BROWN v. S.C. (CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION)

Real Parties in Interest - Declaration of Paul Stein

Cal.February 29, 2016

Iu the Supreme Court of the State of California GOVERNOR EDMUNDG. BROWNJR., MARGARETR. PRINZING, and HARRY BEREZIN, Petitioners, V. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO, Respondent. CALIFORNIA DISTRICT ATTORNEYS ASSOCIATIONetal., Real Parties in Interest. Case No. 8232642 SUPREME COURT FILED FEB 29 2016 Frank A. McGuire Clerk Deputy Sacramento County Superior Court, Case No. 34-2016-80002293 Honorable Shelleyanne W. L. Chang, Judge DECLARATION OF PAUL STEIN KAMALAD. HARRIS Attorney General of California DoucasJ. Woops Senior Assistant Attorney General CONSTANCE L. LELOUIS Supervising Deputy Attorney General JENNIFER A. LEE Deputy Attorney General PAUL STEIN Deputy Attorney General State Bar No. 184956 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1382 Fax: (415) 703-1234 Email: Paul.Stein@doj.ca.gov Attorneysfor Real Party in Interest Attorney General Kamala D. Harris I, PAUL STEIN, declare as follows: 1. Tama deputy attorney general for the State of California and a counsel of record for Real Party in Interest Attorney General Kamala D. Harris in this matter. The facts stated in this declaration are based on my personal knowledgeand,if called upon, I could and wouldtestify to their accuracy. 2. Attached as Exhibit A to this declaration is a copy ofthe certified Reporter’s Transcript of Proceedings for February 24, 2016, in California District Attorneys Association et al. v. Attorney Generalofthe State ofCalifornia, Kamala Harris et al., Sacramento Superior Court, Case No. 34-2016-80002293. 3. IT received this transcript via email from the court reporter on February 27, 2016. Exhibit A to this declaration is a true and correct copy of the transcript I received from the court reporter. | I swear under penalty of perjury that the foregoing is true and correct. Executed this 29th day of February, 2016, at San Francisco, California. Paul Stein EXHIBIT A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO HON. SHELLEYANNE W.L. CHANG, JUDGE, DEPARTMENT 24 ~--o0o--- CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, et al., Petitioners, Case Number 34-2016-80002293 vs. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, KAMALA HARRIS, et al., Respondents. e e e e ---000--- REPORTER'S TRANSCRIPT OF PROCEEDINGS ---000--- WEDNESDAY, FEBRUARY 24, 2016 ~--000--- APPEARANCES: For the Petitioners: THOMAS W. HILTACHK, Esq. BRIAN T. HILDRETH, Esq. Bell, McAndrews & Hiltachk, LLP 455 Caitol Mall, Suite 600 Sacramento, CA 95814 (916) 442-7757 ---o00o--- Lisa A. Busath, RPR, CSR No. 10751 Pursuant to Government Code section 69954(d): Any court, party, or person...shall not otherwise provide or sell a copy or copies to any other party or person. ‘ 1 LISA A. BUSATH, RPR, CSR NO, 10751 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPEARANCES (Continued) For the Respondents: PAUL STEIN, Esq. CONNIE L. LeLOUIS, Esq. Department of Justice Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 (415) 703-1382 For the Real Party in Interest: JAMES C. HARRISON, Esq. Remcho, Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, CA 94577 (510) 346-6200 ~--000--- LISA A. BUSATH, RPR, CSR NO. 10751 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:38:29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WEDNESDAY, FEBRUARY 24, 2016 AFTERNOON SESSION ---000--- The matter of the CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, et al., Petitioners, versus ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, KAMALA HARRIS, et al., Respondents, Case Number 34-2016-80002293, came on regularly before the Honorable SHELLEYANNE W.L. CHANG, Judge of the Superior Court of California, County of Sacramento, Department 24. The Petitioners were represented by THOMAS W. HILTACHK and BRIAN T. HILDRETH, Attorneys at Law. The Respondents were represented by PAUL STEIN and CONSTANCE L. LeLOUIS, Attorneys at Law. The Real Parties in Interest were represented by JAMES C. HARRISON, Attorney at Law. . The following proceedings were then had: THE COURT ATTENDANT: Please come to order. Court is now in session. THE COURT: Good afternoon, ladies and gentlemen. MR. HILTACHK: Good afternoon, MR. STEIN: Good afternoon. THE COURT: All right. May I have the appearances of counsel, and we'll start on my left. MR. HILDRETH: Good afternoon, your Honor. Brian Hildreth representing petitioners. MR. HILTACHK: Good afternoon, your Honor. Tom Hiltachk on behalf of petitioners. 3 LISA A. BUSATH, RPR, CSR NO, 10751 3 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:38:58 15:39:29 15:40:00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MR. HARRISON: Good afternoon, your Honor. James Harrison of Remcho, Johansen & Purcell, representing real parties. MR. STEIN: Good afternoon. Paul Stein of the Attorney General. MS. LeLOUIS: Good afternoon. Constance LeLouis from the Attorney General representing the respondent. THE COURT: Before we proceed, I did want to disclose to counsel and the parties that I am acquainted with Mr. Harrison. His law firm represented and worked with the governor's office when I worked for Governor Gray. Davis. I hate to say how many years ago that was, but it was approximately 14 years ago or so, and his firm did represent me when I was -- well, as a former employee of Governor Davis in a matter involving some issues that came before the governor. MR. HILTACHK: Thank you. THE COURT: All right. I will say I have read all of the papers. I appreciate all of the filings. So, Mr. Hiltachk, I'll let you go first. MR. HILTACHK: It occurred to me that maybe T should provide a little context for you. I think all of us sort of jumped right into the issue without really describing the initiative process in California and how it actually starts. So briefly, I'll just say that the way that the initiative process works, it's governed by the State constitution and the Elections Code, in that a voter who 4 LISA A. BUSATH, RPR, CSR NO. 10751 4 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:40:27 15:40:58 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 295 26 27 28 has an idea for a proposed initiative simply must write down that idea in the form of a law and attach a check for $200 and submit it to the Attorney General's office with a request that the Attorney General issue a title and summary. It's called a circulating title and summary in the first instance. That sets in motion two different things: First, it sets in motion the Attorney General's commencement of the preparation of the circulating title and summary. A circulating title and summary is a one-hundred-word summary of the effect of the initiative, what the initiative proposes to do. It's called a chief purposes and points of the initiative. And that. is an important document because that hundred-word summary is reprinted on the top of every initiative petition that is circulated among the voters in an event to qualify the measure for the ballot. The second thing that happens is that the Attorney General's office immediately transmits the proposed initiative to the office of the legislative analyst. And the purpose there is for the legislative analyst to look at the initiative, to figure out what it does or doesn't do and to determine whether the initiative will have a fiscal impact on the State or local government. In other words, will it save the State money or will it cost the State money if the initiative were to be implemented. That analysis, the summary of that analysis, becomes part of the circulating title and summary and is 5 LISA A. BUSATH, RPR, CSR NO. 10751 5 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:41:28 15:41:56 15:42:29 15:42:58 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 actually the last words on the circulating title and summary. So the combination of those two things are what the voters are presented with when they see a petition in front of their grocery store and being asked to sign a petition to place something on the ballot. A proponent cannot commence circulating an initiative petition until it receives that circulating title and summary, and from that point forward, a proponent has 180 days, six months, to collect the necessary signatures to qualify an initiative for the ballot. In the case of a constitutional amendment, like the January 26th submission here, that would be about 600,000 ballot signatures, either 50, 60,000 ballot signatures, in order to qualify for a ballot. In this case, what we're talking about is a situation in which there was an initial filing on December 26th -- or December 22nd, of an initiative that dealt: almost exclusively with juvenile justice provisions. 35 days later, on January 26th, an amendment was proposed to that initiative. And under Elections Code Section 9002, the Attorney General can accept an amendment of a previously filed initiative if that amendment is reasonably germane to the originally filed initiative, and that is the subject of this case. On January 26th, a purported amendment was submitted to the Attorney General's office that we believe 6 LISA A. BUSATH, RPR, CSR NO. 10751 6 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:43:29 15:43:58 15:44:30 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was not reasonably germane to the original filing and should have been rejected. After the briefing, it's clear to me that the Attorney General's brief reveals the two fundamental errors that occurred in this case: First, the respondent, Attorney General, has concluded that the text of Elections Code Section 9002 is the equivalent of the single subject rule, which is under our State constitution under Article 2, Section 8(d). And under Article 2, Section 8(d), it provides that no measure should be submitted to the voters if that measure embraces more than one subject, the single subject rule. A lot of cases have been decided on the single subject rule, and the test that the court employs is one that if looking at the whole, if you look at the basket of laws that are proposed in a single initiative, if all of those provisions are reasonably germane to each other and to a common theme or purpose or goal, then that satisfies the single subject rule. That's quite different in our view than the words of Elections Code Section 9002. While the words "reasonably germane" are used, the test is not to look at the whole, to not look at the new document and say does this satisfy the single subject rule, but rather, to look at the original filing, that the original filing establishes the frame, i.e., the subject that the amendment must pertain to. And in that regard, our argument is that in this case it did not. 7 LISA A. BUSATH, RPR, CSR NO. 10751 7 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:44:59 15:45:29 15:45:58 10 li 12 13 14 15 16 1? 18 19 20 21 22 23 24 25 26 27 28 So how do we know that to be the case? And there's two reasons why we think it's clear that the Elections Code 9002 is not the equivalent of the single subject rule: First is, 35 years ago, the California Supreme Court in Schmitz v. Younger told the Attorney General's office that it had no authority to decide whether a proposed initiative did or did not violate the single subject rule in advance of issuing a title and summary. It said that's a really complicated issue. It's a constitutional question, and that decision should be rendered only by a court, not by the Attorney General. So in Schmitz v. Younger, the court said this is really a judicial role. And the legislature certainly was aware of the case of Schmitz v. Younger when it enacted its amendments to 9002 which raised this amendment issue. And secondly, the legislative history of the amendment of 9002 clearly indicates that the purpose of the amendment provision was to allow proponents an opportunity to essentially fix mistakes or errors or unintended consequences or things that they didn't realize would cost so darn much money prior to getting a title and summary. That process was unavailable to them before 9002 was amended a couple years ago. And that was actually a widely discussed criticism of the initiative process. That people would submit initiatives and along the way we'd find there was some major defect in them, but there 8 LISA A. BUSATH, RPR, CSR NO. 10751 8 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:46:30 15:46:59 15:47:28 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was nothing we could do to fix them. So the amendments to 9002 were intended to provide an opportunity, a 35-day opportunity, to do that. It accomplished that objective in a couple of ways: One is it created a new public comment period. So now when you submit your initiative to the Attorney General's office, she posts it on her Web site, and anybody in the state, any government agency, any voter, anyone, can go online and submit a comment or a suggestion or a critique or, hey, there's a typo on page 3, directly to the proponent through the Attorney General's Web site. But the comment goes directly to the proponent, and the proponent can choose to accept the recommendation or not. It's up to the proponent. But at least it provides an opportunity. Secondly, by having the legislative analyst commence their analysis at the very béginning, many times the legislative analyst figures out that there's a problem. So in discussions with the proponents, in many cases, in those cases, the legislative analyst will invite the proponents of an initiative to come to the legislative analyst's office. Sit down with us. Tell us what it is you were trying to do with this initiative. We want to understand it. And sometimes they'll say, gosh, you know, now that we hear what you wanted to do, we really don't think your initiative does that. It gives the proponent an- opportunity to fix that. And that process actually has 9 LISA A. BUSATH, RPR, CSR NO. 10751 9 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:47:59 15:48:28 15:48:57 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 10 been employed and serves the objective to the amendment to 9002. So it's our view that that is the legislative history, and the fact that this determination that an initiative is or is. not violative of the single subject rule being a judicial determination, clearly evidences that what the purpose behind 9002 was was not to empower the Attorney General's office to make this constitutional determination, but rather to focus and determine what was the subject matter of the original filing, and does the second proposed amendment, or any further amendment, fit within that subject, fit within that common theme or purpose. The second error that we think is revealed in the briefs filed by the respondent is that even if the Attorney General would have done the analysis correctly, she misunderstood what the purpose of the original filing was and what the effect that the supplement or the subsequent amendment would have on California law. So on page 1 of the respondent's brief she says, quote, "The measure as amended continues to focus on the same theme, purpose and subject of promoting rehabilitation, enhancing public safety, with special’ emphasis on youthful offenders, many of whom are prosecuted and sentenced as adults." The only explanation that I have for this incorrect conclusion is that the Attorney General simply doesn't understand the far-reaching impact that the 10 LISA A. BUSATH, RPR, CSR NO, 10751 10 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:49:28 15:49:54 15:50:29 15:50:58 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 295 26 27 28 11 al January 26th amendment would have on California law. The January 26th submission did not place a special emphasis on youthful offenders. In fact, it did just the opposite. The January 22nd, the original submission, which was Exhibit A to our petition, your Honor, is 26 pages long, single space. The amendment is only 11 pages long. The January -- Exhibit B. So 15 pages were removed by the amendment. The initial submission, the December 22nd submission, was exclusively a juvenile justice reform initiative. They've removed 15 pages of proposed changes of law to the juvenile justice system in their proposed amendment. And then they had -- the kicker was, what did they add? They added a constitutional provision. To this previous statutory initiative, they added a constitutional provision, which as we indicated, applies to all adult incarcerated persons now and in the future. It effectively repeals by constitutional supremacy -- I think we've counted up to now 40 statutes or provisions in statutes that impose determinate sentencing and at least six voter-approved statewide initiatives. None of those deal with juvenile justice. And so we think it's clear that even had the Attorney General applied the right standard, that she still didn't understand the import of the proposed amendment. In that regard, I think if you take a step back 11 LISA A. BUSATH, RPR, CSR NO. 10751 11 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:51:29 15:51:58 15:52:28 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 12 12 and you say, well, okay, what was -- if you just looked at the first submission and you say, well, what was this trying to do? And it was clear that it was directed at juvenile justice reform, primarily at the front end of the process. Can a prosecutor direct file in court without getting approval through the juvenile justice system? All provisions that were enacted by the voters in Prop 22, most of those were being scaled back by the original filing. And now we have an initiative that is -- where we've stripped out a good chunk of those provisions, 15 pages of them, and replaced them with a four-sentence constitutional amendment that wipes out 40 years of determinate sentencing. And I'm not here to argue whether that's good. policy or bad policy, your Honor. All I'm arguing is that is a significantly different thing than the original submission. And now if you looked at this and said, Well, what is the main thing going on here? And you'd say, Well, it's changing the determinate sentencing provisions of California law. It's a massive policy shift from what was changed 40 years ago. In fact, the governor's office has freely admitted that's what the intent of this initiative is to do. And what I think you have now is you have essentially the tails wagging the dog. That the main thrust of this initiative, and I presume that if a title and summary is ever issued for this, it's going to focus, 12 LISA A. BUSATH, RPR, CSR NO, 10751 12 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:52:58 15:53:29 15:53:59 10 11 12 13 14 15 16 1? 18 19 20 21 22 23 24 25 26 27 28 13 13 I would hope, on this massive change in public policy and less on the juvenile justice elements, which are now ancillary, frankly, to where we are now. So what follows from the Attorney General's error in this regard? Two things: First the public didn't get any of the 30-day review period to look at this proposed new initiative and say, Hey, gee, did you really want this to apply to current offenders? Did you want it to apply to this list of crimes? I'm sure your Honor is quite familiar. There's a list of serious and violent felonies. And once you -- and once you call something a serious felony, you grab the entire list. That could be changed. They could write law to do that. And so none of that was available. The public had no opportunity to say, Hey, you know, even 1£ you think you know what you're doing, you didn't do it in the right way, or you shouldn't do this in the constitution. Why don't you actually change the statutes? There's a variety of things that the public could have said about this, or that other government agencies could have said, or that my clients might have said in response to this proposal. The other is that the legislative analyst was given 15 days to analyze this sweeping initiative to determine what the fiscal impacts of this are. And I would hesitate to -- I don't hesitate to argue, your Honor, that if you had a complex legal question that you wanted your law clerk to research and write an opinion for 13 LISA A. BUSATH, RPR, CSR NO. 10751 13 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:54:27 15:54:58 15:55:29 10 il 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 14 you on, would you rather have that law clerk have 15 days to do it or 50 days to do it? And I think the voters, the public, the legislative analyst, were all entitled to the statutory 50-day period to analyze this effectively new initiative, for the benefit of the voters, when they get the circulating title and summary from the Attorney General's office. So at the end of the day, what we're asking for is simply that the real parties be compelled to follow the rules and that the Attorney General's office not accept -- should not have accepted the January 25th filing as an amendment. It should have been only accepted as a new filing, and that that process should commence as if it was a new filing, allowing 9002 and all of the provisions therein to take effect. THE COURT: Thank you. Mr. Stein. MR. STEIN: Thank you, your Honor. Let me start with the plain terms of the statute, because after all, that's the touchstone for deciding this case. The plain terms, Section 9002(b), permit substantive amendments after the close of the public comment period. The fact that an amendment may be substantive, even sweeping potentially, does not necessarily mean it's not germane to the theme, purpose or subject of the measure as originally proposed. Germaneness is a function of whether or not the amendment is sufficiently related. Not whether it's 14 LISA A. BUSATH, RPR, CSR NO. 10751 14 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:55:56 15:56:28 15:56:58 15:57:28 10 1i 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 15 15 substantive. Not whether it's sweeping. In fact, SB 1253 was adopted to encourage proponents to amend ballot measures. Their position, I think, boils down to the notion that this reading of the statute somehow destroys the legislature's goal in establishing this public comment period and the ability to amend up to day 35. But the purpose has to be determined from the language that the legislature adopted. There's no ambiguity here in 9002(b) that would require you or justify resorting to legislative history here. THE COURT: But, Mr. Stein, didn't the legislature by virtue of the language in 9002 indicate some intent that any amendments be nonsubstantive? First, there is the ability for a proponent to amend the original initiative five days after the close of the public comment period, thereby indicating some intent by the legislature that any amendments would be basically nonsubstantive, because for the very fact that the public would not have had the opportunity to comment on any amendments. | MR. STEIN: Well, I would disagree with that, your Honor, because the legislature did not say only nonsubstantive amendments. If you look back, if you look at former Election Code Section 9002({b), there's a distinction drawn there between technical and nonsubstantive amendments and other sorts of amendments. There is no such distinction in this statute. It permitted amendments without limitation, except that they be reasonably germane to the original 15 LISA A. BUSATH, RPR, CSR NO. 10751 15 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:57:58 15:58:30 15:58:58 15:59:27 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 16 theme, purpose or subject. And that's the language that has to be enforced. What they are asking your Honor to do is to graft onto the statute a requirement that's not there. And that's not the function of the court. This is just a. basic principle of statutory construction. On its face, the language is extremely broad and flexible. There's no requirement that the public comment period be extended if the proponent submits a substantive amendment post day 30. It's not there. THE COURT: But at least a thought that has occurred to the court is that that is another indicia of the legislature's intent that any amendments be nonsubstantive. The fact that the period for which the LAO and Department of Finance have to prepare fiscal analysis is not extended by virtue of any amendments, again, is some indication that the legislature intended that the amendments be nonsubstantive. MR. STEIN: Well, again, I respectfully disagree, your Honor. The way the rule works is, even if a proponent submits an amendment at or after the close of the period, the time for the LAO is not extended, and the inference to be drawn from that is that the legislature wanted to keep this process moving quickly, not that it only wanted to accept nonsubstantive technical amendments. You have to think about the process of drafting a ballot measure. It's hard to define what a nonsubstantive or technical amendment might be. Any amendment, no matter 16 LISA A. BUSATH, RPR, CSR NO. 10751 16 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 15:59:58 16:00:27 16:01:04 16:01:27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1? 17 how minor, could raise new ramifications that the public might want to address. California law is extremely complicated. There are a million ways to draft a law that conflicts with other laws that are on the books that could have unintended consequences, that could have drafting errors. So even if it were limited to incorporating comments into the amended version of the measure, there's still a very, very serious possibility that the proponents would be amending language that the public would want to address and would not have an opportunity to address... There is simply no guarantee in this statute that the public will have a right to comment. That the purpose of the Law, we submit, was to benefit the proponents of ballot measures, not necessarily the public. It was for the purpose of benefiting the proponents by giving them easier access to feedback from the public and a greater expanded right to amend. And you see this in the fact that the comments are not to be publicized. Comments are to be kept nonpublic and relayed solely to the proponents, which suggests that this process is for the benefit of the proponents and not to give the public this iron-clad right of comment. Now, the next indicator I think the court -- THE COURT: Well, before you move on to that, Mr. Stein, and I'm looking at the SB 1253, and I'm looking at Section 2 of the bill, and specifically paragraph -- subparagraph (b) (3). 17 LISA A, BUSATH, RPR, CSR NO. 10751 17 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:01:59 16:02:28 16:02:56 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 18 MR. STEIN: Yes, your Honor. THE COURT: And the language says, "This Act would give voters an opportunity to comment on an initiative before the petition is circulated for signatures." So hasn't the legislature also indicated that there is to be a public benefit to this public comment period? It's not solely for the benefit of the drafters? Sure. As the legislature says, these comments might address perceived errors and that sort of thing, but the legislature has said it's also to give the voters sort of a preview of what may be circulated to them for their | signatures. MR. STEIN: It does indeed say, as your Honor just read it, that the public would have an opportunity to comment. But the question in this case is, what's the scope of that opportunity? What are the limits on what they call this right to comment? And our view of it is that the legislature allowed amendments with the only limitation being that they be germane. That leaves a substantial possibility that substantive, even sweeping, amendments will be submitted after the close of public comment. And, again, the plain language of the statute has to be enforced, and our reading of the statute we believe is reinforced by the single subject case law. They don't dispute that the language of the statute was copied verbatim out of the McPherson case and other single subject cases. They don't dispute the rule of statutory 18 LISA A. BUSATH, RPR, CSR.NO. 10751 18 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:03:28 16:03:57 16:04:29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 al 28 19 19 construction that when the legislature borrows technical terms from judicial decisions and enacts them into law, that it intends to adopt the same standards. We haven't heard anything from the petitioners about that. That's just a basic rule of statutory | construction. That's another reason why there's really no other way to read this. THE COURT: But I think the arguments of the petitioners are that then applying the single subject rule in this particular case, it's not an issue of do all the pieces fit together, do all the different portions of the law fit together. In this case, what I understand the petitioners' argument to be, is that you look at the original initiative measure. You look at what was the theme, purpose and scope there, and then you take the amendment and you look at whether or not that is consistent with the original initiative. So it's not an issue necessarily of do the parts all fit together, as I understand the argument. MR. HILTACHK: Right. THE COURT: The issue is, you look at one set, basically, of information, of laws, and then you look at the second set. And then you decide, do they have -- are they reasonably germane to each other. MR. STEIN: Your Honor, I agree with everything you just said. And I think the difference of opinion here is we believe we applied the standard correctly and 19 LISA A. BUSATH, RPR, CSR NO. 10751 19 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:04:58 16:05:26 16:05:57 16:06:30 10 Ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 20 reached the correct result. We looked at the theme, purpose or subject of the measure as it was originally proposed. We then looked at the amendments and decided whether they were reasonably germane to the theme, purpose or subject. And if you look at the measure as it was originally proposed in Section 2, it says, "The People enact the Justice and Rehabilitation Act to ensure that California's juvenile and criminal justice systems," both, plural, not juveniles exclusively, "the juvenile and the criminal justice system effectively stop repeat offending, i.e., by promoting rehabilitation and promote public safety." If you look at Section 3, Number 1, it's very similar. It says, "To ensure that California's juvenile and criminal justice system resources are used wisely," juvenile and criminal justice system resources, both, not exclusively juveniles, "are used wisely to rehabilitate and protect public safety." So we determined that the theme here was promoting rehabilitation, enhancing public safety. The substantive terms of the measure, as it was originally submitted, are closely linked to those purposes. They would promote rehabilitation by limiting the authority of prosecutors to charge juveniles as adults instead of sending juveniles to prison later in life. They further promote rehabilitation by offering earlier parole for people who were sentenced under the 20 LISA A. BUSATH, RPR, CSR NO. 10751 , 20 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:06:58 16:07:28 16:08:00 16:08:26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 21 three strikes law for offenses that they committed when they were 23 or younger. That includes adults. That includes anybody who committed a three strikes offense between the ages of 18 and 23. So it's not juveniles we're talking about here. It's adults. Young adults. The original measure also included a provision dealing with juvenile court records. Specifically, what happens to those records when a juvenile who is convicted becomes an adult. So that portion of the measure also had “a direct effect on adults. Okay. So we then looked at the amendments, as I said, and we determined that they were reasonably germane. The title of the Act was stated more precisely. The Public Safety and Rehabilitation Act. Those are the themes expressed in the original. The purpose is now stated as, “Protecting and enhancing public safety and emphasizing rehabilitation, especially for juveniles." Now, Mr. Hiltachk would have you believe that the amended version somehow stripped out anything having to do with juvenile justice, leaving a measure so focused -- focused solely on the adult prison population. But that's simply not true. The measure as it was originally proposed included provisions eliminating direct filing in adult court. of juveniles. Those same provisions are carried over to the amendment in Section 4. And that is why, your Honor, we say that the measure in its original form and as amended continues to place a special emphasis on juveniles. The 21 LISA A. BUSATH, RPR, CSR NO. 10751 21 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:09:00 16:09:31 16:09:58 16:10:26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 22 juvenile justice provisions in Sections -- I believe it's 3 -- excuse me, 4 in the original carry over to the amended. The amended version also includes a constitutional provision that would expand parole eligibility for nonviolent offenders. But that is a class of individuals that subsumes people who would have been eligible for parole under the original version wherein are these youthful offenders 23 and under who committed a three strikes offense. Those folks could be eligible for parole under the amended terms. There's a direct connection. between the original and the amended in that respect. These are not completely separate and divorced populations we're talking about here. It also authorizes CDCR to award credits for good behavior and rehabilitation and educational achievements. Again, that's going to benefit both adults and juveniles who may end up in the adult criminal justice system. They would be eligible for those credits. The purposé of promoting rehabilitation is to enhance public safety and to reduce cost systemwide. And that's because the juvenile and the adult criminal justice systems are interconnected. We made this point in our brief. They are not compartmentalized. I want to say one more thing about Schmitz. We are not claiming any right to decide whether or not a ballot measure satisfies the single subject rule and to refuse to issue title and summary on that basis. We 22 LISA A. BUSATH, RPR, CSR NO. 10751 22 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:10:59 16:11:30 16:12:01 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 23 understand Schmitz versus Younger. We were told very clearly by the Supreme Court in Schmitz that we have administerial duty to issue title and summary, and we are not to decide on our own whether a measure complies with the single subject rule with this constitutional standard, and on that basis, decide on our own whether to issue title and summary. We abide by Schmitz. And, in fact, just two months ago we went to court to get an order relieving us of our duty to prepare title and summary for the so called Sodomite Suppression Act, because that measure on its face was blatantly unconstitutional, it was a dead letter, dead on arrival. We went to court in compliance with Schmitz and got an order relieving us of our duty to prepare title and summary. But this is a very different setting. We're not deciding whether to prepare title and summary at all. We're not passing on the legitimacy of this ballot measure. We'tre only deciding whether an amendment should be accepted or not. The effect of this decision is whether or not the proponents are going to have to go back to the beginning and restart the public comment clock. We're not saying up or down this measure can be placed before the voters. And I would add that nothing prevents the petitioners in this case from bringing a single subject challenge to this measure. If the amendments are accepted, if your Honor rejects the writ and the real 23 LISA A. BUSATH, RPR, CSR NO. 10751 23 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:12:29 16:12:58 16:13:27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 aay parties go. forth to start collecting signatures, there's nothing stopping these petitioners or any other member of the public from bringing a single subject challenge to this measure, I would add, and I'1l just close with this point, that if your Honor is concerned about this overlap between the single subject rule and Schmitz and the Elections Code at issue here, the court can rule against the petitioners without importing or without deciding the extent to which the single subject rule should be imported here. The plain language of the statute by itself defeats their arguments. There is no requirement in 9002(b) that an amendment be technical or nonsubstantive. It's just not there. And the court should not be reading requirements into the law that are not there. And with that I would just close. We think the writ should be denied. THE COURT: All right. Thank you. Mr. Harrison. MR. HARRISON: Thank you, your Honor. Let me start with the question that you posed about whether or not the legislature intended to permit substantive amendments under its revision to Section 9002. I think it's important to understand that before SB 1253 was adopted, proponents of a measure could only submit technical, nonsubstantive changes to the measure within the first 15 days after it was filed. And the.AG 24 LISA A. BUSATH, RPR, CSR NO. 10751 24 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:13:57 16:14:27 16:14:58 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 295 25 in her discretion determined that those technical amendments were effectively typographical errors. No substantive changes were permitted. A substantive change would have restarted the clock. What the legislature did in adopting SB 1253 was to permit a broad range of amendments based on public comment, based on input from other stakeholders, and the only thing that the legislature tethered the proponents' right to make amendments to were two things: One, it says proponents can't submit a spot measure. They have to submit a measure that makes substantive changes to the law. And the reason for that was to prohibit what petitioners referred to as the gut and amend. A situation where proponents submitted what amounted to an empty measure and then subsequently amended it to add in all the meat. The other thing that the legislature did was to adopt language directly from McPherson, the California Supreme Court's decision in McPherson, that the amendments had to be reasonably germane to the theme, purpose or subject of the measure. Now, if Mr. Hiltachk were correct that those amendments were limited to addressing unintended consequences or flaws in the measure, those would still be substantive changes to the law. But the fact is, that the legislature didn't limit the amendments as it could have to correcting typographical errors, unintended consequences or flaws in the measure. Instead it 25 LISA A. BUSATH, RPR, CSR NO. 10751 - 25 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:15:27 16:15:58 16:16:29 16:16:57 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 26 permitted proponents to make changes, as long as they were reasonably germane to the theme, subject or purpose of the measure. THE COURT: But, Mr. Harrison, I think part of the court's concern here is, I agree, there is the reasonably germane limitation on any amendments, but I think the. court's concern here is that these amendments were submitted after the public has had an opportunity to comment. I agree if they're sweeping amendments and they come during a period when the public has had a full and fair opportunity to comment on them. And I think there is a mutual benefit to the public comment period. I don't think it is simply for the benefit of the proponents. It is for the public. That is what our democracy is about. If in this case these amendments were done after the public has had a full and fair opportunity to comment, that's the court's concern here. MR. HARRISON: let me address that head on, your Honor. The fact is that the legislature structured 9002 to authorize proponents to submit amendments after the close of the 30-day public comment period. If the legislature wanted to ensure that the proponents couldn't submit any changes that were not subject to the opportunity for the public to comment, it would have said all changes have to be submitted within the first 15 days, or at least within the first 30 days. 26 LISA A, BUSATH, RPR, CSR NO. 10751 26 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:17:29 16:17:59 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 295 26 27 28 27 27 Instead what it did is say you proponents can submit amendments up to 35 days after it's filed. Five days after the public comment period closed. The legislature didn't say there's a second public comment period. The legislature recognized the proponents would make substantive changes and that those changes may not be subject to that same public comment opportunity. But let me be really clear here. When the Attorney General received the amendments the proponents filed here, they were posted on her Web site, along with the contact information for the proponents. The only difference here, what this case comes down to is a button that says public comment on the Attorney General's Web site. Do you know how many comments the proponents received when the original measure was filed? Zero. And yet after the amendments were filed, we were contacted by two members of the public with questions and ideas about the measure based on the availability of the proponents' contact information on the Attorney General's Web site. So that opportunity for public comment the legislature decided was limited to that 30-day period, and it authorized proponents of a measure to submit amendments after that date. So by definition, the legislature anticipated that some changes would not be subject to that type of public comment opportunity. And let me be clear here. Mr. Hiltachk describes it as a right to public comment. It's not. It's an 27 LISA A. BUSATH, RPR, CSR NO. 10751 27 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS BSE EAT S PG P G E E B S r 16:18:29 16:18:58 16:19:29 16:19:55 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 28 opportunity to -- for the public to comment. And I understand your Honor's position that it's beneficial to the public as well, but let's be very clear here, it's not a public forum. Those comments aren't available on the Attorney General's Web site. Instead they're provided only to the proponents, and they are a tool for the proponents to make changes to the law. In fact, as the declarations in this case demonstrate, the proponents in this case engaged in substantial outreach during that 30-day period of time, and based on the input that they received, they decided to make changes to the law to strengthen its purposes of rehabilitation and enhancing public safety. So the process as envisioned by 1253 worked exactly as it was intended to work here. Let me briefly address if I could, your Honor, the substance of the measure itself, because Mr. Hiltachk ignores the effect of the original measure on the adult criminal justice system, First, if your Honor reads the original measure closely and the amended measure, you'll find that the findings in both measures made clear that the emphasis is on rehabilitation and public safety. And if you look at the provisions of the two measures, you'll find that the amendments are entirely consistent with and advance those purposes. So let's be clear when we talk about this. Under the original measure and the amended measure, a judge will 28 LISA A. BUSATH, RPR,CSR NO. 10751 28 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:20:27 16:20:58 16:21:26 10 11 12 13 14 15 16 1? 18 19 20 21 22 23 24 25 26 27 28 29 29 make the decision whether a juvenile is tried in adult court. Both versions of the measure eliminate direct file by prosecutors. Obviously, this will have an impact on the adult criminal justice system because it will likely reduce the number of juveniles tried in adult court. Both versions of the measure expand parole consideration. Under the original measure, the parole provision applied to all adult offenders who committed their offense when they were 23 and under at the time. of the offense. And it expanded eligibility for folks covered by this section to include individuals who were sentenced under the three strikes law. In response to feedback that the proponents received about the fact that this eligibility would apply to violent offenders, the proponents modified the provision in two ways: One, they expanded parole eligibility to all adult inmates, but two, they limited it to nonviolent felons. The amended measure included credits for rehabilitation, which was the very purpose of the original measure. As Mr. Stein says, juveniles who are tried in the adult system, if the measure is approved by the voters, will have the opportunity to benefit by those credits and by the possibility of parole consideration. And finally, the revised version of the measure required the Department of Corrections and Rehabilitation to certify that the regulations it adopts to implement these provisions, enhance and protect public safety, which 29 LISA A. BUSATH, RPR, CSR NO. 10751 29 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:21:56 16:22:28 16:22:57 16:23:29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 30 30 was in fact the goal of the initial measure. So whether you apply the plain language or the standard established in the single subject law cases, these amendments are not only reasonably germane to the theme, purpose or subject of the measure, they directly advance those goals. IT want to talk about what this case is really about, your Honor. Because at the end of the day, this is not a question about whether this measure is valid. You are not being asked, nor was the Attorney General asked, to determine whether this measure satisfies the single subject rule. The only thing that is at issue here is whether the Attorney General correctly determined that the amendments that were filed were reasonably germane to the theme, purpose or subject of the measure. The consequence of that decision is not whether the measure is capable of appearing on the ballot. It's whether proponents should be required to start all over again and there should be a new 30-day public comment period. And what that comes down to, your Honor, is that little box. If the court were to grant the writ in this case, the effect of it would be that the proponents will not have the time to collect signatures to qualify the measure for the November 2016 ballot. That means voters won't have an opportunity to consider whether or not to sign a petition to qualify the measure now, and they won't have the opportunity to consider whether to approve or reject 30 LISA A. BUSATH, RPR, CSR NO. 10751 30 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:23:58 16:24:30 16:24:57 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 31 31 it in November 2016. And it means that the juveniles and adults who would benefit from the opportunities for rehabilitation under this measure if it were adopted by the voters won't have that chance and will have to wait for another two years. Measure that against the harm on the other side. An abstract right for public comment. Well, in this case, your Honor, the proponents have in their declarations submitted to the court, explained that they engaged in an extensive vetting process, that they made the amendments that they wanted to make to the measure and that they do not intend to make any more amendments. So to order a writ under those circumstances, to enforce an abstract right of public comment would be an idle act with no practical effect. And the courts have been extraordinarily clear that a writ of mandate cannot be used to enforce an idlé act that has no practical benefit. And that's the case here, your Honor. So we would submit to the court that the petition should be denied, the voters should have the opportunity to determine whether or not to qualify the measure for the ballot. And if it does qualify, whether or not to approve it. THE COURT: Thank you. Mr. Hiltachk? MR. HILTACHK: I'll be brief, your Honor. Let me start with the last point. It's not our fault that real party waited until the 12th, 13th hour to decide that maybe they wanted to do 31 LISA A. BUSATH, RPR, CSR NO. 10751 31 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:25:26 16:25:58 16:26:26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 32 an initiative to qualify for the 2016 ballot. That's on them. What is required is compliance with the law. And the consequence of that is not just clicking a little box. It's an analysis, a full 50-day analysis that the LAO would have provided if it had been given the opportunity. And when we're talking about a proposed amendment here that is so sweeping that I can't even tell you with assurance that the 40 statutes I listed are the only 40 that are affected by this initiative. Because, as you know, sentencing law is kind of complicated. And I can't assure you that the six statewide initiatives that have been enacted by the voters are the only initiatives that are affected by this. I think it is. But I'm sure that the LAO had the same problem. And with the benefit of time, the LAO analysis would have been more complete, more full, and that then goes directly to what the voters are told when the AG issues a circulating title and summary. That summary of that fiscal impact is part of that title and summary. So there is a public impact to that. And with all due respect, stand in line like everybody else. Lots of folks have been asking the Attorney General for a title and summary. Many of them have made nonsubstantive, technical amendments because they found typos or they found that they misquoted something or they had the wrong idea how something worked and then fixed it. That's what this statute was intended to accomplish. We've talked a little bit about the five-day 32 LISA A. BUSATH, RPR, CSR NO. 10751 32 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:26:59 16:27:29 16:27:54 16:28:27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 33 issue. It's clear what the five-day issue was. 30 days for public comment. A few days for the proponent to respond to that. Submit an amendment that dealt with that. It gives the proponent an opportunity to meet with the LAO if they want to and see what the LAO thinks about these things. So there's a perfectly logical explanation as to why there was a little five-day window tacked on to the end of the 30-day public inspection period. It may take some time to make those changes and get them submitted to the Attorney General's office. Certainly, that little five-day window was not an indication by the legislature that you can literally gut and amend a previously filed initiative. And that's what really occurred here, your Honor. This was a 26-page initiative that amended eleven statutes, and most of those were taken out by the subsequent filing and replaced with a constitutional provision that is completely and wholly unrelated to the subject matter of the first filing. So let me go back to that. And we talked about it originally. Is you're not -- the court shouldn't look, and neither should the Attorney General, look to the self-serving statement of findings of purposes and intent that may have been written in either draft to see -- I mean, good lawyers are smart, your Honor. They'll know to figure out if I just use the right buzz words in this nonsubstantive, nonimportant text, that's not really the law, that I'll be able to get one over on them. No, not at all. ‘ 33 LISA A. BUSATH, RPR, CSR NO. 10751 33 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:28:59 16:29:28 16:29:56 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 34 What were the substantive provisions here? This was the Welfare and Institutions Code that was largely amended. The Welfare and Institutions Code applies to juveniles. A handful of Penal Code sections apply to juveniles. Section 3051, the right of a juvenile to have a parole hearing with the youthful offender parole board if they are under 23 applies when that person committed that crime while a juvenile. Now, sure, they were tried in adult court, but that is -- we're still focused on juveniles. So this initiative goes far beyond that now. In fact, it affects less juveniles now than it did when it was originally proposed and now affects 30, 40,000 current inmates sitting in state prison who are all adults. And there is no way that we can all sit here and look at each other and say, well, that's just an extension, a fix, a reasonably germane change to the initial filing. And with that, your Honor, I think it's clear that this amendment should not have been accepted. And with that I’1l1 submit, your Honor. THE COURT: Mr. Stein, one of the issues, and Mr. Hiltachk raised it, but one of the concerns, obviously, from the legislature's standpoint was the idea of a gut and amend initiative. Now, the language of 9002 talks about no amendment shall be submitted if the original did not make a change -~ effect any change in substantive law. But in effect, the legislature was concerned by that language by 34 LISA A. BUSATH, RPR, CSR NO. 10751 . 34 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:30:28 16:30:58 16:31:29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 35 what has happened here. Don't you think? I mean, granted, the original initiative in this case effected some change in substantive law. But by the amendments, it changed the focus and did delete huge portions of that original initiative, pared it down to simply just whether or not a judge or the prosecutor has the discretion to decide whether or not juveniles should be tried in adult court but added the constitutional amendment. So isn't what happened here the very concern that the legislature had when it inserted that language talking about gut and amend initiatives? MR. STEIN: I would, again, respectfully disagree, your Honor. The gut and amend issue is addressed separately by this requirement that amendments are not permitted if the original measure would not effect a substantive change in law. That's what gut and amend means. When someone says this is a gut and amend bill, they're talking about a nonsubstantive placeholder bill that sits there and at the end of the legislative session is dramatically rewritten and voted on before the legislature or the public has had an opportunity to look at it. That is not what happened in this case, and I. don't believe that gut and amend actually is a fair way of describing what happened to this measure. Because we have to look at it again through the lens of whether the 35 LISA A. BUSATH, RPR, CSR NO. 10751 35 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:31:59 16:32:30 16:32:59 16:33:28 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 36 36 amendments are reasonably germane to the original theme, purpose or subject of the measure. And they are. They continue to benefit both juveniles. and adults. The parole provision that Mr. Hiltachk mentioned a minute ago applied not just to juveniles, but to adults ages 18 to 23 as well. So what they're trying to do is create this artificial distinction between the original and the amended. The original was strictly limited to juvenile justice, whereas this new measure deals solely with adults. It's just not true. The direct filing provisions carry over between both. And we're really getting far afield when we judge the validity of an amendment by how many statutes an amendment might affect. That's not the test. The test here is whether the amendment is reasonably germane to the original theme, purpose or subject. THE COURT: Okay. Mr. Harrison? MR. HARRISON: Briefly, your Honor. I'm grateful that Mr. Hiltachk recognized our handiwork in streamlining the provisions relating to juveniles and as a consequence reducing the length of our brief, but that's what it is. We streamlined the juvenile transfer provisions to try to make it tighter based on the comments that the proponents received. The substance, the core of those provisions, remains the same. The only change with respect to the juvenile provisions in the original measure is that the juvenile 36 LISA A, BUSATH, RPR, CSR NO. 10751 36 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:33:59 16:34:27 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 37 records provision was deleted. Again, based on comments that the proponents received from stakeholders. So I think it's important for the court to recognize that the comments that came in, not through the Attorney General's Web site, again, zero comments, but the comments that came in as a result of the outreach, informed the process and improved the measure. But the amendments themselves are, as I said, not only reasonably germane to the theme, subject or purpose, but directly advance it. Let me just briefly take issue with two comments Mr. Hiltachk made. First of all, real parties didn't delay. Real parties submitted the measure in a timely manner that would allow them sufficient time to qualify. The delay here is the delay Mr. Hiltachk and his clients are seeking in order to prevent this measure from qualifying for the ballot in order to prevent the voters from having an opportunity to consider it. So let's call that what it ‘is. The second thing Mr. Hiltachk raised was the LAO. I have not heard the LAO complaining about the lack of time to review the amendments. In fact, the legislature expressly gave the LAO an additional two weeks after the amendments were filed to determine what impact, if any, those amendments might have on the LAO's fiscal analysis. Furthermore, to the extent that the measure qualifies, the LAO will have another opportunity to 37 LISA A. BUSATH, RPR, CSR NO. 10751 37 SACRAMENTO COUNTYOFFICIAL COURT REPORTERS 16:34:58 16:35:27 16:35:57 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 38 . 38 conduct a fiscal analysis of the measure, which would be presented to the voters at the time the measure appears on the ballot. So at the end of the day, your Honor, there is significant public harm if the court were to issue a writ in this case. On the other side, all that's lost is this abstract right to public comment which has no practical effect here in light of the decision the proponents have made not to amend the measure any further. Thank you, your Honor. THE COURT: Thank you. Mr. Hiltachk, anything in closing? I'll give you the last word. MR. HILTACHK: No. I think, your Honor, you pointed to the provision of 9002 that clearly prohibits a gut and amend where there's really no substantive change in law proposed. But that's not the only way you can accomplish that objective. And the legislature knows full well how to do it. So you simply propose some modest changes to some statutes and you say, well, this is my placeholder. I've got my place in line now, and I'll just wait till the 35 days runs and I'll put in a whole new measure. And that's really what happened here. You know, the evidence from -- submitted by real parties is that this is essentially an idea of the governor that he asked them to carry his water for instead of having his own initiative. And by God, he's free to do that, but he should have just stood in line like everybody else and let the chips fall where they may. And we're 38 LISA A, BUSATH, RPR, CSR NO. 10751 38 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 16:36:28 16:59:48 16:59:58 17:00:27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 295 26 27 28 39 39 just asking that the statute be followed. With that, your Honor, I submit. THE COURT: Ladies and gentlemen, let's take a short break and give the court reporter a break. She's had a long day. I'll come back and I'll render my decision. Let's be back here at 4:55, five minutes to MR. HARRISON: Thank you, your Honor. (Recess.) THE COURT ATTENDANT: Please come to order. Court's again in session, THE COURT: The court has considered all of the arguments of the parties. At this point the court is going to go ahead and grant the peremptory writ of mandate. The court finds that the Attorney General abused her discretion in accepting the amendment as reasonably germane to the theme, purpose and subject of the original initiative. The theme and purpose of the original initiative was reform of the juvenile justice system. The amendment deals with primarily reform of the adult justice system, including parole eligibility, status and credits of adult offenders. While some of the provisions may have some impact on youthful offenders, nevertheless, the court finds that the amendment déals primarily with the reform of the adult justice system. 39 LISA A. BUSATH, RPR, CSR NO. 10751 39 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 17:00:56 17:01:29 17:01:58 17:02:29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 40 I think it's instructive that one of the purposes of the amendment as articulated was to address federal court mandates of overcrowding of the adult. prison system. I also find that it is significant that the amendment was a constitutional amendment which affects numerous statutes affecting adult offenders. Finally, the court finds that the purpose and intent of 9002 has been violated. The purpose of the public comment period is not only, I think, to identify and correct flaws in a proposed initiative, but also to give voters an opportunity to comment on an initiative measure before the petition is circulated for signatures. While it's true that public comment may address perceived errors in the drafting of or perceived unintended consequences of the proposed initiative, I do think it's important to point out the fact that the public comment period is to provide the public with an opportunity to comment on any perceived unintended consequences. Thus, I find that the comment period serves as a mutual benefit to both the drafters and the public. That the drafters have submitted declarations indicating that they don't need additional time or that they don't intend to make any further amendments to their initiative, the court finds is, frankly, irrelevant. Here, under these particular facts, the amendment was submitted after the public comment period, thereby depriving the public of the ability to make a public 40 LISA A. BUSATH, RPR, CSR NO. 10751 40 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 17:02:57 17:03:27 17:03:57 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41 41 comment. That the public was able to write to the proponents rather than push a button on a Web site the court finds is not particularly adequate. Even then the proponent could not make a change to the initiative measure in response to the comments. Finally, the court finds instructive the last sentence of Section 9002(b). Clearly, the legislature was concerned about gut and amend. While the original measure did effect a change in substantive law, nevertheless, what the amendment did was the type of mischief that the legislature had in mind, otherwise a measure could change substantive law and then after the public comment period, put in a new amendment changing substantive law without the ability of the public to review it. The court -- the legislature was clearly concerned about spot initiatives. Now, neither side, and I believe the real parties in interest in their papers, argued substantial compliance. It wasn't raised in oral argument, but L believe that given the procedural steps and the time frames articulated by the legislature, including the right to public comment and a specific time frame for the public to comment, the court does not believe the doctrine of substantial compliance applies. Moreover, even if it did, the court finds no substantial compliance. Reaching out to stakeholders is not sufficient. It's not equivalent to an opportunity to comment on a revised measure. Mailing a letter is not equivalent to pushing a button on a Web site. And more 41 LISA A. BUSATH, RPR, CSR NO. 10751 41 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 17:04:30 17:04:55 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 42 42 importantly, there was no opportunity to change or amend the measure in response to any comments received to the amendment. So for all these reasons, the court will issue a peremptory writ of mandate. Mr. Hiltachk, do you have a proposed order? MR. HILTACHK: We do, your Honor, but I believe the Attorney General's office has a form that they prefer too that we were going to look at. So we will do that right now and provide that to you. THE COURT: Okay. We can do that. Do you want me to stay to sign it? MR. HARRISON: If you wouldn't mind, your Honor, we would appreciate that. THE COURT: Okay. Just let the staff know when you're ready. (Brief interruption.) (Whereupon the proceedings were concluded for the day.) ---000--- 42 LISA A. BUSATH, RPR, CSR NO. 10751 42 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS Pi pt Me s. er e 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 43 CERTIFICATE OF CERTIFIED SHORTHAND REPORTER STATE OF CALIFORNIA ) COUNTY OF SACRAMENTO —_ I, LISA A. BUSATH, hereby certify that I am an Official Certified Shorthand Reporter, and that at the times and places shown, I recorded verbatim in shorthand writing all the proceedings in the following described action completely and correctly, to the best of my ability: Court: Superior Court of California, County of Sacramento. Judge: HON. SHELLEYANNE W.L. CHANG, Department Number 24. Case: CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, et al., Petitioners, vs. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, KAMALA HARRIS, et al., Respondents, Case Number 34-2016-80002293. Date: WEDNESDAY, FEBRUARY 24, 2016. I further certify that my said shorthand notes have been transcribed into typewriting, and that the foregoing pages 1 to 42, inclusive, constitute an accurate and complete transcript of all of my shorthand writing for the dates and matter specified. I further certify that I have complied with CCP 237(a) (2) in that all personal juror identifying information have been redacted, if applicable. Dated: February 26, 2016. LISA A. BUSATH, RPR, CSR NO. 10751 43 LISA A. BUSATH, RPR, CSR NO. 10751 , 43 SACRAMENTO COUNTY OFFICIAL COURT REPORTERS DECLARATION OF SERVICE BY E-MAIL and U.S. Mail Case Name: Governor Edmund G. Brown Jr., et al. v. Superior Court of the State of California, County of Sacramento No.: 8232642 | declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that sameday in the ordinary course of business. On February 29, 2016, I served the attached DECLARATIONOF PAUL STEIN by transmitting a true copyvia electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system ofthe Office ofthe Attorney General, addressed as follows: Thomas W Hiltachk James Harrison Bell, McAndrews & Hiltachk, LLP Remcho, Johansen & Purcell, LLP 455 Capitol Mall, Suite 600 201 Dolores Avenue Sacramento, CA 95814 San Leandro, CA 94577 tomh@bmhlaw.com harrison@rjp.com I declare under penalty ofperjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on February 29, 2016, at San Francisco, California. N. Newlin YGDOA Declarant Signature SA2016100866 20825462.doc