Peittioners' Reply Memo in Wilson v. Bowen

8/14/2019 Peittioners' Reply Memo in Wilson v. Bowen

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From:Sweeney & Greene LLP 9167531333 7/29/2008 09:01 075 P.001/01

SWEENEY & GREENE LLPATTORNEYS AT LAW

LIBERI) CENTER 119381 EAST STOCKTON BLVD., STE 218LI.KGROVL. CALIFORNIA 95624PHONE: (916)753-1300FAX (916)7,53-1333IA9NSSVEENEY-GREEN E.C)M

JAMES F. SWEENEYSTEPHEN 1 . GREENE. IR

LAURA BORDEN RIDDELOFCOUNS11ERICGRAND

' AUVA>MII IJ11I I II lll 110( 1O COLMH

FACSIMILE TRANSMISSION

Date: July 29, 2008

To: Steven L. Mayer, Esq. - Howard Rice Nemerovski Canady Falk & RabkinAttorneys for RPI Daniel N. Abrahamson

Fax: (415) 217-5910

To: Edmund G. Brown, Jr., Attorney General of the State of CaliforniaChristopher E. Krueger, Senior Assistant Attorney GeneralJason E. Rios, Depute Attorney GeneralAttorneys for Respondent Debra Bowen, Secretary of StateFax: (916) 324-8835

From: James F. Sweeney, Esq.Attorneys for Petitioners

Fax: (916) 753-1300

Re: Case No. 5165180 - Wilson v. Bowen - Reply in Support of Petition for Writ of Mandate

X Urgent _I Reply ASAP Please conwlent Please review For your information

Total pages, including cover: 18Comments:

Please see Petitioner's Reply in Support of their Petition for Writ of Mandate in the above-referenced matter.

THIS COMMUNICATION IS INTENDED FOR THE USE OF THE PERSON TO WHOM IT IS ADDRESSED, AND MAYBE SUBJECT TO THEATTORNEY-CLIENT PRIVILEGE. ANY UNAUTHORIZED DISCLOSURE, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS

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YOU FOR THAT COST. THANK YOU.


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From:Sweeney & Greene LLP 167531333 7/29/ 2008 09:02 075 P.002/01

SWEENEY & GREENE LLPLIBERTY CENTER n

9381 EAST STOCKTON BLVD., STE. 218ELK GRocE. CALIFORNIA 95624PHONE: (916) 753-1300FAR: (916) 753-1333WWWSWEENEY-GREEN 6COM

ATTORNEYS AT LAW

JAMES F. SWEENEYSTEPHEN J. GREENE, JR.

LAURA BORDEN RIDDELL"OFCOUNSEL:ERIC GRANT'

ALSO ADMITTED IN THE DISTRICT OE COLUMBIA** ALSO ADMITTED IN LOUISIANA

July 29, 2008VIA FACSIMILE TRANSMISSIONThe Honorable Ronald M. George, Chief Justice of California,And Honorable Associate JusticesSUPREME COURT OF CALIFORNIA350 McAllister StreetSan Francisco, California 94102-4797Fax: (415) 865-7183

Re: Pete Wilson, et al. v. Debra Bowen, as Secretary of State,Respondent; Daniel N. Abrahamson, Real Party in InterestCase No. 5165180

Dear Chief Justice George and Honorable Associate Justices:Petitioners, Governor Pete Wilson, Governor Gray Davis, and the

coalition of thirty-four elected District Attorneys and law enforcementcommunity leaders, appreciate the Court's willingness to permit them toreply to the letter of opposition received from the Real Party in Interest,Daniel N. Abrahamson (hereinafter "the Proponent').' Proponent'sverbose, preliminary opposition letter brief is unavailing and, despite itsrhetorical excesses, fails to respond adequately to the serious constitutionaldefects regarding Proposition 5 and the obvious urgency warranting a pre-election review by this Court. Petitioners accordingly request that the

Respondent Secretary of State Debra Bowen, consistent with herresponsibility as California's chief elections officer, has taken no positionon the merits of this Petition. Hence, this reply is addressed to theopposition letter brief submitted by the Proponent.


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From:Sweeney & Greene LLP 167531333 7/29 /2008 09:02 075 P.003/01


Petition for Writ of Mandate be granted and Respondent be directed torefrain from taking any steps to place Proposition 5 on the November 4,2008, Statewide General Election ballot or to include the measure in theballot pamphlet.

I. PRE-ELECTION REVIEW IS WARRANTED IN THISEXCEPTIONAL AND UNPRECEDENTED CASE.

Proponent's twenty-two pages of misguided legal argument andrambling political rhetoric essentially distill down to a single centralargument: i.e., Petitioners' request is unprecedented and thus should simplybe denied. While the vast majority of Proponent's argument is unavailing,there is, ironically, a grain of truth in his core assertion that this case iscompletely unprecedented. Indeed, it is unprecedented that two formerCalifornia governors (of opposing political parties, no less) and nearly two-thirds of the state's elected district attorneys, as well as law enforcementand public safety leaders from across California, have joined together topetition this Court to intervene to prevent a manifest abridgement of theCalifornia Constitution that would wreak immediate and catastrophicdamage to California's already-imperiled correctional system.

Proposition 5's unconstitutional revision of the criminal justice andcorrectional system, its raw impairment of core executive and judicialconstitutional prerogatives, and the staggering short teen financial cost ofimplementing its constitutionally-defective mandates, threaten toimmediately collapse a correctional system already facing the most gravefinancial crisis to afflict an institution of state government since theadmission of the State to the Union in 1849. To be sure, Petitioners havenot made this request lightly, nor are they unmindful of the importance ofthe people's reserved power of initiative to our constitutional system of

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state government. Petitioners recognize that this Court has an obligation torespect this reserved power and must act with prudence and restraint whenit comes to intervening in electoral matters. The Court must justly givecareful consideration to these important competing interests. As discussedat length in Petitioner's Memorandum of Points and Authorities, theCourt's policy has always generally disfavored pre-election review absentsome sound and compelling reason for doing so and has, over time,articulated some exceptions warranting deviation from this generalprinciple. (See Brosnahan v. Eu (1982) 31 Cal. 3d 1, 3 (citing Mulkey v.Reitman (1966) 64 Cal.2d 529, 535; Wind v. Hite (1962) 58 Cal.2d 415,417; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 256-257).) But, if everthere has been a need for the scrutiny and consideration of this Court inreviewing an initiative measure prior to an election, Petitioners submit thatthis is just such an occasion.

Because of the unique and unprecedented circumstances involvedwith regard to Proposition 5 and the crisis facing California's correctionalsystem, Petitioners submit that constitutional review of Proposition 5 is anabsolute necessity and that this Court must intervene, in the interests ofconstitutional government and public safety, to avert imminent andirreparable hann to the state and its people. Accordingly, Petitioners urgethe Court to grant the instant Petition for Writ of Mandate.

II. PETITIONERS CHALLENGE THE ENTIRETY OFPROPOSITION 5, WHICH WOULD ENACT A COMPLEXINTERRELATED REVISION OF THE EXECUTIVE ANDJUDICIAL BRANCHES OF GOVERNMENT.

Proponent makes the clever, but disingenuous, argument thatPetitioners are challenging only a "small portion" of Proposition 5. This issimply not true. Proposition 5 is a complex, interrelated legislative

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enactment that cannot easily be severed or untangled, as most parts of theenactment have a profound effect or relationship with regard to theremainder of the enactment. Simply stated, Proposition 5 is a proverbial"three-legged" stool, which cannot stand when one of the "legs" is kickedout from underneath it. The constitutional defects-in this case affecting atleast two legs of the proverbial three-legged stool-render the entireenactment inoperable as a practical matter.

Fundamentally, the parties appear to agree that Proposition 5purports to revise the constitutional framework of state government in twobasic respects. First, it restructures the state's parole system by creating anextra-constitutional state officer, the Secretary of Rehabilitation and Parole,with plenary executive power to control all aspects of the state parolesystem, from basic policymaking to appointments to the Board of ParoleHearings. Second, it restructures the judicial system in criminal cases bywithdrawing independent judicial discretion with regard to fashioningdispositions in cases involving so-called "non-violent offenders" andtransferring ultimate responsibility for exercising discretion from thejudiciary to independent, non-judicial "drug treatment professionals."These two fundamental revisions to the executive and judicial branches ofgovernment pervade virtually every aspect of Proposition 5. While theProponent may dismiss Petitioners' challenge to a purportedly "smallportion" of Proposition 5, Petitioners, in fact, are challenging thefundamental underlying constitutional premises of the entire enactment.

In other words, if transferring "supreme executive authority" overparole from the Governor to an unelected, unaccountable, appointed officialviolates the California Constitution, as Petitioners believe the case to be,then all of the revisions made to the system suffer from a similar,underlying constitutional defect and are inoperative. For example, theSecretary of Rehabilitation and Parole enjoys exceptionally broad power

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and control over virtually every aspect of the correctional system. (SeeProp. 5, 4 (vesting primary responsibility for all of the state's parolepolicies and rehabilitation programs); 6 (Secretary of Rehabilitation andParole directs and supervises Division of Parole Policy); 7 (Board ofParole Hearings appointed on the Secretary's recommendation); 20(oversees all rehabilitation programs); 29 (Secretary of Rehabilitation andParole recommends appointees for Chief Deputy Warden forRehabilitation, who shall be subject to removal by the Secretary); 32(Oversight Commission, which oversees all drug court programs for adultfelons in Track III, is under direction of the Secretary of Rehabilitation andParole) .) Thus, if the transfer of supreme executive authority over parolepolicy and review from the Governor to the Secretary of Rehabilitation andParole violates Article V of the California Constitution, virtually the entirelegislative enactment to be made by Proposition 5 would be affected andinoperative. The same is also true with regard to the transfer of the exerciseof independent judicial discretion with regard to fashioning dispositions incriminal cases to non-judicial "drug treatment professionals." Thisprinciple pervades Proposition 5's "three tier" system. (See Prop. 5, 13(court must rely upon the clinical assessment in fashioning disposition inTrack I, II, or III matters); 17 (court shall order the defendant to attendand complete an appropriate treatment program).)

Although Proposition 5 includes a severability clause, Prop. 5, 57,"[s]uch a clause plus the ability to mechanically sever the invalid part whilenormally allowing severability, does not conclusively dictate it." (Gerken v.Fair Political Practices Conzni'n (1993) 6 CalAth 707, 714-716.) "Thecases prescribe three criteria for severability: the invalid provision must begrammatically, functionally, and volitionally separable." (See Calfarm Ins.Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822.) In this case, theconstitutional defects, as already noted, pervade Proposition 5 rendering it

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virtually impossible to functionally sever the constitutionally defectiveprovisions from the entire enactment. In a word, whatever would be leftover after the unconstitutional underlying provisions are excised would beessentially nugatory.

111. PROPOSITION 5 MATERIALLY IMPAIRS THE PRIMARYDINHERENTPOWEROFTHE GOVERNORTOOVERSEE PAROLE POLICY AND REVIEW ANDUNDERMINES THE GOVERNOR'S ABILITY TOEXERCISE THE "SUPREME EXECUTIVE POWER"ENTRUSTED BY THE CONSTITUTION TO THEGOVERNOR.

The Proponent erroneously relies upon this Court's decision inMarine Forests Society v. California Coastal Commission (2005) 36CalAth 1, to argue that that the provision giving the Secretary ofRehabilitation and Parole a fixed six year tern "stands on...firm ground."(Opposition Letter Brief, July 25, 2008, p. 12.) In fact, Marine Forests isinapposite. The Proponent has utterly failed to provide any pertinentauthority or reasonable argument to justify Proposition 5's pervasivematerial impairment of the constitutionally-vested executive power of theGovernor to protect public safety exercised by making parole policy andreviewing parole decisions.

Marine Forests addressed the creation of the California CoastalCommission by adoption of the California Coastal Act enacted by ballotinitiative measure in 1972 and concluded that the California constitutiondid not categorically preclude the Legislature from enacting a statutoryprovision authorizing itself to appoint a member or members of anexecutive commission or board. The question presented to the Court inMarine Forests was not material impairment of inherent and enumeratedgubernatorial constitutional authority, as is the case here, but rather whether

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appointment of Coastal Commissioners violated the separation of powersclause of Article III, section 3. The Court concluded that the power toappoint executive officers is not an exclusively executive function that maybe exercised only by the Governor or another executive official, but ratheris a power that may be exercised--either in general or in appropriatecircumstances--by the Legislature. (Marine Forests, supra, 36 Cal.4th atp.42-43.)

Here, the situation is quite different. Prior to the adoption of theCoastal Act, primary responsibility for coastal planning and managementwas shared between local city and county governments and the UnitedStates Department of the Interior. Coastal management was not atraditional and primary executive responsibility of the Governor-or, forthat matter, the Legislature. In this case, the issue is not the propriety oflegislative appointments being made to executive agencies, but rather thematerial impairment by a statute of an inherent executive power vested inthe Governor, to wit: the authority vested in the Governor to make parolepolicies in furtherance of public safety and to review parole decisions.(Cal. Const., Art. V, 1, 8.) In this regard, Marine Forests addresses avery different question and resolves a very distinct issue not before theCourt in the context of this Petition.

To be sure, as this Court noted: "there is nothing in the CaliforniaConstitution that grants the Governor (or any other executive official) theexclusive or paramount authority to appoint all executive officials," as theCalifornia Constitution provides for independently elected executiveofficers, such as the Lieutenant Governor, Attorney General, Controller,Secretary of State, and Treasurer. (See Cal. Const., Art. V, 11.) Each ofthese constitutional officers has, in contrast to the federal executive branchof govermnent, independently-derived constitutional authority, which

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necessarily presumes power of appointment within their respectiveconstitutional areas of authority.

To this end, the Constitution expressly vests "supreme executivepower" in the Governor, who is responsible for, among other things,ultimately advancing public safety. (See Cal. Const., Art. V, 1.) Indeed,Petitioners submit that there is no executive responsibility of the Governorof California more essential or fundamental than the obligation of theGovernor, as the State's "supreme executive," to ensure the safety of thepublic and to protect the citizens of California from becoming the victimsof crime. The Constitution, in order to facilitate the Governor's ability toprotect public safety, vests the Governor with the plenary power to reviewparole. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 686.) Such beingthe case, Petitioners contend that the creation of an extra-constitutional,appointed Secretary of Rehabilitation and Parole, who independentlyexercises primary authority over parole with no meaningful gubernatorialoversight, materially impairs the Governor's constitutional authority toadvance and protect public safety and to make and review parole policies.2A constitutional amendment (or quite possible a revision)-not a statute-

2 Petitioners note that the Proponent fails to offer any explanation orrationale for the fact that the Secretary of Corrections serves at "thepleasure of the Governor," while the Secretary of Rehabilitation and Paroleserves a fixed tern and does not serve at the Governor's pleasure. Clearly,the Proponent is attempting to create an office that is not subject toexecutive oversight by aM constitutional officer, even though the issue ofparole policy is intimately related to public safety and crime prevention, orto the voters of California. Thus, Proposition 5 vests a primary publicsafety function in the hands of an unelected, extra-constitutional appointee,who is unsupervised and answers to no one once he or she is appointed. Allother officials having primary responsibility for public safety (e.g., theGovernor, the Attorney General, district attorneys, and county sheriffs) areall elected and must answer directly to the people every four years. This isa radical change in direction that is distinctly undemocratic and whollyoutside the constitutional framework in California.

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is required to make such an organic change to the constitutional executiveauthority of the Governor.

For these reasons and the reasons already stated in Petitioners'Memorandum of Points and Authorities, Proposition 5 unconstitutionallyimpairs the Governor's primary and inherent authority regarding publicsafety, to wit: the Governor's authority to make parole policy andmeaningfully review parole issues.

IV. PROPOSITION 5 IMPERMISSABLY TRANSFERS A CORECONSTITUTIONAL FUNCTION OF THE JUDICIALBRANCH TO AN UNACCOUNTABLE, QUASI-ADMINISTRATIVE AGENCY.

The Proponent conveniently ignores the "inconvenient truth" thatProposition 5 seriously curtails and largely eliminates the meaningfulexercise of independent judicial discretion in the cases involving drugoffenses subject to the provisions of Proposition 5. As noted in Petitioners'brief, the imposition of a sentence and the correlative exercise of sentencingdiscretion are fundamentally and inherently judicial functions (People v.Thomas (2005) 35 CalAth 635, 640; People v. Navarro (1972) 7 Cal.3d248, 258) and represent a "critical state" in a criminal case. (In re Cortez(1971) 6 Cal.3d 78, 88.) Ignoring prior case law, the Proponenterroneously concludes the trial court has control over each critical stage inthe process. (Opposition Letter Brief, July 25, 2008, p. 16.) The Proponentis simply wrong in this regard, as it is obvious from the face of Proposition5 that the proposed legislative enactment divests the trial court of discretionregarding imposition of sentencing in criminal cases.

The Proponent relies heavily on the authority of the court to hold anevidentiary hearing if there is a dispute as to a defendant's eligibility forTrack 1. However, the Proponent ignores that the court has no authority to

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SWEENEY & GUENE LLPATTORNEYS AT LAW

find a defendant ineligible because the court believes a defendant is"unamenable" for treatment. The court is limited to finding the defendantineligible based on whether or not the defendant has ever been convicted ofa serious or violent felony or whether the defendant has only one felonyconviction in the last five years.3 ((See Prop. 5, 14 (adding Penal Code 1210.03.) Track II gives the court no discretion to exclude a defendantfrom participation, even those convicted of serious and violent feloniesunder some circumstances. ((See Prop. 5, 17 (amending Penal Code 1210.1, subd. (f).) Further, Track III does not permit a court to exclude adefendant from participation, if the defendant in the last 30 months hasbeen convicted five times or more of any offense or combination ofoffenses (excluding serious or violent felonies). ((See Prop. 5, 18 (addingPenal Code 1210.2, subd. (c).) Only in Track III, can the court excludesome defendants from a treatment program on the basis that diverting sucha defendant is not "in furtherance of justice." ((See Prop. 5, 18 (addingPenal Code 1210.2, subd. (b).)

The Proponent also fails to discuss the provision in Track III thatallows someone with a serious or violent felony conviction to be admittedto Track III only if the district attorney wants a defendant in that particulartrack. (See Prop. 5, 18 (adding Penal Code 1210.2, subd. (d)(1).) Thisoccurs clearly at a stage in the proceedings after charges have been filed,yet the court cannot admit these defendants without the permission of thedistrict attorney. More than just another example of impermissible restrainton judicial discretion, this provision of Proposition 5 subordinates thejudicial authority of the court to executive authority of the district attorney.

3 The other two eligibility requirements do not require the presentationof evidence, i.e. whether the pleading charges the defendant only withNVDP offenses or whether the defendant is pending concurrent charge(s).The court may take judicial notice of court records of concurrent charges.(See Evid. Code 452.)

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As this Court has noted, "[a] judge wishing to exercise judicial power at thejudicial stage of a proceeding never should be required to "`bargain withthe prosecutor"' before doing so. [citations omitted]" (Manduley v.Superior Court (2002) 27 CalAth 537, 554.) Yet, that is precisely whatProposition 5 would require.

Moreover, Penal Code section 1210.2(d)(1) clearly violates theseparation of powers doctrine enunciated in People v. Tenorio (1970) 3Cal.2d 89. Such a provision, where the judicial act is dependant on theconsent of the executive (e.g., the district attorney), violates CaliforniaConstitution Article III, and Article VI, section 1. In Tenorio, this Courtdealt with a provision of the Health and Safety Code that forbade probationto a defendant charged with a prior felony, and forbade the trial court fromstriking the prior unless the prosecution had so moved. This Court held thatsuch a provision, requiring the judiciary to obtain the consent of theexecutive to make a judicial act, was unconstitutional. The proposedsection 1210.2(d)(1) creates precisely the same situation, and thus isunconstitutional under Tenorio.

Not only is the court's discretion to exclude defendants from thetracks severely limited, but the court, in every track, "must rely upon theclinical assessment of the defendant" "[i]n determining the appropriatetreatment program..." (See Prop. 5, 13 (adding Penal Code 1210.02,subd. (a)(1).) If the "clinical assessment indicates" that "opioid agonist"treatment or other medication-assisted treatments4 are needed, the court"shall" refer defendants to this type of drug treatment. (See Prop. 5, 13(adding Penal Code 1210.02, subd. (a)(2).) Thereafter, the court "mustrely" "upon the criminal history evaluation and clinical assessment" when"determining the appropriate monitoring conditions and requirements" for

4 Section 11, 1210(b) includes such treatments in the definition of "drugtreatment program."

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every defendant. (See Prop. 5, 13 (adding Penal Code 1210.02, subd.(a)(3).) Were a comparable system imposed with regard to the sentencingof serious or violent felons, for example, trial courts would be required tosentence a defendant, pursuant to Penal Code 1170, according to theProbation Department's recommendation with no discretion to deviate fromthat recommendation.

But, the limitations upon judicial discretion do not stop there. Inevery track, the court may order urine testing. But if the tests showcontinued drug usage, the court cannot find that a violation of probationoccurred-no matter how many times the tests show continued drugusage-nor can the court use those tests to enter judgment. (See Prop. 5, 13 (adding Penal Code 1210.02, subd. (a)(5).) Neither can the court referthe defendant to a program or require the defendant as a condition tosuccessfully completing the program to terminate or detox frommedication-assisted treatments or medications "taken" consistent with statelaw" (presumably marijuana). (See Prop. 5, 13 (adding Penal Code 1210, subd. (e).) Although the court can order a Track I defendant tocomplete a drug treatment program, Prop. 5, 14 (adding Penal Code 1210.03, subd. (i)), the court must dismiss the charges and permanently sealthe defendant's arrest records if the defendant has merely "performedsatisfactorily" during the period of diversion. (See Prop. 5, 14 (addingPenal Code 1210.03, subd. (p).) Further, a court cannot terminate adefendant's probation if he or she violates the drug-related conditions ofprobation before entering "appropriate" treatment. (See Prop. 5, 13(adding Penal Code 1210.02, subd. (a)(1).) In other words, the defendantcan use drugs from the time diversion or probation is granted until he enterstreatment without fear of sanctions, graduated or otherwise, because there issimply nothing a court can do to the offender. The Proponent conveniently

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fails to mention this important detail or, for that matter, that Proposition 5would effectively tie the hands of the judge.

As the Proponent concedes, in every track the court can inquirewhen the defendant has not started treatment within 30 days (response p.16), but the court cannot terminate the defendant from the program or findhim "unamenable" to treatment. The court can only re-refer him totreatment and impose "graduated sanctions" (e.g. more treatment sessions)or tenninate and sentence the Track I defendant to Track II treatment. (SeeProp. 5, 14 (adding Penal Code 1210.03, subd. (j).) A court cannot eventerminate diversion or probation if the defendant is convicted of amisdemeanor, a felony, or engages in "criminal conduct"which makes himunsuitable for treatment without holding a hearing. (See Prop. 5, 15(adding Penal Code 1210.04); 17 (amending Penal Code 1210.1).) Atthat point in Track I, the court can only re-refer the defendant to treatmentor sentence the defendant to Track II. (See Prop. 5, 15 (adding PenalCode 1210.04) In Track II, if a defendant commits a new drug offense orviolates a drug-related condition of probation, the court can only revoke ifthe prosecutor proves the defendant is "a danger to the safety of others."(Id.)

The court cannot impose jail sanctions in Track I, Prop. 5, 14(adding Penal Code 1210.03, subd. (o)), and cannot impose jail sanctionsin Track II or III if the defendant is receiving medication-assisted drugtreatment and such treatment is not available in jail. (See Prop. 5, 17(amending Penal Code 1210.1, subd. (j)(2).) In fact, a court cannot evenimpose jail sanctions until the defendant, for the fourth (or more) timeduring probation, has committed a nonviolent drug possession offense orviolated a drug-related condition of probation. And then, it may do so onlyafter finding the defendant is not a danger to the community and is not

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"unamenable" to treatment. (See Prop. 5, 17 (amending Penal Code 1210.1, subd. 0)(3)(C).)

Thus, were Proposition 5 to be enacted, a trial court cannot exercisediscretion to: (1) determine the eligibility of all defendants for Track II &some for Track III; (2) select any defendant's drug treatment program; (3)prohibit any defendant from certain types of drug treatment; (4) setmonitoring conditions for defendants; (5) determine the sentence fordefendants who fail Track I; (6) determine what constitutes successfulcompletion of probation; or (7) automatically tenninate someone whocommits anew misdemeanor or felony. The regimen imposed upon judgesby Proposition is something quite different from the one cited by theProponent in In re Chantal S. (2003) 13 CalAth 196, 213-214. UnderProposition 5, the court has not elected to delegate some of its authority toanother agency or individual, but rather has been stripped of its discretionto exercise its well - recognized authority to exercise sentencing options orset conditions of probation. (Prop. 5, 13 (adding Penal Code 1210.02,subd. (a)(1)); 11 (amending Penal Code 1210, subd. (g); 11(amending Penal Code 1210, subd. (b); 13 (adding Penal Code 1210.02, subd. (a)(3).) All judicial discretion to determine appropriatetreatment, monitoring conditions, and probation conditions has beentransferred to the person performing the clinical assessment.

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CONCLUSION

Despite the Proponent's unavailing effort to trivialize the profoundconstitutional defects that pervade Proposition 5 and to discount thecatastrophic damage that enactment of this facially invalid initiativemeasure will do to California's correctional system, Petitioners GovernorPete Wilson, Governor Gray Davis, the 34 elected district attorneys, and thelaw enforcement and public safety leaders listed on the instant petition,respectfully submit that the instant Petition is legally warranted and well-taken. They again urge the Court to grant the instant Petition and issue aperemptory writ of mandate, directing Respondent to refrain from takingany steps to place Proposition 5 on the November 4, 2008, StatewideGeneral Election ballot or to include the measure in the ballot pamphlet.

Respectfully submitted,SWEENEY & GREENE LLP

ames F.Attorneys fiGov. Pete WiXon,,6ov. Gray bavis, et al.

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CERTIFICATE OF WORD COUNT

I, James F. Sweeney counsel of record for Petitioners as fully setforth above, certify that the foregoing Reply in Support of Petition for Writof Mandate and Request for Immediate Temporary Stay containsapproximately 4,098 words (including footnotes, and exclusive of thiscertificate). This approximation is based upon the "word count" toolcontained in Microsoft Word, the word processing program used to preparethis pleading. The typeface used herein is Times New Roman, and the sizeis 13 point.

Dated: July 29, 2008

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PROOF OF SERVICEI, Nicole D. Bayne, declare as follows:

1 am over the age of eighteen years and not a party to the withinaction. My business address is 9381 E. Stockton Blvd., Suite 218, ElkGrove, California, 95624.On July 29, 2008 by 9:00 a.m., I served the attached REPLY INSUPPORT OF PETITION FOR EXTRAORDINARY RELIEFINCLUDING WRIT OF MANDATE AND REQUEST FORIMMEDIATE TEMPORARY STAY via facsimile transmission to theparties set forth below at the facsimile number(s) indicated:

Attorneys for Respondent - Debra Bowen Secretary of StateEdmund G. Brown, Jr., Attorney General of the State of CaliforniaChristopher E. Krueger, Senior Assistant Attorney GeneralJason E. Rios, Depute Attorney GeneralOFFICE OF THE ATTORNEY GENERAL1300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Phone: (916) 324-53 10Fax: (916) 324-8835

Attorneys for Real Parties in Interest- Daniel N AbrahamsonSteven L. Mayer, Esq.HOWARD RICE NEMEROVSKI CANADY FALK & RABKINA Professional CorporationThree Embarcadero, Seventh FloorSan Francisco, CA 94111-4024Phone: (415) 434-1600Fax: (415) 217-5910

I declare under penalty of perjury that the foregoing is true andcorrect and that this document was executed on July 29, 2008.

Peittioners' Reply Memo in Wilson v. Bowen

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Transcript of Peittioners' Reply Memo in Wilson v. Bowen