BROWN v. S.C. (CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION)Petitioners Reply to Return of Real Parties in InterestCal.March 28, 2016SUPREME COURT FILED No. $232642 , ° MAR 2 8 2016 IN THE SUPREME COURT oo OF THE STATE OF CALIFORNIA Frank A. McGuire Cierk Deputy GOVERNOR EDMUND G. BROWN JR., MARGARETR.PRINZING, and HARRY BEREZIN, Petitioners, Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO, Respondent. CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, ANNE MARIE SCHUBERT,an individual and in her personal capacity, and KAMALA HARRIS,in her official capacity as Attorney Generalofthe State of California, Real Parties in Interest. Writ Regarding Order by the Sacramento County Superior Court, Case No. 34-2016-80002293-CU-WM-GDS,Department24, Phone No.: (916) 874-6687, The Honorable Shelleyanne Chang,Presiding REPLY TO RETURN OF REAL PARTIESIN INTEREST CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION AND ANNE MARIE SCHUBERT CRITICAL DATE: FEBRUARY26, 2016 Robin B. Johansen,state Bar No. 79084 James C. Harrison,state Bar No. 161958 ‘“REMCHO, JOHANSEN & PURCELL, LLP 201 Dolores Avenue San Leandro, CA 94577 Phone: (510) 346-6200 Fax: (510) 346-6201 Email: rjohansen@rjp.com Attorneys for Petitioners Governor EdmundG.BrownJr. Margaret R. Prinzing, and Harry Berezin TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES uo...ccssscescssessesseesssscensesssesseseeresnsenseeeeeenss ii INTRODUCTION ooecccccscceeseeterecsesssesssassescesessssssessesseessresseeeeneeseresesenes 1 ARGUMENT I. THE COURT SHOULD RETAIN EMERGENCY JURISDICTION OVER THIS CASE oc cececceeeseeesseeeseseneesseesseees 3 H. ISSUANCE OF A WRIT IS NECESSARYIN ORDER TO EFFECTUATE THE LEGISLATURE’S INTENT ooo. ce eeeceeeeceesesensessrsssessseserssesssssesesensesesaeessateneaeesersesegeeeens 6 Il. THE AMENDMENTS ARE REASONABLY GERMANE TO THE THEME, PURPOSE, OR SUBJECT OF THE ORIGINAL VERSION oooeeeecesseverseeverseeeseaeeereesensesesseersaaeeess 1] CONCLUSION 00... ecceeseeeeseeesserecescseneesasscsssonseeesseaseasesseesesesseessesenseseneas 19 it A A A C N Sic S I a TABLE OF AUTHORITIES Page(s) CASES: Brosniahan Vv. BrOwin v.ccseccssccsessrsseseeessnteeeeneeeeenen senses eens nee ees eenee seen eeeeereeey 18 (1982) 32 Cal.3d 236 Fair PoliticalPractices Com. v. Superior COUPE iccescecessseeeessrseseceneeetesensens 18 (1979) 25 Cal.3d 33 Manduley v. Superior COUrt ..ccccscsccseccsesecsecsessenessesssersesseesenenen 14, 15, 16 (2002) 27 Cal.4th 537 Raven Vv. D@ukMmepian ..ccccccccccssccceseesessnesenneeesenee seen eeeeene eases eee nE ender r EEE EnEg ery 18 (1990) 52 Cal.3d 336 Yes on 25, Citizensfor an On-Time Budget v. Super. Ct. verses9 (2010) 189 Cal.App.4th 1445 CALIFORNIA CONSTITUTION: Article I SBcecscseessesceeseeseesteceeneesrssesssesessevsessensssecessesseeeenseseeeseneenetets 2, 11, 12 STATUTES: Elections Code § 9002 oo. eeeeeccccesccenceneerssscenevssesessessseesecsaeeseseenecnsesseeeaeersnserneiaseesenraes passim § D004 woececeseceescessesceseseteteeeesscscssessssssnseeesssssenesessesssssessesnssaseensenssteaeseraseens 9 § QOL vaeceescesssceesceseseneeceecserecsenecssssssensecssseseseessessssessessesaeseerecnsneenenenteasaens 5 § 9034 Lo cccsccsssceseesersseerecnersesssessessssessessesecsecsecsessseneessecaeerasecssaresaeeranesseres 5 § 9050 Ct SOG. veer ceeeeccsescetecsssssesseesssssesseesensessecneesseeneeesssesenserenessesaennesaenaes 9 MISCELLANEOUS: California Rules of Court Rule 8.487 o....cecccecsscessescesscesecvessseeevsesseresseessessesscecsesseseeeseneeeravsessesssennennes 3 ii INTRODUCTION This case presents a straight-forward question: whether the Attorney General erred in determining that the amendments filed by the proponents of the Public Safety and Rehabilitation Act were reasonably germaneto the theme, purpose, or subject of the original version of the measure. As demonstrated at length in petitioners’ earlier briefs and in the preliminary response of the Attorney General, the Attorney General correctly concludedthat the amendments are not only reasonably germane to the theme, purpose, or subject of the original measure, but they directly advanceits goals ofpromoting rehabilitation and enhancing public safety. Rather than focus on this question, real parties in interest California District Attorneys Association and Anne MarieSchubert (collectively, “CDAA”) invite the Court to join them in speculating whetherpetitioners will gather enough signatures to qualify the measure in time for the Novemberelection and about how future initiative proponents will behave. CDAA’sclaim that petitioners had not certified to the Secretary of State that they had collected 25 percent of the required signatures as of March 21st is untrue. Petitioners madethecertification on March 18th, and they are confident that they will gather sufficient signatures to qualify in time for November. CDAA’spolicy argumentthat granting the writ will encourage proponentstofile a “placeholder” that they will then “gut and amend”is equally untrue, butalsoirrelevant to the legal question before the Court. In crafting Elections Code section 9002, the Legislature chose to prohibit amendments for a measure that does not makea substantive changeto the law and to require that amendments be reasonably germaneto the theme, purpose, or subject of the original measure. These twin requirements prevent proponents from filing initiatives that are nothing more than empty vessels andthen filling them during the amendment process, They do not, however, prohibit proponents who may be working on related proposals from combiningtheir efforts in order to present a single, integrated measure for the ballot, which is precisely what happened here. If CDAA is unhappythat the text of section 9002 doesnotrestrict amendments further, it should seek redress from the Legislature, not the courts. When CDAA finally reaches the question before the Court,it refashions its argumentthat the original and amended versions do not address the same subject, but it continues to ignore the plain text of the two versions of the measure. Both versions clearly address the transfer of _ juveniles to the adult system and both provide parole eligibility to adult inmates in state prison. While the amendedversion also includes a provision relating to credits, this provision is directly tied to the goal of promoting rehabilitation, which is clearly set forth in both versionsofthe measure. . CDAA’s final argument — that the amendedversion of the measureitself violates the single subject rule and cannot be submittedto the voters under Article II, Section 8 of the California Constitution — is a new issue that is not properly before the Court. Even if it were, however,the amended version would clearly satisfy the single subject rule as articulated by this Court, which has upheld ballot measures that were significantly broader in scope than the current measure. ARGUMENT I. THE COURT SHOULD RETAIN EMERGENCYJURISDICTION OVER THIS CASE With absolutely no basis in fact, CDAA arguesthat petitioners’ measure will fail to qualify for the November 2016 ballot, thereby mooting this case and eliminating the need for the Court to retain jurisdiction. The only “evidence” on which CDAA relies is demonstrably false. Contrary to CDAA’sallegations,’ as of the date CDAA filedits return, petitioners had submitted certificate notifying the Secretary of State that they had gathered 25 percent of the numberofsignatures needed to qualify their measure for the Novemberballot.” Petitioners continue to gather signatures in order to qualify their measure on or before June 30, 2016, whichis the statutory deadline.? Return of CDAA to Order to Show Cause [“CDAA Return”at 5. Althoughpetitioners note that CDAA’s return does not meet the requirements of Rule 8.487(b) of the California Rules of Court becauseit does not contain either a demurrer or an answerto the petition, petitioners urge the Court notto let this defect delay resolution ofthe case. ? Declaration of Margaret Prinzing, § 2, attesting that petitioners filed their certificate on March 18, 2016. 3 CDAA once again suggests that April 26, 2016 is the “deadline” by which proponents must submit their signed petitions in order to qualify in time for the Novemberballot. (CDAA Return at 4, fn. 2.) In fact, April 26 is a “suggested” date becauseit: (1) includes time that is not provided for in the Elections Code for the Secretary of State to process the counties’ raw counts and random sample results and (2) assumesthat the counties will take the maximum amountof time allocated by law to perform their duties. For example, the proponents of Proposition 30 submitted their petitions to the counties in May 2012,but the measurestill qualified in time for the November2012 ballot. Ever since this Court stayed the Superior Court’s order on February 26, 2016, petitioners have been steadily gathering signatures, using a signature- gathering firm that has been in business for more than 30 years and has qualified more than 200 ballot measuresfor state and local ballots. (Attachment to Petitioners’ Supplemental Letter Brief, { 1.) CDAA’sclaim that the measure will fail to qualify is based on pure speculation, nothing more. Moreover,this case involves an important question of law concerning the right of petitioners to circulate and the voters to sign an initiative petition, which are rights guaranteed by the California Constitution whether or not a petition ultimately qualifies for the ballot. If CDAA had notsued, the Attorney General would haveissued hertitle and summary, and petitioners would have proceededto exercise their constitutional right to seek to qualify a measure for the November ballot. The Court’s stay of the Superior Court’s decision preservesthat status quo and ensures that voters will have an opportunity to decide whetheror not they wish to help place an important criminal justice measure on the upcomingballot. Many havealready done so. If the Court were to dismiss the petition and lift the stay now, as CDAA suggests, then there truly would be no waythat the measure could qualify, and the voters who havealready signed the petition would have doneso in vain. In that case, CDAA’s speculation about mootness would becomereal, through no fault of petitioners or the voters who support them. The signaturesthatpetitioners have already gathered could become worthless; evenif petitioners prevailed on appeal and could use those signatures,it is highly unlikely that they could qualify for the November2018 ballot, which is the next statewide election at which the measure could appear. (Elec. Code, § 9016(a).) That is because the median time for decision on an appealin the Third District Court of Appealis 686 days.’ Thus, an appealofthetrial court’s decision is not an adequate remedy, contrary to CDAA’s claim. If this Court were tolift its stay and dismiss the case, petitioners’ only alternative would beto start all over for the November 2018 ballot. The consequencesof that course go far beyond absorbingthe cost oflitigation and the signature-gathering doneto date. If petitioners must start over, it will mean an additional two years during which inmates will remain ineligible for parole, prosecutors will decide whetherto try juveniles as adults, our prisons will become more crowded, and the State will have great difficulty complying with the federal court’s order to reduce the prison population in a way that is durable. Nothing in CDAA’s return demonstrates that the people of California should be deprived of an opportunity to decide whether these consequences should occur. The only thing that has changedsincethis Court issued its order to show cause on March 9, 2016 is the filing of petitioners’ certificate pursuant to Elections Code section 9034(a). That certificate and the Prinzing declaration demonstrate that petitioners are doing everything they can to obtain the necessary signatures to qualify their measurefor the ballot. The case is far from moot, and the need for emergency relief is strong, because without it the voters will have no opportunity to consider in a timely fashion someof the mostpressing criminal justice issues facing California today. * Jud. Council of Cal., Statewide Caseload Trends (2015), p. 28 (as of March 24, 2016). I. ISSUANCEOF A WRIT IS NECESSARY IN ORDER TO EFFECTUATE THE LEGISLATURE’S INTENT Not content with speculating about whetherpetitioners’ measure will qualify, CDAA falsely suggests that petitioners waited until the end of the public review period “to keep the public, the Legislative Analyst, and the Attorney Generalin the dark for as long as possible.” (CDAA Return at 8.) They did this, CDAA argues, in order to prevent opponents from (1) proposing their own counter-measure to appear on the November 2016 ballot, (2) preparing a campaign to warn the public not to sign the petition, and (3) negotiating “‘a more sensible reform proposal and legislative solution.” (/d.) These claimsare flatly untrue and lack evidentiary support. CDAA cannot deny that membersof its organization were not only aware of the proposed changesto the original initiative, but were actively engaged in the discussions concerning them. (II Appendix [“App.”] at 200-201, § 6; id. at 194-195, 75.) Scott Budnick is a member of the coalition that is sponsoring the measure at issue here. As Mr. Budnick’s declaration makesclear, in the 35-day period following the filing of the original measure, Mr. Budnick and membersofthe Governor’s Office discussed amendments with Mark Zahner, the Executive Director of respondent California District Attorneys Association, as well as with district attorneys from Los Angeles and San Diego and law enforcement officials from across the state. (/d.) Those discussions specifically addressed the amendmentsat issue here, as Mr. Budnick attests: “[{A]fter it becameclear that certain law enforcement groups, including district attorneys, would opposeparoleeligibility for violent offenders, we a N Ri c. eed IE P O Y ein er ee na n: A D R A T I R AT PL AT m e t , modified the draft parole provision to provide that inmates who have served the full term for their primary offense are eligible for parole only if the inmate is a non-violent offender.” (/d., J 7.) The processthat petitioners engagedin is precisely what the Legislature intended whenit enacted section 9002(b) of the Elections Code. Far from constituting a “gut and amend”process, as CDAA claims,’ the amendment negotiations at issue here combined twoproposals for dealing with the same subject — criminal justice and rehabilitation — that might otherwise have been on the sameballot. The sponsors of each measure got together to iron out differences between their two approachesso as to be able to presenta single, integrated proposal to the voters. Respondents appearto think that section 9002(b) confers a right to notice so that membersofthe public can negotiate with proponents over every change they maketoaninitiative. There is no right to negotiate with a proponent over whathe or she includes in the text of an initiative. The review period provided by section 9002(b) is merely a mechanism that allows proponents to obtain comments from the public ifthe proponents want them. Nothingin the new law obligates a proponent even to read the comments, muchless act upon them. Respondents also seem to believe that section 9002(b) limits the numberor type of changes a proponent can make, not only in order to facilitate public commentbut to help the Legislative Analyst and the Attorney General prepare the fiscal analysis andtitle and summary for the measure. (CDAA Return at 8-11.) That argument ignores the fact that >CDAA Return at 11. 5 5 5 2 section 9002(b) places only tworestrictions on the substance or scope of permissible amendments: (1) the amendments must be “reasonably germaneto the theme,purpose, or subject ofthe initiative measure as originally proposed,” and (2) no amendments can be made“‘if the initiative measureas originally proposed wouldnot effect a substantive change in law.” (Elec. Code, § 9002(b).) As discussedin Part III, infra, the amendments at issue here clearly meet the “reasonably germane”test, and even CDAAhasnot suggested that the original measure would not effect a substantive change in law. CDAA’sargumentalso ignores the undisputed factthat neither the Legislative Analyst nor the Attorney General objected to the amendments or suggested in any way that the amendments impededtheir ability to analyze the measure. Indeed, the Attorney General vigorously defended CDAA’s lawsuit in thetrial court and has supported petitioners in seeking emergencyrelief from this Court.® Lacking support from either the Attorney Generalor the Legislative Analyst, CDAA takes issue with the Attorney General’s title and summary,arguing that if CDAA had had notice of the proposed amendments, it would have suggested that the title and summaryread differently. First, as noted above, CDAA did have notice of the amendments. Even if CDAA claimed not to have been notified ofall the amendments before filing, they had a full 30 daysafter filing in which to discuss them with the Attorney General and make suggestions regarding the chief points and purposes of the measure. ° See generally Preliminary ResponseofReal Party in Interest Attorney General Kamala D.Harris. Second, although the Attorney General will discuss a proposedinitiative with interested parties before issuing a title and summary, she does not share a draft of the summary with any memberof the public, including the proponent, prior to issuing it. Thus, CDAA would not have beenin a position to suggest a changeprior to the timethetitle and summary wasissued. Third, it is important to rememberthat the title and summary about which CDAA complainsis the circulating title and summary,not the one that will appear on the ballot. (Elec. Code, § 9050 et seq.) CDAA will have ample opportunity to suggest as many changesas it wishes once the measure qualifies. Finally,it is well-established in California that the Attorney General has broad discretion to decide whatto includeas the “chief purposes and points”of a proposed measureinthetitle and summary.’ The Attorney General chose to say that the measure “[a]llows parole consideration for persons convicted of nonviolent felonies upon completion of full prison term for primary offense, as defined.”” (CDAA Return at 10.) Respondents would prefer to substitute “excluding any sentence enhancement imposed by law”for “as defined.” (ad.) That formulation, however, singles out only one of three elements to which “as defined” 7 Elec. Code, § 9004, subd. (a). See Yes on 25, Citizensfor an On-Time Budget v. Super. Ct. (2010) 189 Cal.App.4th 1445, 1453 (“If reasonable minds differ as to its sufficiency, the title and summary prepared by the Attorney General must be upheld. . . [and] {o]nly in a clear case should a title [and summary] so prepared beheld insufficient.”’), internal citations omitted, refers. Proposed California Constitution, article I, section 32(a)(1)(A) provides: For purposesofthis section only, the full term for the primary offense meansthe longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. “(I App.at 46.) Given the 100-word limit for a title and summary, the Attorney General properly exercised herdiscretion to determine whetherornotto include the full definition of the words “full term for the primary offense”as one of the chief purposes andpointsofthe initiative. She would certainly have been well within her authority to reject CDAA’s suggestion had CDAA madeit. CDAA’sreal complaint appears to be that the Legislature did not provide for two or more rounds of public comment during the amendmentprocess. Theplain language ofthe statute imposes no such requirement, however, nor should it. Negotiations take time, and where parties who may have been working separately on related measures wishto combinetheir efforts, they will need the 35 daysallotted by statute in order to do that. So long as the amendments are reasonably germaneto the theme, purpose, or subject of the original measure, it makes no difference whether they comeat the beginning, middle, or end ofthe statutory period. Finally, CDAA is simply wrong whenit arguesthatif the Court grants petitioners relief, it will send “a clear message that there is no risk to a proponent from submitting a ‘placeholder’ initiative covering the 10 general subject of the intended initiative.”"’ (CDAA Return at 11.) The Legislature chose to define a placeholderinitiative narrowly: one that “would not effect a substantive change in law.” (Elec. Code, § 9002, subd. (b).) CDAA may quarrel with that definition, but it cannot change the plain languageofthe statute, or add requirements that the Legislature chose not to include. If the Legislature concludes that the statutory scheme needs changing, it may do so, but CDAAhasnobasis for asking this Court to do that on its own. Tl. THE AMENDMENTS ARE REASONABLY GERMANETO THE THEME, PURPOSE, OR SUBJECT OF THE ORIGINAL VERSION CDAA arguesthat case law interpreting the single subject rule does not apply to the “reasonably germane” requirement under Elections Code section 9002, because the single subject rule has “nothing to do with amendments.” (CDAA Return at 12.) CDAA confuses the single subject rule under Section 8 of Article II of the California Constitution with the incorporation of that standard by the Legislature into Elections Code section 9002. Section 9002 does not require the Attorney General to determine whether or not an amended measure maybepresentedto the voters consistent with Article IT, Section 8. Instead, it mandates that the Attorney General rely upon the well-established standard set by the Court’s single subject jurisprudence to determine whetherto acceptthefiling of an * CDAA refers to the “gut and amend”process as “despised” but ignores the fact that it is despised becauseit is frequently used to force a vote on a bill before it has been fully vetted. In this case, the voters will have had nine months to consider the measure before voting on it, nine months in which CDAA will have the opportunity to campaign againstit. 1] amendedversion of a ballot measure rather than treating the amended version as a newly-filed measure. The Attorney General’s decision to accept amendments under this standard would not prevent CDAA ora voter from challenging the amended measure underArticle II, Section 8 of the California Constitution. Next, CDAA claimsthat the January 26th amendmentsfiled by the proponentsofthe original version of the measure are not “amendments.” (/d.) Although CDAA concedesthat the term “amend” means “[{t]o change, correct, revise” and “[t]o improve,” it concludes without analysis that the proposed constitutional amendment cannot be considered “an ‘amendment’ to the December 22 submission.”’ (/d.) As discussed at length in petitioners’ petition and reply brief, however, the proposed constitutional amendment was designedto replace the parole provision in the original version by expanding parole eligibility to all state inmates, not just those who committed their crime before attaining the age of 23, while simultaneously limiting eligibility to non-violent offenders. In this way, the proposed constitutional amendment“improved”the original submission by responding to concerns regardingits application to violent offenders (II App. at 195, { 7) and by “‘reach[ing] situations which were 99910not covered by the original statute’”” — namely, providing parole eligibility for nonviolent offenders who were older than 22 at the time they committed * CDAA does not explain how the Attorney General would determine whether an amendment“improved”the original version, nor could it, because such a standard would be unworkable. '° CDAA Return at 12, quoting Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 777. 12 their offense. Thus, even using CDAA’s own definition, the January 26th submission clearly qualifies as an “amendment.” CDAA also argues that the amendmentsare not reasonably germaneto the theme, purpose or subject of the original measure, because “(t]he January 26 submission neither is the same subjectas the original submission noris the January 26 submission a single subjectitself.” (CDAA Return at 13.) CDAA’s position rests on two faulty premises. First, the test is not whether amendments addressthe “same” subject as the original version; instead, section 9002(b) requires that amendmentsto a measure be “reasonably germane”to the theme, purpose or subject of the original version of the measure. And evenif section 9002 requiredthat the fit be more precise, the amendmentsat issue here wouldsatisfy thattest. Like the original version, the amendments addressed the transfer of juveniles and parole eligibility forstate prisoners; they also included a provision regarding the award of credits, which is directly tied to the measure’s goal of promoting rehabilitation. Second, CDAA’s insistence that the original version exclusively addressed the subject ofjuvenile justice while the amended version is “primarily focused on incarcerated adults” ignores the actualtext of the measure and misapprehendsthe nature of our criminal justice system. (id.) As discussedin detail in petitioners’ earlier briefs, the original version of the measure was not focused solely on juvenile justice; indeed, it directly affected the adult system by addressing when juveniles maybetried in adult court and when an inmate who committed his or her crime before attaining the age of 23is eligible for parole. These individuals would be in their 30s and 40s before being eligible for the proposed changesin parole law in the original version of the measure. (See Petitioners’ Emergency 13 Petition at 20; Petitioners’ Reply in Support of Petition at 11.) Furthermore, CDAA’s binary view ofthe criminal justice system as either involving the juvenile system or the adult system obscuresthe reality that somejuveniles are tried as adults and that the lack of opportunities for rehabilitation inthe adult system affects these people as muchas, or even | more than, inmates who committed their crimes when they were over the age of 17. Additionally, CDAA ignores the fact that criminal sentences faced by juveniles and the lack of rehabilitative resources available in that system primarily affect these individuals as adults while they serve their sentences in the adult system. Finally, the original version, like the amended version, sought to ensure that our criminal justice resources “are used wisely to rehabilitate and protect public safety.” (I App. at 97.) Thus, the amendmentsare reasonably germaneto the theme, purpose, or subject ofthe original measure. CDAA also argues that this Court has already determined that the subject of the original version of the measure is juvenile justice because it would roll back someofthe provisions of Proposition 21, which the Court considered in Manduley v. Superior Court (2002) 27 Cal.4th 537. The Court in Manduley was dealing with a different initiative, the purpose of which the Court described as “to address the problem of violent crime committed by juveniles and gangs... .” (Ud. at 575-576.) Proposition 21 wasin fact framed primarily as a juvenile justice measure. It limited the circumstances in which a minor could be committed to the Youth Authority, limited the confidentiality ofjuvenile records, restricted pre- hearing release ofjuveniles, broadened the circumstances in which juveniles whoare 14 or older could be prosecuted in the adult system, and 14 revised procedural and evidentiary rules in juvenile wardship proceedings. (Id. at 545, 574-575.) In addition, it included numerousprovisionsrelating to criminal gang activity, which as this Court recognized,is often undertaken by juveniles. (/d. at 576.) And, as the Court noted,thetitle of the measure — the Gang Violence and Juvenile Crime Prevention Act of 1998 — reflected its purpose of addressing the problem ofviolent crime committed by juveniles and gangs. (/d. at 575-576.) The Justice and Rehabilitation Act, as the original version wastitled, included a broader goal than that set forth in Proposition 21: to “Tejnsure that California’s juvenile and criminal justice system resources are used wisely to rehabilitate and protect public safety,” including by “ajuthoriz[ing] parole consideration for individuals who were under 23 at the time of their conviction [and who] have been rehabilitated, to incentivize rehabilitation and reduce prison waste.” (I App. at 16.) The original version of the measure specifically addressed both the adult system and the juvenile system. It included provisionsrelating to the transfer of juveniles to the adult system, the parole of adult inmates, and a provision that expanded the right of an adult to petition the court to seal his or her juvenile records. Even if the subject-of the original version could be characterized as juvenile justice, the amendments wouldstill satisfy the reasonably germane standard of section 9002. As with Proposition 21, the Public Safety and Rehabilitation Act includes provisions that apply to juvenile as well as adult offenders. Proposition 21 included provisions relating to gang crime, which were applicable to both juveniles and adults, and added a numberofcrimesto the Three Strikes law, some of which were morelikely to be committed by adults. Nevertheless, the Court found that 15 there was a reasonablerelationship between these variousprovisions. (Manduley v. Super. Ct., supra, 27 Cal.4th at 578.) “[D]espite the collateral effects of these provisions upon adults who are not gang members.. . the provisions remain relevant to the common purpose of Proposition 21.” (Ud. at 578-579.) The sameis true of the amendmentsto the original measure. Contrary to CDAA’s assertion that the amendments apply “solely to adults” (CDAA Return at 18), the amended version retains the core elements relating to the transfer ofjuveniles by requiring a judge, rather than a prosecutor, to decide whether a juvenile should be tried in adult court, while addressing concerns expressed by various stakeholders. (Petition at 24-26; Petitioners’ Reply Br. at 10-11.) In addition, juveniles who are tried as adults under the amendedversion of the measure will have the opportunity to earn credits for rehabilitation and to demonstrate that they have been rehabilitated at a parole hearing after serving the full term of their primary offense. Although these provisions will also affect adult offenders, they remain reasonably germaneto the goal of promoting rehabilitation and public safety. Although CDAA concedesthat the deletion of nine of the eleven statutory changesin the original version constituted “a reasonably germane amendment” (CDAA Return at 12, fn. 5), it devotes three pages of its brief to a table detailing those changes. (CDAA Returnat 15-18.) CDAA is correct that the amended version streamlined the juvenile transfer provisions and deleted the provisions regarding juvenile records and parole consideration for individuals who committed their crime before turning 23, but it retained the core transfer provisions and revised the parole provision to cover non-violent offenders who committed their crime after the age of 22. 16 CDAA’s real concern, of course, is the proposed constitutional amendment, which would authorize the Department of Corrections and Rehabilitation to adopt regulations establishing credits for rehabilitative and educational accomplishments and good behavior, and which would provide parole eligibility for non-violent offenders who have served the full term for their primary offense. The measure doesnot, as CDAA argues, repeal “40 statutory sentencing provisions and as manyas six previously enacted initiative measures...” (CDAA Return at 15; Petitioners’ Reply Br. at 10.) Instead, it authorizes parole consideration, whichis discretionary, not mandatory. Thus, the Parole Board may well decide that a non-violent offender who has an enhancement must remain in prison after completing the full term for his primary offense becausehe has not been rehabilitated. And even if CDAA’s exaggerated claim weretrue, the amended version would be no more sweeping than the original version, which authorized parole consideration even for certain violent offenders, prior to any sentencing enhancements, consecutive terms, or Three Strikes punishments they would otherwise be required to serve. Theoriginal measure’s goals of rehabilitation and wise use of juvenile and criminal justice resourceslie at the heart of the constitutional amendment to which CDAA objects. The principle that juveniles should be treated differently from adults has always included the premise that rehabilitation is more likely to occur if a young person is not madepart of the adult criminal justice system. The decision to allow corrections officials to award credits for good behavior “and approvedrehabilitative or educational achievements”provides an incentive to inmates to engage in those activities, as does allowing offenders to becomeeligible for parole once they haveservedthe full term for their primary offense. The three 17 provisions promote the wise use ofjuvenile and criminal justice resources by allowing judges to decide whetheror not to send juveniles into the adult system and allowing the parole board to decide whether adult inmates are sufficiently rehabilitated that they can safely be released into the general population. These reasonsapply not just to whether the measure’s amendments are reasonably germaneto the original measure,but also to CDAA’s claim that the amended measureviolates the single subject rule. (CDAA Return at 18.) CDAA ignoresthe fact that it did not challenge the measure under Article II, Section 8, and that this issue is not before the Court. Even if the issue were before the Court, CDAA cannotdispute that the amendedversion focuses on rehabilitation, a themethatties all of measure’s provisions together. Underthis Court’s single subject jurisprudence, the measureplainly satisfies the single subject test. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 247-248 [upholding a measure that strengthened procedural and substantive safeguards for victims in the criminaljustice system, including provisionsrelating to bail and safe schools]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 [upholding measure that promotedthe rights of actual and potential victims of crime, including provisions addressing post-indictment preliminary hearings, discovery, voir dire, and appointment of counsel]; Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 41 [upholding broadpolitical reform measure andnoting that the voters “may deal comprehensively and in details with an area of law.”].) 18 CONCLUSION Forall of these reasons, the writ should be granted. Dated: March 25, 2016 Respectfully submitted, REMCHO, JOHANSEN & PURCELL, LLP * Q By: James\C. Harrison Attorneys for Petitioners Governor EdmundG. BrownJr., Margaret R. Prinzing, and Harry Berezin 19 W E R M e SE T Sw a r e es s, O e R T a E a y BRIEF FORMAT CERTIFICATION PURSUANT TO RULE8.204 OF THE CALIFORNIA RULES OF COURT I certify that this brief is proportionately spaced, has a typeface of 13 points or more and contains 5,088 words as counted by the Microsoft Word 2010 word processing program used to generate thebrief. Dated: March 28, 2016 Robin B. Johartsén 20 PROOF OF SERVICE I, the undersigned, declare under penalty of perjury that: I am a citizen of the United States, over the age of 18, and not a party to the within cause of action. My business address is 201 Dolores Avenue, San Leandro, CA 94577. On March 28, 2016, I served a true copy ofthe following document(s): Reply to Return of Real Parties in Interest California District Attorneys Association and Anne Marie Schubert on the following party(ies) in said action: Constance Lynn Lelouis Non-Title Respondent Supervising Deputy Attorney General Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Phone: (916) 322-9357 Email: connie.lelouis@doj.ca.gov (By Overnight Delivery and Email) Thomas W.Hiltachk Attorneysfor Real Parties in Interest Brian T. Hildreth California District Attorneys Association Bell, McAndrews & Hiltachk, LLP and Anne Marie Schubert 455 Capitol Mall, Suite 600 Sacramento, CA 95814 Phone: (916) 442-7757 Email: tomh@bmhlaw.com Email: bhildreth@bmhlaw.com (By Overnight Delivery and Email) Paul E. Stein Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Phone: (415) 703-5500 Email: paul.stein@doj.ca.gov (By Overnight Delivery and Email) Clerk to the Honorable Shelleyanne Chang Sacramento County Superior Court 720 Ninth Street, Department 24 Sacramento, CA 95814 (By Overnight Delivery) Attorneysfor Real Party in Interest Attorney Generalofthe State of California and Kamala Harris [.] BY UNITED STATES MAIL: By enclosing the document(s)in a sealed envelope or package addressed to the person(s)at the address above and [_] depositing the sealed envelope with the United States Postal Service, with the postage fully prepaid. [_] placing the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the business’s practice for collecting and processing correspondencefor mailing. On the samedaythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, located in San Leandro, California, in a sealed envelope with postage fully prepaid. [x] BY OVERNIGHT DELIVERY:By enclosing the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the personsat the addresses listed. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. BY MESSENGER SERVICE: Byplacing the document(s) in an envelope or package addressedto the personsat the addresseslisted and providing them to a professional messengerservice forservice. BY FACSIMILE TRANSMISSION:Byfaxing the document(s) to the personsat the fax numberslisted based on an agreementofthe parties to accept service by fax transmission. No error was reported by the fax machine used. A copy ofthe fax transmission is maintained in ourfiles. ><) BY EMAIL TRANSMISSION:Byemailing the document(s) to the personsat the email addresseslisted based on a court order or an agreement of the parties to accept service by email. No electronic message or other indication that the transmission was unsuccessful wasreceived within a reasonable time after the transmission. I declare, under penalty of perjury, that the foregoing is true and correct. Executed on March 28, 2016, in San Leandro, California. Nina Leathley \ (00271289-9) No. 8232642 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA GOVERNOR EDMUNDG. BROWN JR., MARGARETR. PRINZING, and HARRY BEREZIN, Petitioners, V, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO, Respondent. CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, ANNE MARIE SCHUBERT,anindividual and in her personal capacity, and KAMALA HARRIS,in her official capacity as Attorney General of the State of California, Real Parties in Interest. Writ Regarding Order by the Sacramento County Superior Court, Case No. 34-2016-80002293-CU-WM-GDS,Department 24, Phone No.: (916) 874-6687, The Honorable Shelleyanne Chang, Presiding DECLARATION OF MARGARETR. PRINZING IN SUPPORT OF REPLY TO RETURN OF REAL PARTIES IN INTEREST CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION AND ANNE MARIE SCHUBERT CRITICAL DATE: FEBRUARY26, 2016 Robin B. Johansen,state Bar No. 79084 James C. Harrison,state Bar No. 161958 REMCHO, JOHANSEN & PURCELL, LLP 201 Dolores Avenue San Leandro, CA 94577 Phone: (510) 346-6200 Fax: (510) 346-6201 Email: rjohansen@rjp.com Attorneys for Petitioners Governor EdmundG.BrownJr. Margaret R. Prinzing, and Harry Berezin DECLARATION OF MARGARETR. PRINZING I, Margaret R. Prinzing, declare under penalty of perjury as follows: 1. I am oneofthe official proponents of “The Public Safety and Rehabilitation Act of 2016,” No. 15-0121, and a petitioner in this matter. I submit this declaration in support of Petitioners’ Reply to Return of Real Parties In Interest California District Attorneys Association and Anne Marie Schubert. 2. On March 18, 2016, I submitted a letter to the California Secretary of State certifying under penalty of perjury that at least 25 percent of the required numberofsignatures to qualify the Public Safety and Rehabilitation Act of 2016 have beencollected. Harry A. Berezin, the other official proponent of the Act, submitted an identical certification to the Secretary of State on the same date. True and correct copies of both certifications are attached to this declaration as Exhibit A. I declare under penalty of perjury that the foregoingis true and correct, and if called upon to do so I could and would sotestify. Executed this 25th day of March, 2016, at San Leandro, California. MP MARGARETR. PRINAINGNY EXHIBIT A REMCHO, JOHANSEN & PURCELL, Lip ATTORNEYS AT LAW 201 DOLORES AVENUE Robin B. Johansen SAN LEANDRO, CA 94577 JamesC. Harrison PHONE:(510) 346-6200 Thomas A, Willis FAX: (510) 346-6201 Marwaret®Prinzing EMAIL: mprinzing@rjp.com Andrew Harris Werbrock WEBSITE: www.rjp.com Harry A. Berezin Juan Carlos Ibarra SACRAMENTO PHONE: 9 1 6) 264-1818 : Joseph Remcho (1944-2003) Kathleen J. Purcell Ret.) March 18, 2016 Via Federal Express California Secretary of State 1500 - 11th Street Sacramento, CA 95814 Attn.: Katherine Montgomery, Initiative Program Manager Re: The Public Safety and Rehabilitation Act of2016 Initiative No. 1781 (Attorney Gen. Initiative No. 15-0121A1) DearSecretary Padilla: In accordance with California Elections Code section 9034, I, Margaret R. Prinzing, one of the proponents of “The Public Safety and Rehabilitation Act of 2016,” Secretary of State # 1781 (15-0121A1), hereby certify that at least 25 percent of the required numberofsignaturesto qualify the initiative measure for the ballot has been obtained. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph istrue and correct. Executed on this 18th day of March, 2016, at San Leandro, California. rgaret'’R. Prinzin MRP: (00270823) REMCHO, JOHANSEN & PURCELL,Lp ATTORNEYS AT LAW 201 DOLORES AVENUE ~ Robin B. Johansen SAN LEANDRO, CA 94577 James C. Harrison PHONE:(510) 346-6200 Thomas A.Willis FAX: (510) 346-6201 Karen Getman Margaret R. Prinzing Andrew Harris Werbrock Harry A. Berezin Juan Carlos [barra SACRAMENTO PHONE: (916) 264-1818 Joseph Remcho(1944-2003) Kathleen J. Purcell Ret.) EMAIL: hb@rjp.com WEBSITE: www.rjp.com March 18, 2016 Via Federal Express California Secretary of State 1500 - 11th Street Sacramento, CA 95814 Attn.: Katherine Montgomery,Initiative Program Manager Re: The Public Safety and Rehabilitation Act of2016 Initiative No. 1781 (Attorney Gen. Initiative No. 15-012]A1) Dear Secretary Padilla: In accordance with California Elections Code section 9034,I, Harry Berezin, one of the proponents of“The Public Safety and Rehabilitation Act of 2016,” Secretary of State # 1781 (15- 0121A1), hereby certify that at least 25 percent of the required numberofsignatures to qualify the initiative measure for the ballot has been obtained. I certify under penalty of perjury under the laws ofthe State of California that the foregoing paragraphis true and correct. Executed onthis 18th day of March, 2016,at San Leandro, California. Sincerely, Harry Berezin HB: (00270830) PROOF OF SERVICE I, the undersigned, declare under penalty of perjury that: I am a citizen of the United States, over the age of 18, and not a party to the within cause of action. My business addressis 201 Dolores Avenue, San Leandro, CA 94577. On March25, 2016, I served a true copyofthe following document(s): Declaration of Margaret R. Prinzing in Support of Reply to Return of Real Parties In Interest California District Attorneys Association and Anne Marie Schubert on the following party(ies) in said action: Constance Lynn Lelouis Non-Title Respondent Supervising Deputy Attorney General Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Phone: (916) 322-9357 Email: connie.lelouis@doj.ca.gov (By Overnight Delivery and Email) Thomas W.Hiltachk Attorneysfor Real Parties in Interest Brian T. Hildreth California District Attorneys Association Bell, McAndrews & Hiltachk, LLP andAnne Marie Schubert 455 Capitol Mall, Suite 600 Sacramento, CA 95814 Phone: (916) 442-7757 Email: tomh@bmhlaw.com Email: bhildreth@bmhlaw.com (By Overnight Delivery and Email) Paul E. Stein Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Phone: (415) 703-5500 Email: paul.stein@doj.ca.gov (By Overnight Delivery and Email) Clerk to the Honorable Shelleyanne Chang Sacramento County Superior Court 720 Ninth Street, Department 24 Sacramento, CA 95814 (By Overnight Delivery) Attorneysfor Real Party in Interest Attorney Generalofthe State of California and Kamala Harris [_] BY UNITED STATES MAIL: Byenclosing the document(s) in a sealed envelope or package addressed to the person(s) at the address above and [_] depositing the sealed envelope with the United States Postal Service, with the postage fully prepaid. [_] placing the envelopefor collection and mailing, following our ordinary business practices. I am readily familiar with the business’s practice for collecting and processing correspondencefor mailing. On the same daythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, located in San Leandro, California, in a sealed envelope with postage fully prepaid. . [x] BY OVERNIGHT DELIVERY:By enclosing the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the personsat the addresses listed. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. BY MESSENGERSERVICE: Byplacing the document(s) in an envelope or package addressedto the personsat the addresseslisted and providing them to a professional messengerservice for service. BY FACSIMILE TRANSMISSION:By faxing the document(s) to the personsat the fax numberslisted based on an agreementofthe parties to accept service by fax transmission. No error was reported by the fax machine used. A copy ofthe fax transmission is maintained in ourfiles. [x] BY EMAIL TRANSMISSION: By emailing the document(s) to the personsat the email addresses listed based on a court order or an agreement of the parties to accept service by email. No electronic messageor other indication that the transmission was unsuccessful wasreceived within a reasonable timeafter the transmission. I declare, under penalty of perjury, that the foregoingis true and correct. Executed on March 25, 2016, in San Leandro,California. . Nina Leathley q - (00271127)
