Prop 63 MPA

Deborah B.
Caplan [SBN 196606]

1 Lance H. Olson [SBN 077634]
2 Richard C. Miadich [SBN 224873]

OLSON HAGEL & FISHBURN LLP
3 555 Capitol Mall, Suite 1425
Sacramento, CA 95814
4 Telephone: (916) 442-2952
Facsimile: (916) 442-1280
5
6 Attorneys for Petitioners

XXXXXXXXXXXXX
7
8
555 Capitol Mall, Suite 1425, Sacramento, CA 95814
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9
COUNTY OF SACRAMENTO
Olson Hagel & Fishburn LLP
10
11
XXXXXXXXXXX, CASE NO.:
12 Petitioners,
MEMORANDUM OF POINTS AND
13 v. AUTHORITIES IN SUPPORT OF
VERIFIED PETITION FOR WRIT OF
14 MANDATE
DEBRA BOWEN, in her official capacity as
15 CALIFORNIA SECRETARY OF STATE,
[ELEC. CODE, §§ 13314; 9092]
16
Respondent, STATEWIDE ELECTION MATTER
17 IMMEDIATE ACTION REQUESTED
18 STATUTORY DEADLINE: MARCH 5, 2009
19
[PROPOSITION 1E]
20
Date:
21 Time:
Dept.:
22
23
24 GEOFF BRANDT, in his official capacity as State

Printer; the LEGISLATURE OF THE STATE OF
25
CALIFORNIA,
26
27 Real Parties in Interest.
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MPA iso VERIFIED PETITION FOR WRIT OF MANDATE
1 INTRODUCTION AND BACKGROUND
2 Every ballot measure that goes before the voters is included in a ballot pamphlet distributed to
3 the voters “to inform the prospective signer of the general purpose of the proposal, and to protect him
4 from being misled or imposed upon.” (Clark v. Jordan (1936) 7 Cal.2d 248, 252, italics added.) The
5 ballot pamphlet includes the following: the text of the measure to be considered; a 100-word title and
6 summary1 and shorter ballot label prepared by the Attorney General, which are to be a “fair and
7 impartial” presentation of the measure; an “impartial analysis” prepared by the Legislative Analyst’s
8 Office; and the arguments and rebuttals for and against the measure. (Elec. Code, §§ 9050-9052, 9080-
9 9096, 13247, 13280-81; see also Gov. Code, §§ 88001-88003.) The essential purpose of the official
10 ballot pamphlet is “to give the voters information concerning the measures on the ballot.” (Hart v.
11 Jordan (1939) 14 Cal.2d 288, 292.)
12 On February 20, 2009, the Governor signed a series of bills adopted by the Legislature
13 collectively referred to as the “budget package.” A number of elements of this package were, however,
14 outside the authority of the Legislature to adopt directly; as a way of dealing with this problem, the
15 package included SB 19, which sets a special election for May 19, 2009 and places several measures
16 that require voter approval on that ballot, designated as Propositions 1A through 1F. (RJN, Ex. A.)
17 This action concerns the ballot materials for Proposition 1E, a measure that proposes to divert
18 approximately a half billion dollars from the Mental Health Services Fund established by Proposition 63
19 in 2004 and use that money to offset the State’s General Fund obligation for an existing mental health
20 program, the Early and Periodic Screening, Diagnosis, and Treatment Program (“EPSDT”). The actual
21 changes to Proposition 63 are set forth in SB 10. (RJN, Ex. B.) Because Proposition 63 was adopted by
22 voter initiative, and because the proposed changes are inconsistent with the requirements and purposes
23 of Proposition 63, the proposed changes must be approved by the voters.
24 In addition to setting the special election, SB 19 changes or overrides the normal Elections Code
25 procedures that are designed to safeguard the integrity of the information provided to voters. For the six
26 measures to be considered at the special election, the Legislature has taken the responsibility for
27 preparing the ballot label and title and summary away from the Attorney General and has imposed its
1
Elections Code sections 9050 and 9051 refer only to preparation of the “title,” but because the Attorney General is allowed
28 100 words in which to explain the measure, it is typically referred to as the “title and summary.”
___________________________________________________________________________________________________
MPA iso VERIFIED PETITION1 FOR WRIT OF MANDATE
1 own ballot label and title and summary for each of these proposed measures.
2 With respect to Proposition 1E, Section 6©(1) of SB 19 provides that “[n]otwithstanding
3 Sections 13247 and 13281 of the Elections Code or any other provision of law, all ballots for the May
4 19, 2009, statewide special election shall have printed thereon as the ballot label for Proposition 1E the
5 following:”
MENTAL HEALTH FUNDING BUDGET. Helps balance the state budget and preserve
6 funding for children’s mental health services by providing temporary flexibility in the
7 Mental Health Services Act to fund the Early and Periodic Screening, Diagnosis, and
Treatment Program for children. (RJN, Ex. A, p. xxx.)
8
9 Likewise, section 6(d)(1) of SB 19 provides that “[n]otwithstanding Sections 9050, 9053, and
10 9086 of the Elections Code or any other provision of law, the Secretary of State shall use the following
11 as the ballot title and summary for Proposition 1E:”

ENSURES FUNDING FOR CHILDREN'S MENTAL HEALTH SERVICES. HELPS
12 BALANCE STATE BUDGET. Guarantees that certain funding intended for mental health
programs goes toward mental health services for children. Provides a temporary, two-year
13 flexibility in the Mental Health Services Act (Proposition 63 of 2004) to allow the state to
14 fund the Early and Periodic Screening, Diagnosis, and Treatment Program for children and
young adults under age 21. Guarantees and protects more than $225 million in flexible
15 funding for mental health programs. Helps balance state budget during this difficult
economic time. (Id. at p. xxx.)
16
17
Other provisions of SB 19 make clear that the foregoing language is the only language to appear
18
as the ballot label or title and summary and that “the Attorney General shall not supplement, subtract
19
from, or revise that language. . .”other than to add a “fiscal summary.” (RJN, Ex. A, p. xxx.) The
20
Attorney General did add the following fiscal summary on February 26, 2009: “State General Fund
21
savings of about $230 million annually for two years (2009-10 and 2010-11). Corresponding reduction
22
in funding available for Mental Health Services Act programs.” (RJN, Ex. E, p. 1.)
23
The Legislative Analyst’s Office also released its fiscal analysis on February 26, 2009. (Id. at p.
24
2.)???? [text]
25
26
27
28
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1 The fiscal analysis and summary provided by the Attorney General and Legislative Analyst make
2 it clear that, contrary to the impression created by the Legislature’s ballot label and title and summary,
3 Proposition 1E proposes to take money away from the Mental Health Services Fund established by
4 Proposition 63 and reduce the over-all funding provided for mental heath services and programs in
5 California. While not apparent from the fiscal materials (because of their limited focus), the
6 Legislature’s ballot label and title and summary are also grossly misleading in suggesting that
7 Proposition 1E is necessary to “preserve” or “guarantee” funding for the Early and Periodic Screening,
8 Diagnosis, and Treatment Program when, in fact, the State is legally required to provide – and fund –
9 that program as a part of its obligations under the Medi-Cal program (California’s implementation of the
10 federal Medicaid program), and will be required to continue to do so regardless of whether Proposition
11 1E passes. Ultimately, the only truly accurate statement in the title and summary is that Proposition 1E
12 “helps balance state budget,” as it diverts Proposition 63 funds into the General Fund.
13 Elections Code sections 9092 and 13314 authorize this court to issue a writ of mandate ordering
14 that changes be made to the official ballot materials to ensure that the information provided to voters
15 meets the requirements of law. Section 13314 authorizes courts to issue a peremptory writ of mandate
16 “upon proof . . . that an error, omission, or neglect of duty” is about to occur with regard to the printing
17 of the ballot materials “in violation of [the Elections Code] or the Constitution” and section 9092
18 authorizes courts to amend or delete language proposed to be included in the official ballot pamphlet
19 upon clear and convincing proof that such language is false or misleading and (Elec. Code, §§ 9092,
20 13314(a)(2).)
21 The ballot label and the title and summary dictated by the Legislature do not satisfy the
22 requirement that they be fair and impartial, and the Legislature cannot eliminate this requirement to
23 engage in “electioneering” in the ballot materials. Petitioners also assert that there is clear and
24 convincing evidence that these materials are false and misleading within the meaning of the Elections
25 Code. Petitioners therefore request that the ballot label and title and summary be amended or corrected
26 to provide a more neutral language, and have provided such alternative language below.
27 DEADLINES IMPOSED BY SB 19
28 Section 8(c) of SB 19 provides that “[n]otwithstanding Section 13282 of the Elections Code or
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1 any other provision of law, the public shall be permitted to examine the condensed statements of the
2 ballot titles for eight days. Any voter may seek a writ of mandate for the purpose of requiring the
3 condensed statements of the ballot titles, or portions thereof, to be amended or deleted only within
4 that eight-day period.”
5 Late in the day on Friday, February 20, 2009, the Secretary of State’s office issued an Elections
6 Calendar for the May 19, 2009 Special Election (RJN, Ex. D) with the following deadlines:
7 February 25, 2009 Ballot Labels Available for Inspection
8 February 26, 2009 Remaining Ballot Materials Available for Inspection

9 March 5, 2009 Deadline for Inspection and Challenge to Ballot Labels

10 March 18, 2009 Deadline for Inspection and Challenge to Other Materials
11 This action seeks to correct both the ballot label and the title and summary. Although only the
12 lawfulness of the ballot label must be litigated within the eight-day period imposed by SB 19, these
13 actions are filed together because the arguments related to the ballot label and the title and summary are
14 significantly intertwined and petitioners believe it is in the interest of judicial economy to address them
15 together. The Court may, however, choose to address only the ballot label before the March 5 deadline
16 and reserve the title and summary issues to be resolved before the March 18 deadline.
17
18 ARGUMENT
I. THE LAW IMPOSES A HIGHER STANDARD OF NEUTRALITY FOR THE
19 BALLOT LABEL AND TITLE AND SUMMARY THAN IT DOES FOR
ARGUMENTS SUBMITTED BY ADVOCATES FOR OR AGAINST A MEASURE
20
21 A. The Government is Not Permitted to Use Public Resources to Takes Sides in an

Election Contest
22
23 As stated at the outset, the ballot pamphlet includes the following: the text of the measure to be
24 considered; a 100-word title and summary and shorter ballot label prepared by the Attorney General,
25 which are to be a “fair and impartial” presentation of the measure; an “impartial analysis” prepared by
26 the Legislative Analyst’s Office; and the arguments and rebuttals for and against the measure. (Elec.
27 Code, §§ 9050-9052, 9080-9096, 13247, 13280-81; see also Gov. Code, §§ 88001-88003.) It is clear
28 from these provisions that, unlike the arguments for and against a measure, those portions of the ballot
___________________________________________________________________________________________________
1 pamphlet prepared by the government, i.e., the title and summary, the ballot label and the fiscal analysis,
2 are required to be impartial. These statutes reflect the fundamental policy underlying the requirements
3 for the preparation of the title and summary and “impartial” fiscal analysis in the first instance; namely,
4 “to protect [the voters] from being misled or imposed upon.” (Clark v. Jordan (1936) 7 Cal.2d 248, 252,
5 italics added.)
6 Although the ballot materials have been expanded over the years to include arguments for and
7 against, this does not change the government’s responsibility to provide neutral summaries and
8 descriptions to assist the voters in understanding the measures they are considering. Thus, while a
9 challenger must show by clear and convincing evidence that an argument is false or misleading in order
10 to have it corrected or amended, the Elections Code also permits corrections if necessary to comply with
11 other Elections Code provisions or even the Constitution. (Elec. Code, §§ 13314.) Included in the latter
12 category are the requirements that the title and summary and fiscal analysis prepared by governmental
13 entities be “impartial” and the constitutional limitations on the government using public funds to engage
14 in political advocacy.
15 The Legislature cannot avoid this restriction simply by “notwithstanding” all the elections laws,
16 as the California Supreme Court has made clear that, as a matter a federal and state constitutional law,
17 government officials may only include objective and impartial information in ballot materials at the
18 public expense: “A fundamental precept of this nation’s democratic electoral process is that the
19 government may not [use the public treasury to] ‘take sides’ in election contests or bestow an unfair
20 advantage one of several competing interests.” (Stanson v. Mott (1976) 17 Cal.3d 206, 217.)
21 The prohibition against the government using public monies to “take sides” in an election is
22 rooted in the concern that, if left unfettered, holders of government authority could use their official
23 powers to distort the election process to further their own interests. (Ibid.) “Selective use of public
24 funds in election campaigns [by the government] . . . raises the specter of just such an improper
25 distortion of the democratic electoral process.” (Ibid.) All public bodies are thus subject to the same
26 constitutional prohibition on using public treasury funds to persuade or otherwise attempt to influence
27 voters to approve or disapprove measures presented on the ballot. (Stanson, supra, 17 Cal.3d at 218;
28 League of Women Voters of California v. Countywide Criminal Justice Coordination Com. (1988) 203
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1 Cal.App.3d 529, 546-47.) This applies no less to the Legislature when it chooses to involve itself in
2 dictating the contents of the ballot materials to be provided to the voters.
3 This is not to say that individual legislators cannot engage in arguments for or against a measure
4 and several have done so in the case of Proposition 1E. But the government cannot take actions that
5 clearly favor one side in an election contest by, for example, providing favored ballot placement to
6 incumbents. (Gould v. Grubb (1975) 14 Cal.3d 661, 673.) Nor may the government expend public
7 funds to create a forum for speech – i.e., a ballot pamphlet – and then manipulate that forum to enhance
8 its own views on an election matter relative to the views of others. (Miller, supra, 151 Cal.App.3d at
9 701.) Or, as in this case, combine the preference given to legislators to supply arguments for or against a
10 measure (see Elec. Code, § xxxxx) with an argumentative, electioneering title and summary to
11 essentially crowd out any dissenting voices in the materials that go to the public. Such actions, if
12 constitutionally permissible, would pose serious threats to the integrity of the election process. (See
13 Stanson, supra, 17 Cal.3d 218; Gould, supra; Miller, supra.)
14 When government action appears to favor one side in a matter submitted to the voters, as with
15 the ballot materials for Proposition 1E, “there is a heightened necessity for constitutionally based
16 judicial oversight to avoid ‘poisoning the well’ of majoritarian principle.” (Miller, supra, 151
17 Cal.App.3d at 702.) The reach of this heightened judicial scrutiny necessarily reaches information
18 contained in the official voter pamphlet, which the state distributes to all registered voters. Unlike
19 normal campaign literature, the official voter pamphlet “carries the imprimatur of the government and is
20 likely to ‘carry greater weight in the minds of the voters.’” (Drexel v. Mann (1991) 13 Cal.App.4th 170,
21 183, citing Knoll v.Davidson (1974) 12 Cal.3d 335, 352.)
22 The purpose of the voter pamphlet as primarily an informational device for voters is well-
23 recognized. (Hart, supra, 14 Cal.2d at 292.) Indeed, the layout of the ballot pamphlet itself
24 differentiates for voters between “Arguments” and the sources of impartial, government-provided
2
25 information – e.g., the title and summary and the LAO’s fiscal analysis. And courts frequently consult
2
Unlike materials prepared for the ballot by government officials, of course, there is no expectation that arguments and
26 rebuttals will be impartial. However, both the ballot materials drafted by government officials and the arguments and
rebuttals are subject to challenge as being false or misleading. (§ 9092.) This content-neutral restriction on speech appearing
27 in the voter pamphlet is important because every aspect of the official voter pamphlet, including the arguments, “can have a
substantial impact on the equality and fairness of the electoral process.” (Patterson v. Board of Supervisors (1988) 202
28 Cal.App.3d 22, 30.) They are, after all, part of an official state document on which the voters rely for accurate information
___________________________________________________________________________________________________
1 the Attorney General’s title and summary and LAO Analysis as “legislative history of an initiative
2 measure adopted by the voters” when seeking to interpret its terms. (Patterson, supra, 202 Cal.App.3d
3 at 30 [quoting Board of Supervisors v. Lonegran (1980) 27 Cal.3d 855, 866]; see also Washburn v. City
4 of Berkeley (1987) 195 Cal.App.3d 578, 585.) Misuse of the ballot pamphlet materials by the
5 government to further its own interests thus poses an acute danger to the integrity of the electoral
6 process making heightened judicial scrutiny appropriate.
7 Nor would it be appropriate in this case for the court to pay the Legislature the usual level
8 deference afforded to it, or even the same deference typically afforded to the Attorney General in
9 crafting the ballot label and title and summary. The Legislature is presenting Proposition 1E to the
10 voters as one piece of a legislatively-brokered panacea to solve the state’s current budget problem. The
11 Legislature therefore unquestionably has a direct interest in whether the voters adopt Proposition 1E.
12 By contrast, the Attorney General is an independently elected constitutional officer with no official
13 interest in the outcome of the measures for which he or she crafts a ballot label and title and summary.
14 Indeed, courts have routinely declined to afford deference to legislative judgments in matters where, as
15 here, the Legislature’s own self-interest in solving the state budget problem is at stake: “[a]
16 governmental entity can always find a use for extra money, especially when taxes do not have to be
17 raised.” (Valdes v. Cory (1983) 139 Cal.App.3d 733.) Equally important, courts have recognized that
18 the judiciary must not “turn a blind eye” to constitutional matters out of deference to the Legislature.
19 (Professional Engineers, Amwest. [get cites])
20 Thus, pursuant to Elections Code section 13314, this court may prevent the State from printing
21 the ballot label and title and summary for Proposition 1E if it determines that they do not constitute a
22 “fair and impartial” presentation of the terms and purposes of Proposition 1E and may correct or amend
23 it as necessary to meet this standard.

B. The Government Is Not Permitted to Include False and/or Misleading
24 Information in the Ballot Materials Distributed to Voters
25
Even if the Court concludes that the ballot label and title and summary required by the
26
Legislature for Proposition 1E do not have to meet the “fair and impartial” standard, it may still order
27
28 about the measures that they are asked to vote on. (Ibid.)
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1 revisions to any false or misleading statements contained in those materials pursuant to Elections Code
2 section 9092.
3 [insert standard language about false and misleading standard]
8
9 II. THE BALLOT LABEL AND TITLE AND SUMMARY PREPARED BY THE
LEGISLATURE FOR PROPOSITION 1E ARE NOT IMPARTIAL AND, INSTEAD,

10 CONSTITUTE THE GOVERNMENT “TAKING SIDES” IN AN ELECTION CONTEST
11
The ballot label and title and summary prepared by the Legislature omit crucial facts necessary
12
for voters to make an informed choice of whether to support Proposition 1E. These legislatively-
13
prepared ballot materials for Proposition 1E also contain false and misleading statements that obfuscate
14
both the necessity and for and consequences of adopting that measure. While cloaked in the guise of
15
ballot materials that are customarily understood by the voters to be sources of “fair and impartial”
16
information, these materials are, in fact, so one-sided in their presentation of Proposition 1E as to violate
17
the Legislature’s constitutional duty to ensure that public monies are not spent to “take sides” in an
18
election campaign.
19
A. The Ballot Label and Title and Summary Omit Crucial Information
20
The Legislature has required the following ballot label, and title and summary:
21 MENTAL HEALTH FUNDING BUDGET. Helps balance the state budget and preserve
funding for children’s mental health services by providing temporary flexibility in the
22
Mental Health Services Act to fund the Early and Periodic Screening, Diagnosis, and
23 Treatment Program for children. (RJN, Ex. A, p. xxx [ballot label])
24 ENSURES FUNDING FOR CHILDREN'S MENTAL HEALTH SERVICES. HELPS

BALANCE STATE BUDGET. Guarantees that certain funding intended for mental health
25 programs goes toward mental health services for children. Provides a temporary, two-year
26 flexibility in the Mental Health Services Act (Proposition 63 of 2004) to allow the state to
fund the Early and Periodic Screening, Diagnosis, and Treatment Program for children and
27 young adults under age 21. Guarantees and protects more than $225 million in flexible
funding for mental health programs. Helps balance state budget during this difficult
28 economic time. (Id. at p. xxx [title and summary].)
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1
2 The most glaring evidence that the Legislature is using the ballot label and title and summary to
3 persuade, rather than inform, voters is what it has omitted. Specifically, there is no mention anywhere in
4 those materials that Proposition 1E would amend Proposition 63 and would do so in a way that reverses
5 the fundamental policy choice voters approved in November 2004 when they adopted that measure. The
6 central purpose of Proposition 63 was impose a new tax that would create a dedicated revenue source
7 for new and expanded mental health services that could not be taken away by the Legislature to pay for
8 existing state or locally-provided mental health services. (Prop 63, § XX, codified as Welf. & Inst.
9 Code, § 5891(a); ballot materials for Prop 63.) The diversion the Proposition 63 funds is contrary to this
10 purpose in almost every way. And yet there is absolutely no mention of this fact in the ballot materials
11 crafted by the Legislature.
12 Proposition 63 established the MHSA and imposed a 1% surcharge on taxable person income
13 above $1 million to support expanded mental health programs and services administered at the county-
14 level to children, adults, and seniors. (Ex. XX [Prop 63 ballot materials].) Based on the estimated
15 amount of annual revenues generated by the MHSA surcharge, each month the State Controller
16 transfers monies into the into a special state fund, called the “Mental Health Services Fund,” for use in
17 reimbursing counties for providing specific types of mental health services enumerated in the MHSA.
18 (LAO Analysis, Prop. 63; XXXX.) At year’s end, the Controller adjusts these “estimated” deposits to
19 reflect the revenues actually received from the MHSA surcharge. During an economic downturn, year-
20 end reconciliation of estimated deposits and actual revenues will likely reduce or – possibly even
21 eliminate – any “reserve” in the Mental Health Services Fund accumulated from estimated-revenues
22 deposits only.
23 Contingent on sufficient revenues being generated from the MHSA surcharge, the State
24 Department of Mental Health distributes funds deposited into the Mental Health Services Fund to
25 counties to reimburse them for costs incurred in providing qualifying mental health services enumerated
26 in the MHSA – i.e., services enumerated in the MHSA. (Welf. & Inst. Code, § XXXX; LAO Analysis of
27 Prop 63; CA Budget Process Report, p. X.) The categories of qualifying activities for which counties
28 may be reimbursed with MHSA funds include:
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1 • Expansion of existing county system of care services for children who lack other public or
2 private health coverage to pay for mental health treatment (known as “Children’s System of
3 Care”); and
4 • New county programs to provide state assistance to counties to establish medical and social
5 services for families (e.g., family counseling) where children are at risk of being placed in
6 foster care (known as “wraparound services”).3
7 (Exh. XXX [LAO Analysis of Prop 63; Welf. & Inst. Code, § 5892.)
8 At the time they adopted Proposition 63, voters were told that MHSA surcharge revenues would
9 only be spent to reimburse counties for new or expanded mental health services. The MHSA, as enacted
10 in November 2004, expressly prohibits the use of funds in the Mental Health Services Fund for non-
11 qualifying purposes – including for use in supplanting state support for pre-existing mental health
12 services:
“. . .funding established pursuant to [the MHSA] shall be utilized to expand mental health
13 services. These funds shall not be used to supplant existing state or county funds utilized
to provide mental health services. . . These funds shall only be used to pay for the
14 programs authorized in Section 5892. These funds may not be used to pay for any other
program.”
15
(Welf. & Inst. Code, § 5891, italics added.)
16
17 In fact, this was the key element to ensuring the security of the dedicated revenue stream the
18 MHSA guaranteed would be available to support of new and expanded mental health services. Mental
19 health services in California have historically been under-funded. (Backup??) While a variety of factors
20 may account for this, one of the key problems has been that mental health services have been funded
21 through annual appropriations from the State General Fund. (See, e.g.,XXXXX.) Under this funding
22 system, year-to-year budgets for mental health services programs have been subject to frequent
23 reduction by the Legislature and Governor based on competing General Fund budgetary priorities.
24
As the Legislative Analyst stated in her summary included in the ballot materials for Proposition
25
63, adoption of that measure dramatically changed the existing paradigm for funding new and expanded
26
27 3
The MHSA also established the Mental Health Services Oversight and Accountability Commission to oversee
expenditures of MHSA surcharge revenues for qualifying programs. (Welf. & Inst. Code, § XXXX; CA Budget Program
28 Report, p. 2; LAO Analysis, Prop 63.)
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MPA iso VERIFIED PETITION10FOR WRIT OF MANDATE
1 mental health services.
“[MHSA] funds would not be provided through the annual state budget act and thus
2 amounts would not be subject to change by actions of the Legislature and Governor.”
3 (LAO Analysis Report, p. XXX.)
4
By creating a dedicated revenue stream, the MHSA give counties a measure of certainty in their
5
year-to-year mental health service budgets. This, in turn, has enabled counties to, among other things,
6
engage in long-term planning for the creation of new and expanded mental health services. In fact, the
7
MHSA requires all participating counties to draft and submit for state review and approval a “three-year
8
integrated plans” for the delivery of mental new and expanded mental health services within their
9
jurisdiction, including the estimated financial needs associated with therewith. (See Welf. & Inst. Code,
10
§ 5847; LAO Analysis of Prop 63.) Because MHSA funding is supposed to be guaranteed, counties
11
“front” costs associated with delivery of the services set forth in their three-year integrated plans in
12
reliance on the availability of later reimbursement through the MHSA. The plans submitted by counties
13
for fiscal year 2009-10 indicate estimated expenditures of over $1 billion for the new and expanded
14
mental health programs contained therein. Provided the MHSA surcharge generates sufficient revenues,
15
counties are entitled to rely on promise of reimbursement in providing these programs and services.
16
(January 5, 2009 DMH Informational Notice 09-01, p.3 [attachment].)
17
However, Proposition 1E would essentially reverse the policies underlying the MHSA by
18
permitting the redirection of over $460 million from the Mental Health Services Fund “to support” – i.e.,
19
supplant – General Fund appropriations for the Early Periodic Screening, Diagnosis, and Testing
20
Program (“EPSDT”). Proposition 1E represents an amendment of the core concept underlying
21
Proposition 63 and a permanent diversion of its funds for purposes specifically prohibited by Proposition
22
63. Two important consequences would flow from Proposition 1E – neither of which is addressed in the
23
ballot label or title and summary.
24
First, and most obviously, if Proposition 1E passes, between the 2009-10 and 2010-11 fiscal
25
years, the Mental Health Services Fund will have almost half a billion dollars less available for
26
distribution to counties than if Proposition 1E fails. Income generated by the MHSA surcharge currently
27
provides roughly 25% of all funding that supports community based mental health services administered
28
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1 by the counties, including services for children. (Client comm – get backup for this) The loss of over
2 $460 million over two consecutive fiscal years would compound the already anticipated decline in
3 MHSA surcharge revenues due to the current economic recession. Under these circumstances, it is all
4 but certain the counties will have to cut back or eliminate some of the new or expanded mental health
5 services they provide, including services specifically intended to benefit children. The ballot label and
6 title and summary include no reference though to the potential adverse impact on children’s mental
7 health services being provided under the MHSA. Instead, voters are merely told that redirected monies
8 will be used to fund children’s mental health services. (Exh. XXXX.)

9 The ballot label states that Proposition 1E “preserves funding for children’s mental health
10 services” without identifying that the source of redirected funds – the MHSA – also provides children’s
11 mental health services. Even worse is the title and summary, which seems to affirmative imply that the
12 EPSDT, but not the MHSA, provides funding for children’s mental health services when it states that
13 Proposition 1E would “[guarantee] that certain funding intended for mental health services goes toward
14 mental health services for children.” (Exh. XXX.) This statement is deliberately misleading insofar as it
15 merely suggests that children’s mental health services will be made a “priority” for existing mental
16 health funding without informing voters that the end result of Proposition 1E is half a billion dollars less
17 in mental health funding – and therefore fewer services – for children as well as adults.
18 Second, Proposition 1A proposes to allow $460 million in Mental Health Services Fund monies
19 to be diverted to “supplant” state support of existing mental health services in direct contravention to the
20 voters’ intent in adopting Proposition 63. Proposition 63 was clear that its purpose was to expand
21 mental health services and its language included a specific prohibition on using the new funds to pay for
22 existing programs. [cite] The counties were precluded from receiving new Proposition 63 funds unless
23 they maintained their existing level of financial support for mental health, thus ensuring the expansion of
24 such services.
25 While notably absent from either the ballot label or title and summary, the Senate Committee
26 Analysis for the measure candidly acknowledges that the purpose of Proposition 1E is not to provide
27 additional mental health services, or even to maintain existing services, but to “backfill” the General
28 Fund monies for monies appropriated to support the EPSDT. (Senate Analysis XXX.) That is, MHSA
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1 funds will be diverted into the General Fund to offset the General Fund appropriation for the EPSDT.
2 (Senate Analysis; Steinberg Fact Sheet.) As the Attorney General’s Fiscal Summary states, the
3 Proposition 1E would result in a General Fund savings” by reducing funding for MHSA programs. (AG
4 Fiscal Summary.) This precisely the type of supplanting that voters sought to prevent by passing
5 Proposition 63 in 2004. Yet, the ballot label and title and summary for Proposition 1E omit this critical
6 fact.
B. The Ballot Label and Title and Summary Contain False and Misleading
7 Information
8
In addition to omitting crucial information, the ballot materials crafted by the Legislature contain
9
several statements that are clearly inaccurate and misleading. Indeed, some of the statements are
10
demonstrably false.
11
The Legislature’s ballot label states that Proposition 1E will “preserve funding for children’s
12
mental health services by providing temporary flexibility in the [MHSA] to fund the [EPSDT] for
13
children.” (Exh. XXXX.) Similarly, the Legislature’s title and summary states that the Proposition 1E:
14 “Ensures funding for children’s mental health services”
15 “Guarantees that certain funding intended for mental health programs goes to toward mental
health programs for children”
16
“Provides temporary flexibility in the [MHSA] to allow the state to fund the [EPSDT]”
17
“Guarantees and protects more than $225 million in flexible spending for mental health
18 programs.”
19 (Exh. XXXX.)
20
Several facts make each of these statements either false or misleading.
21
First, the repeated suggestion in these ballot materials that Proposition 1E will “guarantee”
22
funding for “children’s mental health services” is patently false. Although these statements assert that
23
the diverted MHSA funds will be used “to support” the EPSDT, as discussed above, the Senate Analysis
24
makes clear that redirected funds will in fact be used to “backfill” the State General Fund to offset
25
General fund monies appropriated to the EPSDT. (Senate Analysis.) Once deposited into the State
26
General Fund, redirected MHSA funds lose their “special fund” character, and the Legislature may
27
appropriate them for any lawful purpose. This fact flows from Legislature’s plenary authority to take all
28
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1 actions not prohibited by the state or federal constitutions, and is expressly recognized in statute. (See
2 Gov. Code, § XXXX; [case cite] Nothing in Proposition 1E imposes any legal limit on the Legislature’s
3 ability to exercise these plenary powers. Thus, if Proposition 1E passes, the Legislature could lawfully
4 decide to use redirected MHSA funds to fund road or highway construction – or any other lawful
5 purpose unrelated to children’s mental health services.
6 More fundamentally, the statements that Proposition 1E would “preserve” funding for the
7 EPSDT and “ensure[],” guarantee[]” and “protect[]” spending for mental health programs is also false
8 and/or misleading. Whether Proposition 1E passes or not will have no bearing on state funding for the
9 EPSDT program. The EPSDT program has been a requirement of the federal Medicaid program since
10 its inception in 1966. (EPSDT Fact Sheet.) As a participant in Medicaid and as a condition of the
11 receipt of matching federal monies, California has a mandatory duty to provide funding for the EPSDT
12 program. (Get Cite XXXX.) Spending for the EPSDT program mental health services is already
13 “ensured,” “protected” and “guaranteed” by virtue of California’s participation in Medicaid.
14 In contrast to the truth about the EPSDT program, the ballot materials crafted by the Legislature
15 give voters an absolutely false impression of what will occur if they do not adopt Proposition 1E. The
16 obvious purpose of this distortion is to persuade voters to support, rather than oppose, the measure.
17 While this may be a classic method used in political campaigning, it is simply inappropriate in the
18 context of government printed ballot materials being presented to voters as fair and impartial
19 information.
20 Finally, the suggestion that Proposition is necessary to provide “temporary flexibility” in the
21 MHSA to allow the state to fund other programs is also false and misleading. In 2008, the Legislature
22 amended the MHSA to permit the State Controller to borrow monies from the Mental Health Services
23 Fund for purposes of making a loan to the General Fund. (Assembly Bill 1389 (stats. 2008, ch. 751),
24 adding subd. (b) to Welf. & Inst. Code, § 5891.) Such loans however, are subject to several conditions.
25 Interest must be repaid from the General Fund from the date of the loan, computed at a rate of 110
26 percent of the Pooled Money Investment Account rate.4 (Welf. & Inst. Code, § 5891(b).) Such loans
27 may not “interfere with the carrying out of the object for which [MHSA] funds were created.” (Ibid.)
28 4
Brief description of PMIA.
___________________________________________________________________________________________________
1 And, as with all special funds, the State is obligated to repay a loan from the Mental Health Services
2 Fund when XXXX certifies that repayment is needed to carry out programs authorized by the MHSA.
3 (See Gov. Code, §§ 16310; Riley v. Johnson (1933) 219 Cal. 513, 518-19.)
4 Contrary to the statements in the ballot label and title and summary, flexibility already exists
5 within the MHSA “to allow” the Legislature to use MHSA revenues to fund the EPSDT. Indeed, this
6 fact is well-known to the Legislature. The Budget Act for XXXX includes an item indicating that the
7 Legislature has already XXXXXXXXXXXXXXX. The real purpose of Proposition 1E then is actually
8 to permanently relieve the Legislature of its current obligation to repay the monies it is already
9 borrowing from the Mental Health Services Fund. Here again, the Legislature’s ballot label and title and
10 summary seek to influence the voters by misleading them into believing that Proposition 1E is necesary
11 to allow the use of MHSA monies to fund the EPSDT even though no such necessity actually exists.
12 The Legislature would simply prefer to obtain MHSA monies under a better deal – one that never
13 requires those funds to be repaid.

C. The Totality of Circumstances Demonstrates the Legislature’s Attempt to Use the
14 Ballot Pamphlet as a Political Device, Rather than to Inform Voters.
15
It is no secret that the Legislature has a direct stake in the voters’ adoption of Proposition 1E.
16
Indeed, the only truly accurate statement about Proposition 1E in the ballot label and title and summary
17
is that it will “help[] the state balance the budget.” That is the obvious reason the Legislature enacted
18
SB 10 and it is the reason they want it to be approved at the Special Election. But the desire to win
19
approval for this measure in order to help balance the budget simply doesn’t relieve the Legislature with
20
the obligation to be straight with the State’s voters. The Legislature cannot constitutionally use ballot
21
materials that are intended to be fair and impartial to further their chosen political interest. But this is
22
precisely what the Legislature has done with respect to the ballot materials for Proposition 1E.
23
To determine whether government-financed election materials distributed to the public cross the
24
line from informational to improper political advocacy, courts must consider such factors as the “style,
25
tenor, and timing of the publication.” (Stanson, supra, 17 Cal.3d at 222.) Here, Legislature has
26
employed every conceivable means at its disposal to manipulate the ballot materials to further its interest
27
in having the voters adopt the five measures, including Proposition 1E, that it has placed on the May 19,
28
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1 2009 Special Election Ballot. It suspended the Secretary of State’s role in determining the order and
2 number designations for these measures and performed these functions itself. (SB 19.) It suspended the
3 Attorney General’s role in preparing the impartial ballot label and title and summary and, again,
4 performed these functions itself. (SB 19.) And it reduced to only eight days, including weekends, the
5 period in which voters may review and bring legal challenges to, the ballot labels for these measures.
6 While the Legislature may have the authority to take responsibility for portions of the ballot
7 materials, the manner in which it has crafted the ballot label and title and summary is beyond
8 constitutional pale. As discussed above, these materials present a grossly distorted view of Proposition
9 1E, and do so in way that is calculated to further the prospects for passage. They omit crucial
10 information concerning the downsides of Proposition 1E, such as the fact that the measure would reverse
11 a watershed policy judgment concerning funding for new and expanded mental health services adopted
12 by the voters only four years ago, and reduce funding for some mental health services programs that
13 provide services to children. The Legislature’s materials rely on false and misleading statements which
14 present the measure as being necessary to resolve exigent circumstances that do not truly exist (e.g., to
15 “ensure” funding for EPSDT). And, in what can only be described as a blatant effort to gain voters’
16 sympathy, they state – falsely- that monies redirected from the MHSA will be used to support
17 “children’s” mental health services. [???]
18 The distorted presentation of the purpose and impact of Proposition 1E presented in the ballot
19 label and title and summary constitute a serious and direct threat to the integrity of the electoral process
20 that warrants judicial intervention. It is one thing for government to add its voice to the marketplace of
21 ideas on controversial issues – for example, by providing clearly identified “arguments” in favor or
22 against a measure, as several legislators have done with regard to Proposition 1E. But the constitution
23 does not, indeed cannot, allow the government manipulate the electoral system by cloaking its views on
24 such matters in the guise of impartial information distributed to voters at public expense.
25 Petitioners there respectfully request that the court issue a writ prohibiting the Secretary of State
26 from printing the ballot label and title and summary for Proposition 1E, unless and until such time as
27 they are corrected or amended to remove all false and misleading statements and ensure that they are fair
28 and impartial.
___________________________________________________________________________________________________
III. PETITIONERS’ PROPOSED REVISIONS
1
2 Even if the court finds that the ballot label and title and summary do not, in their entirety,
3 constitute one-sided political advocacy that cannot be provided to the voters at public expense,
4 petitioners request that certain portions of those materials that are false or misleading be revised or
5 deleted.
7 A. Ballot Label
8 For the reasons discussed in section II, B, above, the following sentences in the ballot label are
9 false or misleading.
10 XXXXXXXXXXXXXXXXXXXXX
11
This court should order that the first sentence be revised to read:
12
XXXXXXXXXXXXXXXXXXXXXXX
13
14 Similarly, the
15
16 B. Title and Summary

17
18
19 CONCLUSION
20
21 For the foregoing reasons, petitioners ask that this court order the above-requested deletions and
22 revisions to the ballot label and title and summary for Proposition 1E.
23
24 /var/www/apps/scribd/scribd/tmp/scratch8/15263380.doc
25
26 Dated: February ____, 2009
27 Respectfully submitted,
28 OLSON HAGEL & FISHBURN LLP
___________________________________________________________________________________________________
Deborah B. Caplan
1 Lance H. Olson
2 Richard C. Miadich
3
By: ____________________________________
4 DEBORAH B. CAPLAN
Attorneys for Petitioners XXXXXXXXX
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___________________________________________________________________________________________________

Prop 63 MPA

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Prop 63 MPA

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Deborah B.

Caplan [SBN 196606]

2 Richard C. Miadich [SBN 224873]

6 Attorneys for Petitioners

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

24 GEOFF BRANDT, in his official capacity as State

27 Real Parties in Interest.

11 Jordan (1939) 14 Cal.2d 288, 292.)

23 of Proposition 63, the proposed changes must be approved by the voters.

2 With respect to Proposition 1E, Section 6©(1) of SB 19 provides that “[n]otwithstanding

11 as the ballot title and summary for Proposition 1E:”

4 that eight-day period.”

7 February 25, 2009 Ballot Labels Available for Inspection

8 February 26, 2009 Remaining Ballot Materials Available for Inspection

9 March 5, 2009 Deadline for Inspection and Challenge to Ballot Labels

21 A. The Government is Not Permitted to Use Public Resources to Takes Sides in an

2 dictating the contents of the ballot materials to be provided to the voters.

13 Stanson, supra, 17 Cal.3d 218; Gould, supra; Miller, supra.)

21 183, citing Knoll v.Davidson (1974) 12 Cal.3d 335, 352.)

6 process making heightened judicial scrutiny appropriate.

19 (Professional Engineers, Amwest. [get cites])

23 it as necessary to meet this standard.

3 [insert standard language about false and misleading standard]

LEGISLATURE FOR PROPOSITION 1E ARE NOT IMPARTIAL AND, INSTEAD,

24 ENSURES FUNDING FOR CHILDREN'S MENTAL HEALTH SERVICES. HELPS

11 crafted by the Legislature.

28 may be reimbursed with MHSA funds include:

6 foster care (known as “wraparound services”).3

8 will be used to fund children’s mental health services. (Exh. XXXX.)

5 purpose unrelated to children’s mental health services.

13 “ensured,” “protected” and “guaranteed” by virtue of California’s participation in Medicaid.

13 requires those funds to be repaid.

17 “children’s” mental health services. [???]

16 B. Title and Summary

26 Dated: February ____, 2009

28 OLSON HAGEL & FISHBURN LLP

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