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Proposition 66 Oral Argument

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Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.

The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week is now available on this page.

The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of the argument focused on the issue that was discussed at length, the requirement that the direct appeal and initial habeas corpus petition be completed within 5 years.  In my view, the more important indication from the argument is which issues did not produce any questions for our side from the justices.

It is always dicey to predict from oral argument, but from what does not seem to be seriously at issue, it appears unlikely that the court will invalidate the initiative as a whole or any a substantial portion of it.

Ms. Rayburn went first.  Petitioner's first challenge comes under the provision of the California Constitution that an initiative may not embrace more than one subject.  I was surprised to hear her argue the single-subject claim first and for a significant portion of her time.  Apparently the briefing had not educated her that this claim is total trash.  An initiative that deals only with enforcing judgments in capital cases is laser-focused in comparison to the far broader initiatives the court has approved.  The justices did educate her in short order.  They peppered her with questions on the weaknesses of that argument and finally suggested she stop wasting her limited time with it.

The 5-year limit was challenged as a violation of the separation of powers, and this was the focus of most of the argument.  If it is interpreted as an absolute and inflexible mandate, such that the Supreme Court would have to abandon all its other work to meet the deadline at least for the existing backlog, the court would likely find that it is unconstitutional.  However, under a long series of cases the California Supreme Court and Courts of Appeal do not interpret time-limit and case-priority statutes that way.  They interpret them as having enough flexibility to avoid crippling the courts' ability to perform its essential functions.  There was much discussion of the word "shall" in the statute, the fact that it expressly says it does not require dismissal of the appeal if the limit is passed, and the fact that a writ of mandamus to enforce it is not a threat to the Supreme Court as there is no higher court to issue the writ.

When I got up Justice CuĂ©llar hit me with a question before I could even say the traditional "may it please the court."  Fair enough, I thought.  This is a "hot bench," and with limited time it is better to skip the pleasantries and get right down to brass tacks.  Prepared remarks are out, and I will spend my limited 10 minutes answering questions.  I addressed the 5-year limit and also a question about appellate jurisdiction in capital habeas cases, but the questions curiously stopped. 

Back to Plan A, I reminded the court of the forgotten, much-violated California constitutional right of the victims to a prompt and final completion of the case.  Then I addressed the separation of powers and the bogus claim that the habeas corpus reforms -- venue, filing deadline, successive petitions -- somehow violate the separation of powers.  Not so, these lie squarely within the people's reserved legislative power.  Doesn't seem to be any disagreement on that, and that is vitally important.  These are the most important reforms in the initiative.

I also addressed the issue of severability.  The opponents have essentially zero chance on the single-subject rule, and the 5-year limit is the only challenge they made that the court expressed interest in during the argument.  They could bring down the whole initiative, then, only if this one provision is so central to the initiative that the whole thing falls without it.

The 5-year limit is not central to the initiative, no matter what you read in the San Francisco Chronicle.  Indeed, during the campaign the yes-on-66 op-ed in the Los Angeles Times (which I wrote) does not mention the time limits at all.  The argument made to the people was all about the habeas corpus and Administrative Procedure Act reforms.

The court seemed interested in the severability point, and this discussion continued into Ms. Rayburn's rebuttal.

The court could construe the 5-year limit as I and the Attorney General suggested, making it constitutional.  It could say that it is not unconstitutional on its face and wait to judge its constitutionality as applied.  It could conceivably stretch to say it is facially unconstitutional, but that will not bring down the rest of the initiative and its important reforms unless they buy the nonseverability argument.  Given the California Supreme Court's long tradition of "jealously guard[ing]" the people's right of initiative, I find it very hard to believe they will do that.  I think we are in good shape.

Prop66OralArg500.jpg

In front of the Ronald Reagan Building in Los Angeles after oral argument:  Proposition 66 Proponent Kermit Alexander, Sacramento County District Attorney Anne Marie Schubert, and me.

6 Comments

I watched the entire argument.

Your argument was superb. It was evident, at least to me, that the court had much more respect for your legal knowledge and grasp of the facts and the law than they did for the DAG.

Two of the justices were able to bog down the DAG with questions about the so-called manadatory 5-year limit. He really didn't seem to have good answers to their questions. And, perhaps more importantly, he wasn't able to pivot on to a different issue.

Luckily, you had 10 minutes and made the critical point that regardless of the court's concerns about the 5-year limit, there were other provisions in the Prop. that clearly should be upheld by the court. You really didn't get any pushback on that issue.

I will say that I thought the petitioner's attorney did a great job. She was very well prepared and projected confidence in her legal arguments. (Something that I think is important during oral argument.) From what I have since learned, she has an impressive resume.

The bench was "hot," as you state. But it appeared that some justices were hotter than others.

I assume you will get an answer in 90 days?

Why wouldn't the five-year limitation be subject to "as applied" challenges, not facial challenges?

It's indicative of how far things have gotten out of hand that five years could be considered any sort of rush job, much less constitutionally problematic pressure.

WWII took less than five years. The Constitution was written (if I remember correctly) in five weeks.

The people who pay judges' salary have demanded, at most, that they work harder. Isn't that too bad!!! Could they take some time off from their numerous talks to bar gatherings and law school groups to sit down at the computer and write a draft?

Good grief.

Bill, now, now, we can't have judges hitting deadlines . . . .

See part VI of our Return, beginning on page 39.

I was an appellate lawyer for the feds for almost 25 years, doing maybe 150 - 200 criminal cases in the circuit courts and a very few at the SCOTUS level (although I never got an oral argument).

I will happily state under oath that the idea it takes more than five years to resolve a case is not merely mistaken but absurd.

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