Defendants Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, Jr., and Secretary of State Debra Bowen appeal from a judgment enjoining enforcement of Senate Bill No. 1137 (2005-2006 Reg. Sess.) sections 1 through 12 (Stats. 2006, ch. 63, §§ 1-12; hereafter Senate Bill 1137), that sought to amend the Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36). The issues are whether the provisions of Senate Bill 1137 challenged by plaintiffs Cliff Gardner, Drug Policy Alliance, and California Society of Addiction Medicine further the purposes of Proposition 36, and, if not, whether Senate Bill 1137 can be submitted to the voters for approval. We hold that certain of the challenged sections of Senate Bill 1137 cannot reasonably be construed to further the purposes of Proposition 36, and that Senate Bill 1137's provision for a popular vote, if any part of Senate Bill 1137 is invalidated, is itself invalid. Consistent with these conclusions, we affirm the judgment.
A. Proposition 36
Proposition 36, passed by the voters in the November 2000 general election, generally provides that those convicted of drug possession offenses are initially to receive probation with drug treatment, rather than incarceration. (Pen. Code, § 1210.1, subd. (a).)
In Proposition 36, the electorate found and declared: "(a) Substance abuse treatment is a proven public safety and health measure. Nonviolent, drug-dependent criminal offenders who receive drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable and more productive lives. [¶] (b) Community safety and health are promoted, and taxpayer dollars are saved, when nonviolent persons convicted of drug possession or drug use are provided appropriate community-based treatment instead of incarceration." (Guide, supra, text of proposed law, § 2, p. 66.)
Proposition 36's express purposes were: "(a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration—and reincarceration—of nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (Guide, supra, text of proposed law, § 3, p. 66.)
Proposition 36 further provided: "This act may be amended only by a roll call vote of two thirds of the membership of both houses of the Legislature. All amendments to this act shall be to further the act and shall be consistent with its purposes." (Guide, supra, text of proposed law, § 9, p. 69.)
B. Senate Bill 1137
Senate Bill 1137 was passed by the Legislature on June 27, 2006, as an urgency measure (Sen. Bill 1137, § 12), and signed by the Governor on July
Senate Bill 1137 was derived from Senate Bill No. 803 (2005-2006 Reg. Sess.) (Senate Bill 803), which was introduced in February 2005. An April 2005 Senate Committee on Public Safety analysis of Senate Bill 803 stated that "[t]he most important source of conflict over SACPA [Substance Abuse and Crime Prevention Act of 2000] is the prohibition on any jail sanctions until probation is revoked." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 803 (2005-2006 Reg. Sess.) Apr. 19, 2005, p. 18.) "[T]he most contentious issue—perhaps the overriding issue—is the use of short-term incarceration (flash incarceration) sanctions for probation violations while a person participates in the act." (Id. at p. 25.) At this same time, the Legislative Counsel opined that "[l]egislation that would authorize a sentence of incarceration for a first, second, or third drug-related probation violation, if enacted, would constitute an amendment of Proposition 36 that would not both further that initiative statute and be consistent with its purposes. Therefore, the legislation could not take effect without voter approval pursuant to subdivision (c) of Section 10 of Article II of the California Constitution."
Senate Bill 1137 included the following findings and declarations:
"[¶] . . . [¶] (c) Each year following the implementation of the act the Department of Alcohol and Drug Programs (hereinafter the department) was
"(d) In addition, the department contracted, as required by the act, with a public university, the University of California at Los Angeles (hereinafter UCLA) to evaluate the effectiveness and financial impact of the programs which were funded pursuant to the requirements of this act and to report findings that were in fact forwarded to the Legislature by the department.
"(e) The UCLA evaluations have found that approximately 30 percent of referred SACPA offenders do not enter treatment. . . .
"(f) The UCLA evaluations have found that 34 percent of those who do in fact enter treatment complete that treatment. This completion rate, as well as retention rates, can be improved through the enhancement of compliance with treatment . . . .
"(g) SACPA does not specifically address the use of short periods of jail time as a motivational tool to hold SACPA offenders accountable to enter and stay in treatment. Studies have reported that drug court clients were more likely to enter treatment, remained in treatment significantly longer, and engaged in significantly less drug use when they received swift and sure sanctions and rewards, including the possibility of brief periods of jail time during the course of treatment. Therefore, sanctions including short periods of jail time for relapsing, problematic, or recalcitrant offenders, on a showing of need after consideration of important treatment and other factors, should be available, not as a substitute for treatment but as a tool to motivate and hold offenders accountable. . . . [¶] . . . [¶]
"(i) The UCLA evaluations also speak to the high cost in terms of arrests and convictions of violent crimes, property crimes, and sex crimes of those presently eligible defendants who have five or more convictions in the 30-month period prior to their SACPA eligible arrests in comparison to the typical SACPA offender, and recommend that the Legislature may wish to consider possible changes as to the eligibility of these offenders who UCLA found comprise 1.6 percent of the total number of offenders eligible for SACPA, yet had postconviction crime costs that were 10 times higher than
The Legislature further found and declared in section 10 of Senate Bill 1137 that "the provisions of this act are consistent with the purposes of the Substance Abuse and Crime Prevention Act of 2000." Section 9 of Senate Bill 1137 directed: "If any provision of this bill is found to be invalid, the entire legislative measure shall be submitted to the voters at the next statewide election."
C. Procedural History of the Case
This suit was filed on July 12, 2006, the day the Governor signed Senate Bill 1137.
The trial court granted plaintiffs' motion for summary judgment, finding that "[t]he incarceration provisions of Senate Bill 1137 are flatly inconsistent with the purposes approved by the voters, as are the changes to those eligible for diversion under the initiative." The court found the popular vote provision of section 9 of Senate Bill 1137 invalid under the terms of that section, which "ma[de] clear that the Legislature intended that the provisions of the legislation not be severable, so that invalidation of one part invalidates the entire legislation." The court entered judgment declaring Senate Bill 1137 "invalid in its entirety," and enjoining its enforcement.
A. Constitutionality of the Challenged Amendments to Proposition 36
(1) Scope of Review
The standards governing our analysis are set forth in cases that have considered attempted legislative amendments to Proposition 103, the far-reaching insurance rate initiative, which, like Proposition 36, permitted amendment by the Legislature only "to further its purposes." (See Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1249 [48 Cal.Rptr.2d 12, 906 P.2d 1112] (Amwest).)
(2) Amendments at Issue
(a) Incarceration for Drug-related Probation Violations
(b) Incarceration for Non-drug-related Probation Violations
(c) Eligibility for Proposition 36 Diversion
Defendants contend that increased jail sanctions under Senate Bill 1137 are necessary to insure that drug treatment is effective; the bill's author faulted Proposition 36 for being "all carrot and no stick." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 803 (2005-2006 Reg. Sess.) Apr. 19, 2005, pp. 13-14.) Defendants submit that we must defer in this regard to the legislative findings supporting Senate Bill 1137, which were based at least in part on studies Proposition 36 required. However, while increased jail sanctions may help prod recalcitrant Proposition 36 probationers to participate in drug treatment, the question is not whether such sanctions are good policy, rather it is whether they are consistent with the purposes of the proposition. (Amwest, supra, 11 Cal.4th at p. 1265.) In identifying the purposes of an initiative we must be mindful of its specific language (id. at p. 1260; Foundation, supra, 132 Cal.App.4th at p. 1370), and Proposition 36 specifically limits a court's ability to order incarceration following a first or second drug-related probation violation. "Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397 [130 Cal.Rptr.2d 554] (Taylor).) An "apparent purpose and intention behind Proposition 36 [is] to give two chances to nonviolent drug offenders who commit additional nonviolent drug possession offenses or violate drug-related probation conditions to reform before they are no longer eligible for probation under the Act." (People v. Tanner (2005) 129 Cal.App.4th 223, 236 [28 Cal.Rptr.3d 201].) "Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration." (Taylor, supra, 105 Cal.App.4th at pp. 1397-1398.)
Senate Bill 1137 undermines these "specific rules" within Proposition 36's "comprehensive scheme" (People v. Guzman (2003) 109 Cal.App.4th 341, 347 [134 Cal.Rptr.2d 727]) insofar as it expands the ability to incarcerate defendants for first and second drug-related probation violations. Because Senate Bill 1137 takes a significantly different policy approach to such violations than the one reflected in Proposition 36, this part of Senate Bill 1137 cannot be said to further the proposition, even though its professed aim was to promote the proposition's public health purpose by encouraging participation in drug treatment. Moreover, even if these provisions of Senate Bill 1137 could be deemed to further Proposition 36's public health purpose, they would still be unconstitutional because they are inconsistent with the
Under the terms of section 9 of Senate Bill 1137, the bill's amendments to Proposition 36 are not severable. This section requires that "the entire legislative measure" be put to a popular vote "[i]f any provision. . . is found to be invalid," and thus "`"it is evident that the legislature would not have enacted the statute except in its entirety, and did not intend that any part should have effect unless the whole could be made operative. . . ."'" (Board of Osteopathic Examiners v. Board of Medical Examiners (1975) 53 Cal.App.3d 78, 85 [125 Cal.Rptr. 619] [discussing when an unconstitutional provision can be severed from a statute].) Accordingly, the unconstitutionality of the drug-related probation violation provisions we have discussed renders the balance of Senate Bill 1137, apart from section 9 itself, inoperative.
We further note that Senate Bill 1137's amendment of Proposition 36 provisions for non-drug-related probation violations is also unconstitutional. While Proposition 36 allows revocation of probation and imposition of a jail sentence only upon a court's determination of a non-drug-related probation violation, Senate Bill 1137 authorizes a remand for up to 30 days in jail merely upon the prosecutor's filing of a motion to revoke probation for a such a violation—an even bigger "stick" for use against Proposition 36 probationers than the two- or five-day "flash incarcerations" permitted for drug-related probation violations. This expanded opportunity for incarceration, like those provided in Senate Bill 1137 for drug-related probation violations, would be inconsistent with the money saving purpose of Proposition 36, as well as its public safety purpose, unless the alleged probation violation involved a crime of violence. Remands to jail under this portion of Senate Bill 1137 would also subvert the public health purpose of Proposition 36 by interrupting drug treatment on the basis of unproven probation
B. Popular Vote Provision
The trial court found that section 9 of Senate Bill 1137, which provides for submission of the bill to the voters at the next statewide election if any part of it is found to be invalid, was not severable from the other sections of the bill and was thus equally ineffective. Defendants submit that this approach "lack[ed] logic" because it "appl[ied] section 9 to negate section 9" (italics omitted), and plaintiffs do not challenge section 9 on the ground cited by the trial court.
The judgment is affirmed.
Margulies, J., and Graham, J.,