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LIBERI) CENTER 11
JAMES F. SWEENEY'
9381 EAST STOCKTON BLVD., STE 218
STEPHEN 1. GREENE. IR .
LI.KGROVL. CALIFORNIA 95624
LAURA BORDEN RIDDELL
PHONE: (916)753-1300
OF COUNS11:
FAX (916)7,53-1333
ERIC GRAND
IA9NSSVEENEY-GREEN E.C)M
' AUV AI>,MI`II IJ 11 I I II lll 110( 1 Of COILIMHIA

FACSIMILE TRANSMISSION

Date: July 29, 2008

To: Steven L. Mayer, Esq. - Howard Rice Nemerovski Canady Falk & Rabkin
Attorneys for RPI Daniel N. Abrahamson
Fax: (415) 217-5910

To: Edmund G. Brown, Jr., Attorney General of the State of California

Christopher E. Krueger, Senior Assistant Attorney General
Jason E. Rios, Depute Attorney General
Attorneys for Respondent Debra Bowen, Secretary of State
Fax: (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: 18

Comments:

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 THE
ATTORNEY-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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LIBERTY CENTER n
JAMES F. SWEENEY'
9381 EAST STOCKTON BLVD., STE. 218 STEPHEN J. GREENE, JR.
ELK GRocE. CALIFORNIA 95624 LAURA BORDEN RIDDELL"
PHONE: (916) 753-1300
OF COUNSEL:
FAR: (916) 753-1333
ERIC GRANT'
W W W.SW EENEY-GREEN 6COM

ALSO ADMITTED IN THE DISTRICT OE COLUMBIA

** ALSO ADMITTED IN LOUISIANA

July 29, 2008

VIA FACSIMILE TRANSMISSION

The Honorable Ronald M. George, Chief Justice of California,

And Honorable Associate Justices
SUPREME COURT OF CALIFORNIA
350 McAllister Street
San Francisco, California 94102-4797
Fax: (415) 865-7183

Re: Pete Wilson, et al. v. Debra Bowen, as Secretary of State,

Respondent; Daniel N. Abrahamson, Real Party in Interest
Case 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 enforcement
community leaders, appreciate the Court's willingness to permit them to
reply to the letter of opposition received from the Real Party in Interest,
Daniel N. Abrahamson (hereinafter "the Proponent').' Proponent's
verbose, preliminary opposition letter brief is unavailing and, despite its
rhetorical excesses, fails to respond adequately to the serious constitutional
defects 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 her

responsibility as California's chief elections officer, has taken no position
on the merits of this Petition. Hence, this reply is addressed to the
opposition letter brief submitted by the Proponent.

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Petition for Writ of Mandate be granted and Respondent be directed to

refrain from taking any steps to place Proposition 5 on the November 4,
2008, Statewide General Election ballot or to include the measure in the
ballot pamphlet.

I. PRE-ELECTION REVIEW IS WARRANTED IN THIS

EXCEPTIONAL AND UNPRECEDENTED CASE.

Proponent's twenty-two pages of misguided legal argument and

rambling political rhetoric essentially distill down to a single central
argument: i.e., Petitioners' request is unprecedented and thus should simply
be 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 is
completely unprecedented. Indeed, it is unprecedented that two former
California governors (of opposing political parties, no less) and nearly two-
thirds of the state's elected district attorneys, as well as law enforcement
and public safety leaders from across California, have joined together to
petition this Court to intervene to prevent a manifest abridgement of the
California Constitution that would wreak immediate and catastrophic
damage to California's already-imperiled correctional system.
Proposition 5's unconstitutional revision of the criminal justice and
correctional system, its raw impairment of core executive and judicial
constitutional prerogatives, and the staggering short teen financial cost of
implementing its constitutionally-defective mandates, threaten to
immediately collapse a correctional system already facing the most grave
financial crisis to afflict an institution of state government since the
admission of the State to the Union in 1849. To be sure, Petitioners have
not made this request lightly, nor are they unmindful of the importance of
the 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 to

respect this reserved power and must act with prudence and restraint when
it comes to intervening in electoral matters. The Court must justly give
careful consideration to these important competing interests. As discussed
at length in Petitioner's Memorandum of Points and Authorities, the
Court's policy has always generally disfavored pre-election review absent
some sound and compelling reason for doing so and has, over time,
articulated some exceptions warranting deviation from this general
principle. (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 ever
there has been a need for the scrutiny and consideration of this Court in
reviewing an initiative measure prior to an election, Petitioners submit that
this is just such an occasion.
Because of the unique and unprecedented circumstances involved
with regard to Proposition 5 and the crisis facing California's correctional
system, Petitioners submit that constitutional review of Proposition 5 is an
absolute necessity and that this Court must intervene, in the interests of
constitutional government and public safety, to avert imminent and
irreparable hann to the state and its people. Accordingly, Petitioners urge
the Court to grant the instant Petition for Writ of Mandate.

II. PETITIONERS CHALLENGE THE ENTIRETY OF

PROPOSITION 5, WHICH WOULD ENACT A COMPLEX
INTERRELATED REVISION OF THE EXECUTIVE AND
JUDICIAL BRANCHES OF GOVERNMENT.

Proponent makes the clever, but disingenuous, argument that

Petitioners are challenging only a "small portion" of Proposition 5. This is
simply 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 the

enactment have a profound effect or relationship with regard to the
remainder of the enactment. Simply stated, Proposition 5 is a proverbial
"three-legged" stool, which cannot stand when one of the "legs" is kicked
out from underneath it. The constitutional defects-in this case affecting at
least two legs of the proverbial three-legged stool-render the entire
enactment inoperable as a practical matter.
Fundamentally, the parties appear to agree that Proposition 5
purports to revise the constitutional framework of state government in two
basic respects. First, it restructures the state's parole system by creating an
extra-constitutional state officer, the Secretary of Rehabilitation and Parole,
with plenary executive power to control all aspects of the state parole
system, from basic policymaking to appointments to the Board of Parole
Hearings. Second, it restructures the judicial system in criminal cases by
withdrawing independent judicial discretion with regard to fashioning
dispositions in cases involving so-called "non-violent offenders" and
transferring ultimate responsibility for exercising discretion from the
judiciary to independent, non-judicial "drug treatment professionals."
These two fundamental revisions to the executive and judicial branches of
government pervade virtually every aspect of Proposition 5. While the
Proponent may dismiss Petitioners' challenge to a purportedly "small
portion" of Proposition 5, Petitioners, in fact, are challenging the
fundamental underlying constitutional premises of the entire enactment.
In other words, if transferring "supreme executive authority" over
parole from the Governor to an unelected, unaccountable, appointed official
violates 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, the
Secretary of Rehabilitation and Parole enjoys exceptionally broad power

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and control over virtually every aspect of the correctional system. (See
Prop. 5, § 4 (vesting primary responsibility for all of the state's parole
policies and rehabilitation programs); § 6 (Secretary of Rehabilitation and
Parole directs and supervises Division of Parole Policy); § 7 (Board of
Parole Hearings appointed on the Secretary's recommendation); § 20
(oversees all rehabilitation programs); § 29 (Secretary of Rehabilitation and
Parole recommends appointees for Chief Deputy Warden for
Rehabilitation, who shall be subject to removal by the Secretary); § 32
(Oversight Commission, which oversees all drug court programs for adult
felons in Track III, is under direction of the Secretary of Rehabilitation and
Parole) .) Thus, if the transfer of supreme executive authority over parole
policy and review from the Governor to the Secretary of Rehabilitation and
Parole violates Article V of the California Constitution, virtually the entire
legislative enactment to be made by Proposition 5 would be affected and
inoperative. The same is also true with regard to the transfer of the exercise
of independent judicial discretion with regard to fashioning dispositions in
criminal cases to non-judicial "drug treatment professionals." This
principle pervades Proposition 5's "three tier" system. (See Prop. 5, § 13
(court must rely upon the clinical assessment in fashioning disposition in
Track I, II, or III matters); § 17 (court shall order the defendant to attend
and 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 while
normally allowing severability, does not conclusively dictate it." (Gerken v.
Fair Political Practices Conzni'n (1993) 6 CalAth 707, 714-716.) "The
cases prescribe three criteria for severability: the invalid provision must be
grammatically, functionally, and volitionally separable." (See Calfarm Ins.
Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822.) In this case, the
constitutional defects, as already noted, pervade Proposition 5 rendering it

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virtually impossible to functionally sever the constitutionally defective

provisions from the entire enactment. In a word, whatever would be left
over after the unconstitutional underlying provisions are excised would be
essentially nugatory.

111. PROPOSITION 5 MATERIALLY IMPAIRS THE PRIMARY

ND INHERENT POWER OF THE GOVERNOR TO
A
OVERSEE PAROLE POLICY AND REVIEW AND
UNDERMINES THE GOVERNOR'S ABILITY TO
EXERCISE THE "SUPREME EXECUTIVE POWER"
ENTRUSTED BY THE CONSTITUTION TO THE
GOVERNOR.

The Proponent erroneously relies upon this Court's decision in

Marine Forests Society v. California Coastal Commission (2005) 36
CalAth 1, to argue that that the provision giving the Secretary of
Rehabilitation and Parole a fixed six year tern "stands on...firm ground."
(Opposition Letter Brief, July 25, 2008, p. 12.) In fact, Marine Forests is
inapposite. The Proponent has utterly failed to provide any pertinent
authority or reasonable argument to justify Proposition 5's pervasive
material impairment of the constitutionally-vested executive power of the
Governor to protect public safety exercised by making parole policy and
reviewing parole decisions.
Marine Forests addressed the creation of the California Coastal
Commission by adoption of the California Coastal Act enacted by ballot
initiative measure in 1972 and concluded that the California constitution
did not categorically preclude the Legislature from enacting a statutory
provision authorizing itself to appoint a member or members of an
executive commission or board. The question presented to the Court in
Marine Forests was not material impairment of inherent and enumerated
gubernatorial constitutional authority, as is the case here, but rather whether

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appointment of Coastal Commissioners violated the separation of powers

clause of Article III, section 3. The Court concluded that the power to
appoint executive officers is not an exclusively executive function that may
be exercised only by the Governor or another executive official, but rather
is a power that may be exercised--either in general or in appropriate
circumstances--by the Legislature. (Marine Forests, supra, 36 Cal.4th at
p.42-43.)
Here, the situation is quite different. Prior to the adoption of the
Coastal Act, primary responsibility for coastal planning and management
was shared between local city and county governments and the United
States Department of the Interior. Coastal management was not a
traditional and primary executive responsibility of the Governor-or, for
that matter, the Legislature. In this case, the issue is not the propriety of
legislative appointments being made to executive agencies, but rather the
material impairment by a statute of an inherent executive power vested in
the Governor, to wit: the authority vested in the Governor to make parole
policies in furtherance of public safety and to review parole decisions.
(Cal. Const., Art. V, §§ 1, 8.) In this regard, Marine Forests addresses a
very different question and resolves a very distinct issue not before the
Court in the context of this Petition.
To be sure, as this Court noted: "there is nothing in the California
Constitution that grants the Governor (or any other executive official) the
exclusive or paramount authority to appoint all executive officials," as the
California Constitution provides for independently elected executive
officers, such as the Lieutenant Governor, Attorney General, Controller,
Secretary of State, and Treasurer. (See Cal. Const., Art. V, § 11.) Each of
these constitutional officers has, in contrast to the federal executive branch
of govermnent, independently-derived constitutional authority, which

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necessarily presumes power of appointment within their respective

constitutional areas of authority.
To this end, the Constitution expressly vests "supreme executive
power" 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 Governor
of California more essential or fundamental than the obligation of the
Governor, as the State's "supreme executive," to ensure the safety of the
public and to protect the citizens of California from becoming the victims
of crime. The Constitution, in order to facilitate the Governor's ability to
protect public safety, vests the Governor with the plenary power to review
parole. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 686.) Such being
the case, Petitioners contend that the creation of an extra-constitutional,
appointed Secretary of Rehabilitation and Parole, who independently
exercises primary authority over parole with no meaningful gubernatorial
oversight, materially impairs the Governor's constitutional authority to
advance and protect public safety and to make and review parole policies.2
A constitutional amendment (or quite possible a revision)-not a statute-

2 Petitioners note that the Proponent fails to offer any explanation or

rationale for the fact that the Secretary of Corrections serves at "the
pleasure of the Governor," while the Secretary of Rehabilitation and Parole
serves 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 to
executive oversight by aM constitutional officer, even though the issue of
parole policy is intimately related to public safety and crime prevention, or
to the voters of California. Thus, Proposition 5 vests a primary public
safety function in the hands of an unelected, extra-constitutional appointee,
who is unsupervised and answers to no one once he or she is appointed. All
other officials having primary responsibility for public safety (e.g., the
Governor, the Attorney General, district attorneys, and county sheriffs) are
all elected and must answer directly to the people every four years. This is
a radical change in direction that is distinctly undemocratic and wholly
outside the constitutional framework in California.

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is required to make such an organic change to the constitutional executive

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

IV. PROPOSITION 5 IMPERMISSABLY TRANSFERS A CORE

CONSTITUTIONAL FUNCTION OF THE JUDICIAL
BRANCH TO AN UNACCOUNTABLE, QUASI-
ADMINISTRATIVE AGENCY.

The Proponent conveniently ignores the "inconvenient truth" that

Proposition 5 seriously curtails and largely eliminates the meaningful
exercise of independent judicial discretion in the cases involving drug
offenses subject to the provisions of Proposition 5. As noted in Petitioners'
brief, the imposition of a sentence and the correlative exercise of sentencing
discretion are fundamentally and inherently judicial functions (People v.
Thomas (2005) 35 CalAth 635, 640; People v. Navarro (1972) 7 Cal.3d
248, 258) and represent a "critical state" in a criminal case. (In re Cortez
(1971) 6 Cal.3d 78, 88.) Ignoring prior case law, the Proponent
erroneously concludes the trial court has control over each critical stage in
the process. (Opposition Letter Brief, July 25, 2008, p. 16.) The Proponent
is simply wrong in this regard, as it is obvious from the face of Proposition
5 that the proposed legislative enactment divests the trial court of discretion
regarding imposition of sentencing in criminal cases.
The Proponent relies heavily on the authority of the court to hold an
evidentiary hearing if there is a dispute as to a defendant's eligibility for
Track 1. However, the Proponent ignores that the court has no authority to

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find a defendant ineligible because the court believes a defendant is

"unamenable" for treatment. The court is limited to finding the defendant
ineligible based on whether or not the defendant has ever been convicted of
a serious or violent felony or whether the defendant has only one felony
conviction 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 defendant
from participation, even those convicted of serious and violent felonies
under some circumstances. ((See Prop. 5, § 17 (amending Penal Code §
1210.1, subd. (f).) Further, Track III does not permit a court to exclude a
defendant from participation, if the defendant in the last 30 months has
been convicted five times or more of any offense or combination of
offenses (excluding serious or violent felonies). ((See Prop. 5, § 18 (adding
Penal Code § 1210.2, subd. (c).) Only in Track III, can the court exclude
some defendants from a treatment program on the basis that diverting such
a defendant is not "in furtherance of justice." ((See Prop. 5, § 18 (adding
Penal Code § 1210.2, subd. (b).)
The Proponent also fails to discuss the provision in Track III that
allows someone with a serious or violent felony conviction to be admitted
to Track III only if the district attorney wants a defendant in that particular
track. (See Prop. 5, § 18 (adding Penal Code § 1210.2, subd. (d)(1).) This
occurs clearly at a stage in the proceedings after charges have been filed,
yet the court cannot admit these defendants without the permission of the
district attorney. More than just another example of impermissible restraint
on judicial discretion, this provision of Proposition 5 subordinates the
judicial authority of the court to executive authority of the district attorney.

3 The other two eligibility requirements do not require the presentation

of evidence, i.e. whether the pleading charges the defendant only with
NVDP 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 the
judicial stage of a proceeding never should be required to "`bargain with
the prosecutor"' before doing so. [citations omitted]" (Manduley v.
Superior Court (2002) 27 CalAth 537, 554.) Yet, that is precisely what
Proposition 5 would require.
Moreover, Penal Code section 1210.2(d)(1) clearly violates the
separation of powers doctrine enunciated in People v. Tenorio (1970) 3
Cal.2d 89. Such a provision, where the judicial act is dependant on the
consent of the executive (e.g., the district attorney), violates California
Constitution Article III, and Article VI, section 1. In Tenorio, this Court
dealt with a provision of the Health and Safety Code that forbade probation
to a defendant charged with a prior felony, and forbade the trial court from
striking the prior unless the prosecution had so moved. This Court held that
such a provision, requiring the judiciary to obtain the consent of the
executive to make a judicial act, was unconstitutional. The proposed
section 1210.2(d)(1) creates precisely the same situation, and thus is
unconstitutional under Tenorio.
Not only is the court's discretion to exclude defendants from the
tracks severely limited, but the court, in every track, "must rely upon the
clinical assessment of the defendant" "[i]n determining the appropriate
treatment 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 "must
rely" "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 "drug

treatment 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 sentencing
of serious or violent felons, for example, trial courts would be required to
sentence a defendant, pursuant to Penal Code § 1170, according to the
Probation Department's recommendation with no discretion to deviate from
that recommendation.
But, the limitations upon judicial discretion do not stop there. In
every track, the court may order urine testing. But if the tests show
continued drug usage, the court cannot find that a violation of probation
occurred-no matter how many times the tests show continued drug
usage-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 refer
the defendant to a program or require the defendant as a condition to
successfully completing the program to terminate or detox from
medication-assisted treatments or medications "taken" consistent with state
law" (presumably marijuana). (See Prop. 5, § 13 (adding Penal Code §
1210, subd. (e).) Although the court can order a Track I defendant to
complete a drug treatment program, Prop. 5, § 14 (adding Penal Code §
1210.03, subd. (i)), the court must dismiss the charges and permanently seal
the defendant's arrest records if the defendant has merely "performed
satisfactorily" during the period of diversion. (See Prop. 5, § 14 (adding
Penal Code § 1210.03, subd. (p).) Further, a court cannot terminate a
defendant's probation if he or she violates the drug-related conditions of
probation before entering "appropriate" treatment. (See Prop. 5, § 13
(adding Penal Code § 1210.02, subd. (a)(1).) In other words, the defendant
can use drugs from the time diversion or probation is granted until he enters
treatment without fear of sanctions, graduated or otherwise, because there is
simply 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 5
would effectively tie the hands of the judge.
As the Proponent concedes, in every track the court can inquire
when the defendant has not started treatment within 30 days (response p.
16), but the court cannot terminate the defendant from the program or find
him "unamenable" to treatment. The court can only re-refer him to
treatment and impose "graduated sanctions" (e.g. more treatment sessions)
or tenninate and sentence the Track I defendant to Track II treatment. (See
Prop. 5, § 14 (adding Penal Code § 1210.03, subd. (j).) A court cannot even
terminate diversion or probation if the defendant is convicted of a
misdemeanor, a felony, or engages in "criminal conduct"which makes him
unsuitable for treatment without holding a hearing. (See Prop. 5, § 15
(adding Penal Code § 1210.04); § 17 (amending Penal Code § 1210.1).) At
that point in Track I, the court can only re-refer the defendant to treatment
or sentence the defendant to Track II. (See Prop. 5, § 15 (adding Penal
Code § 1210.04) In Track II, if a defendant commits a new drug offense or
violates a drug-related condition of probation, the court can only revoke if
the 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 sanctions
in Track II or III if the defendant is receiving medication-assisted drug
treatment 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 even
impose jail sanctions until the defendant, for the fourth (or more) time
during probation, has committed a nonviolent drug possession offense or
violated a drug-related condition of probation. And then, it may do so only
after 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 exercise
discretion 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) set
monitoring conditions for defendants; (5) determine the sentence for
defendants who fail Track I; (6) determine what constitutes successful
completion of probation; or (7) automatically tenninate someone who
commits anew misdemeanor or felony. The regimen imposed upon judges
by Proposition is something quite different from the one cited by the
Proponent in In re Chantal S. (2003) 13 CalAth 196, 213-214. Under
Proposition 5, the court has not elected to delegate some of its authority to
another agency or individual, but rather has been stripped of its discretion
to exercise its well- recognized authority to exercise sentencing options or
set 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 appropriate
treatment, monitoring conditions, and probation conditions has been
transferred to the person performing the clinical assessment.

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CONCLUSION

Despite the Proponent's unavailing effort to trivialize the profound

constitutional defects that pervade Proposition 5 and to discount the
catastrophic damage that enactment of this facially invalid initiative
measure will do to California's correctional system, Petitioners Governor
Pete Wilson, Governor Gray Davis, the 34 elected district attorneys, and the
law 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 a
peremptory writ of mandate, directing Respondent to refrain from taking
any steps to place Proposition 5 on the November 4, 2008, Statewide
General Election ballot or to include the measure in the ballot pamphlet.

Respectfully submitted,

SWEENEY & GREENE LLP

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

15

From:Sweeney & Greene LLP 9167531333 07/29/ 2008 09:10 #075 P.017/018

SWEENEY & GREENE LLP

ATTORNEYS AT LAW

CERTIFICATE OF WORD COUNT

I, James F. Sweeney counsel of record for Petitioners as fully set

forth above, certify that the foregoing Reply in Support of Petition for Writ
of Mandate and Request for Immediate Temporary Stay contains
approximately 4,098 words (including footnotes, and exclusive of this
certificate). This approximation is based upon the "word count" tool
contained in Microsoft Word, the word processing program used to prepare
this pleading. The typeface used herein is Times New Roman, and the size
is 13 point.

Dated: July 29, 2008

16

From:Sweeney & Greene LLP 9167531333 07/29/ 2008 09:10 #075 P.018/018

SWEENEY & GREENE LLP

ATTORNEYS AT LAW

PROOF OF SERVICE

I, Nicole D. Bayne, declare as follows:

1 am over the age of eighteen years and not a party to the within
action. My business address is 9381 E. Stockton Blvd., Suite 218, Elk
Grove, California, 95624.
On July 29, 2008 by 9:00 a.m., I served the attached REPLY IN
SUPPORT OF PETITION FOR EXTRAORDINARY RELIEF
INCLUDING WRIT OF MANDATE AND REQUEST FOR
IMMEDIATE TEMPORARY STAY via facsimile transmission to the
parties set forth below at the facsimile number(s) indicated:

Attorneys for Respondent - Debra Bowen Secretary of State

Edmund G. Brown, Jr., Attorney General of the State of California

Christopher E. Krueger, Senior Assistant Attorney General
Jason E. Rios, Depute Attorney General
OFFICE OF THE ATTORNEY GENERAL
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Phone: (916) 324-53 10
Fax: (916) 324-8835

Attorneys for Real Parties in Interest- Daniel N Abrahamson

Steven L. Mayer, Esq.

HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN
A Professional Corporation
Three Embarcadero, Seventh Floor
San Francisco, CA 94111-4024
Phone: (415) 434-1600
Fax: (415) 217-5910

I declare under penalty of perjury that the foregoing is true and

correct and that this document was executed on July 29, 2008.