge the provision giving the Secretary of Corrections "primary
responsibility" for correctional institutions. Moreover, even if this provision were less clear than
it is, it would still be interpreted by the courts to avoid constitutional problems. See, e.g., People
v. Navarro, 7 Cal. 3d 248, 260 (1972) ("It is not to be presumed that the Legislature would
deliberately enact a statute prohibited by the Constitution"). In short, the "primary
responsibility" provisions of Proposition 5 do not warrant removing the measure from the ballot.

The provision giving the Secretary of Rehabilitation and Parole (and a few subordinate
officials) a fixed term stands on equally firm ground. In Marine Forests Society v. California
Coastal Commission, 36 Cal. 4th 1 (2005), the Court observed that "[title Framers of the federal
Constitution . . . opted to establish a strong, unitary executive officer—the President—with
extensive executive authority." Id. at 30. Yet this has not kept Congress from enacting statutes
giving key federal officials—such as the Director of the Federal Bureau of Investigation
("FBI")—fixed terms that extend beyond the four-year term of the President. Pub. L. No. 94-
503, tit. II, §203 (Oct. 15, 1976), 90 Stat. 2427 (giving FBI Director 10-year term); 12 U.S.C.
§242 (giving members of the Federal Reserve Bank board 14-year terms from which they are
removable only for cause). Analogous state statutes must also be constitutional, since "[i]n
contrast to the federal Constitution, there is nothing in the California Constitution that grants the
Governor (or any other executive official) the exclusive or paramount authority to appoint all
executive officials." Marine Forests, 36 Cal. 4th at 31.

Indeed, this Court has already rejected numerous claims that the Legislature could not
make an appointment to a position in the executive branch for a fixed term. In Marine Forests,
the Court upheld legislative appointments to the Coastal Commission for a four-year term, even
though the Legislature appointed a majority of the Commission members. Id. at 49-50. In
People ex rel. Waterman v. Freeman, 80 Cal. 233 (1889), the Court upheld a statute giving the
Legislature power to appoint all the members of the state library board of trustees for a four-year
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 13

term. In People ex rel. Aylett v. Langdon, 8 Cal. 1 (1857), the Court upheld a statute authorizing
the Legislature to appoint an individual for a fixed term as resident physician of the state asylum
for the insane. 10 As one might expect, given these decisions, there are numerous state officers in
the executive branch who serve fixed terms, such as the members of the Fair Employment and
Housing Commission and the California Medical Assistance Commission. See Gov't Code
§12903; Welf. & Inst. Code §14165.2.

These cases compel rejection of Petitioners' challenge to the six-year term of the Secretary
of Rehabilitation and Parole. If the Governor's executive power is not violated when the
Legislature appoints an individual to a fixed term as superintendent of the state insane asylum, or
a majority of the Coastal Commission or the state library board of trustees, it is similarly not
violated when the Governor appoints an individual to a fixed term as Secretary of Rehabilitation
and Parole.

Nor do the measure's provisions regarding the Secretary of Rehabilitation and Parole
violate Article V. Section 8(b) of the California Constitution. Petitioners claim this provision
gives the Governor "broad review and policy-making authority over parole matters." Pet. Mem.
26. It does no such thing. Instead, it simply provides for gubernatorial review of a narrow class
of parole decisions: those affecting "person[s] sentenced to an indeterminate term upon
conviction of murder."

Nothing in Proposition 5 does—or could—limit this power. The provisions dividing the
responsibilities of the head of the Department between the two new Secretaries, and giving each
primary responsibility over the area within their domain, do not even attempt to do so. Nor does
anything in Proposition 5 affect the criteria that either the Board of Parole Hearings or the
Governor use in deciding whether to grant parole to any inmate—much less the narrow class of
inmates covered by Article V, Section 8(b). There is no conflict between that provision and
Proposition 5.

10Accord, Cal. Ass 'n of Retail Tobacconists v. State, 109 Cal. App. 4th 792, 822 n.14 (2003)
(rejecting contention that initiative provisions creating California Children and Families Commission
were invalid because members were appointed for a fixed term).
1 'Contrary to Petitioners' contention (Pet. Mem. 26-27), nothing in In re Rosenkrantz, 29 Cal. 4th
616 (2002), holds that the Governor has "primary and inherent" authority over parole. To the contrary,
Rosenkrantz expressly recognizes that before Article V. Section 8(b) was added to the constitution in
1988, the "Governor had no direct role in decisions whether to grant or deny parole to an incarcerated
individual." Id. at 659. Moreover, the power conferred by Article V, Section 8(b) is carefully
circumscribed: the Governor must act pursuant to procedures established by the Legislature, which
require him to issue "a written statement. . . specifying the reasons for his or her decision" (Penal Code
§3041.2(b)) and can only consider "the same factors which the parole authority is required to consider."
Cal. Const. art. V, §8(b).
Rosenkrantz also refers to "the inherent and primary authority of the executive branch [not the
Governor] over parole matters." 29 Cal. 4th at 667. Since Proposition 5 keeps parole decisions within
the executive branch, it does not conflict with this description of the parole process.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 14

B. Petitioners Cannot Show That The Provision Governing Appointment Of

The Board Of Parole Hearings Is Clearly Unconstitutional.

Petitioners' challenge to Proposition 5's provision governing appointment of the members

of the Board of Parole Hearings fares no better than their challenge to the provisions regarding
the Secretary of Rehabilitation and Parole.

Under current law, members of the Board are nominated by the Governor and subject to
confirmation by the Senate. Gov't Code §12838.4. Proposition 5 eliminates the confirmation
requirement, but mandates that the Governor make these appointments "upon recommendation
of the Secretary of Rehabilitation and Parole." The net effect of these changes is to enhance the
Governor's power. His appointments are final once made, and are no longer subject to approval
by a coequal branch of Government. Instead, they need only be "recommended" by a
subordinate Executive Branch official, whom the Governor may well have appointed.

Nevertheless, Petitioners contend—without citing a single case in support of their

argument—that these changes violate the "primary and inherent' gubernatorial power regarding
parole review and policy." Pet. Mem. 31. As discussed above, there is no such inherent
gubernatorial power, only the limited power to review a narrow class of parole decisions. See
p.13 & n.11, supra. Nothing in this appointment provision impairs that power.

Moreover, Petitioners' challenge to this provision is contrary to this Court's recent

decision in Marine Forests—another relevant decision that Petitioners fail to cite. There this
Court held that "under this state's constitution the Legislature possesses authority not only to
determine whether to create new executive offices, agencies, or commissions, but also to decide
who is to appoint such executive officers and commissioners." 36 Cal. 4th at 31. Accordingly,
this Court has recognized that "Wile Legislature has power . . . to declare the manner in which
officers other than those provided by the constitution shall be chosen. Such officers may be
appointed by the legislature itself, or the duty of appointment may be delegated and imposed
upon some other person or body. There is no limitation to any particular person or class of
persons upon whom alone the legislature may impose this obligation." Ex parte Gerino, 143
Cal. 412, 414-15 (1904) (emphasis added). Thus, the Legislature can pass a statute giving some
other official the power to appoint members of the Board of Parole Hearings. A fortiori, it can
require that such appointments be made by the Governor upon the recommendation of that
official. Since "the power of the people through the statutory initiative is coextensive with the
power of the Legislature" (Legislature v. Deukmejian, 34 Cal. 3d 658, 675 (1983)), the People
can exercise the same power by statutory initiative.12

12 0f course, as Marine Forests indicated, other constitutional constraints, such as the separation of
powers, come into play when the Legislature gives itself powers of appointment over executive branch
officials. But no such concerns are raised here, because Proposition 5 does not give the Legislature, or
legislative leaders, new appointment powers.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 15

C. Petitioners Cannot Show That The Provisions Governing Treatment

Determinations Are Clearly Unconstitutional.

Petitioners claim that certain provisions in Proposition 5 that relate to drug treatment and
monitoring unconstitutionally divest the courts of judicial discretion. This claim, too, does not
come close to justifying removal of the measure from the ballot.

To put these claims in context, it is necessary to describe how the drug treatment process
created by Proposition 5 would work. Since Petitioners focus on "Track I" defendants (Pet.
Mem. 40-41), we shall do the same.

As the Legislative Analyst noted, under Track I, "offenders who have no prior violent or
serious offenses on their record could enter into a deferred entry of judgment arrangement with
the court." Pet. Ex. B at 66. Eligibility for "Track I" is defined by statute, and depends on the
defendant's criminal history and current charges. Pet. Ex. A at 14 (Prop. 5, §14 (proposed Penal
Code §1210.03(a))). However, if there is a factual dispute as to eligibility, an evidentiary
hearing is required and the judge must resolve the issue. Id. (proposed Penal Code §1210.03(d)).
In addition, while defendants charged with nonviolent drug possession offenses are ineligible for
Track I if they are concurrently facing other charges that are not nonviolent drug possession
offenses (id. (proposed Penal Code §1210.03(a)(4))), a court has power to find the defendant
eligible "if the court determines that it is in the interests of the defendant and in the furtherance
of justice to permit deferred entry of judgment." Id. (proposed Penal Code §1210.03(b)). Thus,
a judge, and no one else, makes the initial determination whether a defendant is eligible for
"Track I" treatment.

If the court finds the defendant eligible for such treatment, and the defendant consents, "the
court shall grant deferred entry of judgment if the defendant pleads guilty to the charge or
charges and waives time for pronouncement of judgment." Pet. Ex. at 17 (Prop. 5, §14
(proposed Penal Code §1210.03(f))). The court must then "order the defendant to appear for a
clinical assessment and a criminal history evaluation." Id. (Prop. 5, §14 (proposed Penal Code
§1210.03(i))). The "clinical assessment" is defined by statute as "an evaluation performed by a
qualified health care professional or drug treatment professional. . . using a standardized tool to
determine an individual's social and educational history, drug use history, addiction severity and
other factors indicating the individual's needs and the appropriate course of drug treatment,
including opioid agonist treatment." Id. at 12 (Prop. 5, §11 (proposed Penal Code §1210(g))).
The "criminal history evaluation" is defined by statute as a "report by a probation department or
other entity appointed by the court detailing a defendant's history of arrest, conviction,
incarceration and recidivism. Such an evaluation may include opinions or recommendations
regarding the risk of recidivism by the defendant and appropriate monitoring conditions by the
defendant." Id. at 11 (Prop. 5, §11 (proposed Penal Code §1210(h))).

Once the "clinical assessment" and the "criminal history evaluation" are complete, the trial
court must "order the defendant to attend and complete an appropriate treatment program," with
the particular program chosen by the court. In addition to treatment, the judge has discretion to
"require participation in educational programs, vocational training, family counseling, health
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 16

care, including mental health services, literacy training and community service, harm reduction
services, and any other services that may be identified as appropriate by the clinical assessment
of the defendant or through other evaluations of the defendant's needs." Id. at 15 (Prop. 5, §13
(proposed Penal Code §1210.02(a)(8))). The period of treatment can be anywhere from six to 18
months, at the trial court's discretion. Id. at 18 (Prop. 5, §14 (proposed Penal Code
§1210.03(k))).

If treatment does not start within 30 days, "the court shall conduct a hearing to determine
the reasons for the defendant's failure to begin treatment," at which it must consider "evidence
from the parties, probation department and treatment provider." Id. at 17 (Prop. 5, §14 (proposed
Penal Code §1210.03(i))). The court may either re-refer the defendant to treatment, with or
without sanctions, or "may enter judgment for the defendant's failure to start treatment." Id.
(Prop. 5, §14 (proposed Penal Code §1210.03(j))).

During treatment, the court must schedule "periodic review hearings to evaluate a
defendant's progress." Id. (Prop. 5, §14 (proposed Penal Code §1210.03(o))). At such hearings,
the "court shall consider the use of incentives and rewards to encourage continued progress, and
may impose graduated sanctions in response to problems reported by the treatment provider or
probation department." Id. Nothing in Proposition 5 limits the judge's discretion to use either
positive incentives or negative sanctions (other than jail) to encourage continued progress. Id.

If serious problems develop during treatment, the court has similar discretion. If the
treatment provider, prosecuting attorney, probation department or the court itself believes "that
the defendant is performing unsatisfactorily in the assigned program," or the defendant is
convicted of a new offense "or engaged in criminal conduct rendering him or her unsuitable for
deferred entry of judgment," the "court shall hold a hearing to determine whether judgment
should be entered." Pet. Ex. A at 18 (Prop. 5, §15 (proposed Penal Code §1210.04)). After the
hearing the court may find the defendant guilty of the original offense and enter judgment if it
finds that the defendant (1) has been convicted of a specified offense; (2) has engaged in criminal
conduct rendering him or her unsuitable for deferred entry of judgment; (3) "is not performing
satisfactorily in the assigned program"; or (4) "is not benefiting from education, treatment, or
rehabilitation." Id.

To summarize, then, the trial court has control over each critical stage in the process. It
makes the initial decision whether the defendant is eligible for Track I treatment and decides
how long treatment will last and who the treatment provider will be. It also has discretion to
require that treatment be accompanied by any of a panoply of additional services. If treatment
does not start within 30 days, it can remove the defendant from Track I and enter judgment or re-
refer the defendant for treatment. During treatment the court has discretion to use incentives and
rewards to encourage continued progress or impose sanctions if necessary. If more serious
problems develop, such as a new conviction or a belief on the part of the treatment provider or
the prosecuting attorney that treatment is progressing unsatisfactorily, the court has discretion to
determine whether to continue treatment or enter judgment.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 17

Petitioners nevertheless challenge this complex scheme on two grounds. First, they
challenge certain mandatory provisions of the measure on the basis that they deprive the court of
individualized sentencing discretion. Thus, they attack the provisions of Proposition 5 which
define the drug treatments that must be made available to nonviolent drug offenders, the
provisions which require that a defendant found ineligible for further "Track I" treatment be
treated under "Track II," and the provisions which require that "Track II" defendants receive
probation. See Pet. Mem. 39-41. However, there is no serious claim that these provisions are
unconstitutional. These provisions simply follow existing law, which requires the placement of
qualifying drug offenders in appropriate treatment. See Penal Code §1210.1(a) (court "shall"
place probationers who qualify for treatment into "an appropriate drug treatment program").
Indeed, the Penal Code is replete with provisions that require judges to impose defined sentences
in a variety of contexts, from mandatory minimum sentences to "Three Strikes" provisions.
Such legislatively imposed requirements do not violate the separation of powers. See, e.g.,
Manduley v. Superior Court, 27 Cal. 4th 537, 552 (2002) ("The judicial power to choose a
particular sentencing option. . . may be eliminated by the Legislature and the electorate").

Petitioners also complain that other provisions of Proposition 5 improperly delegate

judicial power to non-judicial personnel, by requiring that certain treatment-related decisions be
made by the trial court in reliance on clinical assessments or determinations by the treatment
provider. These provisions are as follows:

(1) the requirement that "[i]n determining an appropriate treatment program, the trial
court must rely upon the clinical assessment of the defendant" (Pet. Ex. A at 14
(Prop. 5, §13 (proposed Penal Code §1210.02(a)(1))));

(2) the requirement that, in choosing "appropriate monitoring conditions and

requirements imposed upon the defendant, the court must rely upon the clinical
assessment" (id. (proposed Penal Code §1210.02(a)(3)));

(3) the requirement that the court "shall refer the defendant to opioid agonist treatment
or other medication-assisted treatments where the clinical assessment indicates the
need for such treatment" (id. (proposed Penal Code §1210.02(a)(2)));

(4) the requirement that the court, in determining whether the defendant has performed
satisfactorily in treatment, "shall be guided by the evaluation provided for the court
by the qualified treatment professional in charge of the defendant's treatment
program, and the treatment provider's opinion" (id. at 19 (Prop. 5, §15 (proposed
Penal Code §1210.04))); and

(5) the requirement that, if the trial court decides not to enter judgment despite claims
that the defendant is not performing satisfactorily, the treatment plan may be
amended "consistent with the recommendation of the treatment provider." Id.

For multiple reasons, these claims provide no basis for removing Proposition 5 from the
ballot. First, they do not delegate the basic decisions regarding initial and continuing eligibility
for "Track I" treatment, but only the interstitial decisions regarding the kinds of treatment that
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 18

shall be provided. There is nothing unconstitutional in that. For example, in the somewhat
similar context of parental visitation rights, "the power to decide whether any visitation occurs
belongs to the court alone." In re S.H., 111 Cal. App. 4th 310, 317 (2003) (emphasis in original).
Accordingly, a court may not give a child (or therapists) the power to decide whether visits shall
occur. Id. at 319; accord, In re Julie M, 69 Cal. App. 4th 41, 51 (1999). Nevertheless, "the
child's social worker may be given responsibility to manage the actual details of the visits,
including the power to determine the time, place and manner in which visits should occur." In re
S.H., 111 Cal. App. 4th at 317. Moreover, a therapist may be given discretion to determine when
court-ordered visitation should commence, based on the therapist's own professional judgment
regarding whether the prerequisites for successful visitation have been met. In re Chantal S., 13
Cal. 4th 196, 213-14 (1996) (upholding order vesting discretion in therapist of parent's choice to
determine when parent had made "satisfactory progress" so that court-ordered visitation could
begin).

The limited discretion given to the clinical evaluation and the opinions of treatment
providers under Proposition 5 is constitutional under these cases. Just as the trial court retains
the power under these cases to determine whether to order any visitation, the trial court under
Proposition 5 makes the critical decisions whether the defendant is eligible for Track I treatment
and whether that treatment should be terminated, and a judgment of guilt entered, if problems
develop. The only decisions in which the court must "rely" on qualified health care
professionals concern the appropriate modes of treatment for the particular defendant and
whether the treatment is performing satisfactorily in treatment. These interstitial decisions are
analogous to decisions regarding the time, place and manner of parental visits, which may be
delegated to non-judicial personnel, such as the discretionary determination upheld in Chantal S.,
which made the start of visitation contingent on a therapist's decision that the parent had made
"satisfactory pro gress ." 13

Moreover, most of the provisions of Proposition 5 that Petitioners challenge do not

infringe on judicial discretion even with respect to the limited subjects they address. For
example, two provisions provide that the trial courts "must rely" on the clinical evaluation in
ordering treatment and imposing monitoring conditions. Pet. Ex. A at 14 (Prop. 5, §13 (proposed
Penal Code §1210.02(a)(1), (3))). But these provisions neither preclude the trial court from
considering and relying on other information nor require the trial court to follow the evaluation's
recommendations.

13 Indeed, the delegation of authority upheld by this Court in Chantal S. was much broader than the
ones at issue here. The therapist who made the "satisfactory progress" determination in that case was
chosen by the parent and there was no extrinsic limit on the factors he or she could consider in the
decision. Here, in contrast, the drug treatment provider is chosen by the court, and the clinical evaluation
of the defendant for appropriate treatment must be made "using a standardized tool" and must evaluate
factors specified by statute as relevant to the defendant's amenability for treatment. Pet. Ex. A at 12
(Prop. 5, §11 (proposed Penal Code §1210(g))). Finally, a private therapist is responsible to his or her
client, while the clinical evaluators and treatment providers must constantly interact with, and be
responsive to, the court. See In re James R., 153 Cal. App. 4th 413, 440 (2007).
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 19

Indeed, the second of these two provisions indicates that the drafters could not have
intended the phrase "must rely" to limit judicial discretion. Proposed Penal Code Section
1210.02(a)(3) provides that "[i]n determining the appropriate monitoring conditions and
requirements imposed upon the defendant, the court must rely upon the criminal history
evaluation and clinical assessment." But the "criminal history evaluation" and the "clinical
assessment" are two separate documents, prepared by two different agencies, that focus on
different factors. See p.15, supra. Accordingly, they could well come to different conclusions
regarding the appropriate "monitoring conditions and requirements" that should be imposed
upon the defendant. For example, the clinical assessment might find the defendant potentially
amenable to outpatient treatment, but the criminal history evaluation might find that the
defendant presents a high risk of recidivism, requiring monitoring conditions that can only be
imposed in residential treatment. 14 Yet, under Proposition 5, the trial court "must rely" on both
the clinical assessment and the criminal history evaluation in imposing monitoring conditions.
Accordingly, the drafters could not have intended that "rely" mean "be bound by," but only
"consider" or "follow unless persuaded otherwise." Such requirements are unquestionably
constitutional. See People v. Navarro, 7 Cal. 3d 248, 258 (1972) (Legislature may require
sentencing court to consider probation report); Penal Code §1203(b)(3) (if a person is eligible for
probation, the court shall order a probation report and "shall consider any [such] report . . . and
shall make a statement that it has considered the report. . .").

Moreover, even if these provisions were less ambiguous than they are, they would need to
be interpreted so as to preserve, rather than impair, judicial authority. See People v. Superior
Court (Romero), 13 Cal. 4th 497, 518 (1996) (judicial discretion to strike prior convictions must
be read into "Three Strikes" law); see generally San Francisco Taxpayers Ass 'n v. Bd. of
Supervisors, 2 Cal. 4th 571, 581 (1992) ("we assume that the voters intended the measure to be
valid and construe it to avoid serious doubts as to its constitutionality" (internal quotation marks
omitted)); cf In re Danielle W, 207 Cal. App. 3d 1227, 1237 (1989) (trial court order providing
that parental visitation was in the discretion of the children interpreted to mean that the children
only had the right to "express their desires in this regard"). For all these reasons, Petitioners'
challenge to the two "must rely" provisions of Proposition 5 do not justify removing the measure
from the ballot.15

14Both outpatient treatment and residential treatment are permissible drug treatment options. See
Penal Code §1210(b).
151t also bears mentioning that the "standardized tool" by which clinicians would evaluate
defendants does not yet exist, and will not exist until the executive branch creates, approves and
implements the appropriate evaluation framework—at some point well after Proposition 5 has gone to the
voters. The same is true of any rules that would govern the form of clinical assessments under proposed
Penal Code §1210.02(a)(1). This is one more reason that Petitioners' challenge to Proposition 5 is
premature: How can this Court decide whether clinical assessments will encroach on judicial discretion if
it neither knows how evaluators will assess defendants nor how they will report their assessments to the
court?
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 20

In contrast to these provisions, proposed Penal Code Section 1210.02(a)(2) does remove
judicial discretion where the clinical evaluation indicates the need for opioid agonist treatment or
other medication-assisted treatment. However, under this Court's decision in Chantal S., it is not
unconstitutional for a court to decide that parental visitation is contingent on the opinion of a
therapist that "satisfactory progress" has been made in the parent's therapy. A fortiori, there is
nothing unconstitutional in a statute requiring a court to follow the opinions of qualified drug
treatment professionals on the medical issue of whether a defendant is a suitable candidate for
therapy that requires use of drugs such as opioid agonists.

Petitioners' remaining delegation challenges are even more far-fetched. There is nothing
unconstitutional in the measure's requirement that the court, in determining whether the
defendant has performed satisfactorily in treatment, "shall be guided by the evaluation provided
for the court by the qualified treatment professional in charge of the defendant's treatment
program, and the treatment provider's opinion." Pet. Ex. A at 19 (Prop. 5, §15 (proposed Penal
Code §1210.04)). The phrase "shall be guided" imposes no requirement that the trial court
actually follow the evaluation, only that the evaluation be considered. Even if that were not so,
the trial court retains ample power under the statute to make its own determination about the
defendant's progress. Even if the treatment provider finds that the defendant has "performed
satisfactorily" in the assigned program, the court still has independent power under the statute to
revoke treatment if it finds that "the defendant is not benefiting from education, treatment, or
rehabilitation," (id.), and nothing in the statute requires that this judicial determination be guided
by, or made in reliance on, anyone else's opinion. The statute therefore does not impair judicial
authority.

Finally, Petitioners challenge Proposition 5's requirement that, if the trial court decides not
to enter judgment despite claims that the defendant is not performing satisfactorily, the treatment
plan may be amended "consistent with the recommendation of the treatment provider." Id. Like
the judgment about whether a defendant is amenable to opioid agonist treatments such as
methadone, this decision is analogous to the delegation to professional judgment upheld by this
Court in In re Chantal S. Accordingly, Petitioners cannot show that this statute is clearly
unconstitutional.

D. Petitioners Cannot Show That The Provisions Governing Treatment

Determinations Are Clearly Unconstitutional.

The final string in Petitioners' bow is the contention—again, made without citing a single
case—that Proposition 5's provisions regarding administrative oversight of drug treatment
programs invade judicial authority. Pet. Mem. 41-43. This contention adds nothing to
Petitioners' delegation claims. County jails, county probation departments and state prisons are
all involved in the imposition of criminal sentences under the Penal Code, just like drug
treatment programs under Proposition 5. Yet such facilities are, of course, under the
administrative supervision of the relevant county or the State. Moreover, these institutions are
subject to innumerable statutory and regulatory requirements.
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 21

For example, probation officers are given broad powers to determine monitoring and
supervision of high-risk sex offenders under a statutory and regulatory scheme that requires very
little input from the judiciary. Under this scheme, the state is charged with developing the State-
Authorized Risk Assessment Tool for Sex Offenders (SARATS0), a measurement that lets
probation officers decide which probationers are deemed to pose a high risk of committing sex
crimes. See Penal Code §§290.04 et seq. Developing SARATSO is a non-court function that
involves consultation with experts from many disciplines and oversight by an executive-branch
board. Id. Every probation department "shall ensure" that all probationers deemed to "pose a
high risk to the public of committing sex crimes are placed on intensive and specialized
probation supervision and are required to report frequently to designated probation officers." Id.
§1203f. In addition, probation officers may put any other registered sex offender who is on
active probation in "intensive and specialized supervision" and require him or her to "report
frequently" to probation officers. Id.

Thus, under these statutes, probation officers have complete discretion to decide what sort
of treatment and monitoring conditions are required of sex offenders designated as high risk.
Moreover, such designations are made not by a judge, but by a complex statistical tool
maintained by non-judicial entities. Probation officers also have the discretion—again without
judicial input—to place other sex offenders under such special supervision. If this broad
discretionary scheme of rules, statutes and executive determinations is legal, then Proposition 5
cannot be illega1.16

Nor is there merit in Petitioners' complaint that Proposition 5 does not provide that
regulations of the "Oversight Commission" shall be subject to judicial review. Pet. Mem. 42. Of
course, no initiative has to reenact the entire Code of Civil Procedure; instead, each statute is
interpreted against the backdrop of existing law. Consequently, the regulations promulgated by
the Oversight Commission are subject to judicial review just like the regulations promulgated by
any other state commission. See generally Yamaha Corp. v. State Bd. of Equalization, 19 Cal.
4th 1 (1998). Proposition 5 is not unconstitutional merely because it failed to reenact this
elementary principle of administrative law.

16 For other examples of probation officers' discretionary powers, see Penal Code Sections
1202.8(a) (declaring that all probationers are under the supervision of a probation officer "who shall
determine both the level and type of supervision consistent with the court-ordered conditions of
probation") and 1203.1a (probation officer can authorize the temporary removal from custody of inmate
before release from jail "if he concludes that such an inmate is a fit subject therefor").
The Honorable Ronald M. George, Chief Justice of California,
and Honorable Associate Justices
July 25, 2008
Page 22

CONCLUSION

Petitioners have shown no reason why this Court should interfere with the electoral
process. Proposition 5 is concededly within the power of the voters to adopt. Its few assertedly
invalid provisions do not justify removal from the ballot. The Petition should be summarily
denied.

Respectfully,

STEVEN L. MAYER
JOHN P. DUCHEMIN
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation

DANIEL N. ABRAHAMSON
Director of Legal Affairs
Drug Policy Alliance

By -\-e_oef\L II
STEVEN L. MJYER

Attorneys for Real Party in Interest

Daniel N Abrahamson

cc: All counsel (per attached POS)

SLM:sp
 PROOF OF SERVICE
I, John C. Carrillo, declare:

I am a resident of the State of California and over the age of eighteen years and not a party
to the within-entitled action; my business address is Three Embarcadero Center, Seventh Floor,

San Francisco, California 94111-4024. On July 25, 2008, I served the following document(s)
described as:

PRELIMINARY OPPOSITION

E3 by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date by 9:00 a.m.

0 by placing the document(s) listed above in a sealed envelope with postage thereon

fully prepaid, for deposit in the United States Postal Service through the regular mail

collection process at the law offices of Howard Rice Nemerovski Canady Falk &

Rabkin, A Professional Corporation, located at Three Embarcadero Center, Seventh

Floor, San Francisco, California.

E3 by transmitting via email the document(s) listed above to the email address(es) set
forth below on this date by 9:00 a.m.

En by placing the document(s) listed above in a sealed Federal Express envelope and
affixing a pre-paid air bill, and causing the envelope to be delivered to a Federal
Express agent for delivery.

O by personally delivering the document(s) listed above to the person(s) at the

address(es) set forth below to the addresses(es) set forth below.

PROOF OF SERVICE
-1-
 James F. Sweeney, Esq. Christopher E. Krueger, Esq.
Sweeney & Greene, LLP Office of the Attorney General
9381 E. Stockton Boulevard, Suite 218 Executive Offices
Elk Grove, CA 95624 1300 "I" Street, Room 125
Sacramento, CA 95814
Phone: 916/753-1300
Fax: 916/753-1333 Phone: 916/324-5502
email: jfs@sweeney-greene.com Fax: 916/322-4532
email: christopher.krueger@doj.ca.gov
Attorneys for Petitioners, Pete Wilson,
Gray Davis, Steve Cooley, Bonnie Attorneys for Respondent, Debra Bowen
Dumanis, Rod Pacheco, Michael
Ramos, Dolores Carr

Edmund G. Brown, Jr.

Attorney General
Office of the Attorney General
Executive Offices
1300 "I" Street, Room 125
Sacramento, CA 95814
Phone: 916/324-5502
Fax: 916/322-4532
email: jeny.brown@doj.ca.gov
Attorneys for Respondent, Debra Bowen

I am readily familiar with the firm's practice for collection and processing of documents
for delivery by overnight service by Federal Express, and that practice is that the document(s) are
deposited with a regularly maintained Federal Express facility in an envelope or package
designated by Federal Express, fully prepaid, the same day as the day of collection in the
ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed at San Francisco, California on July 25, 2008.

C-- 04- v tS-I-e

13-214j
John C. Carr
. illC
9

PROOF OF SERVICE
-2-