Governor Jerry Brown Turns to CAL Supremes After Judge Blocks Initiative – UPDATED

UPDATE: The Cal Supremes temporarily removed the judicial roadblock
that would stop Brown from collecting signatures to put his voter initiative on the ballot. For the rest of that story, go here.


On Thursday, Governor Jerry Brown and his attorneys filed an emergency petition with the California Supreme Court requesting an immediate stay of a ruling issued by a lower court judge that could keep the governor’s new sentencing reform ballot issue out of the voters’ hands until 2018.

Here’s the background: On Wednesday of this week (as we reported here), Sacramento County Superior Court Judge Shelleyanne Chang blocked Governor Jerry Brown’s proposed ballot initiative, known as “The Justice and Rehabilitation Act,” ruling amendments to the initiative were not done correctly.

To remind you, this is the ballot initiative that would take the decision about whether a child defendant will transferred to adult court away from prosecutors, and put it back into the control of judges who—unlike prosecutors—are presumably neutral parties.

The initiative also makes it easier for adult offenders to earn credits awarded by prison officials through educational and rehabilitative efforts and good behavior.

In addition, Brown’s initiative would allow non-violent inmates to be eligible for parole after they have completed their full sentence for their primary offense.

Brown characterized this second part of the proposed ballot measure as more than a way to lower the state’s prison population (as demanded by the U.S. Supreme Court in it’s 2010 Plata v. Brown ruling), but also a much needed strategy to make the state’s prison system more rehabilitative.

“By allowing parole consideration if they do good things,” the governor told reporters in a conference call at the end of January, “they [prisoners] will then have an incentive…to show those who will be judging whether or not they’re ready to go back into society.”

Various law enforcement figures across the state agreed and came out in support of Brown’s initiative, including San Diego District Attorney Bonnie Dumanis, who is known for her law-and-order leanings, and Los Angeles Police Chief Charlie Beck, both of whom were present with Brown when he announced the initiative less than a month ago.

The California District Attorney’s Association, however, was not at all pleased to have yanked from them the power to have teenagers as young as 14-years old tried as adults.

“It takes a tool away from us,” said Yuba County District Attorney Pat McGrath, president of the California District Attorneys Association, after Brown announced the ballot initiative.


The Cal DAs quickly expressed their unhappiness with legal action in the form of a law suit filed to prevent Attorney General Kamala Harris from issuing the official title and summary of the proposed measure that would let supporters begin gathering signatures.

The prosecutors claimed in the lawsuit that Brown had amended the initiative (which is true, but legal) but that he had done so in such a way that the DAs contended violated a 2014 state law that was intended to improve the initiative process by allowing amendments of initiatives within a certain time frame prior to the initiatives being approved for signature gathering.

According to the 2014 law, amendments are to be “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”

The prosecutors contend that Brown’s amendment did not meet the legislature’s standard, and also accused Attorney General Kamala Harris with letting the governor get away with the allegedly wrongfully applied amendments without the proper period of public comment on the amendments.

Interestingly, it was the original, unamended initiative that contained the proposed change to state law that the DAs found so loathsome, as it would have taken away from prosecutors the choice to try kids as adults instead of allowing them to be tried in juvenile court, and given that discretion back to judges, which had previously held the power in the first place.

(The original initiative also expanded parole eligibility for adult prisoners whose crimes were committed before the age of 23.)

The amendments that are the basis of the lawsuit, however, were the addition of the sections that would allow prison officials to consider sentencing credits for adult inmates, and would additionally allow the possibility of earlier parole for non-violent felons.

In any case, Judge Chang agreed with Sacramento District Attorney Anne Marie Schubert and the Cal District Attorneys Association and ruled that there was “no substantial compliance” by Harris with the 2014 state law. (Her ruling is more complicated, but that’s the upshot.)

If it stands, Chang’s ruling means that Brown and company will be forced to start the initiative process over from scratch, meaning that there will not be enough time to gather the needed 585,000 voter signatures for the measure to qualify for the November ballot.


In the emergency petition filed with the Cal Supremes on Thursday, Jerry Brown and his attorneys, Robin B. Johansen and James C. Harrison, state that the amendments, which they contend “would further advance the measure’s rehabilitation and public safety goals,” for adults and juveniles, were filed within the time period laid out by the law, that the governor reached out appropriately for comment about the amendments to a wide swath of people—including the CAL DAs. Furthermore, they stated, the law doesn’t require public comment for the amendments. After all, the public can gets to weigh in at the ballot box.

Brown and company’s overall argument is 46-pages long, and makes for interesting reading for those who want more of the legal details. (See below) But the snippets below represent much of the heart of it:

“Waiting until 2018 to qualify this measure for the ballot is not an option,” wrote Johansen and Harrison. “If the superior court’s order stands, the people will have been deprived of their right to use the initiative process to remedy problems that urgently require attention now. The ruling of the Court below turns the Legislature’s amendment process on its head and thwarts rather than promotes the initiative power granted.

“…Because the amendments are reasonably germane and because it is imperative that the people have an opportunity to vote on this measure in November, the Court should immediately stay the lower court’s order and allow the Attorney General to issue her title and summary.”

In addition, Brown’s attorneys wrote, allowing Judge Chang’s ruling to stand “will encourage strike suits, like the one that prompted this writ, by opponents of a measure to try to keep an initiative off the ballot.” In other words, they argued, it allows the use of lawsuits filed for political reasons, not because there is any flaw in the way the initiative was filed.

“If left uncorrected, the superior court’s error will bar voters from even considering whether to sign a measure that would improve public safety by promoting rehabilitation rather than incarceration for juveniles and adults and allow judges, not prosecutors, to decide whether juveniles should be charged as an adult.”

So what will California’s top court do with this emergency request?

Justice reformers across the state with whom we’ve spoken are anxiously awaiting the answer to that question.

We do know, however, that late on Thursday, the California Supreme Court asked the interested parties, namely the CAL prosecutors, Sacramento District Attorney Anne Marie Schubert, and Attorney General Kamala Harris, to file responses to the emergency petition by 5 pm this coming Monday, January 29.

So stay tuned.

Gov. Brown Justice Reform Initiative Writ Petition (00268671-11xAEB03) by Celeste Fremon

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