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No. __________________
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PHYLLIS LOYA and MICHAEL RUSHFORD, Petitioners,
vs.
DEBRA BOWEN, Secretary of State,Respondent,
JEANNE WOODFORD, Real Party in Interest.
PETITION FOR WRIT OF MANDATE OR OTHERAPPROPRIATE RELIEF AND MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF PETITION
IMMEDIATE ACTION REQUIRED: ELECTION LAW MATTER ENTITLED TO CALENDAR
PREFERENCE PURSUANT TO C.C.P. § 35
KENT S. SCHEIDEGGER
State Bar No. 105178Criminal Justice Legal Foundation2131 L StreetSacramento, California 95816(916) 446-0345Fax: (916) 446-1194
Attorney for Petitioners
i
TABLE OF CONTENTS
Table of authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Petition for writ of mandate or other appropriate relief . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticity of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Factual allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Relief requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Memorandum of points and authorities in support of petition for
writ of mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Introduction and summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. The prerequisites to consideration of the merits are satisfied . . . . . . . . 7
A. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Timeliness and Propriety of Preelection Consideration . . . . . . 7
D. Propriety of Original Proceeding . . . . . . . . . . . . . . . . . . . . . . . 9
II. The Initiative Violates the Single-Subject Rule . . . . . . . . . . . . . . . . . 9
A. A Tale of Two Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Comprehensive Reforms v. Misjoined Chimeras . . . . . . . . . . 11
C. Senate v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. Budget-Centered v. Budget-Related . . . . . . . . . . . . . . . . . . . 18
E. The Present Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Certificate of compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Certificate of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ii
Exhibits
Initiative 11-0035 and submission cover letter . . . . . . . . . . . . . . . . . . . . A
Title and summary of initiative 11-0035 prepared by
the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
Letter from Criminal Justice Legal Foundation to
the Legislative Analyst Office, Sept. 19, 2011 . . . . . . . . . . . . . . . . . . . . C
iii
TABLE OF AUTHORITIES
Cases
Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30,
651 P.2d 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15
Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805,
258 Cal.Rptr. 161, 771 P.2d 1247 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
California Assn. of Retail Tobacconists v. California (2003) 109
Cal.App.4th 792, 135 Cal. Rptr. 2d 224 . . . . . . . . . . . . . . . . . . . . . . 20
California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351,
245 Cal.Rptr. 916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 14
Californians for an Open Primary v. McPherson (2006)
38 Cal.4th 735, 43 Cal.Rptr.3d 315, 134 P.3d 299 . . . . . . . . . . . . 5, 10
Chemical Specialties Manufacturers Assn., Inc. v. Deukmejian
(1991) 227 Cal.App.3d 663, 278 Cal.Rptr. 128 . . . . . . . . . . . . 6, 10, 15
Costa v. Superior Court (2006) 37 Cal.4th 986,
39 Cal.Rptr.3d 470, 128 P.3d 675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Evans v. Superior Court (1932) 215 Cal. 58, 8 P.2d 467 . . . . . . . . . . . . 11
Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33,
157 Cal.Rptr. 855, 599 P.2d 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Harbor v. Deukmejian (1987) 43 Cal.3d 1078,
240 Cal.Rptr. 569, 742 P.2d 1290 . . . . . . . . . . . . . . . . . 6, 9, 10, 11, 18
Independent Energy Producers Assn. v. McPherson (2006)
38 Cal.4th 1020, 44 Cal.Rptr.3d 644, 136 P.3d 178 . . . . . . . . . . . . . . 8
Jacobellis v. Ohio (1964) 378 U.S. 184, 84 S.Ct. 1676,
12 L.Ed.2d 793 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991)
53 Cal.3d 245, 279 Cal.Rptr. 325, 806 P.2d 1360 . . . . . . . . . 15, 19, 20
League of Women Voters v. Eu (1992) 7 Cal.App.4th 649,
9 Cal.Rptr. 2d 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 19, 24
Legislature v. Eu (1991) 54 Cal.3d 492, 286 Cal.Rptr. 283,
816 P.2d 1309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
Manduley v. Superior Court (2002) 27 Cal.4th 537,
117 Cal.Rptr.2d 168, 41 P.3d 3 . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Quantification Settlement Agreement Cases (2011)
201 Cal.App.4th 758, 134 Cal.Rptr.3d 274 . . . . . . . . . . . . . . . . . . . . 9
Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326,
801 P.2d 1077 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142,
90 Cal.Rptr.2d 810, 988 P.2d 1089 . . . . . . . . . . . . . . . . . . . . . . passim
State Constitution
Cal. Const., art. II, § 8, subd. (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Cal. Const., art. IV, § 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cal. Const., art. IV, § 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cal. Const., art. VI, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State Statutes
Code Civ. Proc., § 1085 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Elec. Code, § 9004, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Elec. Code, § 9051, subd. (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gov. Code, § 8880.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Gov. Code, § 8880.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pen. Code, § 2700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pen. Code, § 2085.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Rev. & Tax Code, § 30131.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Other Authorities
Cal. Secretary of State, November 6, 2012, General Election Calendar
<http://www.sos.ca.gov/elections/2012-elections/
calendar/pdfs/section-9-general-election.pdf> . . . . . . . . . . . . . . . . . . 8
v
DiCamillo & Field, The Field Poll Release #2393 (Sept. 29, 2011)
<http://www.field.com/fieldpollonline/subscribers/
Rls2393.pdf> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Governor’s Budget Summary—2012-13
<http://www.ebudget.ca.gov/pdf/BudgetSummary/
SummaryCharts.pdf> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
New Oxford American Dictionary (2001) . . . . . . . . . . . . . . . . . . . . . . . 14
Office of the Governor, Governor Brown Signs California Dream Act
(Oct. 8, 2011) <http://www.gov.ca.gov/news.php?id=17268> . . . . . 25
Scheidegger, Cal. Field Poll on DP: 68-27 (Sept. 29, 2011)
Crime & Consequences Blog <http://www.
crimeandconsequences.com/crimblog/2011/09/
cal-field-poll-on-dp-68-27.html> . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1
PETITION FOR WRIT OF MANDATE OR
OTHER APPROPRIATE RELIEF
INTRODUCTION
1. This original proceeding concerns a matter of great public
importance requiring this court’s immediate attention. The Secretary of State
has certified as qualified for the ballot an initiative that is titled either The
Savings, Accountability, and Full Enforcement for California Act (by its
terms) or Death Penalty Repeal (by the Attorney General). As the stark
disparity in these two titles indicates, the initiative embraces more than one
subject in violation of article II, section 8(d) of the California Constitution.
Repeal of the death penalty is joined with an unrelated measure to transfer
money from the general fund to a special fund under the control of the
Attorney General to be disbursed to local law enforcement agencies with
only very general criteria for its allocation and purposes. Prompt action is
needed to carry out the constitutional mandate that such an initiative “may
not be submitted to the electors.”
PARTIES
2. Petitioner Phyllis Loya is a citizen of California and a duly registered
voter in Contra Costa County. She is the mother of Police Officer Larry
Lasater, who was killed in the line of duty in April 2005. One of the
perpetrators of this crime was sentenced to death and is presently on death
row. (The other was a juvenile.)
3. Petitioner Michael Rushford is a citizen of California and a duly
registered voter in Sacramento County, California.
2
4. Respondent Debra Bowen is the Secretary of State of California and
is sued in her official capacity. Respondent is the chief elections officer of
California.
5. Real Party in Interest Jeanne Woodford is the proponent of initiative
11-0035, the initiative referred to in paragraph 1, above.
AUTHENTICITY OF EXHIBITS
6. All of the exhibits attached to this petition are true and correct
copies. Exhibit A is the initiative and submission cover letter obtained from
the Attorney General’s website. Exhibit B is the title and summary prepared
by the Attorney General, also obtained from the Attorney General’s website.
Exhibit C is the Criminal Justice Legal Foundation’s submission to the
Legislative Analyst Office challenging the proponents’ claims regarding the
net cost of capital punishment.
FACTUAL ALLEGATIONS
7. On April 23, 2012, Respondent certified the initiative as having
sufficient signatures to qualify for the November 6, 2012 ballot.
8. Sections 4 through 8 and 10 of the initiative would repeal the death
penalty in California and make life in prison without possibility of parole the
sole and mandatory punishment for every adult convicted of first-degree
murder with special circumstances, without regard to the individual
aggravating and mitigating circumstances considered under present law.
9. Section 9 of the initiative would transfer one hundred million dollars
over a period of two and a half years from the state general fund into a new
fund under the control of the Attorney General. The Attorney General is
directed to disburse the money “to police departments, Sheriffs and District
Attorney Offices, for the purpose of increasing the rate at which homicide
3
and rape cases are solved” and to use “a fair and equitable distribution
formula,” but there is no more specific requirement. There is no requirement
or even a statement of intent that this money be in addition to existing
funding and not a replacement for existing funding. Nothing in the initiative
conditions the transfer on the existence or amount of actual savings from the
death penalty repeal or otherwise connects the transferred funds to repeal-
related savings.
10. Allowing this initiative on the November ballot would irreparably
violate the interests of the Petitioners and of all Californians in enforcement
of the constitutional requirement that initiatives with more than one subject
not be presented to the electors.
RELIEF REQUESTED
For the reasons stated above and in the attached memorandum,
Petitioners ask this court to:
1. Issue a peremptory writ of mandate to Respondent Debra Bowen to
remove initiative 11-0035 from the 2012 general election ballot;
2. Award Petitioners their costs and attorney fees; and
3. Grant such other and further relief as the court deems proper.
Dated: May 14, 2012
Respectfully Submitted,
KENT S. SCHEIDEGGER
Attorney for Petitioners
4
VERIFICATION
I have read the foregoing Petition and know its content. The facts
alleged in the Petition are within my knowledge (except paragraph 3 which
applies to and is verified by the other petitioner) and I know these facts to be
true.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and that this declaration was
executed on May __, 2012 at ______________________, California.
________________________________
PHYLLIS LOYA
I have read the foregoing Petition and know its content. The facts
alleged in the Petition are within my knowledge (except paragraph 2 which
applies to and is verified by the other petitioner) and I know these facts to be
true.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and that this declaration was
executed on May __, 2012 at Sacramento, California.
________________________________
MICHAEL RUSHFORD
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PETITION FOR WRIT OF MANDATE
INTRODUCTION AND SUMMARY OF ARGUMENT
This case is a single-subject challenge to an initiative that is an
exemplar of one of the dangers that the single-subject rule was placed in the
Constitution to protect against. That danger is “ ‘logrolling’—that is, the
practice of combining two or more unrelated provisions in one measure,
thereby forcing a single take-it-or-leave-it vote on matters that properly
should be voted upon separately.” (Californians for an Open Primary v.
McPherson (2006) 38 Cal.4th 735, 750.) The initiative combines the repeal
of the death penalty with an unrelated provision transferring money from the
state general fund to a fund controlled by the Attorney General, ostensibly
for the purpose of solving murder and rape cases, but with only very general
criteria regarding how it will be spent. This is a Machiavellian combination,
manipulating one group of victims with an illusory promise of justice in their
cases conditioned upon enacting a law to deny justice to another group of
victims.
Single-subject cases are regularly addressed in original proceedings in
appellate courts due to the public importance of timely resolution and the
lack of need for trial court fact-finding. The present petition is clearly timely
under Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1155.
The single-subject rule is familiar legal territory, but actually defining
a single subject has proved difficult, with the test of “reasonably germane”
or “functionally related” being more easily stated than applied. Looking at
the pattern of cases, we see that comprehensive reforms of whole areas of the
law have been upheld, even if the areas are described broadly. On the other
6
hand, misjoined chimeras with “unnatural combinations of provisions” have
been struck down.
A key factor in distinguishing a misjoined chimera from a broad reform
is the inclusion by the proponents of provisions that smack of logrolling.
Proponents sometimes stick a plum for themselves that could not pass on its
own into a measure they expect to be popular for the remainder of its
provisions. Proponents of a measure that may not get majority support may
join it with unrelated or only marginally related provisions that they expect
to be more popular or to appeal to a different segment of the electorate.
The initiative in the present case is not a comprehensive reform of the
type approved in earlier Supreme Court cases. It resembles much more the
misjoined initiatives struck from the ballot in Senate of the State of Cal. v.
Jones, supra; California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d
351; and Chemical Specialties Manufacturers Assn., Inc. v. Deukmejian
(1991) 227 Cal.App.3d 663. A provision which is supposed to help victims
of unsolved crimes obtain justice in their cases is unnaturally joined with a
provision lowering the punishment for California’s very worst murderers in
a cruel but transparent attempt to drive a political wedge between two groups
of victims. The only connection between the two is that both have effects on
the state budget, exactly the connection found insufficient in Harbor v.
Deukmejian (1987) 43 Cal.3d 1078. Cases in which an initiative creates a
fund, fills it with new tax revenue, and then directs its disbursement are
distinguishable in that the inputs and outputs of such a fund are necessarily
functionally related. In the present case, there is no connection between the
proponents’ speculative projections of savings and the fund transfer. The
transfer from the general fund will be made whether the savings materialize
or not.
7
Because the Constitution expressly requires that initiatives embracing
more than one subject not be presented to the electors, a writ of mandate
should issue keeping this initiative off the November ballot.
ARGUMENT
I. The prerequisites to consideration of the merits are satisfied.
A. Standing.
When a petition for a writ of mandate involves a question of public
interest, rather than private right, the usual rules of standing are relaxed, and
“ ‘ “it is sufficient that [petitioner] is interested as a citizen in having the laws
executed and the duty in question enforced.” ’ ” (League of Women Voters
v. Eu (1992) 7 Cal.App.4th 649, 657, quoting Bd. of Soc. Welfare v. County
of L.A. (1945) 27 Cal.2d 98, 101).) Both Petitioners are citizens and voters
of California and have an interest, shared with all Californians, of seeing the
single-subject requirement of the Constitution enforced.
B. Jurisdiction.
This court has jurisdiction in mandate proceedings, concurrently with
the Supreme Court and the Superior Court. (Cal. Const., art. VI, § 10; Code
Civ. Proc., § 1085.)
C. Timeliness and Propriety of Preelection Consideration.
Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142 (Jones)
resolves any timing objection. Single-subject challenges are properly
resolved before the election, in contrast to challenges based on the
substantive validity of individual provisions, to enforce the constitutional
mandate that multi-subject initiatives “ ‘may not be submitted to the
electors.’ ” (Id. at p. 1153, quoting Cal. Const., art. II, § 8, subd. (d), italics
added by the court.) The Supreme Court more recently clarified the
1. The printing deadline this year is August 13, 2012, according to
Respondent. (See Cal. Secretary of State, November 6, 2012, General
Election Calendar ¶ 23, <http://www.sos.ca.gov/elections/2012-
elections/ calendar/pdfs/section-9-general-election.pdf> [viewed May
8, 2012].)
8
procedure/substance distinction in a pair of cases. Costa v. Superior Court
(2006) 37 Cal.4th 986, 994 involved discrepancies between the version of
the initiative submitted to the Attorney General and the version printed on
the petitions. Citing Jones, the Supreme Court held that this court had
properly considered this challenge before the election, given that it was a
challenge to a procedural prerequisite for placing the measure on the ballot.
(See id. at pp. 1005-1007.) The Supreme Court’s grant of review and stay
of this court’s order removing the proposition from the ballot was based on
disagreement with the decision on the merits. (See id. at p. 1008.) In
contrast, in Independent Energy Producers Assn. v. McPherson (2006) 38
Cal.4th 1020, 1023, the Supreme Court considered the challenge to be a
substantive one, distinguishing Costa on this basis, and decided that
“deferring judicial resolution until after election . . . often will be the wiser
course” in such a case. (Id. at p. 1030.)
The Jones court also held that challengers may properly wait until an
initiative has been certified as qualifying for the ballot. (See Jones, supra,
21 Cal.4th at p. 1155.) The proceeding in Jones was timely when filed a
little more than four months before the election and one and one-half months
before the ballot pamphlet printing deadline. (See ibid.) The present
proceeding is commenced almost six months before the election and three
months before the printing deadline. The proceeding in Jones was1
commenced “a little more than two weeks” after certification (ibid.), and this
9
one is commenced three weeks after certification, an immaterial difference
given the substantially longer time before the election and printing deadline.
D. Propriety of Original Proceeding.
Preelection challenges to initiatives are regularly decided in original
proceedings in appellate courts, typically without any need for discussion of
the point. (See Jones, supra, 21 Cal.4th at p. 1145; League of Women Voters
v. Eu, supra, 7 Cal.App.4th at p. 653.) In these cases, as a category, there is
a need for quick resolution, an important public interest, and an absence of
disputed material facts to be found in a trial court proceeding, all of which
make it obvious that the usual policy of requiring the petitioner to go to the
trial court first does not apply. (Cf. Quantification Settlement Agreement
Cases (2011) 201 Cal.App.4th 758, 845.)
II. The Initiative Violates the Single-Subject Rule.
A. A Tale of Two Titles.
The problem with this initiative is easy to see. One need only look at
the two titles it has been given. Neither the proponent nor the Attorney
General has been able to come up with a single title that embraces both the
death penalty repeal and the law enforcement funding aspects of the
initiative. “Although, article II, section 8, subdivision (d) does not expressly
require that the subject of an initiative be stated in its title (Harbor v.
Deukmejian [(1987)] 43 Cal.3d [1078,] 1098), its singleness may be
determined by the extent to which its provisions are germane to the general
subject as expressed in its title and within the field of legislation suggested
thereby.” (California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351,
358, italics added.)
10
The proponent of the initiative titled it, “The Savings, Accountability,
and Full Enforcement for California Act.” (See Exhibit A.) The Attorney
General, charged with preparing a “true and impartial” title and summary
(see Elec. Code, §§ 9004, subd. (a) & 9051, subd. (c)), titled the same
initiative “Death Penalty Repeal.” (See Exhibit B.) Few people presented
with these two titles would have any idea that they were intended to refer to
the same initiative. The proverbial man on the street would be astonished to
learn that the first-titled act retroactively reduces the maximum penalty for
murder. The opaque reference to “savings” would not even hint at that
subject to a reasonable person. Similarly, no one would guess that the
second-titled act alters the mechanism for funding local law enforcement,
transferring appropriation authority from the Legislature to an executive
officer.
Such a wide variance between the subjects suggested by the act’s built-
in title and the title that actually describes its primary effect indicates that
something is gravely wrong here. Indeed there is. This initiative is a perfect
example of “ ‘logrolling’—that is, the practice of combining two or more
unrelated provisions in one measure, thereby forcing a single
take-it-or-leave-it vote on matters that properly should be voted upon
separately.” (Californians for an Open Primary v. McPherson (2006) 38
Cal.4th 735, 750; see also Chemical Specialties Manufacturers Assn., Inc. v.
Deukmejian (1991) 227 Cal.App.3d 663, 672.)
To qualify under the single-subject rule, a measure’s provisions must be
“ ‘reasonably germane’ to the object of the act” or “ ‘ “functionally related in
furtherance of . . . a common underlying purpose.” ’ ” (Harbor v.
Deukmejian, supra, 32 Cal.3d at p. 1098.) “[E]ither standard would satisfy
the constitutional requirement.” (Id. at p. 1099.) In practice, though, this
11
general wording is less useful than an examination of past initiatives and
legislative bills (see id. at p. 1098 (same principles apply)) to see what has
passed muster and what has not. This requires a review of the precedents
before turning to the present initiative.
B. Comprehensive Reforms v. Misjoined Chimeras.
Comprehensive reforms have been upheld even though they contain a
wide variety of provisions as long as the provisions included are relevant to
the theme and advance the purpose of the measure. The broadest case is the
earliest. The enactment of the entire Probate Code in a single act was held
to be compatible with the single-subject rule. (Evans v. Superior Court
(1932) 215 Cal. 58, 63.) In Fair Political Practices Com. v. Superior Court
(1979) 25 Cal.3d 33, 37 (FPPC), the Supreme Court considered a sweeping
initiative including candidate financial disclosure, spending limits, lobbyist
activities, conflicts of interest, voter pamphlets, and auditing. “In keeping
with the policy favoring the initiative, the voters may not be limited to brief
general statements but may deal comprehensively and in detail with an area
of law.” (Id. at p. 41.) “The provisions of the initiative are reasonably
germane to the subject of political practices . . . .” (Id. at p. 43.) In
Legislature v. Eu (1991) 54 Cal.3d 492, 512, another broad package was
upheld under the unifying theme of “incumbency reform.” Term limits for
both legislative and executive offices, budget limits on the Legislature, and
pensions for legislators (see id. at pp. 501-502) were upheld as “making an
extended career in public office both less available and less attractive to
incumbent legislators . . . .” (Id. at p. 513.)
Two crime initiatives were upheld with a wide variety of provisions
related to the theme of advancing the rights of victims of crime. In
Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, a narrowly divided court
12
upheld a broad initiative “designed to strengthen procedural and substantive
safeguards for victims in our criminal justice system.” The initiative made
changes to criminal law and procedure designed to prevent escape from
justice through the exclusionary rule and mental defenses, to increase
punishment for recidivists, to consider public safety in setting bail, and to
require restitution. (See id. at pp. 242-245.) The challengers focused on the
“safe schools” provision. (See id. at pp. 247-248.) The Brosnahan court
rejected the attack by rejecting the argument that the safety in question refers
to safety from something other than crime. Read broadly, this passage might
be interpreted to imply that crime is a single subject and that any and all
crime-related matters might be lumped in a single initiative. Later decisions
have not read Brosnahan that broadly.
Raven v. Deukmejian (1990) 52 Cal.3d 336, 348 upheld another broad
initiative, but one with a more easily defined theme. After decades of
California Supreme Court decisions shifting the balance in criminal law and
procedure nearly monotonically in favor of criminal defendants, a broad
measure was necessary to shift the balance back. (See id. at p. 348.)
Although broad, this common theme was sufficient to bring the various
provisions under the heading of a single subject.
The most recent of the California Supreme Court’s crime initiative cases
is Manduley v. Superior Court (2002) 27 Cal.4th 537, addressing the Gang
Violence and Juvenile Crime Prevention Act of 1998, Proposition 21. This
opinion is important for what it says and for what it does not say.
“Petitioners contend that each of the foregoing subjects addressed by
Proposition 21—gang violence, the sentencing of repeat offenders, and
juvenile crime—are distinct and unrelated to one another . . . . Petitioners
assert that, although the subjects addressed by Proposition 21 might be
13
related to the general goal of reducing crime, such a goal is too broad to
satisfy the requirements of the single-subject rule.” (Id. at p. 575.) It would
have been a very simple matter to reject that argument by declaring that
crime is a single subject, but the court did not do so. Instead, the court
undertook a more detailed analysis to determine that the provisions of the
initiative are germane to a narrower purpose “to address the problem of
violent crime committed by juveniles and gangs–not simply to reduce crime
generally.” (Id. at pp. 575-576.)
Finding that juvenile crime and gang-related crime were sufficiently
germane was straightforward, given the substantial overlap in those
categories. (See Manduley v. Superior Court, supra, 27 Cal.4th at p. 576; id.
at p. 582 (conc. opn. of Werdegar, J.); id. at p. 589 (conc. opn. of Moreno,
J.).) The more difficult question involved the changes to the offenses that
qualify as “strikes” under the Three Strikes law. Some of these offenses
were obviously germane, such as those tied to the street gang statute. (See
id. at p. 577.) For others, it was sufficient that the offenses were commonly
committed by juveniles and gang members despite collateral effects on adults
who are not gang members. (See id. at p. 578.)
Justice Werdegar’s concurring opinion parsed these provisions more
finely. She finds that “the vast majority of offenses qualifying as strikes
because of Proposition 21 either were closely related to the measure’s gang
and juvenile violence subject or qualify as strikes only as a collateral
consequence of the initiative’s change in the Three Strikes law’s lock-in
date.” (See Manduley v. Superior Court, supra, 27 Cal.4th at pp. 583-584.)
A few “doubtfully germane provisions” remain but these should not be
considered a separate subject “in a broad and complex measure.” (Id. at p.
583.) This implies a sort of materiality standard based on the importance of
14
the provisions relative to the scope of the whole initiative and the extent to
which it is removed from the purpose of the initiative.
In contrast to these broad reform measures with minor provisions of
perhaps doubtful germaneness, other initiatives have included jarringly
misjoined provisions more obviously removed from the main purpose, more
important relative to the scope of the initiative, or both. They call to mind
the mythical chimera, a “monster with a lion’s head, a goat’s body, and a
serpent’s tail.” (New Oxford American Dictionary 298 (2001).) These
initiatives with “ ‘unnatural combinations of provisions’ ” (Brosnahan v.
Brown, supra, 32 Cal.3d at p. 251, quoting Ruud, No Law Shall Embrace
More Than One Subject (1958) 42 Minn.L.Rev. 389, 408) have met with a
different fate.
California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351, 355
(CTLA) involved a sweeping reform of auto insurance, moving to a no-fault
system for the purpose of reducing the cost of insurance to the public.
Imbedded in this reform was a provision on campaign contributions by
insurers, among others, and conflicts of interest regarding receipt of such
contributions. (See id. at p. 356.) The fact that this provision related to
insurance, if narrowly construed, was not enough to save it from single-
subject attack. The provision had an insufficient relation to the purpose of
the remainder of the initiative to reduce the cost of insurance. (See id. at p.
359.) An exemption for insurance-related entities from otherwise applicable
rules on contributions and conflicts is not something a voter would expect to
be included in a measure on no-fault auto insurance. Although the CTLA
court emphasized deceptiveness rather than logrolling, there is an element of
logrolling here as well. Such an exemption is not likely to be approved by
the voters standing alone, but the proponents stuck this plum for themselves
15
into a measure they believed would be approved by the voters for its other
provisions.
In Chemical Specialties Manufacturers Assn., Inc. v. Deukmejian (1991)
227 Cal.App.3d 663, 671 (Chemical Specialties), the broad purpose of public
disclosure was insufficient to tie together provisions on pollution, insurance,
nursing homes, elections, and apartheid. The court noted the “logrolling”
nature of the initiative not as a separate ground for striking it down but rather
as reinforcing the conclusion that it embraced more than one subject. (See
id. at p. 672.) A person who felt passionately about apartheid, for example,
and did not feel strongly about the other provisions might well vote yes,
while others might do the same based on the other provisions.
While logrolling is not a separate ground for attacking an initiative that
satisfies the single-subject rule (see Kennedy Wholesale, Inc. v. State Bd. of
Equalization (1991) 53 Cal.3d 245, 255), an examination of an initiative for
signs of logrolling is a useful tool for distinguishing the broad reform from
the misjoined chimera. Brosnahan v. Brown, supra, 32 Cal.3d at page 251,
noted the 1982 Victims’ Bill of Rights was “singularly unsusceptible to such
‘logrolling’ criticism.” Although the provisions were wide-ranging, there
were none that appeared to be inserted to garner support from voters who
might otherwise disapprove or to smuggle into an otherwise popular measure
a provision that would be unpopular standing alone. Most voters who
believed in the need “to strengthen or tighten the laws in aid of crime’s
victims” (see ibid.) would very likely support all the provisions of the
initiative.
C. Senate v. Jones.
In Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1158
(Jones), the Supreme Court cited CTLA and Chemical Specialties as
16
providing “important guidance” and went on to provide some important
guidance of its own. Jones involved a challenge to an initiative that changed
the manner in which legislators’ pay is set, limited their expense
reimbursements, docked their pay if the budget was late, and transferred the
power to reapportion the Legislature to the Supreme Court. In each case
there was a mechanism for voter approval. (See id. at pp. 1147-1148.) The
challengers contended that “the challenged measure involves one of the
classic situations intended to be addressed by the single-subject rule: the
joining of one measure in which the proponent of an initiative is primarily
interested . . . with an unrelated measure or measures that the proponent
views as politically popular . . . simply to increase the likelihood that the
proponent’s desired proposal will be adopted.” (Id. at p. 1151.)
The logrolling in Jones was the combination of the reapportionment
provision with the various measures on compensation. The pay measures,
without the reapportionment, would have been a single subject. (See Jones,
supra, 21 Cal.4th at p. 1161.) Jones rejected the claim that “voter
involvement” or “voter approval of political issues” could be a single
subject, citing Chemical Specialties. (See id. at pp. 1161-1162.) Diverse
subjects cannot be joined merely by tying them together with a single
remedy. (Id. at pp. 1162-1163.)
The proffered subject of “legislative self-interest” was rejected without
deciding if that could be a single subject. Instead, Jones noted that the pay-
setting provision would not, in fact, reduce legislators’ influence in setting
their own pay relative to existing law. (21 Cal.4th at pp. 1163-1164.) Thus
while it is sometimes said that a court will not consider whether an initiative
actually would advance its purported purpose (see Calfarm Ins. Co. v.
Deukmejian (1989) 48 Cal.3d 805, 841-842), Jones did look at how the
17
initiative would change existing law and evaluate whether that change
actually advanced a claimed purpose.
It remained necessary to distinguish FPPC and Legislature v. Eu, which
had approved as single subjects “political practices” and “incumbency
reform,” respectively. See supra at p.11. Regarding the former, Jones said,
“Unlike Proposition 24, the measure challenged in FPPC did not seek
to combine one major structural change in the state constitutional
framework (such as the transfer of the reapportionment power from the
legislative to the judicial branch) with unrelated measures (such as those
reducing and revising the pay of legislators and other state officers), but
instead embodied a comprehensive package of provisions that were
reasonably related to a common theme of reforming political campaign
practices and related activities of candidates, lobbyists, and proponents
of ballot measures. Thus, in that instance, the measure properly could
be viewed as one ‘which fairly disclose[d] a reasonable and common
sense relationship among [its] various components in furtherance of a
common purpose.’ (Brosnahan [v. Brown], supra, 32 Cal. 3d 236,
253.)” (21 Cal.4th at p. 1167.)
This rather unsatisfying passage gives us the germ of the idea but little
in the way of concrete guidance. It seems to endorse the concept of
comprehensive reforms versus misjoined chimeras discussed above, but it is
short on criteria for differential diagnosis. It will not do to say, “I know a
chimera when I see one.” (Cf. Jacobellis v. Ohio (1964) 378 U.S. 184, 197
(conc. opn. of Stewart, J.).) One available criterion, endorsed in Brosnahan
and Chemical Specialties and quoted by the Jones court from the petitioner’s
argument, is the presence of apparent logrolling—the joinder of a provision
that appears to be a goal of the proponent, but with doubtful electoral
prospects on its own, with others likely to be more popular or appeal to a
different segment of the electorate, but that one would not expect to see in
the same package. Although not determinative, this is an indication that the
initiative contains more than one subject. We see a hint of this at the very
18
end of the Jones opinion, where it refers to allowing the unnatural
combination to “obscure the electorate’s intent with regard to each of the
separate subjects . . . . ” (21 Cal.4th at p. 1168.) Contrasting this with
Brosnahan’s “singularly unsusceptible” comment, see supra at p. 15, we see
that the court in Jones does seem to recognize logrolling as a key factor.
D. Budget-Centered v. Budget-Related.
For some measures, the connection between the provisions is financial.
The pattern in these cases seems to be that measures focused on the
comprehensive state budget are upheld, as are those that create a specific
fund through a tax and then disperse it, but a less tangible financial
connection is insufficient.
The Constitution requires that legislative bills “embrace but one
subject” but also contemplates that the budget be a single bill (see Cal.
Const., art. IV, §§ 9, 12), so it stands to reason that the budget itself is a
single subject. In Harbor v. Deukmejian, supra, 43 Cal.3d at pages 1097,
1100, the Supreme Court was confronted with a budget “trailer bill” that
made numerous substantive changes to the law under the heading of “fiscal
affairs” because they affected the cost of the various budgeted programs,
including a particularly controversial provision regarding welfare benefits.
The argument in defense was “that since the cost of the program mandated
by section 45.5 affects the amounts appropriated in the budget, its provisions
are conducive to that goal [reflecting matters in the budget bill] and therefore
in compliance with the single subject rule.” (Id. at p. 1100.) The court
rejected the argument. The bill suffered from the “excessive generality”
warned against in Brosnahan, and to allow such generality “would
effectively read the single subject rule out of the Constitution.” (Id. at pp.
1100-1101.)
19
Five years later, the budget as a single subject came before this court in
League of Women Voters v. Eu (1992) 7 Cal.App.4th 649, and again welfare
entitlements were a bone of contention. This time, though, the budget itself
was the central focus. The measure included procedural reforms of the
budgeting process and also “ ‘substantive reform of one of the budget’s most
long-term uncontrollable statutory elements: welfare.’ ” (Id. at p. 660
(quoting the proponent’s argument).) The court held that the substantive
reform served the budget balancing objective and was sufficiently germane.
(Ibid.) The court distinguished the measure in Harbor v. Deukmejian as
involving provisions “with no relation to the budget process except as a
means of reducing expenditures or raising revenues.” (Id. at p. 666.)
Initiatives have also been upheld against single-subject attack when they
create a separate fund, fund it with a new tax, and then disburse the fund,
even though minor portions of the disbursements do not relate to the overall
theme. These might be considered budget-centered measures in miniature,
controlling both the inputs and outputs of the defined fund rather than the
state budget as a whole.
Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d
245, 248 was a single-subject challenge to an initiative that “increases the tax
on cigarettes and other tobacco products and allocates the resulting revenue
to various tobacco-related problems.” Although most of the specified
expenditures were for tobacco-related problems, a few were potentially
unrelated. The court rejected the challenge, treating the few unrelated items
as “ ‘collateral effects.’ ” (Id. at p. 254.) This implies a kind of materiality
test, as discussed supra at page 13. The expenditure provisions might also
have been considered functionally related, in that the expenditures from a
defined fund created by a new revenue stream are functionally related to the
20
creation and funding of that fund. The court notes that “the measure’s
spending provisions direct new revenues more precisely to tobacco-related
problems than if the electorate had simply omitted any such provisions.”
(Ibid.)
A second tobacco tax initiative was considered in California Assn. of
Retail Tobacconists v. California (2003) 109 Cal.App.4th 792 (CART). “The
Act increased the tobacco excise tax for the stated purposes of reducing
tobacco use, particularly among teenagers, and funded early child
development and antismoking programs.” (Id. at p. 803.) Applying Kennedy
Wholesale, the court upheld the initiative.
“Comparatively, the Act and Proposition 99 impose a tax on tobacco
products, consist of elements reasonably germane to each other, deposit
tax revenue into specific funds and appropriate revenue for use to meet
desired objectives that are largely tobacco-related. Although there
appears to be no relationship between Proposition 99 tobacco tax
revenue and state parks, non-smoking-related fire prevention,
environmental conservation, wildlife habitat protection and
non-smoking-related indigent medical care, the Act’s tobacco tax
revenue can be related to every early childhood development program
funded by the Act because parental smoking and secondhand smoke in
general have an arguably negative impact on a child’s early
development. Unlike Proposition 99, the Act requires the additional
tobacco tax revenue generated be spent on a specific demographic
group whose health and welfare is harmed by parental smoking and
secondhand smoke.” (Id. at pp. 813-814, italics added.)
The connection between second-hand smoke and child development
programs is quite a stretch, but there is no doubt that the initiative creates a
specific fund with a designated, newly created revenue stream and then
directs its appropriation. The California Lottery, created by initiative in
1984, creates a fund with gambling revenues and spends the net revenue on
education, an expenditure with no apparent relevance to the source. (See
21
Gov. Code, § 8880.4.) It has apparently not even been challenged on the
basis of the single-subject rule. Whether CART is correct on its rationale that
the tax and the expenditure are germane in the sense of being smoking-
related is very doubtful. That connection is at least as tenuous as the one
rejected in Jones. However, the creation and disposition of a specific stream
of revenue are surely functionally related.
E. The Present Initiative.
The critical question is where the Savings, Accountability, and Full
Enforcement for California Act, alias the Death Penalty Repeal Initiative, fits
into this pattern. The initiative has three main substantive parts.
The first part is contained in section 4 (in part), which amends Penal
Code section 190 to require that murder convicts work and that a portion of
the wages go to restitution. This is window dressing with little real effect,
given that Penal Code sections 2700 and 2085.5 already impose substantially
the same requirements.
The second and main part of the initiative is the repeal of the death
penalty in sections 4 (in part) and 5-8. Despite the claims about saving costs,
section 10 makes the reduction in penalty retroactive to existing cases, even
those where the costs of trial, appeal, habeas, and clemency have already
been paid and nothing remains but to carry out the judgment. (See Petition
for Writ of Mandate in Winchell v. Cate, C070851 ¶ 5, p. 3 (pending).) For
these cases, there can be no question that the cost of lifetime incarceration,
including late-life medical care, exceeds the cost of executing the judgment.
(See Exhibit C, p. 6.)
The third substantive part of the initiative is section 9, creating the
“SAFE California Fund.” This section transfers the power to control a
portion of the state budget from the Legislature to the Attorney General. (Cf.
2. The claims of large savings are hotly disputed. (See Exhibit C.) This
case is not the place to resolve the dispute, however. It is sufficient to
note that the claimed savings are not a certainty, and the fund is not tied
in any way to actual savings.
22
Jones, supra, 21 Cal.4th at p. 1161.) A total of $100,000,000 dollars is
transferred out of the general fund in four increments from January 1, 2013,
to July 1, 2015. The Attorney General then has authority to allocate the
money “to police departments, Sheriffs and District Attorney Offices, for the
purpose of increasing the rate at which homicide and rape cases are solved.”
Not a single word in section 9 has any direct connection to anything in
the other substantive portions of the initiative. The sum to be transferred is
not tied to the amount of savings, if any, that flow from repeal of the death
penalty. The source of the funds is solely the state general fund, even though
much of the claimed savings is supposed to be reduced trial costs at the
county level. The only connection between the death penalty repeal and2
section 9 is that one is claimed to save money and the other spends money.
Also worth noting at this point is that section 9 does not guarantee any
net increase whatever in funding for the stated purpose of solving homicide
and rape cases. Nothing in the initiative prevents the Legislature from
offsetting the funds transferred into the new fund with cuts to law
enforcement elsewhere in the budget. Earlier initiatives setting up new funds
at least had precatory language to the effect that funds were to be additional
and not replacement. (See Rev. & Tax Code, § 30131.4 (the initiative at
issue in CART, supra); Gov. Code, § 8880.1 (lottery).)
This initiative is not a comprehensive reform of the type upheld in
Evans, FPPC, Brosnahan, Raven, or Manduley. It does not overhaul a broad
23
area of the law. Instead, it makes three pinpoint changes in the law, of which
one duplicates existing law and two have markedly different purposes.
The death penalty repeal and section 9 both relate to crime, but the
analysis in Manduley strongly indicates that “crime” is too broad to be a
single subject. See supra at p. 13. Section 3, paragraph 6 of the initiative
states a purpose, “To end the more than 25 year-long process of review in
death penalty cases, with dozens of court dates and postponements that
grieving families must bear in memory of loved ones.” This appears to be
an attempt to cast the repeal as somehow supportive of victims’ rights in an
attempt to bring the initiative under the same umbrella as Brosnahan. In this
regard, it is appropriate to look at actual effects the law would have, as the
Supreme Court did in Jones. See supra at p. 17. Retroactive reduction of
the penalty would not end the defendant’s right to file a direct appeal, one or
more state habeas petitions, or a federal habeas petition challenging the guilt
verdict or the finding of special circumstances. It would not prevent him
from filing petitions for clemency. The proceedings rendered moot would
be only those challenging the sentence. The present unnecessarily extended
reviews of the sentence are, of course, deeply troubling to those families who
intensely desire to see the sentence carried out, but a law that immediately
and finally cuts off any possibility of that justice cannot be credibly cast as
advancing the interests of those victims.
Brosnahan itself was a decision of a narrowly divided court, indicating
that it stretched the concept of rights of crime victims as far as it should go.
To bring this initiative under that umbrella, a court would have to give the
proponents carte blanche to extend it by pasting a victims’ rights veneer on
what is manifestly a provision for the benefit of murderers. The interest
connection here is even thinner than the one rejected in Jones, where the
24
provisions of the initiative could all be plausibly related to reducing
legislators’ ability to secure themselves into lucrative nests at taxpayer
expense.
The main claim for a connection between the second and third parts is,
of course, the financial one. The proponents claim that the initiative would
“free up law enforcement resources to increase the rate at which homicide
and rape cases are solved . . . .” (Exhibit A, § 2, ¶ 10.) In this respect, the
present case is much more like Harbor v. Deukmejian than it is like any of
the other cases with financial ties between the provisions.
The state budget as a whole is plainly not the purpose of this initiative.
Although the 30 million dollars a year for the new fund is a large amount of
money, it is a tiny fraction of the total state budget, about 0.03%. (See
Governor’s Budget Summary—2012-13, p. 16 <http://www.ebudget.ca.gov/
pdf/BudgetSummary/SummaryCharts.pdf> [viewed May 8, 2012] (proposed
expenditures over $92 billion).) This is in sharp contrast with League of
Women Voters v. Eu, supra, 7 Cal.App.4th at page 655, where the health and
welfare expenditures in question were about a third of the general fund
budget.
Nor does this case involve the creation of a new fund with a dedicated
tax and the disbursement of that fund, unlike Kennedy Wholesale or CART.
No such direct tie between the claimed savings and the new fund exists in
this initiative. The pot of money for the new fund is simply lifted out of the
general fund with no connection whatever to whether or to what degree the
claimed savings actually materialize.
If a change in substantive law can be joined in an initiative with a
popular program based on nothing more than a financial connection and a
broad area of government such as “crime” or “education,” the door will be
3. Even when the question wording is skewed to the maximum in the
opponents’ favor, implying that the respondent must choose one
punishment for all murders, the life-without-parole option does not
reach a majority. (See id. at p. 4; see also Scheidegger, Cal. Field Poll
on DP: 68-27 (Sept. 29, 2011) Crime & Consequences Blog
<http://www.crimeandconsequences.com/crimblog/2011/09/cal-field
-poll-on-dp-68-27.html> [as of May 7, 2012].)
25
open to a great deal of nefarious manipulation. For example, the California
DREAM Act is a controversial program for assistance for higher education
for persons who immigrated illegally as children. (See Office of the
Governor, Governor Brown Signs California Dream Act (Oct. 8, 2011)
<http://www.gov.ca.gov/news.php?id=17268> [viewed May 8, 2012].) The
program clearly costs money. (See ibid. ($14.5 million).) Would an
initiative to repeal it and use the savings to fund an unrelated but popular
education program be a single subject? It would be, if the initiative in this
case is a single subject.
Finally, when the single-subject question is otherwise close, the court
should ask whether the initiative presents the danger of logrolling. See supra
at p. 17. This initiative does not just smack of logrolling, it reeks of it.
Section 9 is plainly stapled on as an afterthought in the hopes of attracting
enough votes to put an initiative with otherwise dubious prospects over the
top. The proponents know well that the people of California remain in favor
of keeping the death penalty rather than doing away with it by a staggering
margin of over 2-to-1, 68% to 27%, with little change over the last 11 years.
(See DiCamillo & Field, The Field Poll Release #2393 (Sept. 29, 2011) p. 2
<http://www.field.com/fieldpollonline/subscribers/Rls2393.pdf> [as of May
7, 2012].)3
26
The reality that section 9 is a political ploy rather than the product of a
genuine desire to achieve its purported purpose can be seen in the sloppiness
of its drafting. The money is simply plopped into a pot and given to the
Attorney General to disburse with little direction as to how it is to be spent,
no safeguards to ensure that offsetting cuts to law enforcement budgets are
not made elsewhere, and not even a statement of intent that the funding be
additional rather than replacement. If supplemental funding for solving
cases were really the goal, more care and more thought would have gone into
the drafting.
So why is this section in the initiative? The proponents also know well
that the families of murder victims are rightly accorded great sympathy by
the people of California. This section is a cruel, Machiavellian ploy to drive
a political wedge between two groups of victims, promising one group
funding for a chance to get justice in their cases but only by denying justice
to the other group. The ploy is made even more cruel by the fact that the
promise is illusory due to the lack of protection from offsetting cuts.
Section 9 is pure logrolling. It is an unrelated provision stapled on to
a death penalty repeal bill to attract votes from voters who would oppose the
death penalty repeal standing alone but who quite rightly want to help the
victims and victims’ families in unsolved cases. That is exactly what the
single-subject rule was put into the Constitution to prevent.
27
CONCLUSION
A writ of mandate should issue as requested in the petition.
May 14, 2012
Respectfully Submitted,
Kent S. Scheidegger
Attorney for Petitioners
Phyllis Loya and Michael Rushford
28
CERTIFICATE OF COMPLIANCE PURSUANT TO
CALIFORNIA RULES OF COURT 8.204(c) AND 8.486(a)(6)
Pursuant to rule 8.204(c) and 8.486(a)(6), I certify that the foregoing
brief is one-and-a-half spaced and is printed in 13-point Times New Roman
font. In reliance upon the word count feature of WordPerfect, I certify that
the attached PETITION FOR WRIT OF MANDATE OR OTHER
APPROPRIATE RELIEF AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PETITION contains 7,462 words,
exclusive of those materials not required to be counted under Rules 8.204(c)
and 8.468(a)(6).
Dated: May 14, 2012
Respectfully Submitted,
Kent S. Scheidegger
Attorney for Petitioners
Phyllis Loya and Michael Rushford
29
CERTIFICATE OF SERVICE
I, Irma Abella, declare:
I am a resident of the State of California and over the age of eighteen years
and not a party to the within-entitled action; my business address is 2131 L
Street, Sacramento, California 95816. On May 14, 2012, I served the following
document described as PETITION FOR WRIT OF MANDATE OR OTHER
APPROPRIATE RELIEF AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PETITION on the following parties in said
action:
George Waters
Deputy Attorney General
Department of Justice
1300 I Street, 17th Floor
Sacramento, CA 95814
Tel: 916-323-8050
Lowell Finley
Chief Counsel
Office of the Secretary of State
1500 11th Street
Sacramento, CA 95814
Tel: 9160653-7244
James C. Harrison
Remcho, Johansen & Purcell, LLP
201 Dolores Avenue
San Leandro, CA 94577
Tel: (510) 346-6200
Attorney General’s Office
(Email & Hand Delivery)
Attorney for Respondent
SECRETARY OF STATE
(Email & Hand Delivery)
Attorney for Real Party in Interest
(Email & U.S. Mail)
BY HAND DELIVERY (For Respondent and Attorney General): By
delivering a copy of the document to the office of the attorney listed and leaving
30
it with the receptionist, another person having charge of the office, or the
attorney personally.
BY U.S. MAIL (For Real Party in Interest): By placing the document in a
sealed envelope and depositing the envelope, with postage thereon fully prepaid,
in the United States Postal Service mailbox in Sacramento, California, addressed
to the party as listed above. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
BY ELECTRONIC MAIL (For all parties): By causing a true copy of PDF
versions of the document to be sent to the e-mail address of each party listed.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct, and that this declaration was executed on
May 14, 2012, at Sacramento, California.
Irma H. Abella
EXHIBITS
EXHIBITS
Initiative 11-0035 and submission cover letter . . . . . . . . . . . . . . . . . . . . . . . A
Title and summary of initiative 11-0035 prepared by
the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
Letter from Criminal Justice Legal Foundation to
the Legislative Analyst Office, Sept. 19, 2011 . . . . . . . . . . . . . . . . . . . . . . . C
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October 20, 2011Initiative 11-0035
The Attorney General of California has prepared the following title and summary of the chief purpose and points of the proposed measure:
DEATH PENALTY REPEAL. INITIATIVE STATUTE. Repeals death penalty as
maximum punishment for persons found guilty of murder and replaces it with life imprisonment
without possibility of parole. Applies retroactively to persons already sentenced to death.
Requires persons found guilty of murder to work while in prison, with their wages to be applied
to any victim restitution fines or orders against them. Creates $100 million fund to be distributed
to law enforcement agencies to help solve more homicide and rape cases. Summary of estimate
by Legislative Analyst and Director of Finance of fiscal impact on state and local government:
Net savings to the state and counties that could amount to the high tens of millions of
dollars annually on a statewide basis due to the elimination of the death penalty. One-time
state costs totaling $100 million from 2012-13 through 2015-16 to provide funding to local
law enforcement agencies. (11-0035.)
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2131 L Street, Sacramento, CA 95816 • P.O. Box 1199, Sacramento, CA 95812 • (916) 446-0345 • Web page: http://www.cjlf.org
National Board of Trustees
Chairman Emeritus Jan J. Erteszek(1913 - 1986)
Chairman William A. Shaw
Vice Chairman Rick Richmond
President & CEOMichael Rushford
Secretary-Treasurer Mary J. Rudolph
Joseph F. Alibrandi
William E. Bloomfield, Jr.
Patrick A. Doheny
Jerry B. Epstein
James J. Hawk
Michael H. Horner
Samuel J. Kahn
Faye Battiste Otto
J. Kristoffer Popovich
Gino Roncelli
Robert W. Templeton
Ted G. Westerman
Hon. Pete Wilson
Legal Advisory Committee
Hon. John A. Arguelles
Hon. George Deukmejian
Hon. Malcolm M. Lucas
Hon. Edwin Meese, III
Hon. Edward Panelli
Legal Director &
General Counsel
Kent S. Scheidegger
Academic Review Board
Prof. James Q. Wilson
Prof. George L. Kelling
Prof. Steven Levitt
Prof. Joseph M. Bessette
EmeritusTrustees
Barron HiltonJames B. Jacobson
Robert S. Wilson
Criminal Justice Legal Foundation
September 19, 2011
Mr. Drew SoderborgSenior Fiscal and Policy AnalystLegislative Analyst’s Office925 L Street, Suite 1000Sacramento, CA 95814
Re: Initiative 11-0035, Death Penalty Repeal
Dear Mr. Soderborg:
I understand you are preparing a fiscal analysis of the proposedinitiative to repeal the death penalty. The Criminal Justice LegalFoundation submits this additional information to assist in this effort.
The initiative’s “findings and declarations” section asserts, “Byreplacing the death penalty with life in prison without possibility of parole,we would save the state $1 billion in five years without releasing a singleprisoner . . . .” This claim is unsubstantiated.
The proponents’ claims are apparently based on a recent law reviewarticle by Arthur Alarcon and Paula Mitchell. This article is not a reliable1
source. The article is published in a law review, not a peer-reviewedjournal where it would be subject to review by actual researchers. Fromthe biographies, it does not appear that either author has any backgroundin study methodology, and the article itself reveals serious methodologicalflaws. Further, prior writings from sources with an anti-death-penaltyagenda are accepted uncritically while those from death penalty advocatesare simply ignored.
To provide some perspective on the problem, we will discuss priorstudies, trial costs, the plea bargain effect, incarceration costs includinghealth care, and deterrence.
Mr. Drew SoderborgSeptember 19, 2011Page 2
Prior Studies
Only one study on death penalty costs in California has been done by acredible source. Unfortunately, this study only describes the magnitude ofthe problem. It does not give an answer. “In August of 2006, the CaliforniaCommission on the Fair Administration of Justice (CCFAJ) approached theRAND Corporation seeking a study on the costs and administration of thedeath penalty in California. . . . Given uncertainty regarding availability andaccess to data, RAND agreed to start by undertaking a feasibility study. . . . [W]e concluded that to collect the quantitative data necessary to generatedefensible cost estimates for the death penalty would be much more difficultand more costly than we had originally envisioned, and that the proposedstudy was not feasible within the scope of the original timeframe andbudget.”2
The CCFAJ was not able to produce a report agreed to by the entirecommission. It split largely along pro- and anti-death-penalty lines, and themajority report was signed almost exclusively by those members who hadbeen opposed to the death penalty from the beginning. Having been told bythe real researchers that a defensible cost estimate was not feasible, themajority proceeded to rely on indefensible estimates. The majority citeduncritically a study by the ACLU and one prepared for Death Penalty Focus,both organizations strongly opposed to the death penalty and preparing costestimates for the purpose of that advocacy. Indeed, the Death Penalty Focus3
report disclosed its advocacy purpose right in the title.4
The ACLU study, like many and perhaps most studies in this area,5
commits one of the most basic methodological errors in social science. Thaterror is to compare two groups that differ in one characteristic and assumethat the two groups are not otherwise different. The error, in commonparlance, is “comparing apples and oranges.” Comparing cases where theprosecution seeks the death penalty, in some of which the jury imposes thatpenalty, to those cases where the prosecutor concedes life in prison isappropriate, and then assuming the prosecutor’s decision is the onlydifference, is clearly and fundamentally wrong. The prosecutor’s decision toseek the death penalty is the result of a careful and deliberate decision basedon the facts of the case. The two groups are different, and they are differenton purpose. The CCFAJ was informed of this grave methodological flaw intestimony, but the majority chose to ignore it and repeatedly cited the ACLUstudy as if it were valid.
Mr. Drew SoderborgSeptember 19, 2011Page 3
The errors of these studies are compounded in the latest publication, alaw review article by Judge Arthur Alarcon and his law clerk, Paula Mitchell. 6
Alarcon and Mitchell repeatedly rely on the CCFAJ report as if it wereauthoritative, never mentioning that the Commission was deeply divided,that the majority relied on partisan and dubious sources, or that RANDinformed the Commission that a defensible estimate could not be donewithout an extensive study. Curiously, they do cite the RAND report for adifferent proposition, but never mention that report’s main conclusion. The7
article goes on to commit some of the same fallacies as the prior studies,described further below, oblivious to the fact that these flaws had alreadybeen pointed out in testimony to the CCFAJ.
Trial Costs
As noted above, the ACLU study compared costs of murder cases inCalifornia that were prosecuted as capital with cases that were notprosecuted as capital, a fundamental methodological error. The studyemphasized the trial costs of the Scott Peterson and Charles Ng cases,describing the great expense of the cases. Indeed they were expensive, but it8
does not follow that the prosecution’s decision to seek the death penalty inthese cases is responsible for all or even most of the extent to which the costsexceeded those of the median first-degree murder cases.
Both cases were exceptionally notorious. The Peterson case becamenationwide tabloid fodder because of the initial mystery of the disappearanceof the nearly full-term pregnant woman, followed by the domestic drama ofwhether her husband did it. The Ng case was one of the most gruesome casesof serial kidnap, sadistic torture, and multiple murder in California history. Because of their notoriety, both cases required a change of venue, always amajor expense. In addition, the glare of the national media spotlight makesboth sides “pull out all the stops.” In the ACLU’s detailed description of thecosts of the Scott Peterson case, not a single item is clearly the result of thecase being capital.9
Alarcon and Mitchell repeated the same error. They relied on the prior,flawed studies, including the ACLU study, plus news reports. As a method10
for obtaining a sample for a study, news reports are among the worst ways tosample. The well-known axiom of journalism is “if a dog bites a man, that’snot news; if a man bites a dog, that’s news.” Sampling news reports todetermine the relative prevalence of dog-man v. man-dog bites would result
Mr. Drew SoderborgSeptember 19, 2011Page 4
in a wildly wrong answer. Similarly, one would expect that notorious andexpensive murder cases are grossly overrepresented in any sample drawnfrom news reports. In the end, Alarcon and Mitchell give very littleinformation on how they calculated their estimate. They simply state inconclusory fashion the result of the calculation. This may be why the study11
was published in a law review rather than a peer-reviewed social sciencejournal. Such hiding of the methods would disqualify the article from peer-reviewed publication.
Where does this leave us as to trial costs? Qualitatively, we know that incases that go to trial, the jury’s decision as to guilt of murder, degree ofmurder, and truth of at least one special circumstance is the same whether12
the maximum penalty is death or life-without-parole. The prosecution anddefense costs should therefore be the same in a given case whether the deathpenalty is available and sought in that case or not. We also know, againqualitatively, that the additional penalty phase is presently tried only in caseswhere the prosecution seeks the death penalty, and the associated costs13
would not occur if that penalty were abolished.
Quantitatively, unfortunately, we are still at the point where the RANDreport left us. A defensible estimate of costs cannot be made without the kindof study RAND outlined, and the estimates we have are indefensible. Notwithstanding Alarcon and Mitchell’s shrill denunciation of past LAOstatements that costs and savings are “unknown” or “indeterminable,” thatis exactly what they are.
The Plea Bargain Effect
Most of the focus has been on the cost of cases that go to trial. But not allcases go to trial. Among criminal cases generally, most end in plea bargains. A plea bargain obviously reduces the cost, and that indeed is often theprosecution’s primary motivation for entering into the bargain. A pleabargain eliminates the trial and drastically reduces grounds for appeal andhabeas corpus, in most cases eliminating those procedures.
As the LAO noted in its analysis of a previous proposed initiative, thesavings in trial cost from elimination of the death penalty “would be offset tothe extent that prohibition of the death penalty eliminated an incentive forsome offenders to reach plea agreements with county district attorneys in
Mr. Drew SoderborgSeptember 19, 2011Page 5
some murder cases. . . . The magnitude of these offsetting costs isunknown.”14
That statement was correct then, and it remains correct. An estimate ofthe number of cases can be made by comparing disposition data fromjurisdictions with and without the death penalty. A study by CJLF foundthat, in a sample of counties surveyed by the U.S. Bureau of JusticeStatistics, those with the death penalty resolved an average of 18.9% ofmurder cases with a plea and a sentence of life or a long term of years, whileonly 5.0% of murder cases were ended that way in counties where the deathpenalty was not available. (These are percentages of all the murder cases in15
the county, not just first-degree.) There were 1809 homicides in California in2010. Assuming these homicides include the same percentage of murders16
(as opposed to manslaughter) as the BJS sample and applying the 13.9%17
reduction in long-sentence plea bargains, we get 149 cases a year, over fivetimes the number of death sentences in 2009. The offset from the plea18
bargain effect is therefore a major factor in the net cost of abolition of thedeath penalty, even if it cannot be precisely quantified.
Appeal Costs
In order to meet LAO’s timeline for submission of this information, wewill omit a separate discussion of appeal costs. Suffice it to say that many ofthe same principles apply. The capital cases are different and more expensivein part because they are the worst cases and only in part because they arecapital. The plea bargain effect means that more murderers will go to trialand hence have appeals available once the threat of a death sentence isremoved.
Incarceration Costs, Including Health Care
Advocates of repeal regularly claim that incarcerating inmates on deathrow costs far more than it would cost to incarcerate the same inmates if theywere not sentenced to death. The attempts to quantify this difference do notwithstand scrutiny.
The CCFAJ based its cost estimate for death row on a quote from aCalifornia Department of Corrections and Rehabilitation (CDCR)spokeswoman in a newspaper article, making no effort to confirm the numberwith CDCR. Alarcon and Mitchell did check, found that the number was19
Mr. Drew SoderborgSeptember 19, 2011Page 6
unsubstantiated, and proceeded to use it anyway. Both assume that the20
cost of life-without-parole is simply the cost of the average inmate.
That assumption is quite obviously invalid. First, death row inmates aremurderers. They cannot be assumed to be average in level of security needed. Even more importantly, health care is a major portion of corrections cost. 21
Health care for old people costs much more per capita than health care foryoung people, and the costs skyrocket at the end of life. For example, NewYork was recently prepared to spend $800,000 for a heart transplant for aprisoner. The taxpayers were spared that expense only when the prisonervoluntarily declined the operation.22
Section 8 of the proposed initiative provides that every person convictedof first-degree murder with special circumstances “shall be punished byimprisonment in state prison for life without the possibility of parole.” 23
Therefore the state will bear the late-life and end-of-life health costs in everycase. Although hard data on overall costs are difficult to come by, KPBS inSan Diego made the following estimates from the information that isavailable:
Assume Inmate X was incarcerated when he was 37.
For now, he costs taxpayers about $49,000 a year.
That’s until he reaches 55.
As he ages, his health care expenses will increase. At this point he couldcost the state $150,000 a year.
If Inmate X lives until he’s 77, he will have cost California taxpayers asmuch as $4 million to keep him in prison for life.24
If this estimate is correct, the health care cost factor alone could makethe death penalty the less expensive sentence, even with the higher costs oftrial and appeal.
Deterrence
As a matter of common sense and basic psychology, greater penaltiesgenerally have some deterrent effect. Increase the cost of doing anything,
Mr. Drew SoderborgSeptember 19, 2011Page 7
and there is some downward shift in the number of people who choose to doit.
Although the matter remains debated among experts, the overallpreponderance of evidence is that the death penalty does have a deterrenteffect when it is actually enforced. Estimates of the deterrent effect vary. One study estimated 18 lives saved per execution; another estimated 5. 25 26
One well-known article criticized these studies, but the authors have27
responded to the criticism and shown that, taking it into account, theirstudies still show deterrence.28
Removing the deterrent effect, if it exists, costs innocent lives. Crass as itmay sound to put a dollar figure on innocent lives, some attempts atquantification have been made. One such effort found that one murder coststhe government directly more than $426,000 in justice system costs, with thetotal cost to society (including the victim) nearly $24 million.29
It has been argued that deterrence is irrelevant because California’spresently obstructed death penalty does not deter, with executions carriedout rarely and only after many years. The question, however, is about thefuture and not the past. The lethal injection litigation that has held upexecutions in California has been resolved in favor of the state in every statewhere it has concluded, even in the Ninth Circuit. Resolution in California30
is a matter of time, and the time is not far off. The long delayed “fast track”for the federal portion of the review process is also near implementation. TheU.S. Department of Justice finally published final regulations for commentlast March, and the comment period has expired. Looking to the future,31
then, it is quite possible that deterrence will be a substantial offset to the costof trying capital cases, even if only direct costs to the government areconsidered.
Conclusion
The bottom line here is that the initiative proponents’ claim of greatsavings, or even of any savings at all, cannot be confirmed with theknowledge we have at this time. Their estimates of cost are inflated andspeculative. In the words of the real researchers at RAND Corporation, theyare not “defensible.” They fail to consider the late-life and end-of-life healthcare costs of life-without-parole. They fail to consider the offsets of pleabargaining and deterrence. Notwithstanding the shrill and unwarranted
Mr. Drew SoderborgSeptember 19, 2011Page 8
1. Alarcon & Mitchell, Executing the Will of the Voters?: A Roadmap toMend or End the California Legislature’s Multi-Billion-Dollar DeathPenalty Debacle, 44 Loyola L.A. L. Rev. S41 (2011).
2. Everingham, Investigating the Costs of the Death Penalty inCalifornia (Feb. 2008).
3. California Commission on the Fair Administration of Justice, Reportand Recommendations on the Administration of the Death Penalty inCalifornia 38 (2008).
4. Erickson, Capital Punishment at What Price: An Analysis of the CostIssue in a Strategy to Abolish the Death Penalty (1993), available athttp://death.live.radicaldesigns.org//downloads/Erickson1993COSTSTUDY.pdf.
5. American Civil Liberties Union of Northern California, The HiddenDeath Tax: The Secret Costs of Seeking Execution in California(2008).
6. Alarcon & Mitchell, note 1, at S41.
7. Id., at S64.
8. ACLU, note 5, at 21-25, 30-31.
criticism of LAO’s determinations for past initiatives, “unknown” really isthe only defensible answer.
Very truly yours,
Kent S. Scheidegger
KSS:iha
Mr. Drew SoderborgSeptember 19, 2011Page 9
9. ACLU, note 5, at 21-25.
10. Alarcon & Mitchell, note 1, at S75.
11. Alarcon & Mitchell, note 1, at S79.
12. Penal Code §§ 187, 189, and 190.2, respectively.
13. Penal Code § 190.3.
14. Letter from Legislative Analyst to Attorney General, Sept. 9, 1999,quoted in Alarcon & Mitchell, note 1, at S153.
15. Scheidegger, The Death Penalty and Plea Bargaining to LifeSentences (2009), http://www.cjlf.org/publications/papers/wpaper09-01.pdf.
16. California Department of Justice, Crime in California 2010, p. 5(2011).
17. See Scheidegger, note 15, at 9 (59.2%).
18. California Department of Justice, Homicide in California 2009, p. 33(2011).
19. CCFAJ, note 3, at 141, n. 94.
20. Alarcon & Mitchell, note 1, at S105-S106.
21. CDCR’s Budget for Fiscal Year 2011-2012, available athttp://www.cdcr.ca.gov/Budget/Budget_Overview.html (about 20%).
22. Associated Press, NY man imprisoned for raping girl in ‘96 turnsdown heart transplant after outcry, Apr. 25, 2011.
23. There is no provision for the Legislature to amend the law, even bysupermajority.
24. Wendy Fry, Costs of Aging Inmates (Jan. 20, 2010), available at http://www.kpbs.org/news/2010/jan/20/costs-aging-inmates.
Mr. Drew SoderborgSeptember 19, 2011Page 10
25. Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have aDeterrent Effect? New Evidence from Postmoratorium Panel Data, 5Am. L. & Econ. Rev. 344 (2003).
26. Mocan & Gittings, Getting Off Death Row: Commuted Sentences andthe Deterrent Effect of Capital Punishment, 46 J. L. & Econ. 453(2003).
27. Donohue & Wolfers, Uses and Abuses of Empirical Evidence in theDeath Penalty Debate, 58 Stan. L. Rev. 791, 791-845 (2005).
28. Abstracts and citations of peer-reviewed deterrence articles, withoutregard to viewpoint, are collected athttp://www.cjlf.org/deathpenalty/dpdeterrence.htm.
29. DeLisi et al., Murder by Numbers: Monetary Costs Imposed by aSample of Homicide Offenders, 21 J. Forensic Psych. & Psychol. 501,506 (2010).
30. Dickens v. Brewer, 631 F.3d 1139 (CA9 2011).
31. Office of the Attorney General, Certification Process for State CapitalCounsel Systems, 76 Fed. Reg. 11705 (Mar. 3, 2011).
