Criminal
Aug. 9, 2002
Last-Ditch Challenge to Prop. 21
SAN FRANCISCO - What's left of a once-broad attack on Proposition 21, the voter-approved juvenile crime law, got an airing at oral argument Wednesday before a San Francisco appellate panel.
Leading foes of the law, passed in 2000, contend it unfairly substitutes punishment for rehabilitation of youthful offenders.
At the oral argument session, only Justice Joanne C. Parrilli asked any questions, and they weren't encouraging for the law's opponents.
Parrilli wondered whether the League of Women Voters and other plaintiffs in the case even had standing to challenge the law.
And she wanted to know whether, instead of the current civil suit before the 1st District Court of Appeal, it wouldn't be better for criminal defendants targeted by the law to seek relief by filing writs of mandate in advance of their trials.
San Francisco attorney Steven L. Mayer, representing the League, the American Civil Liberties Union and other plaintiff groups, told Parrilli that any citizen of California has the right to request the invalidation of an unconstitutional initiative. League of Women Voters v. Davis, A093544.
And he asserted that a criminal trial is a bad venue for deciding a constitutional question because discovery rules limit evidence-gathering to factual issues raised by the indictment.
Mayer, of San Francisco's Howard Rice Nemerovski Canady Falk & Rabkin, argued that Proposition 21 should be canned because voters were misled by initiative petitions with wording different from the text actually approved at the polls.
Opposing counsel Ramon de la Guardia, a deputy state attorney general from Sacramento, denied it.
"There was no bait and switch," he said outside the courtroom. "I'm sure the League won't quit on this suit, but this is stuff on the margins they're arguing here."
About two years passed between the filing of the petitions in 1998 and the passage of Proposition 21 by 61 percent of voters in March 2000. During that time, the California Legislature revised nearly two-thirds of the statutes that the measure itself sought to modify.
"But the ballot pamphlet did not apprise voters" of that fact, Mayer said. "Because voters were not told the laws had changed, they could not have made an intelligent choice" at the polls.
Mayer hopes the appellate panel will allow him to file a third amended complaint in San Francisco Superior Court, where the suit originated in 2000. Judge David Garcia, then the court's law and motion jurist, sustained a defense demurrer.
"Judge Garcia didn't give us the benefit of submitting his reasons" for dismissing the case, Parrilli noted.
The effort to overturn Proposition 21 has suffered mightily since then.
Mayer's case was severely undercut in February when the state Supreme Court foreclosed two of his three arguments by deciding Manduley v. Superior Court, 27 Cal.4th 537.
Thanks to Manduley, gone was Mayer's claim that Proposition 21 violates the single-subject rule, limiting the diversity of topics in ballot measures. Also rejected was the argument that the law is unconstitutional on separation of powers grounds because it lets prosecutors decide whether to charge juveniles as adults, a privilege formerly reserved for judges.
And in May, a 4th DCA panel turned away an argument seemingly identical to Mayer's remaining issue: that Proposition 21 is invalid because its text in the ballot pamphlet differed from the text circulated among voters for signature.
The ruling in People v. Scott, 98 Cal.App.4th 514, isn't binding on the 1st District in the current case, but it seems likely to sway the San Francisco court's thinking. On July 3, the San Francisco panel wrote Mayer and De la Guardia alerting them to Scott and asking them to be prepared to comment on it.
The Scott panel wrote, "our review of the materials [Scott] has submitted show they are in substantial compliance with the Elections Code and he has not shown that any of the differences in the text of the initiative were material deficiencies or that such purported defects 'affected the ability of the voters to make an informed choice.'"
The quoted passage is from a state Supreme Court decision, Friends of Sierra Madre v. City of Sierra Madre, 25 Cal.4th 165 (2001).
Even so, Mayer contended Wednesday that his argument is different. "In Scott, the court did not address the ballot pamphlet's failure to tell voters what the preexisting law was," he said.
A prominent opponent of Proposition 21 who is not involved in the current challenge conceded he is pessimistic about its outcome.
"We're speedily running out of issues," said Alex Ricciardulli, a deputy public defender and appellate specialist in Los Angeles. "The League is in a very difficult position in light of Manduley. Our system now has another law tilted toward prosecutors. We're going to have to deal with it."
Justices Carol A. Corrigan and William R. McGuiness also took part in Wednesday's session.
John Roemer
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