BRIGGS v. BROWN

Petitioners, Ron Briggs and John Van de Kamp, Opposition

Cal.January 12, 2017

EY "eh t po ae re \e f ; a Case No.: $238309 i Soe sa we ta wig j tsa e . PX PT bye eOpy i bet IN THE SUPREME COURT SUPREME COURT OF THE STATE OF CALIFORNIA FILED Ron Briggs and John Van de Kamp, JAN 12 2017 Petitioners, Jorge Navarrete Clerk | Vv. Deputy Jerry Brown,in his official capacity as the Governor of California; Kamala Harris, in her official capacity as the Attorney General of California; California’s Judicial Council; and Does I through XX Respondents. PETITIONERS’ OPPOSITION TO MOTION TO INTERVENE ORRICK, HERRINGTON & SUTCLIFFE, LLP Christina Von der Ahe Rayburn (No. 255467) Lillian Jennifer Mao (No. 267410) 2050 Main St., Suite 1100 1000 Marsh Rd. Irvine, CA 92614 Menlo Park, CA 94025 Telephone: (949) 567-6700 Telephone: (650) 614-7400 Fax: (949) 567-6710 Fax: (650) 614-7401 e-mail: cvonderahe@orrick.com e-mail: Imao@orrick.com Attorneysfor Petitioners Ron Briggs and John Van de Kamp TABLE OF AUTHORITIES Page(s) Cases City & Cty. ofSan Francisco v. State, 128 Cal. App. 4th 1030 (2005) 0... eeesecescsssscescesscesecsessessssesssssesecesseseseseesnees3 Perry v. Brown, 52 Cal. 4th 1116 (2011)...eseceeeeneessssesscessessecsessssessssessesseseees 1,2,3,4 Statutes Cal. Elec. Code § 342...ecsssscscccsssrscsscsssscessesssssessesseeesseesessesssssessenseserscenssasessoeses 1 OPPOSITION TO MOTION TO INTERVENE Petitioners oppose the motion by Californians To Mend, Not End, The Death Penalty - No On Prop. 62, Yes On Prop. 66 (“Movant”) to intervene as respondents. While Petitioners do not dispute that the “official proponent”ofan initiative is generally permitted to intervene in a court challenge of the measure he or she sponsored, see Perry v. Brown, 52 Cal. 4th 1116, 1125 (2011), particularly when named respondents haveelected not to defend the measure, Movantis not the official proponent, and the Respondents in this case have vigorously opposed the petition. For these reasons, there appears to be no basis for Movantto intervene. Movant can | make its arguments equally well as an amicusin this matter. Movant acknowledges that “[a] ‘proponent’ must be a natural person and elector.” Motion at 9 n.1 (citing Cal. Elec. Code § 342). In this case, the official proponent of Proposition 66 was Kermit Alexander, and Mr. Alexander does not seek to intervene. Instead, Movant seeks to intervene as an organization, arguing that the applicable case law regards “campaign committees and formal proponents as equivalent for [purposesofdefending an initiative].” Motionat 12. Movant is wrong. Perry, on which Movant relies, is replete with references to Elections Code provisionsthat relate to official proponents, none of which apply to or bind campaign committees. See, e.g., Perry, 52 Cal. 4th at 1141-42 (concluding “the official proponents of an initiative measure are recognized as having a distinct role—involving both authority and responsibilities that differ from other supporters of the measure”). Perhaps recognizing that the case law does not view formal proponents and campaign committees as equivalent, Movantthen relies on Perry to argue that it should be allowedto intervene as “theofficial campaign committee that was ‘directly involved in drafting and sponsoring the initiative measure.’” Motion at 5 (quoting Perry, 52 Cal. 4th at 1143). The problem with this argumentis that the sworn declarationsfiled in support of the Motion to Intervene do not adequately support this contention. For example, the declaration of Movant’s chairman does not state that Movant wasan “official” committee, and does notstate that Movantparticipated in drafting the initiative measure. Instead, it states only that Movant “worked closely with the proponent” in performing a numberof largely administrative tasks related to the campaign, such as printing and circulating the initiative petitions for signature. See Decl. ofMcGregor W. Scott 2. Similarly, Mr. Alexander’s declaration does not state that Movant was “directly involvedin drafting” the measure. See Perry, 52 Cal. 4th at 1143. Instead, Mr. Alexander states only that Mr. Alexander was a “member” of Movant “[t]hrough the drafting, submission . . , [and] qualification for the ballot” of Proposition 66. Decl. of Kermit Alexander 42. Notably, the official “Rebuttal to Argument Against Proposition 66” states that “Proposition 66 was carefully written by California’s leading criminal prosecutors, the Criminal Justice Legal Foundation and other top 2 legal experts,” with no mention of Movant. See California General Election Tuesday November8, 2016 Official Voter Information Guide, p. 109, available at http://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete-vig.pdf. Similarly, the declarations do not support the Motion’s assertion that Mr. Alexander,as the official proponent of Proposition 66,“directed the participation of [Movant]”in its activities supporting Proposition 66. Motion at 5. The declarations contain no mention ofMr. Alexander directing Movant’s activities or of any position or authority Mr. Alexander held with respect to Movant. Instead, they state only that Mr. Alexander “worked closely” with Movant and spoke at events on Movant’s behalf. Decl. of McGregor W.Scott § 2; Decl. of Kermit Alexander§ 2. The Perry Court distinguished (1) organizations that were “directly involvedin drafting and sponsoring theinitiative measure” from (2) “other advocacy groupsthat ideologically support the measure,” concluding that organizations in the second category generally lack standing to intervene. Perry,52 Cal. 4th at 1143, 1144 n.14; see also City & Cty. ofSan Francisco v. State, 128 Cal. App. 4th 1030, 1039 (2005) (denying motion to intervene | by advocacy group with only “philosophicalor political” interest in defending a proposition). Given that Movant’s evidence does not support its argumentsthatit falls into first category oforganizations, Respondents have no choice but to oppose the Motion to Intervene. Because Movant is not the official proponent, has not demonstrated its direct involvement in drafting and sponsoring Proposition 66, and cannot show that the named 3 Respondents are not adequately defending the measure, Petitioners believe Movant should makeits arguments to the Court as an amicus. If, however, the Court chooses to grant the Motionto Intervene, Petitioners do not concede Movant’sentitlement to attorneys’ fees incurred in defending the measure’s validity, and reserve their right to seek attorneys’ fees from Movant in lieu of the State if Petitioners prevail. Cf Perry, 52 Cal. 4th at 1161 (declining to decide attorney fee issues). In addition, because Respondents’ and Movant’s preliminary oppositions total 19,173 words, Petitioners reserve the right to seek permissiontofile a reply brief of similar length. Dated: January 12, 2016 Respectfully submitted, ys Christina Von der Ahe Rayburn Lillian Mao ORRICK, HERRINGTON & SUTCLIFFE LLP Attorneysfor Petitioners Ron Briggs and John Van de Kamp CERTIFICATE OF COMPLIANCE In accordance with California Rules of Court 8.204(c)(1) and 8.486(a)(6), counsel for Petitioners hereby certifies that the number of words contained in this Opposition to Motion toIntervene, including footnotes but excluding the Table of Authorities, signature blocks, and this Certificate,is 848 wordsas calculated using the word count feature of the computer program usedto preparethebrief. By: —~#=—— Ne LILLIAN JENNIFER MAO PROOF OF SERVICE BY FEDERAL EXPRESS I am more than eighteen years old and not a party to this action. Mybusiness address is Orrick, Herrington & Sutcliffe LLP, The Orrick Building, 405 Howard Street, San Francisco, California 94105-2669. On January 12, 2017, I served a true copyofthe attached documententitled: PETITIONER’S OPPOSITION TO MOTION TO INTERVENE by placingtrue and correct copies thereof in sealed packages designated by Federal Express for that purpose, with such packages addressed for delivery as follows: Jerry Brown GovernorofCalifornia c/o State Capitol, Suite 1173 Sacramento, CA 95814 Kamala Harris Attorney General of California Office of the Attorney General 455 Golden Gate, Suite 11000 San Francisco, CA94102-7004 (415) 703-5500 . Judicial Council of California 455 Golden Gate Avenue San Francisco, CA 94102-3688 415-865-4200 I declare under penalty of perjury underthe lawsofthe State of California that the aboveis true and correct. cisco, California.Executed on January 12, 2017,Cy JEFFREY BALL