BRIGGS v. BROWN

Petitioners, Ron Briggs and John Van de Kamp, Reply to Preliminary Opposition

Cal.January 23, 2017

Case No.: $238309 IN THE SUPREME COURT SUPREME COURT OF THE STATE OF CALIFORNIA FILED JAN 2.3 2017 Ron Briggs and John Van de Kamp, “2 Jorge Navarrete Clerk Petitioners, i, Deputy Jerry Brown,inhis official capacityas the Governorof California; Kamala Harris, inherofficial capacity as the Attorney Generalof California; California’s Judicial Council; and Does I through XX Respondents REPLYIN SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF ORRICK, HERRINGTON & SUTCLIFFE, LLP Christina Von der Ahe Raybum (No.255467) Lillian Jennifer Mao (No. 267410) 2050 Main St., Suite 1100 1000 Marsh Rd. livine, CA 92614 Menlo Park, CA 94025 Telephone: (949) 567-6700 Telephone: (650) 614-7400 Fax: (949) 367-6710 Fax: (650) 614-7401 e-mail: evonderahe@orick.com e-mail: Imao@orrick.com Attorneysfor Petitioners Ron Briggs and John Van de Kamp Case No.: 8238309 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Ron Briggs and John Van de Kamp, Petitioners, V. 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. REPLY IN SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF 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 Il. II. TABLE OF CONTENTS Page INTRODUCTION 0... cecccscesssesssessseceseesessesessessesssscseeeaecaeseeessscsesseassusscssseecsasens 1 PROPOSITION 66 IMPAIRS THE JURISDICTION OF CALIFORNIA’S COURTS.won. cccessecssscsessessstaceseenesessssseseesssssensssessessesesacsssesaecaesceseessssssussevansecsceeasensass 2 A. Proposition 66 Impairs the Courts’ Original Jurisdiction in Capital Habeas Corpus Petitions, ...........ccccscssssssscssescesesessssecescssesssssssssssssssscsveceeseaeeas 3 1. Ti Re Ker coe ceeececcssssscsssssecescssessessesscscessesessessccessescssssssesstassasessacesaessnes 3 2. Griggs And RODESES .....cceccsccssessecesscssssessssssessesseseseseesessssessssestsveceessees 4 3. Proposition 66 Is Comparable to the Statute Invalidated in KO, ce eeecesesscenecscecesceseesescesseesessssescessesessssesecasceteseesesecsscssveccesststacesseees 9 B. Proposition 66 Impairs the Courts’ Jurisdiction Over Method-of- Execution Claims. ..0.....ccceseesessssessesesssscsecsesesessesssesseseesesecsesececsssecsssstscarenees 10 C. Proposition 66 Impairs This Court’s Appellate Jurisdiction Over Judgments ofDeath...cssssssssesesssseeessescsessssessccsscsesssssssesssssssassssereessees 11 PROPOSITION 66 VIOLATES THE SEPARATION-OF-POWERS DOCTRINE.....ccccccssesessesesssseeeecesseseestescessssesessssecseesseseesaecsesecsescesescesseseseesssenees 12 A. The Portions of Proposition 66 That Impair the Courts’ Jurisdiction Also Violate the Separation-of-Powers Doctrine. ..........cccccccssssssessesereesees 12 B. Several Additional Provisions Violate the Separation-of-Powers DOCUrINe....eee eeeeesceseeeseneseeseeeseceesecssssssessssaesssecsessesseessesssesssessassssssesessaceaee 13 C. Proposition 66 Imposes Improper Time Limits and Priorities on the COUPES. 0.eeeeseescecccsccesceesssesscersececsussssssessssssencesesessecsssessessesscssesascuccsssessaeeeees 16 1. Shafter-Wasco and Engram .o.cccccccsccssssessvsscscssssscsscssvsssscssscesssessesnees 16 2. The Time Limits Are Either Impossible to Meet or Would Improperly Force Courts to Prioritize Capital Matters Over Other Matters. 0...cecsssssssesessessssessessssssessseseessescssseucsscessscsssevsasecs 18 a. Automatic Appeals in the Supreme Coutt.............cccscseeeee 19 b. Habeas Review in the Superior Courts............c:ccscsssseeeeees 22 C. Appointment of Counsel ........cc.ccescssessessssscsesssessssssstssssescees 26 Proposition 66’s IncursionsInto the Courts’ Inherent Authority Are Mandatory..........cccscsssscssssesscssessssescssssssssessessvsvsesesees 28 The Time Limits and Priorities Are Unconstitutional on Their FACE. ...eesesescesseseessscsessceesesesscesesecseensscsessesesesscsenessesssecsecseiaessseseceescas 31 ea ta ie l E s 1 b ai nd ai yt ian c e IV. VI. VIL. TABLE OF CONTENTS (continued) . Page D. Proposition 66 Unreasonably Impairs the Courts’ Constitutional and Inherent Authority to Consider Successive and Untimely Petitions........... 32 PROPOSITION 66 VIOLATES THE CONSTITUTIONAL MANDATE THAT AN INITIATIVE MEASURE NOT EMBRACE MORE THAN ONE SUBJECT......cccsesssssssssssessssssssssssessescsesesessesessssnseesescscssssevsucsrsssscansvsavavacaeneees 36 A. Any Subject That Encompassed All of the Provisions of Proposition 66 Would Be of Excessive Generality..........cccccccccscssesccsesssscsscscescssssesessees 37 B. Proposition 66 Impermissibly Includes Provisions Not Reasonably Germane to Expediting Death Penalty Appeals. ..............ccccccsssssssessssseeees 39 Cc, Victim Restitution Is Unrelated...............cccesceeees seseeeeseseeaesececeneeenseenseeeates 40 D. The Administrative Procedure Act Is Unrelated...........ccccscssssssesessscesceees 4l E. Medical Licensing Standards Are Unrelated. ............ccccccscssssssssesseesdeveeeaees 42 F, Disbanding Unpaid Board of Directors Is Unrelated........seeasatseesaeseeeeaeaeees 43 PROPOSITION 66 VIOLATES THE EQUAL PROTECTION CLAUSES | OF THE U.S. AND CALIFORNIA CONSTITUTIONS. ..........cccscssessesscesssessseees 44 A. Proposition 66 Narrowsthe Availability of Successive Habeas Petitions for Capital Defendants Only...............cccsccssscsssscssesscsssesvessesevssae 45 1. Successive Petitions Prior to Proposition 66 ..........:c:ccccssssscessesseees 45 2. New Pen. Code §1509(d) Limits Successive Habeas Review for Capital Defendants. ............ccssesssssscsssscessesscssssssessecesssessccssescaesses 46 B. ~ Capital and Non-Capital Prisoners Are Similarly Situated in This CONTEXT.osesceecceeseecesceseeseseseesecssessessssseeseenessessceseesseseseeseesasessescesensnsas 48 C. There Is No Rational Basis Related to a Legitimate Government Interest for Dissimilar Treatment of Capital and Non-Capital Petitioners Bringing Successive Habeas Claims. .............cccccccsscsssesesssssreeees 49 THE CHALLENGED PROVISIONS OF PROPOSITION 66 ARE NOT SEVERABLELu...ceeecesseessetesseseesseessecessecseeseessessessssessesaeeseecssseeussesessessessssaceusceass 50 A. Grammatical Severability ............cccssccscescssesscssccescsssssscesssssssecsccssssnseaseeesees D2 B. Functional Severability... cccssssssssesssssesessessesesscseesecscsssscssssssssesessseenas 52 Cc. Volitional Severability 00... ccccsecsssscssessesesesscssessessesscssecsessssesessssessesenseeeeees 53 CONCLUSIONoccesecssscssencesssaeseesacseescsssssessssssessessecasesesseesessssecsesetssscessecscsass 55 -ii- TABLE OF AUTHORITIES Page(s) Cases Allen v. Butterworth, 756 SO. 2d 52 (2000) 0... eecesessersesesseesseeessesesssenssesessnsstenececsneseseseesensaees 35, 49, 50 In re Anderson, 69 Cal. 2d 613 (1968)...........deeseuecacecessguncecssesssessecsseseeaesceseseneeenseuseesseecesees 9,10 In re Bacigalupo, 55 Cal. 4th 312 (2012) woecccccessesessseecsscsscssessessesessesesesseesssesecsessssssecaseaees34 Broderick v. Sutherland, 94 Cal. App. 2d 694 (1949)occcsesesscccsssessessessssesssesssesseaesNaceseeeteeaeeseeesees30 Brosnahan v. Brown, 32 Cal. 3d 236.0... cecescsccssesscscsssssesecsessessssssessesesssseeseecsesseeeeecsessssessasess 37, 39 In re Brown, . 17 Cal. 4th 873 (1998)ou... cece cccsessscssesessececseecenesecssessccssscsssssassssesssesscesssrorsseess 34 Brydonjack v. State Bar ofCal., 208 Cal. 439 (1929) oo... ccscccscessssssssssesseeesseeseseseessssessesessscrsceeceaees 12, 16, 27, 28 Cal. Trial Lawyers Ass’n v. Eu, 200 Cal. App. 3d 351 (1988) un.ecesscssecsseessseseessesesssseesessserersses 36, 37, 38, 41 Calfarm Ins. Co. v. Deukmejian, | 48 Cal. 3d 805 (1989) occccccssesssscssescessecsenseesessevsussceseessucecacsecsstsssssaeeas 51, 53 In re Carpenter, D Cal. 4th 634 (1995) ooeesccssssssssssssesecsssesseesseneesssecseescecsecssscstesessscensassneseeass 11 City ofCleburne v. Cleburne Living Ctr., A473 U.S. 432 (1985) oo. ecccscescesssssssesseseseescsecseesscseesssseseeseecescstecsecsessssestsssensssoase44 In re Clark, 5 Cal. 4th 750 (1993)... cesccsssscsscsscsessesscessesssecseserscsesseccssseuseeacess 33, 45, 46, 47 In re Estate ofChadbourne, 15 Cal. App. 363 (1911) wo...cee ccecsssssscesssecsecsscssessseeseeseessecsecesecsesssssesssesesaseaes 10 ili Felker v. Turpin, 518 U.S. 651 (1996) oo. cssssetesssssssesscsesssssscsesssseseseessssseetessecseseeasenssesses 34, 35 Garrison v. Rourke, 32 Cal. 2d 430 (1948) oo. cccssssssesessseesseesssssssesessssssesseeessesseessesstsessestsensasenns 16 Gerawan Farming, Inc. v. Agric. Labor Relations Bd., 247 Cal. App. 4th 284 (2016)... cescssesssssessessssssecsseesseeeseeessessesseseuceuseesssens2 Gerken v. Fair Political Practices Comm’n, 6 Cal. 4th 707 (1993)... ceescscssssssscsssssssesecssessesssscsesseessecsesseesseeseseeeensessaes 51, 54 Griggs v. Super. Ct. ofSan Bernadino Cty., 16 Cal. 3d 341 (1976) wc... cee eccescsscesseeseeecssesssesscsscsecseeceeucsssreesscsesssesesenss passim Harbor v. Deukmejian, 43 Cal. 3d 1078 (1987) 00... eecscssseteeeees secvecerscesatsceecencessaeeonerseeseuetntesesneestessees36 Hill v. McDonough, 547 U.S. 573 (2006) sooeeeasessneensensessneessseensensecssessssnnirsneeesensssesseesseessuessaeeeee| | Hotel Emps. and Rest. Emps. Int’l Union v. Davis, 21 Cal. 4th 585 (1999) ooecccssscesscssesesssesecsesessesessseecssessesseneessssesseeecassessesans 54 Kabran v. Sharp Mem’I Hosp., Sup. Ct., Case No. $227393 (Jan. 19, 2017), available at http://www.courts.ca.gov/opinions/documents/S227393.PDF........:secs 29, 31 Keanev. Smith, | A Cal. 3d 932 (1971)eee ccccccscssesesesssessesesssssssessssesssseessesseeateceesseseseseseeneueseses 16 - In re Kler, 188 Cal. App. 4th 1399 (2010)...ccssssssecsesessesssessesscseeeseeesseesseeess passim Landis v. N. Am. Co., 299 U.S. 248 (1936) oo... ceccscssssssesssccessscccsssevssseseeessssuessesessesessuesccssessessseeresenees 12 Lewis v. Super. Ct. ofSan Bernadino Cty., 19 Cal. 4th 1232 (1999)oicseeeeceesseneesstenetessessseseccerseceesseesesseseseasereeseees36 Lorraine v. McComb, 220 Cal. 753 (1934) oo. cccicccestscssessrsesssecsssesesscsesssesssesseeesssscsscatsusssesesssenes 15, 31 Lott v. State, 334 Mont. 270, 274 (2006)........cccessessscessecerseseessssessesseeeseeesenes paseassauestenseseeueens35 iv Metromedia, Inc. v. City ofSan Diego, 32 Cal. 3d 180 (1982) sssossssssssscsesssssssssssesssssnssesssseesassestassssesasstsesaassese53 Millholenv. Riley, 211 Cal. 29 (1930)oeceecesecseesssseesssessesssscssssessesseseessuensessecnaeeessesesseteneeeaees 16 In re Miranda, 43 Cal. 4th 541 (2008)0.eccscsccssceecsseesessssesseseecssssecssesssesssssessesseseessesesessD4 | Morales v. Cal. Dept. ofCorr. & Rehab., 168 Cal. App. 4th 729 (2008)... cecccssessssescssesssessscsseessesseseesseeesessesecseesesessaess4] People’s Advocate, Inc. v. Super. Ct. ofSacramento Cty., 181 Cal. App. 3d 316 (1986)ooecccsscetessesesssseersassssesseees sestaseestscneraeeees 51 People v. Bigelow, 37 Cal. 3d 731 (1984).........saeseeeanecestesseeesaceecessaseesscesseeseesesseeauecsssssasenssatenevenens49 People v. Engram, 50 Cal. 4th 1131 (2010)...eccsecssecsseesessssessssecssesseseseesseeseerecasens passim People v. Frierson, 25 Cal. 3d 142 (1979) ooceesccsssscssecsseeeqeessesssseseessessesseesseeescsssacstensessssessuseees 8 People v. Romero, 8 Cal. 4th 728 (1994)oeccsssssseecseesssessecssssesssscsseessssesssecesscssssesscsecseerseseuces3 People v. Trinh, . 59 Cal. 4th 216 (2014) oo.cessesseessecesseessesesssesssesseessessesseesesesessesscseenseseeseeess9 Raven v. Deukmejian, 7 52 Cal. 3d 336 (1990)... eecsssscssssscsecessecsssessessssssesesesssseesseseecesesseseesesevess 50, 51 In re Reno, 55 Cal. 4th 428 (2012) oooeescsccscecsssesseesresesesssssesessessssesesesseseesetare 11, 33, 49 Rice v. Super. Ct. ofL.A. Cty., | 136 Cal. App. 3d 81 (1982)oeccesecsseeeceesesseeeessacovactensonaneeraneaesssassnsaascsocs29 In Re Richards, 55 Cal. 4th 948 (2012) ooo. ecccccscescesseesecesesccsnsseessessessessessessesssesaesssessrseeseens47 In Re Richards, 63 Cal. 4th 291 (2016)...eecccescceeseeseseeenseseseseesessesnesessassesessensesaees 47, 49 In re Robbins, 18 Cal. 4th 770 (1998) 0... ccssceceessessssnssesssscssssssesssssssssessessssssnesessseseeseeseeeenenees33 In re Roberts, | 36 Cal. 4th 575 (2005) ...cccescessccssesscsccsscssesscssssessesseessssseseussassscseavevsusnaes passim Senate ofthe State ofCal. v. Jones, . 21 Cal. 4th 1142 (1999)osceseesseseetecsetetsseseeeesseessessessessserssesesees passim In re Shafter-WascoIrrigation Dist., 55 Cal. App. 2d 484 (1942) uo. ccccesssesesseessessessesseessecesesssecseeesesssssesseass passim State v. Noling, No. 214-1377, 2016 WL 7386163, slip copy (Ohio Dec.21, 2016).......... 48, 50 Thomasv. Driscoll, | 42 Cal. App. 2d 23, 27 (1940) oo.eeeceecsseseeseecseseeseesceeeeseeeeeesseessersaessssaeseees30 Thurmond v. Super. Ct. ofthe City and Cty. ofS.F., | . 66 Cal. 2d 836 (1967) oo...cc ssesesssecseesceseseccsesscseseeseseeseessseneesensseeeeeeeeseeeees 16, 31 Statutes 42 U.S.C. §1983 sestsststiatiseuatanasistiatianissisnsnunanee ssesesecaeessesecsseerecseeneeaeteesaes 11 Administrative Procedure Act (“APA”) ........ccccssscssessecessecesescsseeessscssessesesusees 37, 41 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)............. 34, 35 Cal. Pern. Code §1473 ...... ec ccccssccsssccsscescenscecesssccessesseesceesessessesesnssesssess«. 45, 46, 47 Cal. Pen. Code §1473(3)(3) oeseessessesesseesesneseecesesnsceesceneseeseseeseesetessecseeessseeeeee47 Cal. Pen. Code §1473(e)(L)esssssssscssssesessssssssssssssssssssssessssssssessasssssasesssssassaseseceseee47 Cal. Rule of Court 8.385(C)(2) occessesesseeseseeseeseseesessesecsceneseessenessessesessesesseesesenss3 Gov’t Code §68660.5 oo. ecceesesssesssssecseeserssesssececeeeseeseeseesecsseeeeneeesseesseasseseesaeaes1S GOv’t Code §68661(a)........ccscssssessssssssssssssscsseessessessssessscesscnseatessecseesscsssesssscenesesees52 Gov't Code §68661 (I) .asssssssesstatistusististiesistntntatissintssintietnneneesense4B Gov't Code §68661.1 oo.ccscseesesseecsesseeseeseesceetacsecseeesesseseeseesesseeseessseeseeesetenses 52 GOv’t Code §68662 0... eeseseesscseccesseecsecsreecscessscseeseeesesaeeesseeesaesnssrseees 9, 14; 52 Gov't Code $68662(a)...cccsssssssssssssscsscsssssseveessssssssessesseccenssssuvereuseseeeeeseestsssssssssseseeen52 Gov't Code §68664(a).......eccssesssesecseetsesetsssessestessesessesseceaseecsesesaeesseeseeseesesenses44 Gov’t Code §68664(b).....ccccccsssssssesssessssssesseessecsssesssseaseaseesssesssessessessecssutesueanvensens43 Gov’t Code §68665(Db) ........cesssssccssesstecsssesessecsseeesseceeeessenesanesseseeneaeeseneeseseesseesenens27 Pen. Code §190.6(d)........cecesssessssssssessscsssessessessesssessesessesasessssesseseeees“eseeoeesees passim Pen. Code §190.6(€) occccecseesscesssssescsessesessesessssssesecaesseseessensecsesecseseseses 14, 30, 52 Pen. Code §1239.1(a) ......ccecsssssscssccssssessseessesscsscssesssseseessnecsecseesscesesaseresieeecascas passim Pen. Code §1239.1(D)oo.esssssenscssssseessseessceeeseseseeaeeesseeseeseesusasseneteeneesenes 14, 26 Pen. Code §1473 ......cccccssccssssssessssesssesseeessreessecssessesessesesseeeeeesseevsesesessausesess 46, 47 Pen. Code §1485.55 cescccccssssssssssssessssessesssestssnecssssssseeseeneenvesessessasesecsssessssessneentenses45 Pen. Code §1506 .0......cceccccsscssssscsssesseesssescssneessessssesecesseessssesensesseseseesseseesssssesaeesaees 11 Pen. Code §1509 occcscesssssssssseessccsessenessecsssesesseesesaeseeenasscenssesseseseassesseeneaesee 52 Pen. Code §1509(a)..........cccsssssssssssseesseessesecsseceseeseresseesseeecsscesseesecessscssssessases passim Pen. Code §1509(b)...... eesesssscssesesessssesscecsseseesesesencesesesesssesesssseaesceeesesseeeessssesensns 52 Pen. Code §1509(C) cssscsccsssssssucsssssssssssssseseessesssssssssseceseeseseeseeeeseesasssssssesssseeees 14, 52 Pen. Code §1509(d) ou... ee csssessscsssssessesssesssessssssssssssecsssssesesscsseaeeateseesecnseeeseees passim Pen, Code §1509(6) sccsssssunusssssiesstissesuitisisisitisuan“eee52 Pen. Code §1509(£) occesseccsscsseeseeeeesseesscseesaecssseesecenessnesassaesseseeeeees 15, 22, 29, 52 Pen. Code §1509(8)... eescssccessesseecsssesscssssesssessssessssesssssesssssseeeessssessessssesescsanees 52 Pen. Code §1509.1 sntstststnsttaitiseiesae sesseesceeeseeeseeeasessecaceseeseensessesees 7, 52 | Pern. Code §1509.1(D)....eecsecssesesseeessesessesesessesesscsssssssessneseeseeasenessesesessesssssesesnesees 11 Pen. Code §1509.1(C)eeeeescesssssscseseesseeescsecscassceceaessseeeseeseersacseseees 11, 13, 15, 18 Pen. Code §3604 00... eecsccsscssssscsscsssssecssesessscssessestesseesseeseectsesesenseessseasenseuseasenseeses41 Pen. Code §3604.1(a) ...cccccccsssscsssssssssssscsessssscsssesssecscscacesacssscecscseaneeseeassseeeseseeseneees4] Pen. Code §3604.1(C).......ccescsscccssscessecsesseesseeseesseeeseesseesersssetenserseeeeses 10, 13, 15, 53 Other Authorities 2015 Court Statistics Report, available at http://www.courts.ca.gov/documents/2015-Court-Statistics- Report.pdfoo... eeceescssscctecssecesseesseesseesseeseeseesascesesesseeseesessesseessuesessecsseeseesensees21 2016 Court Statistics Report, available at http://www.courts.ca.gov/documents/2016-Court-Statistics- Report.pdfoi...cc ceccsssscsssssssecssecsscsseessssscecesseessessesessesseceeesessessassaeeesesseesseneeeeess21 Arthur L. Alarcon & Paula M. Mitchell, Executing the Will OfThe Voters?, 44 Loy. L.A. L. Rev. .eceececceesssesessessesssesseeseseessessccesecsssesacesstesesensenenes21 Arthur L. Alarcon, Remediesfor California ‘s Death Row Deadlock, 80 S. Cal. L. Rev. 697, (2007)... ceeseseeseseesesecssescsetseseesesseneeerseeceesoreaeseseeeeaneeas 19 Cal. Const. Art. 1, $11 oo.cece escsscsccesssssscecesseccesseeseseseeecsseseuccsarseeecsssrscesecesssanaceeees3 Cal. Const. Art. IL, §8(d)ceeceecseeesseeesesesseeeesessenscsenseeeeseeeeeeeessaseeesassneeasaeees 36 Cal. Const. Art. VI, §10 oeeecsecseeecsessseesesseesecseecsseceesessereecaeteessctseseeseesues 3, 11 Cal. Const. Art. VI, § 11 oecsecsscseeseeseeeesseeeseeseseesseessessesesseesesseeseesessseseseesenees 11 California Commission on the Fair Administration of Justice, Final Report (“California Commission Final Report”) (2008), available at http://digitalcommons.law.scu.edu/ncippubs/1 ..........cscceseeteesteseeeseees 20, 21, 26 Death Row Tracking System Condemned Inmate Summary List, CAL. DEP’T. OF CORR. & REHAB., January 6, 2017, available at http://www.cdcr.ca.gov/Capital_Punishment/docs/CondemnedInmate SUMMALY.PAF ooo... eeeeseeseessececsseecesrsecsnessnecseeesesseeesesseeesuscessensesessecesesseussucanes23 Equal Protection Clauses of the California and Federal Constitutions...................50 Gerald F. Uelman, The End ofan Era, CALIFORNIA LAWYER,Sept. 2010 oo. eeseccesccscseescesssseesescssssesersecssesasersessssesssaeenecaesessesesseseeteeseeseeseeaeeaseneesesanees21 J.C. Oleson, Swilling Hemlock: The Legal Ethics ofDefending A Client Who Wishes to Volunteerfor Execution, 63 Wash. & Lee L. Rev. 147, 156-58, 205 (2006) 0... eecseceeecereeceeeeeseeseeseeteeseseeereeesssaeeeseseasseeseenesens20 Vili Official Voter Information Guide, Argumentin FavorofProposition 66, available at http://voterguide.sos.ca.gov/en/propositions/66/arguments- TebuttalsNt...........ceseesessscesssesesssecseseseesscesscsesssesssesescesssscsessssssesesessess 40, 42, 54 Prop. 66, §2.] ..escccssssssssssssessessesessssessessssesuessessesacsscsesssssenssveacsessecsececsessussssseanens 13, 26 Prop. 66, §2.3 .o..ccccccssssesssscssccceeesesssseesseccseeetscesseeseeseseeseesassssesaessessscssaeeseesseseenecers 13 Prop. 66, §2.10 ssosistitatiatananissnanisane seessesdeesaseasssecensesceeseesaeeseecneseeteneseeseseaeesass 13 PLO. 66, §3 o...eceesccsssccsteseeeeeseeesneesseeees sostenssnesaneessaesssscssneesssecssnseesensnnecsseeseiensiten 53 Prop. 66, §4 coossccsssssessssssssossecesssssesevssssessssssasonsasasesssasasessusesesasessssasnessusassise 54 Prop. 66, §5 oo. eeeeesseccssesessesesensesscesccserscsssessssessesssssessessseseessssssesesntessensenseersenesceaees52 Prop. 66, §6 csscccsssssssessssssssssseessessensssssssssssssssusesasessassssensesiasasssunssssnsee 52, 53 POP. 66, §7 o..ceccssssssssssscserseseeeeetseteresereeseeesatesseeereeesseseeesesaesssseesessceoesearseeseeseatseeees 52 Prop. 66, §8 ......sceseeescsseeeseseeteceeeeeeteneaseeeeseeeeesssevnsoncsebencosesssesessesecsscecesusnecevareneeeataas 54 Prop. 66, §10 snttinnnninnnnnnnnniininnsessesaseeseeseessceteeeetsetaeeaeees 54 Prop. 66, SU] ccssssssssssssssssssssssssesssessssssssssssssssssssessssseuseneneeseee scssustsunuue, 41, 53, 54 Prop. 66, §12ccesccccveccccssssssecsecerssssssscessssssssssvessessesesesssssssssseesesssssssssavesesssssasssveces 42, 54 Prop. 66, §14 oeccecsscsccssseecssecssseesssssssesesesseeeseeensdteeesssanscesseesesesesasessnneeeees 53, 54 Prop. 66, §15 uo... cecccsccssccssesssceessnecssesesseesseessessecessesesesessesesesesssvssseeeeees 43, 44, 53, 54 Prop. 66, §17 oe. eecesssecscsetstssseeescersececeeesseceeeeesseescesseneenesseesecassueeneenetseentenees 43, 53, 54 Prop. 66, $18 vo. cecccccsscsecssssscesacsersceeceescsssestscessseecussensesseseessessssssassesecsessesseneseseses 52 Paula M. Mitchell & Nancy Haydt, California Votes 2016: An Analysis ofthe Competing Death Penalty Ballot Initiatives (“California Votes 2016 Analysis”), Alarcén Advocacy Center, Loyola Law School, July 20, 2016, available at http://www.lls.edu/media/loyolalawschool/newsroom/newsitems/FIN AL%20Alarcon%20Advocacy%20Center%20Report%20Competing Y2ODPV%20Initiatives.pF....ececccsesessseetessessssesssseseeseseseeseeees 19, 21, 23, 25 Senate Bill 1134 oo.ceescscssesecssseccssscssscsscsesssesesseseesescesssecsseseesetereneceees 45, 47 ix Supreme Court Issues Annual Report on WorkloadStatistics for 2014- 2015, Oct. 8, 2015, available at www.courts.ca.gov/33297Htm..........ccceeeeees22 Supreme Court Policies Regarding Cases Arising from Judgments of Death, Timeliness standard 1-1.2, available at http://www.coutrts.ca.gov/documents/PoliciesMar2012.pdf............cccesecessersees33 I. INTRODUCTION Proposition 66 camebefore the voters as an alternative to Proposition 62. While Proposition 62 argued that “California’s death penalty system has failed”and that its elimination would “save $150 million per year,” Proposition 66 sought to convince Californians that the broken system could befixed. The primary group supporting Proposition 66 is called “Californians to Mend, Not End, the Death Penalty—No on Prop. 62, Yes on Prop. 66.” They argued in support oftheinitiative that “[t]he solution is to MEND, NOT END,California’s death penalty,” and that Proposition 66 would “speed up the death penalty appeals system” and “save[| taxpayers money.” They won. Proposition 66 passed with 51.1% ofthe vote. Proposition 62 failed. Proposition 66 purports to “speed up the death penalty appeals system” by materially impairing the courts’ constitutional jurisdiction over death penalty matters, as well as their inherent authority to control their dockets. Petitioners challenged it for those reasons, as well as on single- subject and equal-protection grounds, identifying sections that improperly: (1) limit the courts’ ability to review death penalty judgments; (2) force the courts to act within impracticable time limits; and (3) force the courts to unduly prioritize death penaltyjudgments over other important matters. Proposition 66’s proponents now arguethat the challenged sections of Proposition 66 are constitutional because they are mere suggestions not 1 binding on the courts. Intervenor Opp.at 27-28, 37, 38, 40-41, 42; see also Respondents’ Prelim. Opp.at 8-9, 13. Thereis a logical inconsistency here. Either Proposition 66 was enacted to speed up the death penalty system— including by forcing courts to act within certain deadlines andprioritize death penalty matters—orit wasn’t. Andif it wasn 7, one questions what the true purpose ofthe initiative was. Respondents and Amici Deputy District Attorneys agree that this case is of “sufficient public importance” to meritthis Court’s exercise of its original jurisdiction. See Prelim. Opp. at 7; Deputy DA Briefat 2. Petitioners respectfully ask this Court to issue a writ ofmandate and declare Proposition 66 null and voidin its entirety. In the meantime, Petitioners respectfully request that the Court leave the pending stay in place. IJ. PROPOSITION 66 IMPAIRS THE JURISDICTION OF CALIFORNIA’S COURTS. Where “original jurisdiction has been vested in [the] courts by the California Constitution, the Legislature is not free to defeat or impair that jurisdiction.” Gerawan Farming, Inc. v. Agric. Labor Relations Bd., 247 Cal. App. 4th 284, 294 (2016). To the contrary, a statute may only restrict the jurisdiction of the state courts “where the Legislature’s authority to enact such laws was found to be expressly or impliedly granted by other constitutional provisions.” Jd. In this case, Proposition 66 clearly defeats or impairs: (1) the original habeascorpusjurisdiction of the California courts in capital cases; and (2) | the appellate jurisdiction of the Supreme Court over judgments of death. Because Respondents haveidentified no constitutional provision granting the legislature authority to so limit that jurisdiction, Proposition 66 is unconstitutional. Cal. Const. Art. I, §11; Cal. Const. Art. VI, §10. A. Proposition 66 Impairs the Courts’ Original Jurisdiction in Capital Habeas CorpusPetitions. J. In Re Kler In re Kler, 188 Cal. App. 4th 1399 (2010), provides an example of a rule that, like Proposition 66, improperly limited the state courts’ original jurisdiction in habeas corpus proceedings. That case dealt with then-Rule of Court 8.385(c)(2), which provided: [A] Court of Appeal must deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner’s suitability for parole if the issue wasnotfirst adjudicated by thetrial court that rendered the underlying judgment. In re Kler, 188 Cal. App. 4th at 1402. The K/er court foundthat rule to be “inconsistent with the California Constitution to the extent it requires petitions for writ of habeas corpus challenging denial of paroleto be first filed in the superior court.” Id. at 1404. The court noted that a Court of Appeal—‘“like all courts in California—hasoriginal jurisdiction in writ proceedings,” and that this “‘original jurisdiction’ meansthata petition for writ ofhabeas corpus maybefiled in the first instant in the superior court, Court of Appeal, or the California Supreme Court.” Jd. at 1403 (citing People v. Romero, 8 Cal. 4th 728, 737 (1994)). The court further emphasized the difference between “[h]aving original jurisdiction and exercising it.” Id. at 1403. The court concluded that while a Court of Appeal may decide, in its discretion, not to hear a case that was notfirst presented to the trial court, a rule or statute may not direct that such a court “must”refuse to hear that case. Id. at 1404. 2. Griggs and Roberts Onthe other side of the spectrum, Griggs v. Super. Ct. ofSan Bernadino Cty., 16 Cal. 3d 341 (1976), and Jn re Roberts, 36 Cal. 4th 575 (2005), provide examples of Court statements that did not limit the courts’ original jurisdiction in habeas corpus proceedings. Griggs dealt with which county superior court should hear an inmate’s habeas corpuspetition. After a 1966 constitutional revision eliminated any“territorial limitation on the jurisdiction of superior courts to entertain petitions for and to grant relief in habeas corpus matters,” the Griggs Court decided to “provide rules ofjudicial procedure to be followed by superior courts in the exercise of [their] unlimited jurisdiction.” Jd. at 343, 36-47. The Court identifed particular types of cases that a superior court “should”transfer to another superior court after accepting the petition and determining whetherit states a prima facie case for relief. Id. at 347. The Court concluded, however, that “unless there is substantial reason for transferring a petition it should be entertained andresolvedin the court wherefiled.” Jd. at 347. Following on Griggs, Roberts addressed which superior court should hear an inmate’s habeas corpuspetition challenging a denialofparole. Roberts reemphasizedthe holding in Griggs that “[i]n general, a habeas corpuspetition should be heard and resolved by the court in which the petition is filed.” Roberts, 36 Cal. 4th at 585. The Roberts Court then noted its “inherent authority to establish ‘rules ofjudicial procedureto be followed 3399by superior courts’” and “direct[ed]” that: (1) a habeas corpuspetition challenging the denial of parole that is filed in superior court “should” be transferred to the superior court in the county of commitment; and (2) “amongthe three levels of state courts, a habeas corpus petition challenging a decision of the parole board should befiled in the superior court, which should entertain in the first instance the petition.” Jd. at 593. Respondents and Intervenor arguethat the language in Proposition 66 does not impair the courts’ jurisdiction because new Penal Code §1509(a) is more similar to the language in Griggs and Roberts than it is to that invalidated in Kler. Prelim. Opp. at 9-12. Respondents are wrong. Asa preliminary matter, Respondents ignore that Petitioners have challenged not only new §1509(a), but also the way in which it interacts with other portions of Proposition 66. Additionally, there are several important differences between the Court’s statements in Griggs and Roberts and new §1509(a). The statements in Griggs and Roberts upon which Respondents rely are single statements pulled from lengthy judicial opinions, and those opinions take pains to make clear both: (1) that the courts should generally 5 exercise their jurisdiction over the cases brought before them; and (2) that the decision to transfer is within the courts’ discretion. See, e.g., Griggs, 16 Cal. 3d at 347; Roberts, 36 Cal. 4th at 579-80. Those Courts emphasized those points precisely because they were aware that, without such context, their opinionsrisked infringing on the jurisdiction of the courts. See Griggs, 16 Cal. 3d at 346-47 (balancing habeas corpusjurisdiction with the Court’s right to provide rules ofjudicial procedure); Roberts, 36 Cal. 4th at 593 (same). The judicial statements in Griggs and Roberts that a court “should” transfer a petition to another court are thus read within that context. Proposition 66, on the other hand, provides no such careful context for its statutory mandate that a court “should” promptly transfer a habeas petition to the court that imposed the sentence. New Pen. Code §1509(a). To the contrary, while the force of the rulings in Griggs and Roberts is that courts should generally exercise their jurisdiction over the cases brought before them, the force of Proposition 66 is the opposite. While Griggs and Roberts state that a court should keep a case unless there is a good reason to transfer, new §1509(a) turns this presumption on its head,mandating that a receiving court transfer the case, unless there is a good reason to keepit. There is also a marked difference in kind between Proposition 66 and Griggs and Roberts. Proposition 66 purports to severely limit review of original habeas corpus proceedings at entire levels of the California courts. Neither Griggs nor Roberts did that. Both Griggs and Roberts addressed situations in which it would be appropriate for one superior court to transfer 6 a proceeding to another superior court—they did not purport to remove such cases from superior court review altogether. Indeed, even when Roberts directed that a habeas petition challenging a decision of the parole board should befiled in the first instance in the superior courts (and thus not in a higher court), that directive did not have the force of removing such petitions from the purview ofthe higher courts. Instead, because of California’s collateral review process, such petitions, if denied by the superior courts, would thereafter be filed in the Court ofAppeals. The result. ofRoberts was thus that higher courts wouldstill review original habeas corpus petitions—they would just dosolater. Suchis not the case with Proposition 66. As this Court knows, capital habeas corpuspetitions are regularly filed in this Court in the first instance. The impact ofnew §1509(a) is thus that the Supreme Court should transfer an original capital habeas petition to the superior court that imposed the sentence. But, unlike in Roberts, under Proposition 66 there is no procedure for the Supreme Court to evergetthat original case back. To the contrary, Proposition 66 both: (1) directs that the Supreme Court should transfer those cases away; and (2) eliminates California’s collateral review system. See New Pen. Code §1509.1(a) (“A successive petition shall not be __used as a means ofreviewing a denial of habeasrelief.”); New Pen. Code §1509(a) (“A writ ofhabeas corpus pursuantto this section is the exclusive procedure for collateral attack on a judgment of death.”). The combined effect ofnew §§1509(a) and 1 is thus to severely constrain, if not eliminate, 7 Supreme Court review oforiginal habeas corpuspetitions. This effect is a far cry from the holdings of Griggs and Roberts. Cf. People v. Frierson, 25 Cal. 3d 142, 186-187 (1979) (upholding a death penalty statute enacted by initiative only because the Supreme Court “retain[ed] broad powers of judicial review of death sentences to assure that each sentence has been properly and legally imposed’’). Section 1509(a)’s requirement that the Supreme Court transfer an original habeas corpus proceeding “unless good cause is shown”also merits scrutiny. Griggs and Roberts provided examples of good cause for transferring a habeas corpuspetition to: (1) the superior court that rendered judgement; Griggs, 16 Cal. 3d at 347; (2) the superior court of the county where the inmate is confined,id.; and (3) the superior court of the county of commitment, Roberts, 36 Cal. 4th at 593. None of these examples of “good cause apply to the Supreme Court. The Supreme Court will never be the court that rendered the judgment, nor will it be the superior court of the county where the inmate is confined. To evaluate the impact of Proposition 66, then, it is necessary to evaluate what could constitute “good cause”to keep the case in the Supreme Court. To be sure, this Court could say that, becauseof its deep experience in capital habeas matters and death penalty | appeals, there is always “good cause” to keep the case in the Supreme Court. Short of such a statement,it is difficult to imagine what meaning the Supreme Court could give “good cause”that would notresult in the large bulk of original habeaspetitions being transferred away. 8 Further, the impact of the revisions to §68662 cannot be ignored. Proposition 66 revises §68662 to mandate that the superior court, not the Supreme Court, appoint counsel to represent capital defendants in state postconviction proceedings. It is thus yet another componentof a broader schemeto transfer jurisdiction over original habeas corpus matters away from the Supreme Court.! 3. Proposition 66 Is Comparable to the Statute Invalidated in Kler. Respondents and Intervenor argue that new §1509(a) is unlike the statute found unconstitutional in Kler because new §1509(a) uses the word “should” instead of “must.” They argue that this “permissive” language does not infringe uponthe jurisdiction of the courts. This argumentelevates form over function. Asset forth above, the “should” in new §1509(a), whenread in the broader context of Proposition 66, is far more mandatory, and does far more ' The Petition expressed a concern that counsel appointed in the superior court pursuant to new §68662 would only be available to assist inmates in proceedingsbefore the superior court. The Petition based that concern on Jn re Anderson, 69 Cal. 2d 613, 632-34 (1968), which provided that the Supreme Court would appoint counsel for indigent defendantsin capital cases in proceedings before the Supreme Court andincertain other proceedings, but that “[a]ny request for the appointment of counsel in any other proceeding should be addressed to the court in which the proceedingis brought.” (Abrogated on other grounds as recognized in People v. Trinh, 59 Cal. 4th 216 (2014)). Applying the same reasoning to new §68662results.in the conclusion that counsel appointed before the superior court would only be available to assist inmates in that court. Amici Deputy District Attorneys question that reasoning, but provide no counter argumentor authority. Deputy DABriefat 20. 9 h R E T S E , to infringe on the Court’s jurisdiction, than the “shoulds” in Griggs and Roberts, When readin context, the “should” in new §1509(a) operates like the “must” in K/er, and thus must be struck down.” See In re Estate of Chadbourne, 15 Cal. App. 363, 368-369 (1911) (“[T]his doctrine of literalism whichclingsto the letter of a statute and ignores its purposeis not well calculated to promote the ends ofjustice. ... [I]f careful attention is paid to all the provisions of a statute as well as to the conditions which led to its enactment, little difficulty will generally be experienced in ascertaining what wasintended. ... In accordance with this primary rule of interpretation courts have construed ‘may’ as mandatory, giving it the 999meaningof‘shall’ or ‘must.’”) (citations omitted). B. Proposition 66 Impairs the Courts’ Jurisdiction Over Method-of-Execution Claims. New §3604.1(c) impairs the jurisdiction ofall levels of the California courts overoriginal habeaspetitions by providing that “[t]he court which rendered the judgment of death has exclusivejurisdiction to hear any claim by the condemned inmate that the method of execution is unconstitutional or otherwise invalid.” (Emphasis added). Intervenor argues that this section does not impair the courts’ jurisdiction because habeas corpusis not the “appropriate vehicle for method of execution challenges.” Intervenor Opp. at 41. Intervenor is wrong. See In re Anderson, 69 Cal. 2d at 631-632 * This is especially so when one considersthat the rule in Kler related only to the small portion of the Courts of Appeal’s habeas jurisdiction related to parole decisions, while the rule in new §1509(a) is far more sweeping. 10 (rejecting on substantive grounds a method-of-execution argumentraised on habeas); In re Reno, 55 Cal. 4th 428, 463 n.17 (2012) (finding method-of- execution argumentraised on habeasto be premature—not improper); Hill v. McDonough, 547 U.S. 573, 582-583 (2006) (reasoning that method-of- execution challenge could beraised either as a 42 U.S.C. §1983 suit, or in habeas proceedings, depending on the details of the challenge). C. Proposition 66 Impairs This Court’s Appellate Jurisdiction Over Judgments of Death. Proposition 66 also defeats and impairs the Supreme Court’s constitutional appellate jurisdiction over judgments of death. To replace California’s collateral review system for capital habeas matters, Proposition 66 creates a right to appeal initial habeas petitions in the Courts of Appeal. See, e.g., New Pen. Code §1509.1(a)-(c). But according to Article 6, Section 11 of the Constitution, the Supreme Court—notthe Courts of Appeal—hasappellate jurisdiction when judgmentof death has been pronounced.” Anyappellate jurisdiction that lies with the Courts ofAppeal is subject to “that exception.” Jd.; see also In re Carpenter, 9 Cal. 4th 634, 645-46 (1995) (holding superior court’s subject matter jurisdiction over habeas corpus proceedingscould notinterfere with this Court’s exclusive appellate jurisdiction under Art. VI, § 10). Penal Code §1506, which Proposition 66 does not amend and which would directly conflict with new Penal Code §1509.1(a), recognizes this Court’s exclusive appellate il jurisdiction over capital habeas petitions. Proposition 66 thus impairs the Supreme Court’s appellate jurisdiction over judgments of death. Ill. PROPOSITION 66 VIOLATES THE SEPARATION-OF- POWERS DOCTRINE. “The legislature may put reasonable restrictions upon constitutional functionsofthe courts,” but they may not “defeat or materially impair the exercise of those functions.” Brydonjack v. State Bar ofCal., 208 Cal. 439, 444 (1929). Important here, a key element of a court’s inherent authority “to fairly and efficiently administer all of the judicial proceedingsthat are pending before it . . . is ‘the power. . . to control the disposition of the causes on its docket with economyoftime andeffort for itself, for counsel, and forlitigants.” People v. Engram, 50 Cal. 4th 1131, 1146 (2010) (quoting Landis v. N. Am. Co., 299 USS. 248, 254-55 (1936). Multiple provisions of Proposition 66 unreasonablyrestrict this power, and thus violate the separation-of-powers doctrine. A. The Portions of Proposition 66 That Impair the Courts’ Jurisdiction Also Violate the Separation-of-Powers Doctrine. The provisions identified in Section II above as impairing the courts’ jurisdiction also violate the separation-of-powers doctrine. For example, new §1509(a) directs that the Supreme Court transferits habeas proceedings to the superior courts. New §1509(a) even sets forth the standard the Supreme Court should apply in deciding whetherto transfer those proceedings. In so doing, that section materially impairs the powerofthe | 12 SupremeCourt to actin fairness to the litigants before it. The sameis true for new §1509.1(a), which eliminates California’s collateral review system, and thus further impairs the powerofthe Supreme Court to address the needs of litigants before it. See also New Pen. Code §1509.1(c); New Pen. Code §3604.1(c). B. Several Additional Provisions Violate the Separation-of- Powers Doctrine. The stated purpose of Proposition 66is to eliminate “waste, delays, andinefficiencies” in California’s death penalty system. Prop. 66, §2. 1. According to Proposition 66, “[f]amilies of murder victims should not have to wait decades for justice,” id. §2.3, and “[a] capital casecan be fully and fairly reviewed by both the state and federal courts within ten years.” Jd. §2.10. According to Proposition 66, “{ijt is the duty of the Supreme Court in a capital case to expedite the review of the case.” New Pen. Code §1239.1(a). In accordance with these stated goals, Proposition 66 sets forth - several provisions intendedto force the California courts to process capital cases more expeditiously. Both independently and together, these provisions unreasonably invade the California courts’ inherent authority to administer their cases: 1. Pen. Code §190.6(d): “Within five years of the adoption of the [Judicial Council’s rules designed to expedite the processing of capital appeals and state habeas corpus review]or the entry ofjudgment, whicheveris later, the state courts shall complete the state appeal andtheinitial state habeas corpus review in capital cases.’ 13 . Pen. Code §190.6(d): “The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amendthe rules and standards as necessary to complete the state appeal andinitial state habeas corpus proceedings within the five-year period provided in this subdivision.” . Pen. Code §190.6(e): “Ifa courtfails to comply [with the time limit in subdivision (b)] without extraordinary and compelling reasonsjustifying the delay, either party or any victim ofthe offence may seekreliefbypetition for writ ofmandate.” . Pen. Code §190.6(e): “The court in which the petition [for writ ofmandate] isfiled shall act on it within 60 days of filing.” . Pen. Code §1239.1(a): “It is the duty of the Supreme Court in a capital case to expedite the review of the case.” . Pen. Code §1239.1(a): “The court shall appoint counsel for an ‘ indigent appellant as soon as possible.” . Pen. Code §1239.1(a): “The court shall only grant extensions of timefor briefing for compelling or extraordinary reasons.” . Pen. Code §1239.1(b): “When necessary to remove a substantial backlog in appointment of counselfor capital cases, the Supreme Court shall require attorneys who are qualified for appointment to the most serious non-capital appeals and who meetthe qualifications for capital appeals to accept appointmentin capital cases as a condition for remaining on the court’s appointmentlist.” . Pen. Code §1509(c): “Except as provided in subdivisions (d) and (g), the initial petition must be filed within one year of the order entered under Section 68662 of the Government Code.” 10. Pen. Code §1509(d): “An initial petition which is untimely under subdivision (c) or a successive petition wheneverfiled shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissibleat trial, that the defendantis actually innocent of the crime of which he or she was convicted oris ineligible for the sentence. A stay of execution shall not be granted for the purpose of considering a successive or untimely petition unless the court 3 Respondents claim that anamicuscuriaeletter raised new arguments with respect to the separation ofpowers. See Prelim. Opp.at n.2, n.3 (identifying new §§1239.1(a) and (b) as not having been challenged by Petitioners). Wrong. See AmendedPetition at 31-32. 14 finds that the petitioner has a substantial claim of actual innocenceorineligibility.” 11. Pen. Code §1509(f): “Proceedings underthis section shall be conducted as expeditiously as possible, consistent with a fair adjudication.” 12. Pen. Code §1509(f): “The superior court shall resolve the initialpetition within one yearoffiling unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition.” 13.Pen. Code §1509.1(c): “The courtofappeal shall grant or deny a requestfor a certificate ofappealability within 10 days ofan application for a certificate.” 14. Pen. Code §1509.1(c): “An appeal under this subdivision Shall have priority overall other matters and be decided as expeditiously as possible.” 15. Pen. Code §3604.1(c): “The court which rendered the judgmentofdeath has exclusive jurisdiction to hear any claim by the condemned inmate that the method of executionis unconstitutional or otherwise invalid. Such a claim shall be dismissedifthe court finds its presentation was delayed without good cause. 16. Gov’t Code §68660.5: “The purposesofthis chapter are. . . to expedite the completion of state habeas corpus proceedings in capital cases .... This chapter shall be construed and administered consistently with those purposes.” (Emphasis added). These sections all impose impracticable time limits and priorities on the courts and otherwise invade the inherent powerofthe courts to fairly and effectively address the matters before them. See In re Shafter- Wasco Irrigation Dist., 55 Cal. App. 2d 484 (1942) (impracticable time limits on the determination of a case can violate the separation-of-powers doctrine); Engram, 50 Cal. 4th at 1148-1150 (statute requiringa trial court to give complete priority to criminal overcivil cases would violate the separation-of-powersdoctrine); Lorraine v. McComb, 220 Cal. 753 (1934) 15 (statute requiring a trial court to postponetrial if all attorneys of record agree to such postponement would violate the separation-of-powers doctrine); Thurmond v. Super. Ct. ofthe City and Cty. ofS.F., 66 Cal. 2d 836 (1967) (statute requiring a court to postpone any proceeding whenan attorney of record is a memberofthe Legislature and the Legislature is in session would violate the separation-of-powers doctrine); Garrison vy. Rourke, 32 Cal. 2d 430, 435-37 (1948) (overruled in part on other grounds by Keane v. Smith, 4 Cal. 3d 932 (1971)) (statute requiring courts to hear certain types of election law casesto issue findings of fact and conclusions of law within 10 days would raise “serious constitutional questions”); Brydonjack, 208 Cal. 439 (construing statute narrowly to avoid separation-of-powers issue); Millholen v. Riley, 211 Cal. 29 (1930) (same). Cc. Proposition 66 Imposes Improper Time Limits and Priorities on the Courts. 1. Shafter-Wasco and Engram Intervenor argues that the many time limits that Proposition 66 imposes on the courts are proper exercises of the legislative power. But Intervenor does not once mention Shafter-Wasco, which dealt with precisely this question. In that case, the court stated the question as follows: Maythe Legislature divest this court of its constitutional jurisdiction over the case and its duty to decide it by limiting the time in which a decision must be rendered, ‘to a period within which it is impracticable, if not impossible, to decide the issues? 16 Shafter-Wasco, 55 Cal. App. 2d at 487. The court determined that the answerwas “no.” Thestatute at issue in Shafter-Wasco providedthat a certain type of appeal “must be heard and determined within three monthsafter the taking of such appeal.” Id. at 486. In consideringthe statute, the Shafter-Wasco court acknowledgedthat “[o]f course it is within the powerofthe Legislature to impose reasonable rules and regulations governing the exercise of a constitutional power.” Jd. at 487. But, the court cautioned, “[i]t is equally true that those constitutional powers may notbesorestricted by unreasonable rulesas to virtually nullify them.” Jd. The court decided the statute, as worded, would constitute an impermissible violation of the separation-of-powers doctrine, and construed the statute as permissive rather than mandatory to avoid that problem. Jd. at 489. Engram is similar. .In that case, the Court addresseda statute providing that “[i]Jn accordance”with its stated goal of expediting proceedings to the greatest degree that is consistent with the endsofjustice, “criminal cases shall be given precedenceover, andset for trial and heard without regard to the pendencyof, any civil matters or proceedings.” Id. at 1150. The Engram Court foundthat, to the extent that statute were read to compel “a trial court to devote all of its resources exclusively to the resolution of criminal cases and to abandonentirely its responsibility to provide for the fair administration ofcivil as well as criminal matters,” that statute would be “unconstitutional under the separation-of-powers doctrine.” 17 Id. at 1161. The Engram Court emphasizedthe courts’ “inherent authority and responsibility to fairly and efficiently administerall ofthe judicial proceedings that are pending beforeit,” and that “[h]ow this can best be — donecalls for the [courts’] exercise ofjudgment, which must weigh competing interests and maintain an even balance.” Jd. at 1146 (collecting cases). | | 2. The Time Limits Are Either Impossible to Meet or Would Improperly Force Courts to Prioritize ' Capital Matters Over Other Matters. Pursuant to Shafter-Wasco and Engram,a statute violates the separation-of-powersdoctrine if it imposes impracticable or impossible time limits on a court, or forces a court to unduly prioritize certain types of | matters at the expense of other types of matters. Under this precedent, new §1509.1(c), which mandates that certain appeals in capital habeas proceedings “shall have priority overall other matters,” unquestionably violates the separation-of-powers doctrine. With regard to the other time limits set forth above,no entity is in a better position than this Court to understand the extent to which they are impracticable. For example, new §190.6(d) provides that “[w]ithin five years of the adoption ofthe initial rules or the entry ofjudgment, whichever is later,the state courts shall complete the state appeal andtheinitial state habeas corpus review in capital cases.” Under Proposition 66, this means that the following things all have to happen within five yearsafter trial court enters a judgment of death: (1) counsel must be appointed for purposes 18 of the automatic appeal before the Supreme Court; (2) counsel mustbrief the automatic appeal before the Supreme Court; (3) the Supreme Court must complete its review of the inmate’s automatic appeal; (4) the superior court must appoint habeas counsel; (5) habeas counsel mustfile theinitial petition; (6) the Attorney General must respondtothe initial petition in some way;(7) the superior court mustresolvetheinitial petition; (8) the Courts of Appeal must resolve any appeals from the superior court’s decision; and (9) this Court must resolve any appeals therefrom. Steps (1) through (3) are naturally dependent on one another, as are steps (4) through (9). a. Automatic Appeals in the Supreme Court With respect to steps (1) through (3), requiring the Supreme Court to completeits review of all automatic appeals from judgments of death within five years is impracticable, if not impossible. Opinions in automatic appeals are issued after an average delay of 15.3 years from the imposition of death sentence. Paula M. Mitchell & Nancy Haydt, California Votes 2016: An Analysis ofthe Competing Death Penalty Ballot Initiatives (“California Votes 2016 Analysis”), Alarcén Advocacy Center, Loyola Law School, July 20, 2016, at 16, available at http://www.lls.edu/media/loyolalawschool/newsroom/newsitems/FINAL%2 OAlarcon%20Advocacy%20Center%20Report%20Competing%20DP%20In itiatives.pdf (citing Arthur L. Alarcén, Remediesfor California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697, 731 (2007)). This time period includes an 19 average ofthree-to-five years for appellate counsel to be appointed and an average of 2.74 years for appellate counselto file the opening brief. See California‘Commission on the Fair Administration of Justice, Final Report (“California Commission Final Report”) at 131 (2008), available at http://digitalcommons.law.scu.edu/ncippubs/1. Proposition 66 purports to require this Court to speed resolutions of automatic appeals from judgmentsof death by afactor ofthree. There is no suggestion ofhow the Court might be able to accomplish such a feat while continuing to give fair consideration to such appeals and continuing to honor its other constitutional obligations. Instead, Intervenor assumesthat the Court can reduceits backlogs by giving capital cases the right “priority.”* Intervenor Opp.at 38. Nothing could be further from the truth. The Supreme Court has consistently placed high priority on automatic appeals from judgments of death. In the fiscal year 2014-2015, for example, the Court issued 76 4 Intervenor arguesthat five yearsis sufficient time because the D.C. Sniper and Timothy McVeigh were processed within those time frames. To cite two exceedingly high-profile federal cases as proofthat all California cases can be processed within a time period is nonsensical. Additionally, as Intervenor admits, McVeigh did not appeal the judgmentin hisinitial habeas petition. To the contrary, McVeigh “volunteered” for execution and limited his habeas counselto a single set of post-conviction claims. J.C. Oleson, Swilling Hemlock: The Legal Ethics ofDefending A Client Who Wishes to Volunteerfor Execution, 63 Wash. & Lee L. Rev. 147, 156-58, 205 at 313 (2006). Because of the nature of McVeigh’scase, Intervenoris forced to rely, in one of the twocasesthat Intervenorcites for the proposition that the five-year time frameis possible, on an assumption that the review in that case “could” have been completed in five years. Intervenor Opp.at 39 (emphasis added). This observation is meaningless. 20 written opinions during the year, a full 19 of which (25%) disposed of automatic appeals from judgments of death. 2016 Court Statistics Report, available at http://www.courts.ca.gov/documents/2016-Court-Statistics- Report.pdf. During the same time period, the superior courts imposed 18 judgments of death. Jd. Similarly, in the fiscal year 2013-2014, the Court issued 85 written opinions, 26 of which (31%) disposed of automatic appeals. 2015 Court Statistics Report, available at http://www.courts.ca.gov/documents/2015-Court-Statistics-Report.pdf. During the same time period, the superior courts imposed 19 death judgments. Jd. “The average opening brief in an automatic appeal from a judgment of death is between 250 and 350 pages long and includes 30 to 40 claimed errors.” Arthur L. Alarcon & Paula M. Mitchell, Executing the Will OfThe Voters?, 44 Loy. L.A. L. Rev. at $187. Trial court transcripts themselves are thousands ofpages long. See,e.g., California CommissionFinal Report, p. 131 (notingthattrial records average 9,000 pages). Despite this complexity, the Supreme Court has consistently, in recent years, disposed of more automatic appeals each year than those that arose. Even so, a significant backlog of automatic appeals remains. See California Votes 2016 Analysis, p. 16 (citing Gerald F. Uelman, The End ofan Era, CALIFORNIA LAWYER,Sept. 2010) (77 death appeals pending in 2010). Proposition 66’s requirement that the Supreme Court erase that backlog © within 6.5 years, while alsoprocessing new automatic appeals that arise 21 ) within five years (to say nothing of the remainder of the Court’s docket), is impracticable, if not impossible.° b. Habeas Review in the Superior Courts. Proposition 66’s requirement that the courts processinitial habeas petitions within five years (steps (4) through (9)), and that they resolve habeaspetitions (step (7)) within one-or-two years from the timeoffiling, see new Pen. Code §1509(8), is no morerealistic. As the California Judicial Branch has explained on behalf of the Supreme Court, the review ofinitial petitions for habeas corpus is an oneroustask:“the preparation of internal memorandaandthe related disposition of death-penalty-related habeas corpuspetitions draws heavily upon the court’s resources, because the petitions and records in such cases frequently are very lengthy and complex and are analyzed in internal memorandathat often exceed 75 to 100 pages in length.” Supreme Court Issues Annual Report on Workload Statistics for 2014-2015, Oct. 8, 2015, available at www.courts.ca.gov/33297.htm. The superior courts who will bear the burden of Proposition 66 are simply not in a position to perform that task within one-or-two years from the time of filing. > Intervenorargues that this Court should not evaluate here whether the five- year time limit is practicable, arguing “[t]he place to work out the details of implementation of this question ofjudicial administration is the Judicial Council, and that is exactly where Proposition 66 placesit.” Intervenor Opp.at 39. This argumentis misleading. Proposition 66 does not purport to allow the Judicial Council to evaluate the practicability of the five-year time limit. Instead, Proposition 66 mandates that the Judicial Council do whateverit takes to implementthattime limit. New Pen. Code §190.6(d). 22 L R e s P O N SB S A S A E E Asdiscussed above, Proposition 66 directs courts to transfer initial habeaspetitions to the superior court that imposedthe sentence. New Pen. Code §1509(a). Nearly half (48.08%) of all death sentences come from just three counties—Los Angeles County, Riverside County, and San Bernardino County—andthese courts are already overburdened. Death Row Tracking System Condemned Inmate Summary List, CAL. DEP’T. OF CORR. & REHAB., January 6, 2017, available at http://www.cder.ca.gov/Capital_Punishment/docs/CondemnedInmateSumm ary.pdf. A recent report on the competing death penalty initiatives described the problem as follows: Los Angeles County is understaffed and under- authorized forjudges by 7%. RiversideCounty has one of the highest caseloads per judge in the state, second only to San Bernardino County, a substandardratio that has led to significant delays in court proceedings in superior courts. Each of Riverside County’s superior court judges has a caseload of over 5,570 filings. . To make the ratio acceptable, the state estimates an additional 51 judges must be hired in Riverside County—a 40% increase over the current 76 judges sitting in the county. San Bernardino also needs an additional 60 judges—also a 40% increase—to handle its current workload. The acute shortage of criminal court judges is not new. Between January 2007 and June 2009, 350 criminal cases in Riverside County were thrown out simply because no judge wasavailable to hear them. California Votes 2016 Analysis, p. 11 (emphasis in original) (internal quotations andcitations omitted). Engramitself describes this judicial crisis in detail. It notes that the 23 Superior Court of Riverside County “has been severely overburdened by the substantial numberof criminal cases awaitingtrial in that county.” Engram, 50 Cal. 4th at 1136. While the presumptive time period established by state law for bringing a felony case totrial is 60 days from arraignment, a task force of experiencedtrial and appellate judges, established specifically to assess andassist with the criminal case backlog in Riverside County, reported in 2007 that nearly 25% ofjail inmates had been awaitingtrial for more than one year, with numerousothers waiting even longer. Jd. In responseto that problem, the Riverside Superior Court devoted “virtually all — of its resources—superior court judges and courtrooms—ordinarily intended for thetrial of civil cases instead to the trial of criminal cases, an effort that, at the time, seriously compromised that court’s ability to conduct civil trials.” Jd. at 1137. The Riverside Superior Court withheld from its criminal docket limited resources devoted to juvenile, probate, and family law matters, even though the result ofthat withholding was dismissalof “a tremendous numberof[criminal] cases.” Id. at 1142 (emphasis added). The Court justified its decision as follows: In juvenile court, that’s a court where neglected and abused children as well as children whoare accused of crime .. . get the attention of the court all to the aim of letting them grow up safely in decent surroundings and becoming productive citizens, rather than letting them go into the adult criminal law system. It would be an injustice to those children, to their parents[,] and to - society to close downjuvenile court in orderto try other cases, importantas these casesare. . 24 With respect to probate, this is where . . . we deal with guardianship situations where we decide where children are to live when both parents are in prison or strung out on drugs or dead. These are important social issues and it’s important to the welfare of children to keep probate open. [With regard to family law] we’re dealing with child custody, child support issues of huge human andsocial importance. ... [W]e will not be displa[c]ing family law or probate or juvenile. Id. at 1142 (internal quotations and footnotes omitted). Proposition 66 purports to assign to Riverside judges—judges whoare already having to make very difficult decisions about how to prioritize their workloads—an additional, critical responsibility involving issues—quite literally—oflife and death. Andit purports to do so while mandating a very short time frame in which they mustcarry out that responsibility. In so doing, Proposition 66 improperly impairs those judges’ ability to balance their work in a way that is fair to all litigants. This problem is especially glaring in the short term. As ofJuly 2016, there were 355 inmates waiting for appointment of state habeas counsel. California Votes 2016 Analysis, p. 56. Proposition 66 thus requires the superior courts to appoint state habeas counselfor a// of those inmates, and processall of their habeaspetitions, quickly enoughto allow the initial habeasreview,including appeals, to finish within 6.5 years, in addition to processing any new claimsthat come in within five years. There is simply no wayfor the courts to do s0, especially not while both giving fair 25 consideration to the habeas claims and honoring their other constitutional obligations. See id. at 57 (demonstrating the impact the concurrent distribution of 355 habeas matters will have on the county courts, including occupying 100% of Colusa County’s current judicial resources and 107% of Riverside County’s current judicial resources). Proposition 66 thus improperly invadesthe courts’ inherent authority to balance the matters before them in a waythatis fair to all litigants. c. Appointment of Counsel Asset forth above, the five-year time frame must account for - appointment of appellate counsel, a process that currently takes three-to-five years, and appointmentofhabeas counsel, a process that currently takes eight-to-ten years. See California Commission Final Report, p. 122. These appointment processes currently take lengthy periods of time because ofthe lack of qualified counsel willing to take these cases. Jd. at 131. To expedite these processes, Proposition 66 directs: (1) that the Supreme Court “shall appoint counsel for an indigent appellant as soon as possible,” see New Pen. Code §1239.1(a); (2) that, when the time period for appointment exceeds 6 monthsover a period of 12 consecutive months, the Supreme Court “shall require attorneys whoare qualified for appointment to the mostserious non- capital appeals and who meetthe qualifications for capital appeals to accept appointmentin capital cases as a condition for remaining on the court’s appointmentlist,” see New Pen. Code §1239.1(b); and (3) that the Judicial Council and the Supreme Court shall adopt competency standardsfor the 26 appointment of counsel in death penalty direct appeals and habeas corpus proceedings in a waythat ensures “timely appointment” of counsel and does notlimit relevant experience to defense experience only, see New Gov’t Code §68665(b). While these provisions are phrased in a way that appears to leave some discretion to the Supreme Court with regard to appointment . and qualification of counsel, they in fact interact with the mandatory five- year deadline in a mannerthat impairs this Court’s inherent powerto regulate the attorneys who appearbeforeit. Turning to habeaspetitions specifically, Proposition 66 provides that counsel has one year to file the initial habeas petition, and the superior court has at least one year to review it. Processing appeals from the initial habeas petition in the Courts of Appeal and the Supreme Court also takes time. Thus, according to simple math, Proposition 66 mandates that the superior courts appoint habeas counsel in less than three years, and that the Supreme Court broaden its standards for habeas counsel enough that appointment in less than three years (rather than the eight-to-ten years currently required) is possible. Mandating that the Court broadenits standards in this way runs directly afoul ofBrydonjack, 208 Cal. 439. In Brydonjack, the Supreme Court considered whetherit had the powerto admit an attorney to practice law in California if that attorney had not been recommendedfor admission by a committee of bar examiners created by statute “to fix and determine the qualifications for admission to practice law in this state.” Brydonjack, 208 Cal. at 441-42. Reasoning that 27 “[a]dmission to practice is almost without exception conceded everywhere to be the exercise of a judicial function,” the Court foundthatthe statute in question granted to the board only the power“to investigate and to recommendfor admission,” such that the Court was free to admit an attorney the board had not recommended. Jd. at 443, 445; see also id. (“A body possessing only the powerto investigate and make recommendations cannot for a moment be conceded the poweroffinal control, which would enableit to do indirectly whatit is forbidden to accomplish directly.”). Similarly, here, mandating that the Court changeits standards for appointment of counsel in order to double ortriple the poolofattorneys available unreasonably interferes with this Court’s inherent authority to determine the qualifications of those whopractice in California’s courts.® 3. Proposition 66’s Incursions Into the Courts’ Inherent Authority Are Mandatory. Respondents and Intervenor suggest that any separation-of-powers problems with Proposition 66 should be resolved by construing the provisions at issue as permissive rather than mandatory. Thatis not an appropriate solution in this case. While Petitioners agree that “a statute must be construed, ifreasonablypossible, in a mannerthat avoids a serious constitutional question,” see Engram, 50 Cal. 4th at 1161 (emphasis added), 6 This is especially so because Proposition 66 purports to cut in third the time for such attorneysto file initial petitions. Increasing the short-term burden on these attorneys will even further limit the pool of available attorneys, forcing this Court to lessen its standards even further. 28 Petitioners respectfully submit thatit is not “reasonably possible” to read the time limits imposed by Proposition 66 as anything but mandatory. First, the text of Proposition 66 “employs the terms‘shall’ and ‘may’ in different portions of the samestatute,” leading to the conclusion that “the Legislature was awareofthe different meanings of these words and intended them to denote mandatory and directory requirements, respectively.” Rice v. Super. Ct. ofL.A. Cty., 136 Cal. App. 3d 81, 86 (1982). Second, Proposition 66 sets several interlocking time limits, and emphasizes their importance over and over again. It also phrasesits time limits using language even more mandatory than “shall.” For example, new Pen. Code §1509(f) provides that the superior court “shall” resolve the initial petition within one year unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, “but in no instance shall the court take longer than two yearsto resolve the petition.” Id. (emphasis added). It is not reasonable to read these statements as anything less than mandatory. See Kabran v. Sharp Mem’l Hosp., Sup. Ct., Case No. 8227393, ~ at 15 (Jan. 19, 2017), available at http://www.courts.ca.gov/opinions/documents/S227393.PDF (“Legislative intent that a time limit be jurisdictional may be signaled wherethe statute sets forth time limits in ‘unusually emphatic form,’ [or] by ‘reiterat[ing] its limitations several times in several different ways’... .”). Third, this Court’s precedentstates that “[a]lthough imperative words are sometimesheld to have only a directory meaning,this rule of 29 interpretation is not applicable when a consequenceor penalty is provided for a failure to do the act commanded.” Thomas v. Driscoll, 42 Cal. App. 2d 23, 27 (1940) (overruled in part on other grounds by Broderickv. Sutherland, 94 Cal. App. 2d 694 (1949)). Here, Proposition 66 creates a direct consequence—a writ of mandamus—for any court that fails to adhere to the five-year rule absent “extraordinary and compelling reasonsjustifying the delay.” New Pen. Code §190.6(e). “Tt is a general rule of statutory construction that the legislative intent in passing a statute is to be given effect by the courts.” Shafter-Wasco, 55 Cal. App. 2d at 488. Thelegislative intent of Proposition 66 is clear—to eliminate delays inCalifornia’s death penalty system. A primary way Proposition 66 sought to do that, as demonstrated by the manyprovisions set forth in Section III.B above, was to eliminate perceived inefficiencies in the waythe courts handle death penalty matters. Thus, the verypurpose of the initiative sections set forth above wasto force the courts to expedite their handling of death penalty matters. In that context, to read thoseinitiative sections as permissive, instead of as mandatory, would be nonsensical. Respondents and Intervenorcite several cases in which this Court has construed mandatory-sounding statutes imposing time limits as directory. Thosecases are different. As a rule, they each addressed discrete mandatory 30. statements. See Engram, 50 Cal. 4th at 1151 (construing a single “shall’”’)’; Thurmond, 66 Cal. 2d at 838-839 (construing tworelated «shalls”): Lorraine, 220 Cal. at 757 (construing a single “shall’’). In the context of eachofthose cases, construing a “shall” as a “may” wasa “reasonably possible” construction. Shafter-Wasco, 55 Cal. App. 2d at 488. Proposition 66,in contrast, is a broad initiative making a self-described “comprehensive” and interlocking system of changes,all directed towards expediting executions. See Kabran, Case No. 8227393, at 16 (statutory timing requirements can be “jurisdictionalifall of the deadlines form an intricately balanced or interconnected timing scheme”). To preserve the separation-of-powers doctrine with respect to Proposition 66, this Court would haveto read as directory no fewer than five “shalls” directly linked to timelines applicable to the courts, as well as several other “shalls”relating generally to the courts’ “duty” to “expedite” these matters. See, e.g., New Pen. Code §1239.1(a). Such an effort would not be a “reasonable” interpretation ofthe initiative. 4. The Time Limits and Priorities Are Unconstitutional on Their Face. Respondents’ attemptto distinguish cases like Engram and Shafter- Wasco as “as-applied”cases, see Prelim. Opp. at 13-14, is unsuccessful. 7 Engram is further distinguishable becausethestatute at issue explicitly stated that the “shall”therein should be implemented “to the greatest degree that is consistent with the ends ofjustice.” Jd. Proposition 66 provides no similar caveat. 31 These cases make clear what is—and what is not—an unreasonable imposition on the inherent authority of the courts to administer the cases before them. They also make clear that Proposition 66, onits face, falls on the unconstitutional side ofthe line. Moreglobally, the system Proposition 66 createsis facially unworkable, particularly for the courts. Manyparties, including the courts, men on death row and their counsel, and other litigants seeking to be heard will be harmedifthis Court allows Proposition 66 to go into effect and defers addressing its fundamental impossibility until an as-applied challenge arises. D. Proposition 66 Unreasonably Impairs the Courts’ Constitutional and Inherent Authority to Consider Successive and Untimely Petitions. New Pen. Code §1509(d), which severely limits court review of untimely and successive petitions for habeas corpus, invadesboth:(1) the courts’ constitutional jurisdiction over original habeas corpus proceedings; and (2) the courts’ inherent powerto “to fairly and efficiently administerall of the judicial proceedings that are pending before it.” Engram, 50 Cal. 4th at 1146. New Pen. Code §1509(d) provides that untimely and successive petitions for habeas corpus “shall be dismissed unless the court finds, by the ~ preponderanceofall available evidence, whether or not admissible attrial, that the defendantis actually innocent of the crime of which he or she was convicted oris ineligible for the sentence.” (Emphasis added). Put another 32 way, §1509(d) prohibits a court from considering an untimely or successive petition unless the court finds that the defendantis actually innocent or ineligible for the sentence. In so doing, §1509(d) violates the separation-of- powersdoctrine. This Court has consistently maintained foritself the ability to review the merits of a late or successive petition, as long as the late or successive nature ofthat petition is justified: [W]here the factual basis for a claim was unknown to the petitioner and he had noreasonto believe that the claim might be made, or wherethe petitioner was unable to present his claim, the court will continue to consider the merits of the claim if asserted as promptly as reasonably possible. In re Clark, 5 Cal. 4th 750, 774-775 (1993); In re Robbins, 18 Cal. 4th 770, 780 (1998); Supreme Court Policies Regarding Cases Arising from Judgments of Death, Timeliness standard 1-1.2, available at http://www.coutts.ca.gov/documents/PoliciesMar20 12.pdf. The Court considers untimely and successive petitions, ifjustified, for an important purpose—to “leav[e] open a ‘safety valve? for those rare or unusualclaims that could not reasonably have beenraised at an earlier time.” In re Reno, 55 Cal. 4th at 452. As the Clark Court putit, “[t]he magnitude and gravity of the penalty of death persuadesusthat the important values which justify limits on untimely and successivepetitions are outweighed by the need to leave open this avenueofrelief.” Clark, 5 Cal. 4th at 797. 33 As set forth in the AmendedPetition, Proposition 66 eliminates that “safety valve” by foreclosing judicial review (absent a showing of innocence or ineligibility) of several types of legitimate claims of federal and state constitutional magnitude. AmendedPetition at 37-38. By prohibiting the courts from acting as a “safety valve” for these types of claims,® Proposition 66 materially impairs a crucial feature ofjudicial review of habeas corpus petitions in this state, and thus violates the separation-of-powers doctrine.’ Intervenor engages in a lengthy discussion of federal law and the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) to argue that new §1509(d) is proper. This argumentis not well taken. First, Felker v. Turpin, 518 U.S. 651 (1996), which Intervenorcites as upholding AEDPA’sconstitutionality, in fact supports Petitioners. In that case, the U.S. Supreme Court rejected various constitutional arguments about AEDPA’sincursion into the Court’s jurisdiction over habeas matters, because AEDPA did notpurport to “repeal [the U.S. Supreme Court’s] ® In its effort to argue that Proposition 66’s timeliness bar is not unconstitutional, Intervenor suggests that Proposition 66 may,in fact, leave open the possibility of equitable tolling, arguing that “Proposition 66 does not expressly preclude it.” Intervenor Opp.at 37. Petitioners submit that the Court should closely consider whether Intervenor’s argumentis reasonablein light of the language and expressed legislative intent of Proposition 66. * The impact of Proposition 66’s elimination ofuntimely and successive claimsis not hypothetical. Of the eighteen capital habeas cases in which relief has been granted by the California Supreme Court since 1988, four arose from successive petitions, and three of those four involved the prosecution’s failure to disclose exculpatory evidence. See In re Bacigalupo, 55 Cal. 4th 312(2012); In re Brown, 17 Cal. 4th 873 (1998); and In re Miranda, 43 Cal. 4th 541 (2008). 34 authority to entertain a petitionfor habeas corpus.” Id. at 661-662 (emphasis added). Of course, the sameis not true here. See New Pen. Code §1509(a). Additionally, the Felker Court refused to concedethat it was boundbythe restrictions AEDPA placed on successive habeaspetitions. Felker, 518 U.S. at 662-63. Proposition 66 affords this Court no such opportunity. Felker thus doesnot stand for the proposition that Proposition 66 is constitutional, and instead suggests the contrary. Second,in Allen v. Butterworth, 756 So. 2d 52 (2000), the Supreme Court of Florida foundthata statute very similar to Proposition 66 violated the separation-of-powers doctrine by invading the province of the courts. In so doing, the court directly rejected the AEDPA argumentraised here: “The State asserts that if Congress has the authority to set a statute of limitations in this area, then the Florida Legislature should also have that authority. This argument, however, is not persuasive,as there are significant distinctions between the balance ofpowerin the federal system and the balance ofpower in this state.” Jd. at 63; see also Lott v. State, 334 Mont. 270, 274 (2006) (“In contrast to the United States Supreme Court’s deference to Congress’s judgment about the proper scope ofthe federal writ, we conclude that Montana’s guarantee ofthe privilege of habeas corpus embodies a fundamental, intrinsic principle: the right to challenge the cause of one’s imprisonment.”). Only this Court can determine whether Proposition 66 violates the separation-of powers doctrine in California, and Petitioners respectfully ask that the Court find thatit does. 35 IV. PROPOSITION 66 VIOLATES THE CONSTITUTIONAL MANDATE THATAN INITIATIVE MEASURE NOT EMBRACE MORE THAN ONE SUBJECT. “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Cal. Const. Art. II, §8(d). An initiative embraces a single subject if all of its provisions are “reasonably germane”to each other“and to the general purpose or object of the initiative.” Senate ofthe State of Cal. v. Jones, 21 Cal. 4th 1142, 1157 (1999). | This rule “has the dual purpose of avoiding log-rolling and voter confusion.” Harbor v. Deukmejian, 43 Cal. 3d 1078,1098 (1987). “Logrolling” refers to the legislative practice of combining several proposals in a single measure in order to aggregate favorable votes. Jd. at 1096. Similarly, voter confusion can result when electors are “confused or misled by a maze ofunrelated matters some of which are inadequately explained, purposelydistorted, or intentionally concealed.” Cal. Trial Lawyers Ass’nv. Eu, 200 Cal. App. 3d 351, 360 (1988) (quoting legislative history), abrogated on other grounds by Lewis v. Super. Ct. ofSan Bernadino Cty., 19 Cal. 4th 1232 (1999). The single subject rule is“an integral safeguard against improper manipulation or abuseof[the initiative] process” andis fully consistent with “the cherished and favored role that the initiative process occupies in {California’s] constitutional scheme.” Jones, 21 Cal. 4th at 1158. 36 Here, the various enactments of Proposition 66 cannot be united except under a subjectof excessive generality. Specifically, while the bulk of Proposition 66 relates to expediting death penalty appeals, Proposition 66 also contains provisions “buried within”it that are unconnectedto this general theme. See Cal. Trial Lawyers Ass’n, 200 Cal. App. 3d at 361. A. Any Subject That Encompassed All of the Provisions of Proposition 66 Would Be of Excessive Generality. In addition to changing various aspects of death penalty appeals, Proposition 66 also includes provisions concerning victim restitution, the Administrative Procedure Act, medical licensing boards, and HCRC governance. The only wayto reconcile these various provisionsis to ascribe to Proposition 66 such a broad purposethat it would constitute a “topic[{] of excessive generality” violating the single subject rule. Brosnahan v. Brown, 32 Cal. 3d 236, 253. In Jones, the proponenttried to justify joinder of two disparate subjects by arguingthat both involved “voter approval.” 21 Cal. Ath at 1161-62. This Court rejected that approach: Whenthedrafters of an initiative measure join separate provisions dealing with otherwise unrelated “political issues” in a single initiative, the initiative cannot be foundto satisfy the single-subject rule simply because each provision imposes a requirementofvoter approval, any more than if each provision contained a remedy ofmoney damagesor a remedy of injunctiverelief. Id. at 1162-63 (emphasis in original); see also Cal. Trial Lawyers Ass’n, 200 © Cal. App. 3d at 369 (rejecting “implied premise of [proponent’s] analysis, 1.e., that any two provisions, no matter how functionally unrelated, 37 nevertheless comply with the constitution’s single-subject requirement so long as they have in common an effect on any aspect of the business of insurance” because “Tthat] approach would permit the joining of enactments so disparate as to rendertheconstitutional single-subject limitation nugatory”). Here, Respondentargues that the measure’s purpose is “death penalty reform and cost savings, not just speeding the process,” Prelim. Opp.at 18, while Intervenor arguesthatall of the measuresrelate to an overall theme of “enforcing judgmentsin capital cases,” Intervenor Opp. at 16. Asan initial matter, this articulation of two different purposes highlights how broad and amorphous any unifying topic would have to be. Evenif “death penalty reform”or “enforcing judgments in capital cases” might sound narrower than sometopics this Court has upheld, Respondent and Intervenor apply those topics with “excessive generality.” For example, Intervenor argues that “[t]he judgment in a capital case is not limited to the execution itself”butalso includes imprisonment and restitution. Intervenor Opp. at 16. By this logic, however, proponents could include all mannerofprison reform as relevant to an inmate’s death sentence. Permitting the joining of any provision that touches upon a death row inmate’s sentence would “render the constitutional single-subject limitation nugatory.” Cal. Trial Lawyers Ass ‘n, 200 Cal. App. 3d at 360. Similarly, Respondents’ topic, “death penalty reform,” is so broad that it can encompass a “virtually unlimited” number of issues. “Reform” 38 does not identify a particular goal for an initiative other than change from the status quo. In contrast, even the broad criminal reform initiatives upheld by this Court have had a more targeted purpose. E.g., Brosnahan, 32 Cal. 3d at 247 (“Proposition 8 constitutes a reform aimedat certain features of the criminal justice system to protect and enhancethe rights ofcrime victims.” (emphasis added)). Amici District Attorneys illustrate the breadth of the concept of death penalty reform: [T]he death penalty “system” encompasses far more than just the direct appeal and the actual execution of the condemned inmate. It involves victims who have suffered, administrative proceduresthat set forth an execution protocol, the medical personnel who perform executions, and other individuals and entities with a part in the process. District Attorney Amicus Curiae Brief at 26. Respondents defend Proposition 66’s inclusion of provisions that affect medical licensing boards, public commentators on governmentregulations, and unpaiddirectors of the HCRC. But the samelogic could be used to defend, for example, regulating drug companies under the umbrella of Proposition 66. Such a broad topic cannotsurvive the single subject rule. B. Proposition 66 Impermissibly Includes Provisions Not Reasonably Germane to Expediting Death Penalty Appeals. Construing the subject of Proposition 66 more narrowly,the discernible general themeis expediting death penalty appeals. Indeed, the official ballot argumentin favor of Proposition 66 includesa sectiontitled “Here’s What Proposition 66 Does”andlists six effects,five of which relate 39 to faster appeals. Official Voter Information Guide, Argument in Favor of Proposition 66, available at | http://voterguide.sos.ca.gov/en/propositions/66/arguments-rebuttals.htm, . Proposition 66 improperly combinesits “major structural change[s]”in death penalty appeal procedures with unrelated measures. See Jones, 21 _ Cal. 4th at 1167 (barring measure that “[sought] to combine one major structural change in the state constitutional framework with unrelated measures”). The voter confusion and vote-aggregation resulting from these unrelated provisionsis precisely what the single subjectrule is designed to prevent. On Victim Restitution Is Unrelated. Proposition 66’s victim restitution provision is entirely unrelated to expediting the death penalty appeals process. Neither Respondents nor Intervenor contend otherwise. Unless one accepts that Proposition 66 has an overbroadsubjectlike “death penalty reform”or “enforcing judgments in capital cases,” victim restitution simply is not “reasonably germane.” Intervenor arguesthat victim restitution must be related becauseit wasincluded in two recent proposedinitiatives regarding abolition ofthe death penalty. Intervenor Opp. at 19. But Proposition 66, which purports to “fix” the death penalty, can hardly be viewed through the samelens as initiatives that would have abolished the system altogether. A repeal measure would logically address thesituation of inmates who no longer face death, while that is tangential to a measure,like Proposition 66, intended to 40 see those same inmates executed as soon as possible. Rather than showing that victim restitution is “reasonably germane,”the fact that it was a provision included in recent repealinitiatives suggests that Proposition 66 ' incorporated it to attract more votes in the face of a competing repeal measure. Cf Jones, 21 Cal. 4th at 1151 & n.5. D. The Administrative Procedure Act Is Unrelated. Proposition 66, in one brief sentence, providesthat “[t]he Administrative Procedure Act shall not apply to standards, procedures, or regulations promulgated pursuant to Section 3604,” New Pen. Code §3604.1(a), and thereby makes the sweeping, unexplained change of revoking the public’s ability to review and comment on promulgation of execution protocols. The APA processis separate from appellate review of death sentences andhasnoeffect on their speed. The APAprovision is also exemplary ofa provision that was “inadequately explained, purposely distorted, or intentionally concealed”—a source of the voter confusion that the single subject rule guards against. See Cal. Trial Lawyers Ass’n, 200 Cal. App. 3d at 360. Neither the text of Proposition 66 nor the Official Voter Information Guide explained the APA, cited any of its governingstatutes, or otherwise described thepractical effects of the single sentence in Proposition 66, Section 11. Intervenor now claims that the APA provision was designed to abrogate Morales v. Cal. Dept. ofCorr. & Rehab., 168 Cal. App. 4th 729 (2008). Intervenor Opp. at . 20. Nowhere wasthat explained or promotedto the voters. See Cal. Trial 41 Lawyers Ass'n, 200 Cal. App. 3d at 361 (“[T]he title and various descriptions ofthe initiative’s contents give no clue that any such provisions are buried within.”); see e.g., Argument in Favor of Proposition 66 (making no mention of the APA or executionprotocols). E. MedicalLicensing Standards Are Unrelated. Proposition 66, Section 12 prohibits medical licensing organizations from enforcing their own standards related to the participation of medical professionals in executions. This provision has norelation to the expedition of death penalty appeals. Notably, neither Respondents nor Intervenor can tie this provision to any of Proposition 66’s Findings and Declarations. Compare Intervenor Opp.at 18, 19, 22 (alleging that other provisions implementvarious findings) with id at 21 (identifying no relevant finding); see also Argument in Favor of Proposition 66 (containing no mention of medical professionals). Even if the Court construes the purpose of Proposition 66, as urged by Intervenor, as “enforcing judgments in capital cases,”any relationship between that purpose and Section 12 is entirely hypothetical. Deputy District Attorney Amici argue that “[t]he mere threat of discipline by a state medical licensing board hasactually frustrated an execution in California.” D.A. Amicus Brief at 31. There appears to be no basis for this argument. Rather, while Deputy District Attorney Amici point out that two anesthesiologists declined to participate in an execution, they offer no support for the idea that the anesthesiologists made that decision to avoid 42. disciplinary action. Jd. at 30. Intervenor, forits part, bases its entire argument on an “extreme position” taken—irrelevantly—bythe state medical board in North Carolina. Intervenor Opp.at 21. As with the APA provision, discussed above, Intervenorburiedthis irrelevant provision within an initiative described to the public as something else. The hypothetical arguments now offered to justify it and tie it into the © | greater scheme of Proposition 66 cannotsaveit. F. DisbandingUnpaid BoardofDirectors Is Unrelated. _ Proposition 66, Section 15 purports to limit the types of cases the HCRCtakes on. Petitioners have not challenged the relevance ofthat section to the proposition as a whole. Instead, Petitioners challenge Section 17, the sole purposeofwhichis to eliminate HCRC’sfive-memberboard of directors and to mandate that theSupreme Court, rather than the board of directors, select and oversee HCRC’s executive director. The purpose of Section 17 is not expediting death penalty appeals—or even enforcing judgments in capital cases. Asis made abundantly clear in Intervenor’s brief, Intervenor just doesn’t like former HCRCexecutive director Michael Laurence. Intervenor Opp.at 22-23. The Findings and Declarations claim that changes to HCRC’s governance were necessary because HCRC was“operating without any effective oversight.” Contrary to that assertion, HCRCis overseenbyits board ofdirectors, the legislature, the governor, and this Court. Gov’t Code §§68661(1) & 68664(b). Intervenor argues that the HCRC hasviolatedits 43 | authorization to work only on “postconviction and clemency proceedings in capital cases,” Intervenor Opp.at 23, but this is misleading: in addition to “instituting and prosecuting habeas corpuspetitions,” HCRC attorneys are also appointed to “challeng[e] the legality of the judgment or sentence imposed against [a convicted] person.” Gov’t Code §68664(a). Intervenor also argues, nonsensically, that the board was “irresponsible” becauseit permitted types of litigation that Section 15 now prohibits. Intervenor Opp. at 23-24. But the board can hardly be faulted for “failing” to enforce a requirement that did not yet exist. Intervenor’s inaccurate and confusing arguments do not support a finding that dissolution ofHCRC’s unpaid board of directors is reasonably germane to Proposition 66’s purpose. See Jones, 21 Cal. 4th at 1163 (rejecting “legislative self-interest” as a defensible single subject where theinitiative text misleadingly suggested legislative salaries were subject to such self-interest). Vv. PROPOSITION 66 VIOLATES THE EQUAL PROTECTION CLAUSES OF THE U.S. AND CALIFORNIA CONSTITUTIONS. Equal protection mandatesthat similarly situated classes ofindividuals not be treated disparately under the law, unless such disparate treatmentis “rationally related to a legitimate state interest.” City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-440 (1985). Proposition 66 violates this basic constitutional guarantee by irrationally limiting the grounds on whichcapital defendants—and capital defendants only—may file successive habeas petitions. 44 A. Proposition 66 Narrowsthe Availability of Successive HabeasPetitions for Capital Defendants Only. 1, Successive Petitions Prior to Proposition 66 As discussed above, Jn re Clark, 5 Cal. 4th 750, provides for the consideration of successive petitions relying on newly developed facts or circumstances, or an applicable change in the relevant law, so long as the petitioner promptly brings those developments to the court. Jd. at 774-775. Evenifa petitioner cannot show newly discoveredfacts or circumstances,his or her claim can be considered in a successive petition if he or she shows “a fundamental miscarriage ofjustice.” Jd. at 759. Relatedly, Pen. Code §1473!° (amended in September 2016 by Senate Bill 1134) provides: (b) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons: (1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing ortrial relating to his or her incarceration. (3)(A) Newevidence exists that is credible, material, presented without substantial delay, and of such decisive force and valuethat it would have morelikely than not changed the outcomeattrial. (B) For purposes of this section, “new evidence” means evidence that has been discovered aftertrial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and 10 Petitioners erroneously cited Pen. Code §1485.55, rather than §1473, in their AmendedPetition. Both Respondents and Intervenor appear to have understood that Petitioners meant to refer to §1473. Intervenor Opp.at 43; Prelim. Opp. at 21. 45 not merely cumulative, corroborative, collateral, or impeaching. (e)(1) For purposes ofthis section, “false evidence” includes opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances. 2. New Pen. Code §1509(d) Limits Successive Habeas Review for Capital Defendants. According to new Pen. Code §1509(d), a successive petition brought by a capital defendant “shall be dismissed” unless the court finds that the defendantis actually innocentor ineligible for the sentence of death. Clearly, in the context of Clark and Pen. Code §1473, this language places new substantive limitations on capital defendants’ ability to seek habeasrelief. But Clark and Pen. Code §1473still govern with respect to non-capital successive habeas petitions. For that reason, Proposition 66 singles out capital defendants for worse treatment. Intervenor admits that “Proposition 66 imposesa tighterlimitation on successive petitions for capital cases than exists for noncapital cases.” Intervenor Opp. at 46. Bewilderingly, Intervenor also argues the converse— that new §1509(d) is more lenient to successive petitions than Clark and §1437. Intervenor Opp. at 44-45. Not so. Clark allowsa petitioner to bring a successive petition, without regard to innocence, based on newly developed facts or circumstances brought promptly before the court. In re Clark, 5 Cal. Ath at 774-775. In addition, Clark allowsfor the presentation of claims that 46 involve a “fundamental miscarriage of justice,” and explicitly sets forth circumstances involving a “fundamental miscarriage of justice” that go beyond actual innocence. Jd. at 759. With regard to §1473, it allows presentation of a claim of false evidence “that is substantially material or probative on the issue of guilt.” This is a lesser burden than actual innocence. Additionally, SB 1134’s amendment to §1473(e)(1), which providesthat scientific evidence presented at trial can constitute “false evidence” under §1473, would—absent Proposition 66—constitute a “changein the applicable law”that wouldjustify a capital defendant’s successive habeaspetition. See In Re Richards, 63 Cal. Ath 291, 293-294 (2016) (“Richards IT’). Proposition 66 purports to remove that avenue of relief as well, for capital defendants only. Additionally, SB 1134 loosens the standard for the consideration of new evidence from that which “point[s] unerringly to innocence,” In Re Richards, 55 Cal. 4th 948, 967 (2012), to that which “would have more likely than not changed the outcomeattrial.” Cal. Pen. Code §1473(3)(3). To the extent that a prisoner is able to show that new evidence in support of a successive writ of habeas corpus meets this lesser standard, they too would be able to benefit from this changein law.!! 1! Intervenor claims §1437 does not apply to successive habeaspetitions. Richards IT proves otherwise. 47 B. Capital and Non-Capital Prisoners Are Similarly Situated in This Context. As Respondents correctly point out, an equal protection analysis evaluates “whether [persons in the two groups] are similarly situated for purposesof the law challenged.” Prelim. Opp. at 21-22. Capital and non- capital prisoners are similarly situated in the context of available avenues of relief for successive habeaspetitions, as both have equalinterest in freedom from an illegal or unjust conviction or sentence. While Respondents argue that this Court has determined that capital and non-capital defendants are not similarly situated, id. at 22, the cases Respondents cite address laws fundamentally different from the one here. Specifically, each case Respondents cite concerns a challenge to a law or procedure governing sentencing for capital and non-capital defendants. The fundamental distinction between a capital and non-capital case lies in the sentence. It is thus mucheasier to imagine rationalbasis for different sentencing procedures applying to different classes of sentences. Nosimilarrational basis exists when the law in question governs, not the sentence, but grounds for relief from an illegal detention. See State v. Noling, No. 214-1377, 2016 WL 7386163, slip copy (Ohio Dec. 21, 2016) (“The case law andstatutes cited by the attorney general [against an equal protection challenge to habeas law] are inapposite because they are focused on imposition of a sentence.”). 48 C. There Is No Rational Basis Related to a Legitimate | GovernmentInterest for Dissimilar Treatment of Capital and Non-Capital Petitioners Bringing Successive Habeas Claims. . Respondents and Intervenoridentify differences between capital and non-capital petitioners that they claim provide a rational basis for new §1509(d)’s dissimilar treatment of those two classes. None do. For example, Respondents andIntervenor argue that capital prisoners have a statutory right to counsel and investigative resources for a first capital habeaspetition,-makingit “far less likely that a successive petition has merit.” Intervenor Opp.at 46. This exact argument was advanced, and rejected, in Jn reReno, 55 Cal. 4th at 472. This argumentalso ignores the fact that there are types of new evidence, such as new scientific standards or ~ facts that have been hidden,that simply cannot be includedin first capital habeaspetition. See Richards II, 63 Cal. 4th at 293. Finally,it ignores the fact thatcapital prisoners have been given those rights because of the severity and finality of the judgmentof death. See, e.g., People v. Bigelow, 37 Cal. 3d 731, 743 (1984). Giving capital prisoners access to counsel because “death is a different kind ofpunishment” cannot then be used as a justification for taking awayother, similar rights. Jd. In Allen, 756 So. 2d at 57 the Florida Supreme Court rejected, on equal-protection grounds,a statute that limited successive habeas corpus petitions much like new §1509(d) does. The court reasonedthatthe statute was invalid becauseit “prohibits otherwise meritorious claims from being 49 raised” and “applies only to capital prisoners.” /d. at 54. Similarly, Noling dealt with a statute providing that a denial of a capital defendant’s application for postconviction DNA testing would be reviewed in the supremecourt only on a discretionary basis, and notin the court of appeals. The Ohio Supreme Court struck down the statute on equal protection grounds. Id. J 8. Intervenor’s argumentthat the state courts have uniformly rejected equal protection challenges by capital prisoners notably fails to cite Allen and Noling. But these are the cases most relevant to the question at hand. In accord with Allen and Noling, new §1509(d) violates the Equal Protection Clauses of the California and Federal Constitutions. VI. THE CHALLENGED PROVISIONS OF PROPOSITION 66 ARE NOT SEVERABLE. Intervenor arguesthat, if Petitioners’ single-subject challengefails, there is no basis for a writ of mandate against enforcement of Proposition 66 in its entirety. Intervenor Opp.at 12. According to Intervenor,theinitiative sections that Petitioners challenge outside of the single-subject challenge are severable from one another and from the non-challenged portionsofthe initiative. Not so. In Raven v. Deukmejian,cited by Intervenor, this Court explained the process for evaluating severability under a similar severability clause: “[t]he cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable.” Ravenv. 50 Deukmejian, 52 Cal. 3d 336, 355-356 (1990) (quoting Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821-22 (1989)). With regard to grammatical severability, the invalid proposition must be “mechanically and grammatically severable, constituting a separate and distinct provision of [the proposition] which can be removed without affecting the wording of any other provision.” Id. With respect to functional severability, the invalid provision must touch on an area “essentially unrelated to any of the various remaining substantive or procedural provisions.” Id.; see also People’s Advocate, Inc.v. Super. Ct. ofSacramento Cty., 181 Cal. App. 3d 316, 332 | (1986) (“The remaining provisions must stand on their own, unaided by the invalid provisions nor rendered vague by their absencenorinextricably connected to them by policy considerations.”). Finally, with respect to volitional severability, it must be found that “the remainder of the measure probably would have been adopted by the people even if they had foreseen the success ofpetitioners’ revision challenge.” Raven, 52 Cal. 3d at 356. In reaching that determination, the courts evaluate “whetherit can be said with confidence that the electorate’s attention wassufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absenceofthe invalid portions.” Gerken v. Fair Political Practices Comm’n, 6 Cal. 4th 707, 714-715 (1993) (internal quotation marks and emphasis omitted). 51 A. Grammatical Severability It is difficult to perform this analysis absent a Court ruling regarding whichsections are invalid. That said, it is clear that several of the challenged and non-challenged provisions are mechanically and grammatically dependent upon one another, including those identified as follows: 1. Pen. Code §190.6(d) is impacted by language in Pen. Code §190.6(e) that states that a certain paragraph ofthe Constitution applies to subdivision (d). Conversely, §190.6(e) is impacted by the fact that § 190.6(d) gives meaning to what is meant in subdivision (e) by the words “subdivision (b).” 2. Pen. Code §1239.1(a) depends on Pen. Code §1509(c) by referencing a time limit for briefing set in the latter section. 3. Pen. Code §1509(b) and Gov’t Code §68662 depend upon and reference one another. 4. Subdivisions(c), (d), (e), and (g) of Pen. Code §1509 all depend upon and reference one another. 5. Subdivisions (f) and (g) of Pen. Code §1509 depend on subdivision (a) of the same section, because they reference: (1) the time frame in which “[t]he superior court shall resolve the initial petition”; and (2) transfer of pending habeaspetitions to the superior court. 6. Pen. Code §1509.1, regarding appeals from the superiorcourt decisions, depends on Pen. Code §1509(a), which provides that such decisions should happenin the superior court. 7. Gov’t Code §68661(a) references Gov’t Code §68661.1. 8. Gov’t Code §68662(a) depends upon Pen. Code §1509. B. Functional Severability With respect to functional severability, Sections 5 and 18, both of whichare directed to expediting appointmentof counsel, are functionally related. Sections 6 and 7, which together create a system for initial habeas review in the superior court and appeal therefrom,are also functionally 52 related. Sections 3 and 6 relatedly purport to impose deadlines for postconviction review on the courts. Indeed, if new Pen. Code §1509(a), whichprovides for initial habeas review in the superior courts, were invalidated, new Pen. Code §190.6(d) would purport to impose on the Supreme Court a five-year deadline for appellate review andforinitial habeas review. Such a result would be even more untenable than the one currently imposed by Proposition 66. Section 6 is also functionally related to new Pen. Code §3604.1(c), which relies on Section 6’s system forinitial habeas review in the superior court. Sections 14, 15, and 17,all of which purport to regulate the HCRC,are functionally related to one another. C. Volitional Severability The question for the few provisions that remain is whether they are “complete in [themselves] and would have been adopted . . . had ithe people] foreseen the partial invalidity of the statute.” Calfarm Ins. Co., 48 Cal. 3d at 821; see also Metromedia, Inc. v. City ofSan Diego, 32 Cal. 3d 180, 190 (1982) (finding invalid portion ofstatute not volitionally severable becauseit was “doubtful whether the purposeofthe original ordinanceis served by a truncated version”). The answeris no. Proposition 66 barely passed. It is hard to imaginethat a substantially gutted version ofit would have. Intervenor argues specifically that Section 11, relating to APA review of execution protocols, is severable from the rest of Proposition 66. But the argumentthat proponents submitted in favor of Proposition 66 demonstrates 53 that Section 11 wasnot a portion of the initiative that they thought would appeal to the voters. Argument in Favor of Proposition 66. The arguments focus on expediting death penalty appeals and reforming death row | housing—they make no mention ofthe APA or execution protocols. Id. Where Proposition 66’s proponents did notsee fit to mention Section 11 ‘in their arguments in favorof the initiative, it cannot “be said with confidence that the electorate’s attention wassufficiently focused” on that section “so that it would have separately considered and adopted[it] in the absence”ofthe other provisions. Gerken, 6 Cal. 4th at 714-715 (emphasis omitted). Rather, the only reasonable conclusionis that Section 11 was one of the less attractive portions of the initiative, and it would not have passed alone. The same argumentapplies,at least, to Sections 4, 8, 10, 12, 14, 15, and 17. Moreglobally, this case is like Hotel Emps. and Rest. Emps. Int’l Union v. Davis, 21 Cal. 4th 585 (1999). In that case, the Court struck down portions of an initiative, and found that the remaining portions (with one _ limited exception) were not functionally or volitionally severable from those invalidated. Id. at 612. The Court reasonedthat, because thestricken portions were “of critical importance to the measure’s enactment,” the remaining provisions could not stand alone. Jd. at 612-613. In the caseat hand,it is clear that streamlining the death penalty appeals process wasthe issue of ““‘critical’ importance to the ‘enactment’ of the measure.” Jd. at 613; see Argumentin FavorofProposition 66; Prop. 66§2. To the extent 54 this Court finds invalid provisions relating to streamlining the death penalty appeals, the remaining provisions of Proposition 66 should fall alongside them. Again, this analysis is difficult to perform absent this Court’s decision on which provisions of Proposition 66 are invalid. Forthat reason, and becauseofthe strength of Petitioners’ single-subject challenge, Petitioners respectfully request that the stay issued on December 20, 2016, remain in effect pending determination of the issues raised in the Amended Petition. As detailed in the Amended Petition, the balance of harms weighs heavily in Petitioners’ favor. Intervenor’s only counterargumentis a vague referenceto state “resources” being spent “litigating the APA compliance of the new execution protocol.” Intervenor Opp. at 25. This is not enough to warrant lifting the stay. VH. CONCLUSION For the reasons stated above and in Petitioners’ Amended and RenewedPetition for Extraordinary Relief, Petitioners respectfully urge this Court to issue a writ of mandate andissue an order declaring Proposition 66 null and void inits entirety. 55 Dated: January 23, 2017 Respectfully submitted, byhynMop) Chrfstina Von der Ahe Raybufd Lillian Mao ORRICK, HERRINGTON & SUTCLIFFE LLP Attorneysfor Petitioners Ron Briggs and John Van de Kamp 56 CERTIFICATE OF COMPLIANCE In accordance with California Rules of Court 8.204(c)(1) and 8.486(a)(6), counsel for Petitioners herebycertifies that the number of words contained in this Reply in Support of Petition for Extraordinary Relief, including footnotes but excluding the Table of Contents, Table of Authorities, and this Certificate, is ; » G y "7_ wordsascalculated using the word count feature of the computer program usedto preparethebrief. by Cy VaPelorar CHRISTINA VON DER Ante RAYBURN 57 PROOFOF SERVICE BY FEDERAL EXPRESS I am morethan eighteen years old andnota party to this action. My business address is Orrick, Herrington & Sutcliffe LLP, The Orrick Building, 405 Howard Street, San Francisco, California 94105-2669. _ On January 23, 2017, I served a true copy of the attached documententitled: REPLY IN SUPPORT OF PETITION FOR EXTRAORDINARYRELIEF by placing true and correct copies thereof in sealed packages designated by Federal Express forthat purpose, with such packages addressed for delivery as follows: Kamala Harris Attorney General of California Office of the Attorney General 455 Golden Gate, Suite 11000 San Francisco,CA 94102-7004 (415) 703-5500 Judicial Council of California 455 Golden Gate Avenue San Francisco, CA 94102-3688 415-865-4200 Jerry Brown Governor of California c/o State Capitol, Suite 1173 Sacramento, CA 95814 58 Kent S. Scheidegger Criminal Justice Legal Foundation 2131 "L" Street —~ Sacramento, CA 95816 Charles H. Bell, Jr. Bell, McAndrews & Hiltachk, LLP 455 Capitol Mall, Suite 600 Sacramento, CA 95814 David P. Mastagni Mastagni Holstedt, APC 1912 I Street Sacramento, CA 95811 Michele A. Hanisee Los Angeles County District Attorney 555 West 5th Street, Suite 31101 Los Angeles, CA 90013 I declare under penalty of perjury underthe lawsofthe State of California that the aboveis true and correct. Executed on January 23, 2017, at San Francisco, California. QdRa “Jelfrey Ball 59