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Gardner v. Schwarzenegger

November 5, 2009; as modified November 23, 2009

CLIFF GARDNER ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ARNOLD SCHWARZENEGGER ET AL., DEFENDANTS AND APPELLANTS.



(Alameda County Superior Court No. RG06278911). TRIAL JUDGE: Honorable Jon Tigar.

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

Defendants Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown Jr., and Secretary of State Debra Bowen appeal from a judgment enjoining enforcement of Senate Bill No. 1137 (2005-2006 Reg. Sess.) sections 1-12 (Stats. 2006, ch. 63, §§1-12; hereafter Senate Bill 1137), that sought to amend the Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36). The issues are whether the provisions of Senate Bill 1137 challenged by plaintiffs Cliff Gardner, Drug Policy Alliance, and California Society of Addiction Medicine further the purposes of Proposition 36, and, if not, whether Senate Bill 1137 can be submitted to the voters for approval. We hold that certain of the challenged sections of Senate Bill 1137 cannot reasonably be construed to further the purposes of Proposition 36, and that Senate Bill 1137‟s provision for a popular vote, if any part of Senate Bill 1137 is invalidated, is itself invalid. Consistent with these conclusions, we affirm the judgment.

II. BACKGROUND

A. Proposition 36

Proposition 36, passed by the voters in the November 2000 general election, generally provides that those convicted of drug possession offenses are initially to receive probation with drug treatment, rather than incarceration. (Pen. Code, § 1210.1, subd. (a).)*fn1 "Drug treatment" is defined to exclude drug treatment programs in a prison or jail facility. (§ 1210, subd. (b).)

Proponents of Proposition 36 argued in the Voter Information Guide to the election: "The war on drugs has failed. Nonviolent drug users are overcrowding our jails. Violent criminals are being released early. Drug treatment programs are rarely available. We pay $25,000 annually for prisoners when treatment costs only $4,000. Expanded treatment programs will reduce crime, save lives, and save taxpayers hundreds of millions." (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) Summary of Prop. 36, p. 3 (Guide).) Opponents argued among other things that the Proposition would "tie[] the hands of judges" and "cripple[] legitimate treatment." (Guide, supra, p. 3; id., Rebuttal to Argument in Favor of Prop. 36, p. 26.)

In Proposition 36, the electorate found and declared: "(a) Substance abuse treatment is a proven public safety and health measure. Nonviolent, drug-dependent criminal offenders who receive drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable and more productive lives. [¶] (b) Community safety and health are promoted, and taxpayer dollars are saved, when nonviolent persons convicted of drug possession or drug use are provided appropriate community-based treatment instead of incarceration." (Guide, supra, Text of Proposed Law, § 2, p. 66.)

Proposition 36‟s express purposes were: "(a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration-and reincarceration-of nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (Guide, supra, Text of Proposed Law, § 3, p. 66.)

Proposition 36 further provided: "This act may be amended only by a roll call vote of two thirds of the membership of both houses of the Legislature. All amendments to this act shall be to further the act and shall be consistent with its purposes." (Guide, supra, Text of Proposed Law, § 9, p. 69.)

B. Senate Bill 1137

Senate Bill 1137 was passed by the Legislature on June 27, 2006, as an urgency measure (Sen. Bill 1137, § 12), and signed by the Governor on July 12, 2006. It was entitled: "An act to amend Sections 11999.6, 11999.9, 11999.10, and 11999.12 of the Health and Safety Code, and to amend Sections 1210, 1210.1, and 3063.1 of the Penal Code, relating to drug treatment, and declaring the urgency thereof, to take effect immediately." The provisions of Senate Bill 1137 alleged to be inconsistent with the purposes of Proposition 36, detailed below, permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion.

Senate Bill 1137 was derived from Senate Bill No. 803 (2005-2006 Reg. Sess.) (Senate Bill 803), which was introduced in February 2005. An April 2005 Senate Committee on Public Safety Analysis of Senate Bill 803 stated that "[t]he most important source of conflict over SACPA [Substance Abuse and Crime Prevention Act of 2000] is the prohibition on any jail sanctions until probation is revoked." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 803 (2005-2006 Reg. Sess.) Apr. 18, 2005, p. 18.) "[T]he most contentious issue-perhaps the overriding issue-is the use of short-term incarceration (flash incarceration) sanctions for probation violations while a person participates in the act." (Id. at p. 25.) At this same time, the Legislative Counsel opined that "[l]egislation that would authorize a sentence of incarceration for a first, second, or third drug-related probation violation, if enacted, would constitute an amendment of Proposition 36 that would not both further that initiative statute and be consistent with its purposes. Therefore, the legislation could not take effect without voter approval pursuant to subdivision (c) of Section 10 of Article II of the California Constitution."*fn2 (Ops. Cal. Legis. Counsel, No. 0508397 (Apr. 18, 2005) Substance Abuse and Crime Prevention Act of 2000 (Proposition 36): Permissible Amendments: Incarceration: Funding for Nontreatment Costs, p. 1.) Senate Bill 803 had not cleared the Assembly Public Safety Committee when its substance was added to Senate Bill 1137 on June 26, 2006, the day before Senate Bill 1137‟s passage; prior to that time, Senate Bill 1137 had been a one-sentence budget trailer bill.

Senate Bill 1137 included the following findings and declarations: "[¶] . . . [¶] "(c) Each year following the implementation of the act the Department of Alcohol and Drug Programs (hereinafter the department) was required and did in fact conduct a study to evaluate the effectiveness and financial impact of the programs which were funded pursuant to the act. The studies have focused on the implementation process, participant demographics and treatment completion rates as well as other impacts and issues the department identified. Reports were submitted to the Legislature by the department.

"(d) In addition, the department contracted, as required by the act, with a public university, the University of California at Los Angeles (hereinafter UCLA) to evaluate the effectiveness and financial impact of the programs which were funded pursuant to the requirements of this act and to ...


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