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Frank D. Russo

The California Progress Report is published by Frank D. Russo, a longtime observer of and participant in California politics.

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Judge Upholds Vote of Californians on Prop 36 Drug Courts Against Schwarzenegger Demanded Legislative Changes

Why doesn't the Governor hold sacred the vote of the people on a ballot measure?

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By Frank D. Russo

Late yesterday an Alameda County Judge Winifred Smith issued a preliminary injunction preventing changes Governor Schwarzenegger demanded from legislators on drug courts from going into effect. While there may be a debate on whether Proposition 36, passed overwhelmingly by the voters of this state in 2000 should be changed, the ruling here deals with a more fundamental question: Who should decide whether to change the proposition —the people in another ballot vote or the legislature and governor?

The case of Gardner v. Schwarzenegger speaks volumes about Arnold Schwarzenegger’s respect for votes of Californians on ballot propositions. This is a governor who proudly proclaims on his official State of California website that he is “The people’s governor.” The same one who in years past has spoken of going over the legislature and appealing to the people themselves, and did so in last year’s special election when all of his measures went down to defeat. He and his spokespeople say he’s a changed and humbler man—who got a message loud and clear from last year’s vote. But if you look at the sordid history here and why the ballot signer for Prop 36, Cliff Gardner, had to go to court to sue the Governor, you have to wonder.

We have written before about the details of SB 1137, the bill the Governor demanded of the legislature and the threats he made to underfund the drug courts if he did not get his way. Take a look at our July 14, 2006 story and you’ll see that the Office of legislative Counsel, the California Legislature’s own lawyers, issued a formal letter advising them that the bill was unconstitutional. So now we are seeing this playing out in the courts.

Unless the Governor just doesn’t know what he is doing here, you can only conclude that he has no respect for the vote of the electorate on Prop 36. If he wanted to change the Proposition into something that the electorate did not vote for, he has to go back to the people. He didn’t do that here. He will waste more time and taxpayer money if he keeps fighting the injunctions and demands a trial and then lengthy appeals here.

I’d hate to be the lawyer trying to argue on Schwarzenegger’s side on this. The brief filed on behalf of Mr. Gardner quotes from the papers filed by defendant Schwarzenegger’s lawyers and starts out:

Defendants concede that “the purpose of Proposition 36 is to rehabilitate nonviolent drug offenders through noncustodial drug counseling and treatment.” And they do not despite that Proposition 36 specifically prohibits incarceration as part of Proposition 36 probation.

Nonetheless, Defendants contend that the Legislature had the authority to negate the voters’ enactment and to authorize incarceration simply because—unlike the voters—the Legislature believe jail is an effective tool to promote drug treatment. [Citations omitted].


In open court, the Judge on a number of occasions read and quoted the language of the law—the words of Prop 36—and the Governor’s attorney repeatedly referred to whether it should be changed.

It looks like we will have a debate in the 2008 elections on the merits of a ballot measure to change Prop 36. That’s where it belongs, not in court.

If Mr. Gardner has to get a permanent injunction for this, the next step in a costly court fight, then the electorate in 2006, if it has any self respect, will vote for a new governor who respects their votes.

Posted on September 15, 2006

Comments

And this is the man who says he'll ease the overcrowding in our prisons?
To alleviate the outrageous circumstance of California's prison system operating at twice its planned capacity was among the reasons for the establishment of the drug courts in the first place.
If properly implemented, funded and utilized, the alternatives provided by Prop.36 will do just that, apart from offering a real chance for addicts to reclaim their lives.
In attempting to alter the legislative intent of this law, Arnie is acting against not just the WILL of the voters but against the better interests of the State.

Posted by: Delia at September 17, 2006 06:52 AM

Your commentary criticizing the administration’s position on Proposition 36 failed to adequately address the thinking that went into the development of public safety reforms for Proposition 36.

While participants who complete treatment under Proposition 36 find jobs and are more likely to remain drug free, a significant percentage never enter treatment and a small group of offenders are responsible for a disproportionate share of the program’s criminal justice costs. Californians deserve better.

The public safety reforms in SB1137 were approved by a bipartisan vote of the legislature and came about through a collaboration of treatment providers, judges and law enforcement. The reforms will improve accountability by giving judges and treatment providers’ access to tools that improve outcomes.

The Governor’s budget reauthorized $120 million in funding for Proposition 36 and an additional $25 million for counties to implement program improvements aimed at improving entry and completion rates. In the meantime, the Administration will defend the legislation to ensure that more non-violent drug offenders enter and complete treatment under Proposition 36.


Posted by: Morgan Staines-Chief Counsel, Dept. of Alcohol and Drug Programs at September 18, 2006 05:35 PM

I appreciate your comments on the policy issues and whether the changes should be made. My point in this article is that when a ballot measure is passed by a vote of the people, it takes another vote of the people to change it--unless the change made by the legislature is in furtherance of it. This, in my mind and that of the judge is a change and therefore not proper. That is what the Legislative Counsel's opinion was. The vote was taken under duress with threats of the Govenor not to fund the drug courts unless he got his way. That also is improper in my opinion.

Posted by: Frank D. Russo at September 18, 2006 09:39 PM

I think that if the voters opinion's are obsolete and they do not count then this state is in deep trouble, I have addressed Arnold on my concerns as to why this proposition basically says unless you are a drug offender then there is no efforts in treating your illness. Alcoholics have a disease that I feel is just as detrimental to the safety of others, yet there is no treatment being addressed for alcohol abuse. The recidivism rate for DUI in California is out of control, and no one seems to care that their just lock em up a little longer strategy is failing miserably, but I guess one addiction out weighs another in this state. There was a time you were proud to be a Californian, now it's just hopeless and depressing.

Posted by: Ericka Watson at June 4, 2007 08:24 PM

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