CORRIGAN, J. —
In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1.) The measure's various provisions are intended to facilitate the enforcement of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition. Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, and the Judicial Council of California oppose the petition as respondents. They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues raised are of sufficient public importance to justify the exercise of our original jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54 Cal.3d 492, 500 [286 Cal.Rptr. 283, 816 P.2d 1309].)
Petitioner asserts four grounds for relief. He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution;
Petitioner's constitutional challenges do not warrant relief. However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.
Proposition 66 includes a series of findings and declarations to the effect that California's death penalty system is inefficient, wasteful, and subject to protracted delay, denying murder victims and their families justice and due process. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) § 2, p. 212 (Voter Guide).) The measure enacts a series of statutory reforms, which may be grouped into three general categories: (1) provisions to expedite review in capital appeals and habeas corpus proceedings; (2) provisions governing the confinement of prisoners sentenced to death and the administration of the death penalty; and (3) provisions pertaining to California's Habeas Corpus Resource Center. Petitioner does not directly challenge each one of the measure's provisions. We summarize them all, however, as context for his claim that Proposition 66 unconstitutionally addresses more than one subject. (See pt. II.A., post.)
Proposition 66 amends Penal Code section 190.6 to give the Judicial Council 18 months to adopt rules and standards for expediting appeals and state habeas corpus review in capital cases.
Section 190.6, subdivision (b), an existing provision, sets a seven-month limit on the filing of the opening brief in a capital appeal, except upon a showing of good cause or when the trial transcript exceeds 10,000 pages. Subdivision (e) of section 190.6 is amended by Proposition 66 to provide that "[t]he failure of the parties or of a court to comply with the time limit in subdivision (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing." (Ibid.)
Section 1239.1 declares it the duty of this court to expedite review in capital cases. We must appoint counsel for indigent appellants as soon as possible, and grant extensions of time for briefing only "for compelling or extraordinary reasons." (§ 1239.1, subd. (a).) Proposition 66 calls on us and the Judicial Council to reevaluate the competency standards for appointed counsel in death penalty appeals and habeas corpus proceedings. "Experience requirements shall not be limited to defense experience." (Gov. Code, § 68665, subd. (b).)
The initiative measure extensively revamps the procedures governing habeas corpus petitions in capital cases. Under current practice, habeas corpus proceedings are initiated in this court, which appoints counsel and provides for their compensation.
The initial habeas corpus petition must be filed within a year of the appointment of counsel. (§ 1509, subd. (c).) An untimely initial petition, and any "successive" petition, "shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial,
Under existing law, there is no right to appeal from a superior court's denial of habeas corpus relief. The petitioner may obtain review by filing a new petition in a higher court. (In re Reed (1983) 33 Cal.3d 914, 918, fn. 2 [191 Cal.Rptr. 658, 663 P.2d 216].) The People have a statutory right to appeal a grant of relief in a capital case directly to this court, under section 1506. Proposition 66 alters these procedures by permitting either party to take an appeal from a superior court's decision on an initial habeas corpus petition to the Court of Appeal, and by specifying that "[a] successive petition shall not be used as a means of reviewing a denial of habeas relief." (§ 1509.1, subd. (a).) The issues on appeal are limited to those raised below, and to claims of ineffective assistance of trial counsel if habeas corpus counsel's failure to raise such claims itself constituted ineffective assistance. (§ 1509.1, subd. (b).) To pursue an appeal from a denial of relief on a successive petition, the petitioner must obtain a certificate of appealability from the superior court or the Court of Appeal based on a substantial claim for relief pertaining to actual innocence or ineligibility for the death sentence. (§ 1509.1, subd. (c).) Appeals under section 1509.1, subdivision (c) "shall have priority over all other matters and be decided as expeditiously as possible."
Proposition 66 requires that prisoners sentenced to death perform work in prison and pay 70 percent of their wages and other trust account funds toward restitution. (§ 2700.1.)
The measure amends section 3600 to allow the Department of Corrections and Rehabilitation (the Department) to house male prisoners under a sentence
Section 3604.1 provides an exemption from the Administrative Procedure Act (Gov. Code, § 11340 et seq.) for "standards, procedures, or regulations" governing administration of the death penalty. (§ 3604.1, subd. (a).) It also permits execution by lethal injection to be carried out by means other than intravenous, "if the warden determines that the condition of the inmate makes intravenous injection impractical." (§ 3604.1, subd. (b).) The sentencing court is given exclusive jurisdiction over challenges to the method of execution. Such claims must be dismissed if delayed without good cause. If the method is found invalid, the court is to order the use of a valid method. If a federal court enjoins use of a method of execution, the Department must, within 90 days, adopt a method conforming to federal requirements. (§ 3604.1, subd. (c).)
Section 3604.3, subdivision (a) authorizes physicians to attend executions for the purposes of pronouncing death and assisting the Department in developing protocols. Physicians and other licensed health care professionals are protected against disciplinary proceedings for any actions authorized by statute. (§ 3604.3, subd. (c).) The purchase of medical supplies and equipment used in executions is exempted from the provisions of the Pharmacy Law (Bus. & Prof. Code, § 4000 et seq.). (§ 3604.3, subd. (b).)
The Habeas Corpus Resource Center provides counsel, investigative staff, and experts for prisoners in capital habeas corpus proceedings. Currently the center is governed by a five-member board of directors chosen by the appellate projects.
We consider only the objections raised by the amended and renewed petition before us. "We have no occasion at this time to consider other possible attacks," and "except as necessary to resolve the basic questions before us, we do not consider in this case possible interpretive or analytical problems" that might arise from the measure in the future. (Raven v. Deukmejian, supra, 52 Cal.3d at pp. 340-341.) We review here a facial challenge to the constitutionality of Proposition 66, and express no view on claims that may be presented by individual prisoners based on their own circumstances.
With these principles in mind, we turn to petitioner's challenges.
"[T]he single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose." (Legislature v. Eu, supra, 54 Cal.3d at p. 513.) Accordingly, we have upheld initiative measures "`which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.' [Citation.]" (Id. at p. 512; accord, Senate of the State of
A review of other comprehensive criminal justice reforms enacted by initiative, and upheld against single-subject challenges, demonstrates that Proposition 66 passes the "reasonably germane" test. The "Victims' Bill of Rights" at issue in Brosnahan, supra, 32 Cal.3d 236, included provisions providing for (1) restitution to crime victims; (2) an inalienable right to safe public schools; (3) a sweeping restriction on judicially created rules of evidentiary exclusion; (4) new limitations on grants of bail; (5) the use of prior felony convictions for impeachment purposes; (6) abolishment of the diminished capacity defense and reinstatement of the M'Naghten test for legal insanity;
The Brosnahan court found it "readily apparent" that these provisions shared "a common concern, `general object' or `general subject,' promoting the rights of actual or potential crime victims.... [T]he 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system. These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts." (Brosnahan, supra, 32 Cal.3d at p. 247.)
In Raven v. Deukmejian, supra, 52 Cal.3d 336 (Raven), the court examined the "Crime Victims Justice Reform Act," which provided for (1) postindictment preliminary hearings; (2) restricting certain state constitutional criminal rights to afford no greater protection than is provided by the federal Constitution; (3) the people's right to due process and a speedy public trial; (4) greater flexibility with regard to joinder and less with regard to severance; (5)
Manduley v. Superior Court (2002) 27 Cal.4th 537 [117 Cal.Rptr.2d 168, 41 P.3d 3] (Manduley) involved the "Gang Violence and Juvenile Crime Prevention Act of 1998." That initiative measure included 13 provisions relating to criminal gang activity, four provisions amending the "Three Strikes" law, and 17 provisions amending Welfare and Institutions Code sections pertaining to the juvenile justice system. The Manduley court observed that the "general object of the initiative is to address the problem of violent crime committed by juveniles and gangs — not simply to reduce crime generally." (Manduley, at pp. 575-576.) It noted that broader criminal justice reforms were upheld against single-subject challenges in Raven and Brosnahan. (Id. at p. 576.)
Although the Three Strikes reforms in Manduley "at first blush, might not bear an obvious relationship to juvenile or gang offenders," the court decided "upon closer scrutiny we cannot properly conclude that they are not reasonably related to the goal of the initiative." (Manduley, supra, 27 Cal.4th at p. 577.) "Even if some of the crimes added to the list of violent and serious felonies are more likely to be committed by an adult who is not a gang member, the offenses nonetheless constitute crimes that commonly are committed by members of street gangs and/or juvenile offenders and thus bear a reasonable and commonsense relationship to the purpose of the initiative." (Id. at p. 578.) "Thus, despite the collateral effects of these provisions upon adults who are not gang members, and despite the circumstance that [one provision] has the incidental effect of adding strikes that the Legislature previously had [not] included in the list of violent and serious felonies, the provisions remain relevant to the common purpose of" the measure. (Id. at pp. 578-579.)
Restitution is a significant aspect of a criminal sentence and a benefit to victims. (See § 1202.4; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386 [83 Cal.Rptr.3d 461].) "Imprisonment pending execution of a death sentence is a part of the punishment for the crime" (People v. Rittger (1961) 55 Cal.2d 849, 852 [13 Cal.Rptr. 406, 362 P.2d 38]), and work requirements are a normal feature of imprisonment (§ 2700). The exemption from the Administration Procedure Act removes procedural impediments to execution protocols that are evident in published cases. (See Sims v. Department of Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1083-1084 [157 Cal.Rptr.3d 409]; Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729, 732 [85 Cal.Rptr.3d 724].) Allowing medical professionals to participate in executions without fear of disciplinary action by licensing authorities is reasonably calculated to facilitate the process of capital punishment. Placing the attorneys who work for the Habeas Corpus Resource Center under the supervision of this court, instead of an independent board of directors, is related to the goal of improving the efficiency of their efforts. Even under petitioner's constricted view of Proposition 66's purpose, the Habeas Corpus Resource Center reforms would qualify as reasonably germane, given that the center is directly involved in the postconviction review process.
With respect to section 10 of article VI, the California Constitution Revision Commission explained that former provisions "concerning the issuance and returnability of writs of habeas corpus" had been deleted "because the matter can be dealt with by the Legislature under the grant of original jurisdiction." (Commission Report, supra, at p. 90, italics added; quoted in Griggs v. Superior Court (1976) 16 Cal.3d 341, 349 [128 Cal.Rptr. 223, 546 P.2d 727] (conc. & dis. opn. of McComb, J.).) The Judicial Council, in its report on the revisions, similarly explained that "[t]he procedure for the exercise of this original [writ] jurisdiction is left to promulgation by statutes and rules," while also noting that "the authority of the named courts to issue writs of habeas corpus is specifically preserved ...." (Council Report, supra, pt. I, ch. 3, p. 75, italics added; quoted in Griggs, supra, 16 Cal.3d at pp. 349-350 (conc. & dis. opn. of McComb, J.).)
Like section 1509, Roberts calls for petitions filed elsewhere to be transferred to the sentencing court. "[W]hen a habeas corpus petition challenging the denial of parole or suitability for parole is filed in the superior court in a county other than that in which the petitioner's conviction and sentence were imposed, the filing court should transfer the petition to the superior court in the county of commitment in the first instance, prior to any determination being made that the petitioner has made a prima facie case." (Roberts, supra, 36 Cal.4th at p. 593, italics added.) This rule does not deprive the appellate courts of their original writ jurisdiction, which they may exercise in appropriate circumstances. (In re Kler (2010) 188 Cal.App.4th 1399, 1403-1404 [115 Cal.Rptr.3d 889].) Section 1509 essentially adopts the procedure developed in Roberts. It does not infringe on the jurisdiction conferred by article VI, section 10.
Petitioner further contends that Government Code section 68662 unconstitutionally authorizes the superior courts to appoint counsel for prisoners in habeas corpus proceedings conducted under Penal Code section 1509. There is no constitutional infirmity here. Article VI, section 10 does not regulate such matters.
Section 1509.1, subdivision (a) states: "Either party may appeal the decision of a superior court on an initial petition under Section 1509 to the court of appeal.... A successive petition shall not be used as a means of reviewing a denial of habeas relief."
Petitioner contends the provision of section 1509.1, subdivision (a) that requires appeals to be taken to the Courts of Appeal interferes with this court's exclusive appellate jurisdiction in capital cases under article VI, section 11. He claims the provision barring the use of successive petitions for purposes of review violates the original writ jurisdiction of the Courts of Appeal under article VI, section 10. Thus, petitioner asserts that the Courts of Appeal cannot exercise appellate jurisdiction in capital habeas corpus proceedings, while also contending they cannot be deprived of their power of review by way of writ.
We examined the extent of our exclusive jurisdiction in Thompson v. Department of Corrections (2001) 25 Cal.4th 117 [105 Cal.Rptr.2d 46, 18 P.3d 1198] (Thompson). Thompson filed suit to compel prison authorities to allow his spiritual adviser to remain with him until shortly before his execution. The superior court issued an injunction. The Court of Appeal dismissed the authorities' appeal on the ground that the matter was within this court's exclusive jurisdiction under article VI, section 11. (Thompson, at p. 121.) We disagreed. Reviewing the relevant constitutional history, we noted that all predecessor provisions had specified that our exclusive appellate jurisdiction was limited to "`criminal cases where judgment of death has been rendered.'" (Id. at p. 123; see Cal. Const., former art. VI, § 4, as amended Nov. 8, 1904; Cal. Const., former art. VI, § 4, as amended Nov. 5, 1918; Cal. Const., former art. VI, § 4, as amended Nov. 6, 1928.) In the 1966 constitutional revision, the reference to "criminal cases" was deleted when the exclusive jurisdiction provision was transferred to article VI, section 11. However, we found nothing in the history of the 1966 revision indicating "an intent to alter the scope of our exclusive jurisdiction over capital cases." (Thompson, at p. 124.)
In re Scott (2003) 29 Cal.4th 783 [129 Cal.Rptr.2d 605, 61 P.3d 402] (Scott) was a capital habeas corpus case in which we issued an order to show cause and appointed a referee to take evidence on claims of ineffective assistance of counsel. (Id. at pp. 791-792.) At the evidentiary hearing, Scott invoked his constitutional and statutory rights not to be called as a witness in a criminal case. (Cal. Const., art. I, § 15; Evid. Code, § 930.) We rejected the attempt, holding that a habeas corpus proceeding is "civil in nature" for purposes of the privileges at issue.
In re Barnett (2003) 31 Cal.4th 466 [3 Cal.Rptr.3d 108, 73 P.3d 1106] (Barnett) considered whether prisoners sentenced to death, and represented by counsel, are entitled to submit pro se claims related to their habeas corpus petitions. We noted that no such right pertains on appeal when the defendant has an attorney, and emphasized that "an inmate's rights regarding legal representation in a state habeas corpus proceeding are even more limited than on an appeal." (Id. at p. 474.) Habeas corpus relief is "`further removed from the criminal trial than is [appellate] review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.'" (Ibid., fn. omitted, quoting Pennsylvania v. Finley (1987) 481 U.S. 551, 556-557 [95 L.Ed.2d 539, 107 S.Ct. 1990], and citing Scott, supra, 29 Cal.4th at p. 815.)
In People v. Superior Court (Pearson) (2010) 48 Cal.4th 564 [107 Cal.Rptr.3d 265, 227 P.3d 858] (Pearson), we construed section 1054.9's provisions governing discovery in habeas corpus proceedings brought by prisoners sentenced to death or life without parole. The People argued that
The holding in Pearson turned on the independent nature of habeas corpus proceedings. "Although section 1054.9's discovery may occur before the actual habeas corpus petition is filed, it is part of the prosecution of the habeas corpus matter, not part of the underlying criminal case. [¶] Proposition 115's discovery provisions all deal with the underlying trial. For this reason, we have held that they do not apply to habeas corpus matters (although they may provide guidance in crafting discovery orders on habeas corpus). ([Scott, supra,] 29 Cal.4th 783, 813-814.)" (Pearson, supra, 48 Cal.4th at p. 572.)
Thus, section 1509.1, subdivision (a) does not violate article VI, section 10. We note that prisoners are free to challenge the restriction on grounds peculiar to their own circumstances.
Petitioner argues that prisoners sentenced to death are situated similarly to noncapital prisoners because both groups have the same interest in freedom from an illegal or unjust conviction or sentence. Such a characterization of the interest at stake is overly broad. The question is whether capital and noncapital prisoners are similarly situated for purposes of section 1509's
With respect to successive petitions, Reno set out the significant differences between capital and noncapital prisoners. We observed that the justification for a comprehensive first habeas corpus petition in a capital case "all but disappears for second and subsequent petitions in this court. Absent the unusual circumstance of some critical evidence that is truly `newly discovered' under our law, or a change in the law, such successive petitions rarely raise an issue even remotely plausible, let alone state a prima facie case for actual relief. In the 18 years since ... Clark, supra, 5 Cal.4th 750, experience has taught that in capital cases, petitioners frequently file second, third, and even fourth habeas corpus petitions raising nothing but procedurally barred claims." (Reno, supra, 55 Cal.4th at pp. 457-458, fns. omitted.) Such abusive successive writ practices are not nearly so common in noncapital cases.
Reno noted that the prevalence of meritless successive writ petitions "has threatened to undermine the efficacy of the system for adjudicating petitions for collateral relief in cases involving the death penalty." (Reno, supra, 55 Cal.4th at p. 442.) Accordingly, we "establish[ed] some new ground rules for [successive] petitions in capital cases that will speed this court's consideration of them without unfairly limiting petitioners from raising (and exhausting) justifiably new claims." (Id. at p. 443.) We deemed these new rules necessary because abusive practices were a problem specific to capital cases. "The abusive nature of the instant petition is by no means an isolated phenomenon. In those capital cases in which we have affirmed the judgment on appeal and then denied a typically lengthy first habeas corpus petition, we often — years later — receive [a successive] petition running several hundred pages long. Evaluation of the [successive] petition requires several weeks if not months of dedicated work by members of the court. As here, quite often the petition is nothing more than a repetition or reframing of past claims and unsubstantiated assertions of ineffective assistance of counsel. Rarely if at all does the petitioner justify his or her untimely presentation of claims.
Petitioner relies on Allen v. Butterworth (Fla. 2000) 756 So.2d 52, in which the Florida Supreme Court commented that a statute imposing deadlines on capital postconviction procedures violated equal protection. (Id. at p. 54.) The comment was dictum. The Allen court conducted no equal protection analysis, and based its holding instead on separation of powers grounds. (Ibid.; see Abdool v. Bondi (Fla. 2014) 141 So.3d 529, 546.) In Abdool, the same court rejected an equal protection challenge to a different statute restricting the time for capital defendants to file postconviction motions. Holding that the statute
Our holding on the equal protection claim raised by petitioner poses no bar to other constitutional challenges to section 1509, one of which we discuss next. It merely reflects the reality that successive habeas corpus petitions in capital cases present problems distinct from those in noncapital cases.
Petitioner contends Proposition 66 violates the separation of powers doctrine by defeating or materially impairing the exercise of judicial functions in various ways. After a review of separation of powers principles, we discuss petitioner's attack on section 1509's restrictions on untimely and successive habeas corpus petitions. We then address his arguments about Proposition 66's time limits and other measures intended to expedite proceedings.
"Of necessity the judicial department as well as the executive must in most matters yield to the power of statutory enactments. [Citations.] The power of the legislature to regulate criminal and civil proceedings and appeals is undisputed." (Brydonjack, supra, 208 Cal. at pp. 442-443; accord, Mendocino, supra, 13 Cal.4th at p. 54.)
As noted, we have long accorded priority to the legislative branch respecting measures "to regulate criminal and civil proceedings and appeals." (Brydonjack, supra, 208 Cal. at pp. 442-443; see Le Francois, supra, 35 Cal.4th at p. 1104.) Accordingly, to violate the separation of powers an initiative measure must do more than merely curtail procedures developed by this court. In Mendocino, we pointed out that while the courts have inherent power to act in certain areas without specific constitutional or legislative authorization, that does not mean a statute "necessarily violates the separation of powers doctrine whenever it legislates with regard to such an inherent
The Garrison court rejected the claim, invoking the separation of powers doctrine. "While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication. To what extent the Legislature may constitutionally enact regulations affecting procedure which will defeat or interfere with the exercise of jurisdiction or of the judicial power [citations], is not necessary to determine in the absence, as here, of provisions clearly indicating that intent." (Garrison, supra, 32 Cal.2d at p. 436.) Reasoning that the primary aim of the statute before it was not speed, but ensuring the fairness of an election, Garrison declined to give the term "shall" its normal mandatory interpretation, which would "lead to the result of defeating the aims and purposes of the statute and of raising serious constitutional questions." (Id. at p. 437.)
Garrison relied in part on In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 [130 P.2d 755] (Shafter-Wasco), which involved a time limit on the resolution of an appeal. An uncodified statute governing the dissolution of irrigation districts provided that an action contesting the validity of such a dissolution "`shall be speedily tried and judgment rendered. Either party shall have the right to appeal at any time within thirty days after the entering of such judgment, and the appeal must be heard and determined within three months after the taking of such appeal.'" (Shafter-Wasco, at p. 486.) The respondents moved to dismiss the appeal after the three-month period expired. The court noted that "all the proceedings in this appeal have been taken within the times established for appeals in ordinary cases," yet the time set for decision had elapsed before the respondents' brief was due. (Ibid.) "The question here presented may be thus stated: May the Legislature divest this court of its constitutional jurisdiction over the case and its duty to decide it by limiting the time in which a decision must be rendered, to a period within which it is impracticable, if not impossible, to decide the issues?" (Id. at p. 487.)
The court acknowledged that a statute declaring an appeal "must be heard and determined within three months" would "usually [be] construed as mandatory." (Shafter-Wasco, supra, 55 Cal.App.2d at p. 488.) However, relying on the rules favoring statutory construction to avoid absurd or unjust results, account for statutory context, and uphold a statute's constitutionality when reasonably possible, the court concluded that the time limit before it was "directory and was intended to give this appeal as early a hearing and decision as orderly procedure in this court will permit." (Id. at p. 489.) Otherwise, the court would have held the statute "an unreasonable limitation on the constitutional powers of the appellate and supreme courts." (Id. at p. 488.)
In Garrison and Shafter-Wasco, the courts preserved jurisdiction and maintained the separation of powers by holding that time limits phrased in mandatory terms were merely directory.
In Engram we acknowledged the Legislature's power to enact rules of procedure, but quoted Brydonjack for the fundamental limitation noted above: "`[T]he sum total of this matter is that the legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.'" (Engram, supra, 50 Cal.4th at p. 1147, quoting Brydonjack, supra, 208 Cal. at p. 444.) We discussed two examples in which the courts refused to give mandatory effect to statutes requiring a continuance of trial. In Lorraine v. McComb (1934) 220 Cal. 753, 754 [32 P.2d 960] (Lorraine), a statute provided that "`the court shall postpone a trial'" upon the agreement of counsel. The requirement was held to be directory only, to avoid impinging on the courts' inherent authority to control the order of their business. (Id. at pp. 756-757; see Engram, at pp. 1147-1148.) Similarly, in Thurmond v. Superior Court (1967) 66 Cal.2d 836 [59 Cal.Rptr. 273, 427 P.2d 985] (Thurmond), a statute declared that a trial or hearing "`shall be postponed'" if an attorney were a member of the Legislature and the Legislature were in session. (Id. at p. 838, fn. 2.) The court deemed this provision directory, to protect the trial court's discretion to control the order of its business so as to safeguard the interests of all parties.
The Engram court emphasized that under the terms of section 1050, the trial preference granted to criminal cases was to be applied in accord with the policy of "expedit[ing] these proceedings to the greatest degree that is consistent with the ends of justice." (Engram, supra, 50 Cal.4th at p. 1150.) It concluded that, "particularly in light of the constitutional separation-of-powers considerations set forth in the decisions in Lorraine, supra, 220 Cal. 753, and Thurmond, supra, 66 Cal.2d 836, we find it abundantly clear that the provisions of section 1050 cannot properly be interpreted to require a trial court completely to forgo or abandon consideration of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually overwhelms the resources available to the court for the disposition of both criminal and civil matters." (Engram, at p. 1152.)
Relying on Engram, Thurmond, and Lorraine, the Verio court held that "[u]nless sections 595 and 1054.1, subdivision (b) are interpreted as directory, they continue to infringe on the independence of the judiciary." (Verio, supra, 3 Cal.App.5th at p. 1329.) The statutes did not include a qualification recognizing the court's obligation to conduct proceedings "in a manner that is consistent with the ends of justice," as in Engram, supra, 50 Cal.4th at page 1151. "To the contrary, with certain exceptions, sections 595 and 1054.1 explicitly describe the continuance or extension of time as `mandatory.'" (Verio, at p. 1330.) Nevertheless, Verio refused to give the statutes mandatory effect. "[A]s we noted above, the exceptions are directed entirely toward provisional relief and fail to account for our high court's conclusion that a mandatory lengthy stay may hamper a court's fundamental mandate even outside the context of provisional relief. We conclude, therefore, that sections 595 and 1054.1 are unconstitutional to the extent they purport to be mandatory, and should continue to be treated as directory, subject to a trial court's discretion as set forth in Thurmond." (Ibid.)
Petitioner disagrees. He contends the enforcement provisions of section 190.6, subdivision (e) show that the review limit was meant to be mandatory. In his view, a five-year limit on posttrial proceedings is not only impracticable, but also invades the courts' inherent authority to balance the matters before them in a way that is fair to all litigants.
On balance, we conclude it is best to accept the Attorney General's and intervener's concession that the five-year limit is not mandatory. We do so for two reasons. First, regardless of how the ballot materials characterized the five-year review limit, section 190.6, subdivision (e) provides no effective mechanism to enforce the limit. It states: "The failure of the parties or of a court to comply with the time limit in subdivision (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing. Paragraph (1) of subdivision (c) of Section 28 of Article I of the California Constitution, regarding standing to enforce victims' rights, applies to this subdivision and subdivision (d)." (§ 190.6, subd. (e).)
Notably, the time limit for which section 190.6, subdivision (e) authorizes a writ remedy is not the five-year limit on judicial review imposed by section 190.6, subdivision (d). It is the briefing time limit provided in section 190.6, subdivision (b), which states, as it long has, "in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness ... or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause." Proponents assert that section 190.6, subdivision (e)'s reference to subdivision (b) was a drafting error. They claim they meant to refer to subdivision (d). But it is not clear that the reference to subdivision (b) in subdivision (e) was merely a typographical error. Well before Proposition 66 was adopted, section 190.6 provided that the failure of the parties or the court to comply with the deadline for filing the opening brief in the automatic appeal shall not affect the validity of the judgment. Subdivision (e)'s reference to subdivision (b) continues that long-standing provision.
In any event, it would be no solution to simply replace the letter "b" with the letter "d" in section 190.6, subdivision (e). A party or victim would then be authorized to "seek relief by petition for writ of mandate" "[i]f a court
If there were any one court responsible for compliance with the five-year review limit of section 190.6, subdivision (d), presumably it would be this court, because the review process culminates here. But as a practical matter, writ relief to require us to enforce the limit is unavailable, because there is no tribunal with authority to issue a writ of mandate to this court. (See 2 Witkin, Cal. Procedure, supra, Courts, § 337, p. 429; Code Civ. Proc., § 1085, subd. (a) ["A writ of mandate may be issued by any court to any inferior tribunal ..." (italics added)]; Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 730 [192 P.2d 916] (Modern Barber); Davis v. Lansing (2d Cir. 1988) 851 F.2d 72, 74 [federal courts lack jurisdiction to issue mandamus relief against state courts]; Robinson v. California Bd. of Prison Terms (C.D.Cal. 1998) 997 F.Supp. 1303, 1308 [to the same effect, citing cases].)
Furthermore, while writs of mandate may be issued to lower courts, achievement of the five-year goal depends in large part on a variety of discretionary determinations by superior courts and Courts of Appeal, most of which would not be controllable by writ of mandate. It is settled that "`"mandamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations]."'" (City of Torrance v. Superior Court (1976) 16 Cal.3d 195, 201-202 [127 Cal.Rptr. 609, 545 P.2d 1313], italics omitted; see 8 Witkin,
As the concurring and dissenting opinion emphasizes, the ballot materials suggested the five-year limit would be mandatory. However, nowhere were the voters informed of the details of an enforcement mechanism. The materials mentioned the availability of a court order, but did not explain how such an order could effectively result in compliance. We recognize that the last sentence of section 190.6, subdivision (e) indicates the standing provisions in article I, section 28 of the California Constitution would give victims a right to enforce the five-year limit in Penal Code section 190.6, subdivision (d).
The concurring and dissenting opinion argues at length that the voters intended the five-year limit to be mandatory. We do not dispute that point. However, it remains the case that section 190.6 lacks an effective enforcement mechanism. And while the statute is phrased in mandatory terms, the
In the cases cited above, mandatory statutory terms were intended to expedite proceedings or control docket management, but the courts declined to infer a broader intent to infringe on inherent judicial authority. As the Verio court put it, "we are not persuaded the Legislature intended to intrude on the right of the courts `"to control [their] order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs."'" (Verio, supra, 3 Cal.App.5th at pp. 1319-1320, quoting Lorraine, supra, 220 Cal. at p. 756, and citing Thurmond, supra, 66 Cal.2d at p. 839.)
Following nine decades of precedent, we too decline to infer that lawmakers intended strict adherence to a fixed deadline that would undermine the courts' authority as a separate branch of government. It is far from certain that the voters contemplated such a result. Nothing in the Proposition 66 suggests that short shrift should be given to the decisionmaking process, or that capital posttrial review proceedings should dominate dockets to the point that other cases would be left to languish. In the absence of clearer indications that this was the voters' intent, we will not presume they meant to hamper the courts in the conduct of their business. (See Engram, supra, 50 Cal.4th at pp. 1151-1152; Garrison, supra, 32 Cal.2d at p. 436.) Deciding cases and managing dockets are quintessentially core judicial functions. They are grounded in the Constitution and may not be materially impaired by statute. (Le Francois, supra, 35 Cal.4th at p. 1104; Mendocino, supra, 13 Cal.4th at p. 54; Brydonjack, supra, 208 Cal. at p. 444.)
In Engram we read the terms of section 1050 requiring calendar preference for criminal cases in light of the statute's declared "policy of expediting criminal cases `to the greatest degree that is consistent with the ends of justice.'" (Engram, supra, 50 Cal.4th at p. 1151, quoting § 1050, subd. (a).) The provisions establishing the preference were as facially mandatory as those of section 190.6, subdivision (d), but we rejected a construction that would lead to a "rigid and absolute rule." (Engram, at p. 1161.) Likewise here, section 190.6, subdivision (d) begins with a declaration that "[t]he right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time." (§ 190.6, subd. (d), italics added.) This language makes it clear that the electorate did not intend to impose an unreasonable limit. The five-year period may be understood to express the voters' view of what would ordinarily constitute "a reasonable time" for completing review proceedings. However, courts must make individualized decisions based on the circumstances of each case. They retain discretion over the time required to resolve particular matters, and over the management of their dockets.
Similar considerations apply to section 1509, subdivision (f)'s time limits for superior court rulings on initial habeas corpus petitions. Petitioner offers little argument supporting his challenge to this provision, but the Habeas Corpus Resource Center, in an amicus curiae brief, contends the statute's one- and two-year limits are too short for counsel and the courts to adequately perform their functions.
We note that section 1509, subdivision (f) begins with a provision calling for proceedings to "be conducted as expeditiously as possible, consistent with a fair adjudication." (Italics added.) As in Engram, "the statute explicitly recognizes a court's fundamental and overriding obligation to administer the proceedings that are pending before it in a manner that is consistent with the ends of justice." (Engram, supra, 50 Cal.4th at p. 1151.) Therefore, "the provision cannot properly be interpreted as establishing an absolute or inflexible rule ... in total abrogation of a trial court's ultimate control or discretion." (Ibid.) If in a particular case the time limits imposed by section 1509, subdivision (f) are not "consistent with a fair adjudication," as the statute requires, the voters signaled that the interest of fairness must prevail. Moreover, as with section 190.6, nothing in section 1509 suggests the voters contemplated that courts would neglect their other business in order to comply with the time limits. Proposition 66 presumes that the courts will have sufficient resources to manage their caseloads.
It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process. The time limits reflect the voters' will, which we respect. However, they were presented to the voters by the proponents of Proposition 66 without the benefit of hearings
The Judicial Council, in drafting the "rules and standards of administration" for carrying out Proposition 66's reforms (§ 190.6, subd. (d)), must take care to preserve the courts' inherent authority over their dockets.
Proposition 66 declares that "all sections of this act take effect immediately upon enactment." (Prop. 66, § 19.) However, we stayed the implementation of the measure pending our resolution of this matter. The effective date is a question of some importance, particularly for the Judicial Council, which is tasked with developing rules and standards "[w]ithin 18 months of the effective date." (§ 190.6, subd. (d).) We also deem it desirable for all parties affected by the initiative measure to be allowed to strive for compliance in an efficient manner, unencumbered by considerations of retroactive application upon the dissolution of our stay. We have in the past exercised our inherent
We discharge the order to show cause, and deny the amended and renewed petition for a writ of mandate and injunctive relief.
Werdegar, J., Liu, J., Kruger, J., and Hoch, J.,
LIU, J., Concurring. —
Proposition 66 amended Penal Code section 190.6, subdivision (d) to say that state death penalty appeals and habeas corpus proceedings must be completed within five years. All members of the court agree that this provision imposes no legally enforceable obligation. My colleagues disagree on how they reach this conclusion: The court holds that the five-year provision is "directive" and not mandatory (maj. opn., ante, at p. 858), whereas Justice Cuéllar's concurring and dissenting opinion contends that the provision is mandatory and unconstitutionally intrudes on the prerogatives of the judicial branch (conc. & dis. opn., post, at p. 887).
I believe both positions are reasonable. Like Justice Cuéllar, I find it stunning that Proposition 66's proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66. (Conc. & dis. opn., post, at pp. 873-874, 879-882.) However, the electorate passed Proposition 66 against a backdrop of precedent construing similar mandates as nonmandatory when necessary to save their constitutionality (maj. opn., ante, at pp. 849-855), and we presume the electorate is "`aware of existing laws and judicial construction thereof'" (People v. Gonzales (2017) 2 Cal.5th 858, 869 [216 Cal.Rptr.3d 285, 392 P.3d 437]). Although I am unsure whether I would construe voter intent as flexibly as our decisions have, I acknowledge this is one way of enforcing the separation of powers and there is a lot of water over the dam in our case law. So, although no one really disagrees that "the voters intended the five-year limit to be mandatory" (maj. opn., ante, at p. 857), our precedent supports the court's approach of imputing to the voters a further intent not to unconstitutionally impair the judicial function (id. at p. 858). All members of the court agree
I write separately to highlight that whether the five-year limit is directive or unconstitutional, it does not and could not bind those charged with implementing Proposition 66. It is clear that a majority of the 2016 electorate voted "to shorten the time that the legal challenges to death sentences take." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 105 (2016 Voter Guide).) But Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity — not this court, not the Judicial Council, not the Legislature — can simply wave a magic wand and make it so. Although there may be ways to streamline the process, realistic reforms must emanate from a clear understanding of the way the postconviction death penalty process works in California. As explained below, the five-year limit is not grounded in the realities of California's death penalty process or in the reasonable possibilities for reform. Thus, in addition to lacking strict enforceability, the five-year limit cannot serve as a realistic benchmark to guide courts or the Judicial Council as they implement Proposition 66. It is instead "an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice." (Maj. opn., ante, at p. 859.)
Today there are nearly 750 prisoners on death row in California; they comprise roughly a quarter of all condemned inmates in the United States. The process for reviewing death judgments is complex and multilayered, and the incidence of reversible error is significant. (See U.S. Dept. of Justice, Bureau of Justice Statistics, Capital Punishment, 2013 — Statistical Tables (2014) p. 19, table 16, available at <https://www.bjs.gov/content/pub/pdf/cp13st.pdf> [as of Aug. 24, 2017] [reporting that 38 percent of the 8,466 prisoners sentenced to death between 1973 and 2013 had their convictions or sentences overturned]; Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995 (2000) 78 Tex. L.Rev. 1839, 1850 [reporting that state and federal courts nationwide found prejudicial error in 68 percent of capital cases between 1973 and 1995].)
In California, after a death judgment has been imposed in the trial court, the defendant is entitled to an automatic appeal to review any errors that may have occurred during trial. (Pen. Code, § 1239, subd. (b); all undesignated statutory references are to this code.) The defendant is also entitled to file a petition for a writ of habeas corpus to assert violations of statutory or constitutional rights not apparent in the trial record. Habeas corpus petitions
On average in California, it takes three to five years after a death judgment to appoint appellate counsel. (Jones v. Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, 1056 (Jones), revd. sub nom. Jones v. Davis (9th Cir. 2015) 806 F.3d 538.) In April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed for habeas corpus petitions. (2016 Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, p. 105.) About half of those waiting for appointment of habeas corpus counsel have been waiting for over 10 years. (Jones, at p. 1058.) The dearth of attorneys willing to take on these assignments is due in part to the sheer enormity of the undertaking. A single death penalty case can and often does dominate a lawyer's practice for well more than a decade.
Direct appeals in this court are completed on average 11.7 to 13.7 years after the death judgment. (Jones, supra, 31 F.Supp.3d at p. 1057.) Many appeals take considerably more time. (See, e.g., People v. O'Malley (2016) 62 Cal.4th 944 [199 Cal.Rptr.3d 1, 365 P.3d 790] [25 years from judgment of the death to resolution on appeal]; People v. Cunningham (2015) 61 Cal.4th 609 [189 Cal.Rptr.3d 737, 352 P.3d 318] [19 years]; People v. Brown (2014) 59 Cal.4th 86 [172 Cal.Rptr.3d 576, 326 P.3d 188] [18 years].) State habeas corpus review is completed on average more than 17 years after the death judgment. (Jones, at p. 1059.) In April 2016, there were 337 direct appeals and 263 state habeas corpus petitions pending in this court. (2016 Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, p. 105.)
As of 2014, only 81 inmates out of the more than 900 sentenced to death in California since 1978 have completed the postconviction review process in both state and federal court. (Jones, supra, 31 F.Supp.3d at p. 1060.) Of those 81, about half have received relief from their death sentences, 13 have been executed, and 17 have had their executions stayed. (Id. at p. 1069.)
In 2008, the California Commission on the Fair Administration of Justice (Commission) studied the death penalty postconviction process. (Cal. Com. on the Fair Administration of Justice, Final Report (2008) (Commission Report).) The Commission was chaired by former Attorney General and Los Angeles District Attorney John Van De Kamp, and it included law enforcement officials, prosecutors, public defenders, and academics. The Commission held hearings and gathered input from a broad cross-section of stakeholders.
The Commission also addressed the backlog of death penalty appeals pending in this court. This court decides 20 to 25 death penalty appeals each year and issues a published opinion in each case. It typically takes two to three years for this court to decide an appeal once it has been fully briefed. (Commission Report, at p. 147.) The Commission endorsed the proposal of then Chief Justice Ronald George to amend the state Constitution so that this court would have discretion to transfer fully briefed death penalty appeals to intermediate appellate courts, provided that the Commission's recommendations for appointing appellate and habeas corpus counsel were also implemented. (Commission Report, at pp. 147-148.) This court also decides approximately 30 habeas corpus petitions each year; although we do not typically issue published opinions in these cases, our deliberative process includes the preparation of lengthy internal memoranda carefully examining each issue raised in each petition. The Commission endorsed a proposal to allow capital habeas corpus petitions to be filed in superior court, with a right of appeal to the Court of Appeal and Supreme Court. (Id. at p. 148.)
In 2013, a coalition of law enforcement officers, prosecutors, and crime victims proposed a ballot initiative, called the Death Penalty Reform and Savings Act of 2014 (2014 Proposed Initiative), that was similar in many ways to Proposition 66. The 2014 Proposed Initiative did not incorporate the Commission's proposals to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. But it did include some of the other Commission recommendations. One of the proposed initiative's key provisions was an amendment of article VI, section 11, subdivision (a) of the California Constitution to provide that Courts of Appeal have appellate jurisdiction over death penalty cases, just as they have over other cases. (2014 Proposed Initiative, § 4.) Further, the 2014 Proposed Initiative would have added a new section to article VI authorizing this court to review Court
Moreover, the 2014 Proposed Initiative would have amended article I, section 27 of the California Constitution to add a provision substantially similar to section 190.6, subdivision. (d) (section 190.6(d)), as amended by Proposition 66. It would have provided that "[s]tate courts shall complete the state appeal and the initial state habeas corpus review" within five years after entry of judgment or after adoption of Judicial Council rules to expedite the capital appeal process. (2014 Proposed Initiative, § 3, italics omitted.)
After some signature gathering, the initiative proponents decided to postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform State Executions, Mercury News (May 11, 2014) p. B4.) Proposition 66, the result of that delayed effort, retains many of the features of the 2014 Proposed Initiative. But the proponents abandoned any effort to amend the California Constitution. (See Cal. Const., art. II, § 8, subd. (b) [requiring signatures equal to 8 percent of the votes cast in the last gubernatorial election to place an initiative amending the state Constitution on the ballot, but only 5 percent for a statutory initiative].) In particular, Proposition 66 omitted the proposal to amend the state Constitution to give Courts of Appeal jurisdiction over direct appeals in capital cases, and it placed the five-year limit in a statute (§ 190.6(d)) rather than in article I of the Constitution. Proposition 66 also omitted the 2014 Proposed Initiative's finding that this court is overloaded with death penalty appeals, but it retained the provision in section 1509, subdivision (a) to authorize transfer of capital habeas corpus petitions to the superior court.
Proposition 66 does not increase the availability of appellate and habeas corpus attorneys, beyond requiring this court to compel certain criminal appellate attorneys to take death penalty appeals against their will. (§ 1239.1, subd. (b).) It is unclear how effective this strategy will be in light of the shrinking and graying pool of private appellate attorneys. (See Miller,
Further, the new provision that this court "shall only grant extensions of time for briefing for compelling or extraordinary reasons" (§ 1239.1, subd. (a)) may accelerate the filing of appellate briefs. But there are reasons why capital briefs are lengthier — opening briefs of 300 to 500 pages, raising 30 to 40 claims, are common — and often take several years to complete. Capital cases involve a three-stage process in which the jury must determine (1) whether the defendant is guilty of first degree murder, (2) whether certain special circumstances are present, and (3) whether the defendant should receive the death penalty or a sentence of life without the possibility of parole. (§§ 190.2, subd. (a), 190.3; see e.g., People v. Masters (2016) 62 Cal.4th 1019, 1027-1041 [199 Cal.Rptr.3d 85, 365 P.3d 861].) Each of these stages may give rise to claims of legal error, and a labyrinth of procedural default and forfeiture rules strongly incentivizes capital defendants to raise every conceivable claim of error. (See, e.g., In re Robbins (1998) 18 Cal.4th 770, 780 [77 Cal.Rptr.2d 153, 959 P.2d 311]; In re Clark (1993) 5 Cal.4th 750, 767-768 [21 Cal.Rptr.2d 509, 855 P.2d 729]; In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]; In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513]; 28 U.S.C. § 2254(b)(1).) In addition, the record in capital cases is usually massive, often comprising more than 5,000 pages of trial transcript plus several thousand pages of exhibits, juror questionnaires, and additional materials — all of which must be carefully reviewed. Moreover, the irrevocable nature of the death penalty heightens the stakes and prompts appellate attorneys to be as thorough and careful as possible in their briefing. Whatever the statutory standard for granting extensions of time, attorneys must be given sufficient time to complete their briefs.
Even if these measures do accelerate the filing of an appeal in this court, Proposition 66, unlike the 2014 Proposed Initiative, does not increase the number of courts hearing death penalty appeals. Because of the sheer scale of the briefing, the enormity of the record, and the number of claims typically raised by each defendant, this court devotes considerable time and attention to capital appeals. We could increase the number of such appeals we resolve each year, but only at the expense of noncapital cases. As the court today makes clear, Proposition 66 cannot override the constitutional doctrine of separation of powers and compel this court to alter its docket by deciding more capital cases and fewer noncapital ones. (Maj. opn., ante, at p. 858 [construing § 190.6(d) "to maintain the courts' discretionary control" over the conduct of their business].)
To put the postconviction process into perspective, let us consider a real example. A case not far from the norm is that of Robert Mark Edwards. He was convicted of first degree murder with burglary-murder and torture-murder special circumstances, and he was sentenced to death in September 1998. Counsel was appointed four years later in October 2002. Counsel filed a record correction motion in October 2003. The record correction process was completed, and a record of appeal filed in this court, in February 2005. The record consists of 29 volumes of the clerk's transcript, with a total of 9,117 pages; this includes 6,597 pages of juror questionnaires. The reporter's transcript, i.e., the transcript of the trial, spans 39 volumes with a total of 5,957 pages. The opening brief (431 pages) was filed in December 2006; the Attorney General's brief (270 pages) was filed in February 2008, and the reply brief (140 pages) was filed in November 2008. Also in November 2008, counsel had to withdraw because he was being appointed to the superior court. New counsel was appointed in January 2009 and, after getting up to speed on the case, filed a 79-page supplemental brief in September 2010. A supplemental respondent's brief was filed in March 2011, and a supplemental reply brief was filed in April 2011. Additional supplemental briefing was ordered by this court in December 2012 to address recently decided cases of this court and the United States Supreme Court; this briefing was filed in January 2013. Altogether, the briefing raised some 38 issues. The case was argued in May 2013, and the judgment was affirmed in August 2013. (People v. Edwards (2013) 57 Cal.4th 658 [161 Cal.Rptr.3d 191, 306 P.3d 1049].) Meanwhile, habeas corpus counsel was not appointed until November 2010, 12 years after the death judgment. A 524-page habeas corpus petition was filed in November 2013. The Attorney General's 187-page informal response was filed in October 2014, and a 433-page reply to the informal response was filed in December 2015. The petition remains pending in this court.
In Edwards's case, 19 years have passed since the judgment of death. The direct appeal has been completed, the state habeas corpus petition has not been decided, and the case has not yet begun its lengthy sojourn in federal
In sum, the protracted nature of the postconviction death penalty process is the product of several factors, including chronic delays in appointing appellate and habeas corpus counsel, limitations on funding for the Office of the State Public Defender and Habeas Corpus Resource Center, the enormity of the record and the scale of the parties' briefing in light of the peculiar nature of the death penalty, and the fact that all appeals go to a single court, inevitably resulting in a bottleneck.
Section 190.6(d), as amended by Proposition 66, provides: "The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision."
I agree that section 190.6(d), construed in light of our precedent, is "directive." (Maj. opn., ante, at p. 860.) But what does directive mean? Our case law suggests that the answer depends on the nature of the statutory directive and the judicial interest at stake.
In People v. Engram (2010) 50 Cal.4th 1131 [116 Cal.Rptr.3d 762, 240 P.3d 237] (Engram), we addressed section 1050, subdivision (a)'s language that "criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings." Based on the statutory context and history, we said this provision "cannot properly be interpreted to require a trial court completely to forgo or abandon consideration of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually
Thurmond v. Superior Court (1967) 66 Cal.2d 836 [59 Cal.Rptr. 273, 427 P.2d 985] (Thurmond), a paternity action, involved statutory provisions requiring the court to grant a continuance when the attorney for one of the parties is a member of the Legislature and the Legislature is in session. We held that the provisions "should be given full force and effect wherever and whenever it may be done without unduly adversely affecting the rights of others," and we prescribed a number of factors the court should consider in exercising its discretion as to whether a continuance should be granted. (Id. at p. 840.)
In In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 [130 P.2d 755] (Shafter-Wasco), the court declined to treat as mandatory a statutory deadline requiring judicial resolution of an appeal concerning the dissolution of an irrigation district to be decided three months after the appeal is filed. The court instead construed the statute as directing the court "to give this appeal as early a hearing and decision as orderly procedure in this court will permit." (Id. at p. 489.)
In each of these cases, the court interpreted as "directive" a seemingly mandatory statute that threatened to impair core judicial functions, and the decisions make clear that courts have authority to determine the proper weight to be given to the statutory directive. That determination is contextual. In some cases, as in Thurmond, the directive statute can serve as a default that constrains judicial discretion unless certain conditions apply. (Thurmond, supra, 66 Cal.2d at p. 840.) In Engram, the force of the statute was more vague; we construed the directive to give priority to criminal cases over civil cases as subject to the open-ended condition that "such precedence [must be] consistent with the ends of justice." (Engram, supra, 50 Cal.4th at p. 1161.) And Shafter-Wasco, in interpreting a statutory deadline as a directive "to give this appeal as early a hearing and decision as orderly procedure in this court will permit" (Shafter-Wasco, supra, 55 Cal.App.2d at p. 489), said it was ultimately up to the court to determine a reasonable timeframe for deciding the appeal.
Directive statutes that set realistic time limits on judicial decisions may inform how quickly cases should be decided, although the issue is ultimately
This impracticality is underscored by the fact that section 190.6(d) says nothing about how the five-year limit should be met. And this deficiency is compounded by the fact that section 190.6(d) differs from other statutory deadlines in terms of its scope: The five-year limit does not require one particular court to meet a particular deadline in one particular proceeding; it is directed at a complex judicial process involving multiple courts, multiple actors, and multiple proceedings. (Maj. opn., ante, at p. 855.) The five-year deadline imposed on the entire state death penalty postconviction process is so sweeping in its objective yet so vague on the means of accomplishing the objective that it does not provide useful guidance for those charged with implementing Proposition 66.
Section 190.6(d) purports to delegate the challenge of meeting the five-year limit to the Judicial Council, which is supposed to "continuously monitor the timeliness of review of capital cases and ... amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision." But how is the Judicial Council supposed to bring about the vast acceleration of the death penalty process necessary to meet the five-year deadline? The Judicial Council has no authority to direct the Legislature to appropriate more funds to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. It has no authority to change the state Constitution to permit Courts of Appeal to hear death penalty appeals. And it has no authority to require this court or any other court to devote a greater proportion of its docket to death penalty cases at the expense of other cases that fall within its constitutional responsibilities.
The delegation of broad rulemaking power to the Judicial Council spared the voters (and the proponents of Prop. 66) from having to make difficult choices as to what should be sacrificed for the sake of dramatically expediting the death penalty. But these are precisely the choices that the lawmaking authority, whether the Legislature or the electorate, must make with clarity, transparency, and fidelity to separation-of-powers principles if it wishes to create a mandate that can lawfully and practically guide the Judicial Council's quasi-legislative rulemaking. Such a mandate is lacking here.
But whether Proposition 66 actually speeds up (or slows down) the process will have nothing to do with section 190.6(d)'s unelaborated and unrealistic directive that state death penalty appellate and habeas corpus proceedings "shall" be completed within five years. The court properly acknowledges that this provision reflects the voters' desire to shorten the postconviction death penalty process. But the five-year limit, construed as directive or simply unconstitutional, has no binding effect and provides no guidance for responsible actors charged with the fair and efficient administration of justice.
Werdegar, J., Kruger, J., and Hoch, J.,
CUÉLLAR, J., Concurring and Dissenting. —
What voters most need so they can exercise their constitutionally protected franchise effectively is clarity and candor. Particularly at a time when public discourse dwells on foreign interference in our electoral process, social media bots, and manipulated Facebook news feeds, it is possible — perhaps even easy — to forget how millions of voters endeavor to familiarize themselves with the candidates and issues of the day, and to understand the consequences of their vote. Voters who sought to do so by studying Proposition 66, the Death Penalty Reform and Savings Act of 2016 (Proposition 66), would not recognize the initiative the majority purports to uphold today. What reasonable voters would have clearly recognized instead — based on the statutory text, the official description by the Legislative Analyst, and the arguments made by the initiative's proponents — is that Proposition 66 contained a genuine, enforceable, five-year deadline for completion of the state court appeal and resolution of the initial habeas corpus petition in death penalty cases. Candor requires us to be equally clear about whether such a deadline accords with our law: It does not. A statutory limit on the amount of time a court may spend deciding a case is an intrusion on quintessential judicial functions and violates the California Constitution's separation of powers provision. (See Cal. Const., art. III, § 3.)
Proposition 66 further runs afoul of the California Constitution by purporting to authorize an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition. (See Pen. Code, § 1509.1.) The Constitution grants this court exclusive appellate jurisdiction "when judgment of death has been pronounced." (Cal. Const., art. VI, § 11, subd. (a).) To the extent the majority finds otherwise, I dissent with respect.
Our first task is to answer a question as simple as it is important: What kind of time limit did the voters enact? When voters face the often daunting process of considering a new statute or constitutional amendment at the ballot box, state law directs the Secretary of State to prepare a voter information guide. The guide must include a complete copy of each proposed measure, the arguments and rebuttals for and against, and an analysis prepared by the Legislative Analyst. (Elec. Code, § 9082; Gov. Code, § 88001.) Sometimes the guide runs hundreds of pages. But it is the primary means by which voters inform themselves about the policy choices in an election, and this court considers it a key resource in determining the meaning and validity of the laws enacted by voter initiative. So when it falls to us to interpret and apply a voter-enacted initiative — "our primary goal" being "to determine and give effect to the underlying purpose of the law" (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [104 Cal.Rptr.3d 219, 223 P.3d 77]) — we rely in particular on the analyses and arguments contained in the voter information guide, along with the text of the initiative, in identifying the statute's purpose and determining how it should be construed. (People v. Morales (2016) 63 Cal.4th 399, 406 [203 Cal.Rptr.3d 130, 371 P.3d 592].)
Now imagine a reasonable voter consulting the voter information guide to Proposition 66. What would the voter have gleaned — immediately — about the initiative's purpose? In the very first of its findings and declarations, the initiative stated that our "death penalty system is ineffective because of waste, delays, and inefficiencies." (Voter Information Guide, Gen. Elec. (Nov. 8,
To fulfill that explicit promise, the initiative added and amended various provisions of the Penal Code to include several new procedures. One of them was a requirement that "the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases" within five years of the entry of judgment. (Pen. Code, § 190.6, subd. (d), italics added; all undesignated statutory references are to the Penal Code.) The ballot pamphlet told voters, in typeface as conspicuous as it was emphatic, that this provision "
Then the 2016 general election took place. With the aforementioned provisions at the heart of the initiative — and no doubt influenced by promises made in the Voter Guide — voters narrowly enacted Proposition 66. Petitioner then immediately filed this petition for writ of mandate. In it, he advanced a separation of powers challenge to the provision requiring California courts to resolve the automatic appeal and initial habeas corpus petition in capital cases within five years. But here's the twist: At oral argument, the initiative's proponents (intervener Californians to Mend, Not End, the Death Penalty) admitted that an actual five-year deadline would "perhaps not" be constitutional. The proponents instead let it slip that the initiative's five-year deadline is not a deadline after all, but just a "goal" that has no real consequence if it goes unmet. The Attorney General, also purportedly arguing in support of
This is what might be charitably described as a novel reinterpretation of the initiative's five-year deadline for resolution of the automatic appeal and initial capital habeas corpus petition. It is at odds — entirely — with what the initiative says, how it was designed to work, and how it was sold. Even more remarkably, the majority blithely accepts this neutering of what clearly appeared to the voters to be a five-year deadline into a mere palaver on the processing of death penalty cases. And not just any palaver: By reimagining the initiative as nothing more than an earnest exhortation calling on courts to consider dialing up the speed of death penalty adjudication, the majority upholds something quite different from the initiative considered and enacted by the electorate, leaving in its wake uncertainty about how we interpret initiatives and whether the time limits included in Proposition 66 have any legal effect.
Section 190.6, subdivision (d) provides: "The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision." (Italics added.)
Petitioner argues that a statute purporting to dictate when a court shall hear and determine a case would unconstitutionally interfere with the judiciary and violate the separation of powers. Both the Attorney General and intervener-proponents so concede. Little wonder: With but one exception, state supreme courts have unanimously concluded that the timing of a judicial decision is a core judicial function, protected from legislative encroachment. (State v. Buser (2015) 302 Kan. 1, 9 (Buser); see, e.g., Sands v. Albert Pike Motor Hotel (1968) 245 Ark. 755 [434 S.W.2d 288, 291-292] ["as laudable as the purpose intended may be," requiring a court to decide a workers' compensation case
The majority does not contest a court's inherent authority to manage its docket in a manner that best promotes the pursuit of justice. (Maj. opn., ante, at p. 852.) What the majority claims instead is that, under our precedent, "statutes may not be given mandatory effect, despite mandatory phrasing, when strict enforcement would create constitutional problems." (Id. at p. 854.) But the responsibility we shoulder is to render constitutional rulings clear enough to foster meaningful deliberation rather than simply offering vague references to "constitutional problems," and to construe statutes in a manner that preserves the integrity of the democratic process. A statute's purpose is paramount and may not be disregarded. Language is not putty. And it is not for us to declare, in gross, that a legislative body will never be understood as having enacted an unconstitutional law, for the question whether the enacting body had such a purpose will depend on the particular statutory text, structure, and legislative history. So it is one thing to declare a statute unconstitutional when it cannot be saved, yet quite another to pretend
Indeed, what we actually do when legislation might seem to regulate the time afforded the judiciary to decide motions or cases is instead quite different from what the majority describes. We require a clear statement that such regulation was contemplated. (See Garrison v. Rourke (1948) 32 Cal.2d 430, 436 [196 P.2d 884] (Garrison) ["an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication"].) This particular clear statement rule is one closely related to the constitutional avoidance canon, which requires courts to avoid, where possible, interpreting a statute in a way that might render it unconstitutional. (Ibid. [finding it unnecessary to decide whether a purported time limit for the resolution of an election contest would "defeat or interfere with the exercise of ... the judicial power ... in the absence, as here, of provisions clearly indicating that intent" (citations omitted, italics added)].) When faced with an attempt to impose a deadline on a court's decisionmaking power, we have sometimes found the absence of a clear statement to impose a mandatory or enforceable deadline where no "`consequence or penalty is provided for failure to do the act within the time commanded.'" (Edwards v. Steele (1979) 25 Cal.3d 406, 410 [158 Cal.Rptr. 662, 599 P.2d 1365].) On other occasions, we have focused on "the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment." (Ibid.) As this court recently (and unanimously) reiterated, "`[t]here is "`no simple, mechanical test'" for making this determination.' [Citation.] The question is ultimately one of legislative intent." (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 343 [212 Cal.Rptr.3d 361, 386 P.3d 1159], italics added (Kabran).) Indeed: Because the mandatory nature of a statutory deadline depends on intended legislative purpose, we may not simply characterize such a deadline as directive where (as here) "the Legislature clearly expresses a contrary intent." (People v. Allen (2007) 42 Cal.4th 91, 102 [64 Cal.Rptr.3d 124, 164 P.3d 557].)
This, too, is the principle at the heart of our analysis in People v. Engram (2010) 50 Cal.4th 1131 [116 Cal.Rptr.3d 762, 240 P.3d 237] (Engram). There, we held that section 1050's general policy giving criminal cases precedence over civil cases did not require the Riverside County Superior Court to assign criminal cases to the limited number of courtrooms "reserved for specialized
A candid analysis of a statute's purpose was also pivotal to In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 [130 P.2d 755]. The Court of Appeal construed a statute providing that an appeal of a judgment concerning an irrigation district's dissolution "`must be heard and determined within three months after the taking of such appeal.'" (Id. at p. 486.) The Court of Appeal acknowledged that "[s]uch language is usually construed as mandatory," but cautioned that it is also "`in many cases ... directory merely.'" (Id. at p. 488.) Because "courts should construe statutes so they may be held constitutional where it is reasonably possible to do so" (ibid.), the Court of Appeal concluded that this language could and would be construed as reflecting a purpose to grant the appeal "as early a hearing and decision as orderly procedure in this court will permit" (id. at p. 489).
And in Garrison, supra, 32 Cal.2d 430, we held that a statute providing that a court "`shall'" (id. at p. 435) decide an election contest within 10 days should not be interpreted as mandatory where "[t]he consequence or penalty for the failure of the court to file findings of fact and conclusions of law within the designated period was not included in the statute" (ibid.) and where a mandatory effect would "lead to the result of defeating the aims and purposes of the statute" (id. at p. 437).
What we may not do, under the guise of the avoidance canon, is "`rewrite the law or give the words an effect different from the plain and direct import of the terms used.'" (People v. Leal (2004) 33 Cal.4th 999, 1008 [16 Cal.Rptr.3d 869, 94 P.3d 1071]; accord, Salinas v. United States (1997) 522 U.S. 52, 59-60 [139 L.Ed.2d 352, 118 S.Ct. 469].) For good reason: Invoking the canon when there's no plausible interpretation of a statute that can avoid a constitutional conflict does justice neither to the enacted statute, the voters'
I respectfully submit that the majority's construction of the five-year deadline in section 190.6, subdivision (d) is no exercise in judicial restraint, but instead an undisclosed and unjustified judicial reformation of the statute. That provision, as enacted by the voters, clearly states that "[w]ithin five years of the adoption of the initial rules or the entry of [the death] judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases." (§ 190.6, subd. (d).) True: By itself, the word "shall" in subdivision (d) does not necessarily indicate that a mandatory or compulsory meaning was intended, for we have frequently construed the word "shall" to be directory. (See Engram, 50 Cal.4th at p. 1151, fn. 8; Garrison, supra, 32 Cal.2d at p. 437; Thurmond v. Superior Court (1967) 66 Cal.2d 836, 839 [59 Cal.Rptr. 273, 427 P.2d 985] (Thurmond); Lorraine v. McComb (1934) 220 Cal. 753, 757 [32 P.2d 960] (Lorraine).) What the majority — and Justice Liu's concurring opinion — neglect to mention is that we have never done so in the face of a clear indication that the time limit or other restriction on judicial discretion was designed precisely to have mandatory effect. (Cf. Engram, at p. 1151 [the provision of § 1050 granting criminal cases precedence in trial setting over civil cases was explicitly subject to the policy set forth in the preceding sentence "of expediting criminal cases `to the greatest degree that is consistent with the ends of justice'"];
Which is exactly the opposite of what a directory interpretation does to the most reasonable understanding of the electorate's purpose in enacting the five-year deadline. Subdivision (e) of section 190.6 expressly provides a mechanism by which crime victims can seek to enforce the deadline: "If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate." In their briefs, all of the parties agreed that Proposition
Note that a different subdivision of section 190.6 already provided, prior to Proposition 66, that "it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing." (§ 190.6, subd. (c), italics added.) The voters' approval of different language in section 190.6, subdivision (d) strongly suggests that a different purpose was intended. (See Klein v. United States of America (2010) 50 Cal.4th 68, 80 [112 Cal.Rptr.3d 722, 235 P.3d 42].) Note too that the Penal Code, prior to the enactment of Proposition 66, was replete with precatory language to expedite death penalty cases. (E.g., §§ 190.6, subd. (a) ["The Legislature finds that the sentence in all capital cases should be imposed expeditiously"], 1239.1, subd. (a) ["It is the duty of the Supreme Court in a capital case to expedite the review of the case"].) It is not a reasonable inference that the voters sought merely to echo such provisions' effect when they adopted statutory language providing, "Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases." (§ 190.6, subd. (d).)
Although the text and structure at issue here are sufficient to demonstrate the voters' purpose, the materials in the voter information guide extinguish whatever doubts could conceivably remain. As stated above, a heading in the Voter Guide's analysis told voters in bold and italicized type that Proposition 66
The campaign for Proposition 66 itself did so, too. (See California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 177 [148 Cal.Rptr. 875, 583 P.2d 729] ["evidence of [the proposition's] purpose may be drawn from many sources"]; California Housing Finance Agency, at p. 178 [examining
Given this backdrop, there is a straightforward, readily-grasped constitutional flaw in section 190.6, subdivision (d). So far as I can see, courts across the country have found a violation of the separation of powers in every single case addressing a legislative attempt to impose an enforceable judicial deadline. (See, e.g., Buser, supra, 302 Kan. at p. 2 [invalidating a statutory deadline that required parties to file a joint request with the court "`that such decision be entered without further delay'" if the Supreme Court failed to file its decision on a submitted matter within 180 days]; Coate v. Omholt (1983) 203 Mont. 488 [662 P.2d 591, 593] [invalidating a statutory deadline that authorized a referral to the judicial standards commission when a court failed to issue a decision in 90 days]; State ex rel. Watson v. Merialdo (1954) 70 Nev. 322 [268 P.2d 922, 926] [invalidating a statutory deadline that required the judge's salary be withheld for failure to issue a decision in 90 days]; In re Grady (1984) 118 Wis.2d 762 [348 N.W.2d 559, 569-570] [same].)
The majority's efforts to avoid this conclusion are far from convincing.
Now consider the implication of inferring a restriction in the scope of this sentence, as the majority proposes. Doing so would mean that the "party" who had failed to submit a timely opening appellate brief would be able to seek relief from "a court" for "the delay" in the party's timely filing of its own brief — a remedy without a right if there ever was one. Given its context, the structure of the statute, and the materials presented to the voters, we can safely conclude that what the second sentence in section 190.6, subdivision (e) means is precisely what it says: Either party, or any victim, may seek relief by petition for writ of mandate when a court fails to comply with a deadline set forth in section 190.6.
What's more, a reasonable member of the electorate would also have considered the concluding sentence of section 190.6, subdivision (e). This sentence expressly provides that a victim's right to enforcement of the Victims' Bill of Rights (Cal. Const., art. I, § 28) includes standing to enforce the rights set forth in section 190.6, subdivision (d) — i.e., the five-year deadline. Subdivision (d), in turn, explicitly links the five-year deadline to the constitutional "right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includ[ing] the right to have judgments of death carried out within a reasonable time." The majority's reading — which denies victims standing to enforce the five-year deadline — simply makes the final sentence of subdivision (e) disappear.
The majority says it must construe the five-year deadline as directory "regardless of how the ballot materials characterized" it because there is no "workable" means of enforcing the deadline. (Maj. opn., ante, at pp. 855, 857.) The majority cited no support for this conclusion because none exists, nor did it offer any compelling argument for why this approach makes sense. That the scheme is unworkable is both true and easily understood. Of course there's no tribunal in which a party could seek a writ of mandate directed to us. But even more important, compliance with the five-year deadline depends in large part on a series of discretionary determinations by superior courts,
Yet the question before us is not the workability of an arrangement involving a petition for writ of mandate to enforce the five-year deadline. It is instead whether a reasonable voter would have understood the purpose of the mandate mechanism to make the five-year deadline not merely an aspiration, but an enforceable reality. And subdivision (e) of section 190.6 is indeed a clear statement that the five-year deadline is mandatory, not directory. Everything before us — the text and structure of the initiative, its unambiguous purpose, the ballot materials, and the construction endorsed by all of the parties — would lead a reasonable voter to believe that this provision, which had attracted so much attention, constituted a real deadline, and one that could be enforced by a petition for writ of mandate. When the text of a voter initiative provides that government "shall" complete some action within a specified period of time (§ 190.6, subd. (d)), the analysis of the initiative in the ballot pamphlet confirms that the new law "requires" completion of some action within the specified period of time (Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, pp. 106-107), and the proponents' argument there and in its general campaign promises that the new law "will" achieve that objective (see ante, fn. 3 and accompanying text), a reasonable voter would conclude that the initiative imposes an enforceable deadline. So, too, when the initiative goes so far as to authorize aggrieved parties to obtain a judicial writ to enforce the time limit, a reasonable voter would feel confident that the new law enacts real, meaningful control over the judicial function.
Moreover, nothing in our case law, the case law from any other jurisdiction, or in the inherent logic of constitutional or statutory interpretation makes the characterization of a statutory time limit for judicial processes turn on whether the enforcement mechanism would be "workable." (Maj. opn., ante, at p. 857.) It's doubtful that any mechanism to enforce a statutory deadline on the resolution of a case or motion could ever be entirely workable, since such a deadline (as the majority concedes) would necessarily interfere with the court's control over its docket and thus violate the separation of powers. (See maj. opn., ante, at p. 858.) The majority's interpretive move, in reality, is to declare that it would never recognize any deadline, as mandatory. Our court has the power to take a "different" approach from that of every other court inside or outside of California (ibid.), but it is hard to see how this approach squares with our mission, when interpreting a statute, to construe it in a
Equally unpersuasive is the majority's next justification for construing the clearly mandatory deadline as merely directory. According to the majority, it was not sufficient that the text, structure, context, and legislative history demonstrated that the deadline was mandatory. Rather, the ballot materials also needed to inform the voters about "the details of an enforcement mechanism" and "how such an order could effectively result in compliance." (Maj. opn., ante, at p. 857.) If such a requirement is to be plucked out of thin air — as I fear this one has been — then it needs a compelling substantive or institutional justification that the majority does not provide. To my knowledge, we have never required the voters to sit through a constitutional law lecture before we would be willing to interpret a law as it was written.
Such a requirement strikes me as inconsistent with the very 83-year-old case the majority purports to be vindicating. Unlike this case, Lorraine did not even involve a constitutional challenge (Lorraine, supra, 220 Cal. at p. 756) — we instead considered only the mandatory/directory character of a statute providing that a court "`shall'" postpone a trial or hearing for up to 30 days "`when all attorneys of record of parties who have appeared in the action agree in writing to such postponement.'" (Id. at p. 754.) Tellingly, we did not inquire whether the Legislature had sufficiently ruminated about "the details" of the rule's operation or what effect it would have on a court. Instead, in accordance with our long-standing rule that the mandatory/ directory distinction "is ultimately one of legislative intent" (Kabran, supra, 2 Cal.5th at p. 343), we focused on whether the Legislature had "the intent to make the action of the parties compulsory upon the court in each instance." (Lorraine, at p. 757; see also Thurmond, supra, 66 Cal.2d at p. 839). Finding no such intent, we declared the statutory text to be properly interpreted as directory. (Lorraine, at p. 757.)
At issue in Verio were amendments to two civil procedure statutes we had previously construed in Thurmond, supra, 66 Cal.2d 836 to be directory. (Verio, supra, 3 Cal.App.5th at pp. 1325-1326.) In 1968, one year after Thurmond, the Legislature amended each of those statutes to add a new provision stating that a continuance or extension of time requested by a party or attorney who is a member of the Legislature then in session "is mandatory," unless the court determined that the continuance or extension of time would defeat or abridge a right to relief in specified proceedings. (Code Civ. Proc., §§ 595, 1054.1, subd. (b).) In contrast to the majority's approach in this case, the Verio court recognized that the clearly mandatory provisions of the amended statutes rendered them distinguishable from the statutes we construed in Lorraine, Thurmond, and Engram. (Verio, at pp. 1329-1330.) Precisely because the 1968 amendments "explicitly describe[d] the continuance or extension of time as `mandatory,'" the court held "that sections 595 and 1054.1 are unconstitutional to the extent they purport to be mandatory." (Id. at p. 1330.)
The majority holds out Verio as an example of a court interpreting a statute as directory, despite its mandatory phrasing. Verio does not even mildly support the majority's position. The Verio court "refused to give the statutes mandatory effect" (maj. opn., ante, at p. 854) for the simple reason that the amendments making the statutes mandatory had been struck down as unconstitutional. (See Verio, supra, 3 Cal.App.5th at p. 1330.) The remainder of the statutes, though, could still be given effect in a manner consistent with our jurisprudence on severability and the statutory design. (See Legislature v. Eu (1991) 54 Cal.3d 492, 535 [286 Cal.Rptr. 283, 816 P.2d 1309].) The invalid mandatory provisions were set forth in a separate subdivision (see Code Civ. Proc., § 1054.1, subd. (b)) or a separate paragraph (id., § 595, 2d par.) and were grammatically severable. (See Verio, at p. 1325.) The invalid mandatory provisions were functionally severable, in that their removal would not affect or disrupt the operation of either statute. And the court could be sure that the Legislature would have maintained the preamended version of the statutes,
Ironically, it is the part of Verio that is on point — the part declaring mandatory provisions unconstitutional — that the majority ignores. Instead the majority relies on the part of Verio that read directory language to be directory, but that part is of no assistance here. No one — not the majority, not the Attorney General, not the intervener-proponents — claims the five-year deadline is somehow severable from the mandatory aspects of the initiative. (See Katyal & Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change (2015) 128 Harv. L.Rev. 2109, 2122, fn. 47 ["When a court uses the rewriting power, it is, in effect, implicitly assuming the outcome of the severability analysis and acting with less candor and transparency than a court that does the analysis explicitly"].) And nothing in the record suggests the voters would have preferred a directory interpretation of the five-year deadline to its invalidation. To the contrary: Several statutes already offered what the majority calls "an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice." (Maj. opn., ante, at p. 859; see §§ 190.6, subds. (a), (c), 1239.1, subd. (a).) There is no reason to think the voters, when they enacted Proposition 66, wanted merely to pile on. As a sister state supreme court explained nearly a century ago, "[F]or us to merely hold the provisions of the act under consideration directory would afford poor consolation, for it was doubtless the intention of those sponsoring this measure to provide a method for a speedy disposition of such matters, and to hold the provisions of the measure merely directory would enable the courts to take as much time as they saw fit to dispose of the questions presented, which would be no improvement over the method provided by law as it existed before this measure was initiated." (Long, supra, 251 P. at p. 490.)
Litigants and policymakers are unlikely to discover much improvement — or "benefit" (maj. opn., ante, at p. 851, fn. 28) — in the majority's implausible construction of the five-year deadline, either. It would be exceptionally difficult, and potentially quite fraught, for the Judicial Council to implement whatever might allegedly remain of the five-year time limit while preserving "the courts' inherent authority over their dockets." (Id. at p. 861.) So I agree with Justice Liu: The Judicial Council is under no compulsion to
"Good luck" might be in order as well for those who contemplate a challenge to the constitutionality of other statutes and may now wonder whether this court will instead redraft laws to avoid "constitutional problems." (Maj. opn., ante, at p. 854.) It is not judicial modesty that authorizes a court to distort the text of a statute in a way that subverts its purpose. Nor does judicial restraint justify a court deliberately reading a law to mean something other than what the voters enacted. When the majority says that it will construe statutes to be directory — despite their "mandatory phrasing," despite what "the voters were told," and despite what "the voters intended" as the statute's purpose (maj. opn., ante, at pp. 855, 857) — the act becomes precisely the opposite of judicial modesty. The court instead substitutes its own preferences, without justification, for those embodied in legislation. (See Manning, The Nondelegation Doctrine as a Canon of Avoidance (2000) Sup. Ct. Rev. 223, 255-256.) And while it may sometimes be possible for the legislative branch to correct a mistaken judicial construction of a statute it had duly enacted, that's an unlikely prospect here. Under the terms of the initiative, the newly minted five-year "goal" just announced by the majority and given some degree of legal weight by it can now be overturned only by a vote of three-fourths of the membership of each house of the Legislature, or by a whole new initiative. (See Voter Guide, supra, text of Prop. 66, § 20, p. 218.) Because, practically speaking, our word will be the last word, we really ought to fairly construe the law the voters actually enacted.
The five-year deadline is not Proposition 66's only constitutional defect. The majority also errs in upholding new section 1509.1, subdivision (a), which purports to vest the Court of Appeal with appellate jurisdiction in capital habeas corpus proceedings: "Either party may appeal the decision of a superior court on an initial petition under Section 1509 to the court of appeal." Under our state Constitution, this court has "exclusive" appellate jurisdiction "`in death penalty cases.'" (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 124 [105 Cal.Rptr.2d 46, 18 P.3d 1198] (Thompson).)
The majority concedes this new provision constitutes a "significant departure" from existing practice governing appellate review of capital habeas corpus petitions. (Maj. opn., ante, at p. 836.) But it is more than that: It is also unconstitutional. Unlike the majority, I would read the constitutional grant of appellate jurisdiction to this court (Cal. Const., art. VI, § 11, subd. (a)) in conjunction with related constitutional provisions, the Legislature's long-standing interpretation of our appellate jurisdiction, the purpose behind vesting this court with appellate jurisdiction in death penalty cases, and the virtually uniform practice of our sister states. When interpreted using our ordinary canons of construction, it is clear that our exclusive appellate jurisdiction encompasses an appeal from any attempt to attack the death judgment, including an appeal from a capital habeas corpus proceeding.
Like most states that have retained the death penalty, California has entrusted appellate jurisdiction in death penalty cases to the state court of last resort. Under our state Constitution, "[t]he Supreme Court has appellate jurisdiction when judgment of death has been pronounced." (Cal. Const., art.
So it is the task of this court — and only this court — to exercise "exclusive jurisdiction `in death penalty cases' because of `the extreme nature of the penalty.'" (Thompson, supra, 25 Cal.4th at p. 124, quoting Cal. Const. Revision Com., Proposed Revision (1966) p. 91.) Our concern over the gravity of the death penalty is widely shared by our sister jurisdictions. The high court has pointed out that a system providing for judicial review "in a court with statewide jurisdiction ... promote[s] the evenhanded, rational, and consistent imposition of death sentences under law." (Jurek v. Texas (1976) 428 U.S. 262, 276 [49 L.Ed.2d 929, 96 S.Ct. 2950]; accord, State v. Ramirez (1994) 178 Ariz. 116 [871 P.2d 237, 243]; People v. Gaines (1984) 105 Ill.2d 79 [85 Ill.Dec. 269, 473 N.E.2d 868, 878]; see generally Uelman, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization (1997) 72 Notre Dame L.Rev. 1133, 1138 ["The traditional answer, of course, is that consistency in administering the ultimate punishment demands final review by the same body of judges in every case"].)
An appeal in a death penalty case encompasses more than the automatic appeal. It includes, for instance, an appeal from a petition for writ of error coram nobis, an appeal from a petition for writ of habeas corpus, or an appeal from any other extraordinary writ attacking the judgment. Even if the details governing the procedure for these proceedings may vary, the need for evenhanded, rational, and consistent imposition of the death penalty does not: It is the same regardless of which means is used to attack the judgment. (See State v. Fourth Dist. Court of Appeal (Fla. 1997) 697 So.2d 70, 71 ["Collateral proceedings in death penalty cases are essentially attacks on the imposition of the death penalty. Because this Court has jurisdiction over death penalty cases, it is logical that such attacks be directed to this Court."]; People v. Gaines, supra, 473 N.E.2d at p. 879 ["Statewide review, in this court, of post-conviction cases involving the death penalty will further the governmental interest in uniform and expeditious review of death sentences"]; State v. Niccum (1977) 293 N.C. 276 [238 S.E.2d 141, 143-144] [because an appeal from a judgment that "`includes a sentence of death or imprisonment for life'" lies directly to the Supreme Court, it "logically" follows that an appeal from a habeas corpus judgment involving a sentence of death or life imprisonment lies to the Supreme Court].)
None of this is happenstance. We noted long ago the "pains that were there taken [by the Legislature] to limit the instances in which an appeal from the superior court in habeas corpus proceedings would be allowed" and acknowledged that "[t]he power of the Legislature to enact section 1506 has never been successfully challenged." (In re Flodstrom (1955) 45 Cal.2d 307, 310 [288 P.2d 859].) Even earlier, in In re Alpine (1928) 203 Cal. 731 [265 P. 947], we recognized that "[s]ection 1506 provided for the first time in our legislative history that an appeal may be taken from the order of a superior court discharging a defendant after conviction to the district court of appeal, except in cases where judgment of death has been rendered, and in such cases to the supreme court." (Alpine, at p. 745; see id. at pp. 745-746 ["Whatever doubt that existed [in 1913], as to whether a habeas corpus proceeding may fairly be said to be included in the terms of the constitution ... has been removed by the unmistakable language of the statute that it is so included within the constitutional language. And we can see no objection on constitutional grounds against the power of the legislature to so provide."]; In re Ketchel (1968) 68 Cal.2d 397, 399 [66 Cal.Rptr. 881, 438 P.2d 625].)
One year after former section 1506 was enacted, former article VI, section 4 of the Constitution was amended. But the amendment left this court's appellate jurisdiction unchanged: "in all criminal cases where judgment of death has been rendered." (Cal. Const., former art. VI, § 4, as amended Nov. 6, 1928, italics added; see id., former art. VI, § 4b [granting appellate jurisdiction to the Court of Appeal "except where judgment of death has been rendered" (italics added)].) These provisions were amended again in 1966,
As even intervener-proponents acknowledge, section 1506 deems the "final order of a superior court made upon the return of a writ of habeas corpus discharging a [capital] defendant or otherwise granting all or any part of the relief sought" to be a "criminal case[] where judgment of death has been rendered" — and, accordingly, one that can be appealed only to this court.
Section 1506 was enacted against the backdrop of these constitutional constraints. It carries "`a "strong presumption in favor of the Legislature's interpretation of a provision of the Constitution,"'" and its "`focused legislative judgment on the question enjoys significant weight and deference by the courts.'" (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 192-193 [204 Cal.Rptr.3d 770, 375 P.3d 887].) Indeed, around the time the Legislature enacted section 1506, this court had acknowledged that "`the contemporaneous and long continued construction thereof by the legislature is entitled to great deference, and may be supposed to reflect the views of policy and modes of reasoning which prevailed among the framers of the Constitution.'" (People v. Southern Pac. Co. (1930) 209 Cal. 578, 595 [290 P. 25].) Yet the majority fails to accord the Legislature's long-standing interpretation due weight — or any weight at all. The majority states only that section 1509.1 effects "an implied repeal" of section 1506. (Maj. opn., ante, at p. 840.) This euphemism significantly underplays the stakes here. Only one of these provisions can be constitutional. Either the Supreme Court has appellate jurisdiction over capital habeas corpus proceedings (in which case § 1506 is constitutional, and new § 1509.1 is not), or the Court of Appeal has appellate jurisdiction over capital habeas corpus proceedings (in which case new § 1509.1 is constitutional, and § 1506 is not). The majority chooses the latter option — and thus upends 90 years of settled law and belatedly declares that we were without jurisdiction "in its most fundamental sense" (maj. opn.,
It is the majority's primary contention that article VI, section 11 of the California Constitution is limited to an appeal from the "case in which [the death] judgment was rendered." (Maj. opn., ante, at p. 837.) But the majority cites nothing to support this theory — unless one counts a single sentence in a Judicial Council report that postdated the election at which article VI, section 11 was adopted. (See Valencia, supra, 3 Cal.5th at p. 364, fn. 5 ["`We cannot presume that the electorate as a whole was aware of statements made ... in a magazine article published after the election"].) Even so, the sentence — "Under Section 11, the direct appellate jurisdiction of the Supreme Court is restricted to those cases in which judgment of death has been pronounced" (Judicial Council of Cal., Rep. to the Governor and the Legislature (1967) pt. I, ch. 3, p. 76) — does not support the majority's idiosyncratic reading of the constitutional provision's actual text. What is important under article VI, section 11 is not that the appeal from a proceeding attacking the death judgment itself be an appeal from the judgment of death, but that a judgment of death has actually been pronounced. Over a century ago, we explained that our "appellate jurisdiction `in all criminal cases where judgment of death has been rendered'" excluded an appeal from an order, "made before judgment," setting aside a charge of capital murder. (People v. White (1911) 161 Cal. 310 [119 P. 79].) Although the information charged a crime punishable by death, we explained that "neither judgment of death nor any other judgment has yet been rendered." (Ibid., italics added; cf. Utah Code Ann. § 78A-3-102(3)(i) ["The Supreme Court has appellate jurisdiction ... over ... appeals from the district court involving a conviction or charge of a first degree or capital felony" (italics added)].)
So where judgment of death has been pronounced — and the appeal challenges that judgment — appellate jurisdiction resides in this court. (Cf. Thompson, supra, 25 Cal.4th at p. 122 ["our exclusive jurisdiction over death penalty appeals" did not include an appeal where "[p]laintiffs challenged not the legality of that [death] judgment but the time at which Thompson's spiritual adviser of choice had to leave him before the execution"].) Indeed, this court has already declared that "appellate jurisdiction in criminal cases where judgment of death has been rendered" extends at least to "proceedings which attack such a judgment by motion to vacate or petition for the writ of error coram nobis." (People v. Shorts (1948) 32 Cal.2d 502, 511 [197 P.2d 330].) Given the pervasive uncertainty as to whether certain defects "should
I respectfully, but strongly, disagree with the majority that an interpretation of our appellate jurisdiction incorporating the full range of relevant considerations — including functional ones — would somehow be "anomalous." (Maj. opn., ante, at p. 840.) It does matter whether the Court of Appeal has jurisdiction to review a superior court's capital habeas corpus ruling on appeal, rather than review that same ruling when the capital inmate files a new original petition there. Consider the purpose underlying our exclusive appellate jurisdiction in death penalty cases, and the difference between review by appeal and review by a new original writ petition. A system of direct review to the state court of last resort "promote[s] the evenhanded, rational, and consistent imposition of death sentences under law." (Jurek v. Texas, supra, 428 U.S. at p. 276.) A system in which an appeal can be taken to the intermediate appellate court, by contrast, creates uncertainty. It allows for the possibility of conflicting rulings on a matter of ultimate concern: life, or death. An appeal triggers the right to present oral argument and an entitlement to a written opinion with reasons stated. (People v. Medina (1972) 6 Cal.3d 484, 489-490 [99 Cal.Rptr. 630, 492 P.2d 686].) A petition for an extraordinary writ (such as a petition for writ of habeas corpus), on the other hand, can be summarily denied without oral argument or a written statement of reasons. (See id. at p. 490.) Indeed, summary denial of a habeas corpus petition or other petition for an extraordinary writ does not establish law of the case or have any res judicata effect in future proceedings. (Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6 [142 Cal.Rptr.3d 808, 278 P.3d 1168].)
That's why virtually every one of our death penalty sister states requires that appeals from the death judgment as well as appeals from all postconviction proceedings attacking that judgment go directly to the state's highest court.
What becomes apparent instead is the risk that the majority's narrow construction of article VI, section 11 of the California Constitution will
The remaining question is whether the provision barring the use of a "`successive petition'" (read "`new petition'" (maj. opn., ante, at p. 836, fn. 14)) "as a means of reviewing, a denial of habeas relief" (§ 1509.1, subd. (a)) is severable or was instead dependent on the assumption that review would be available by appeal. Our analysis properly begins by taking account of Proposition 66's severability clause (see California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 270 [135 Cal.Rptr.3d 683, 267 P.3d 580] (Matosantos)), which provides: "If any provision of this act, or any part of any provision, or its application to any person or circumstance is for any reason held to be invalid or unconstitutional, the remaining provisions and applications which can be given effect without the invalid or unconstitutional provision or application shall not be affected, but shall remain in full force and effect, and to this end the provisions of this act are severable." (Voter Guide, supra, text of Prop. 66, § 21, p. 218.) Although a severability clause establishes a presumption in favor of severance, this court also considers whether the invalid provision is grammatically, functionally, and volitionally severable. (Matosantos, at pp. 270-271.) An invalid provision can be severed from the remainder of the enactment "if, and only if, it is `grammatically, functionally and volitionally
Severability is not possible here under any reasonable understanding of what's meant by grammatically, functionally, and volitionally. Nothing in the text of Proposition 66, its structure, or its history reveals a purpose to preclude appellate courts altogether from reviewing a sentencing court's ruling on a habeas corpus petition. Just the opposite: The initiative proposed merely to shift the means of review from the filing of a new petition in a higher court to an appeal to a higher court. "[V]olitional[]" severability turns on whether "the remainder of the measure probably would have been adopted by the people even if they had foreseen the success of petitioners' ... challenge." (Raven v. Deukmejian (1990) 52 Cal.3d 336, 356 [276 Cal.Rptr. 326, 801 P.2d 1077]; see Matosantos, supra, 53 Cal.4th 231, 271.) The switch from one avenue (filing of a new petition) to the other (appeal) plainly was dependent on the assumption that the latter offered an available means of review. (See Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 718 [25 Cal.Rptr.2d 449, 863 P.2d 694].) Had reasonable voters foreseen that the appeal mechanism would be invalidated, one cannot say "`with confidence'" that they would have adopted the ban on new petitions as a means of review. (Id. at p. 714.) So I would invalidate section 1509.1 in its entirety.
The bait-and-switch undertaken by the proponents of Proposition 66 — and countenanced by the majority — will do nothing but breed cynicism in the electorate and supply further kindling to those who doubt the efficacy and workability of constitutional democracy. As an inducement to support this initiative, voters were promised that state court review of death penalty judgments could and would be completed within five years. That promise, as the majority concedes, was a sham. But the way to prevent similar swindles in the future is to be clear about what section 190.6, subdivision (d) says and why it is unconstitutional. What the majority offers instead — a "saving construction" to a clearly unconstitutional statute (maj. opn., ante, at p. 860, fn. 33), accompanied by a "caution" against presenting the voters with "statutory language that is inconsistent with constitutional norms" (ibid.) — ill serves the constitutional principles at stake, hinders forthright deliberation, and encourages initiative proponents to repeat the bait-and-switch in the future.
It is the voters' job to decide whether to enact laws by initiative. It is our job to interpret and give effect to those duly enacted laws when called upon to do so, but also to uphold the supreme law of the land — our state and federal Constitutions — when the challenged law transgresses those founding
This is one such occasion. What was presented to the voters in Proposition 66 was a mandatory five-year deadline for resolution of the state court appeal and the initial habeas corpus petition for capital inmates. That's what the voters enacted. We know the resulting deadline is mandatory from its text, its structure, the deadline's description in the ballot materials, statements by the initiative's proponents, and general media coverage of the Proposition 66 campaign. And our established precedent underscores why we are not free to construe a deadline as directory where, as here, the enacting body "clearly expresses a contrary intent." (People v. Allen, supra, 42 Cal.4th at p. 102; see Kabran, supra, 2 Cal.5th at p. 343 ["The question is ultimately one of legislative intent"]; Garrison, supra, 32 Cal.2d at p. 435 [statute will be construed as mandatory where "that result is expressly provided or otherwise clearly intended"].) When we foist a directory interpretation with potentially vague and unspecified consequences on a provision that cannot reasonably support it, we impair the candid public deliberation that makes democracy effective.
A mandatory deadline, as all the parties agree, is not constitutional. Because that is precisely what the voters enacted, we must be equally clear and invalidate it. (See Valencia, supra, 3 Cal.5th at p. 386 (conc. opn. of Kruger, J.) ["In interpreting a voter initiative, we are bound to respect both the choices the voters have made and the limits of those choices"].) I therefore cannot join the majority in upholding some newly manufactured version of section 190.6, subdivision (d). When we twist the words of an initiative and ignore its clear purpose under the guise of "saving" it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law. (See Valencia, at p. 374 ["adopting the construction ... as to the scope of a phrase in a measure without notice to the voters, not mentioned by the ... Legislative Analyst, and contrary to the stated purposes and assurances described in the measure's own preamble, would not protect the voters' right to directly enact laws but could very likely encourage the subversion and manipulation of that democratic right" (italics added)].)
Ikola, J.,
We stayed the implementation of Proposition 66 to provide time to resolve petitioner's challenge. After receiving papers in opposition, we issued an order to show cause why the relief sought should not be granted, and continued the stay pending our decision. While the stay was in effect, Mr. Van de Kamp died, leaving Briggs as the sole petitioner.
Petitioner also relies on the provisions of section 1473 governing habeas corpus petitions based on claims of "false evidence." However, section 1473 does not mention successive petitions. While it may apply to such petitions, petitioner does not suggest it overrides the Clark limitations, or explain why section 1509 may not further limit false evidence claims in successive petitions consistently with equal protection principles.
The Ohio court's reasoning is consistent with the equal protection principle that the pertinent inquiry is whether persons are similarly situated for purposes of the law challenged. (See People v. Guzman, supra, 35 Cal.4th at p. 592.) As explained above, the successive petition restrictions of section 1509, subdivision (d) address issues arising particularly in capital postconviction proceedings.
The California approach has the benefit of allowing time limits set by the legislative branch to function as nonbinding guidelines, when reasonably possible. A similar construction of a mandatory limit as "directory" was applied in Waite v. Burgess (1952) 69 Nev. 230 [245 P.2d 994, 996].
