State Supreme Court Appears Hesitant to Block Brown's Criminal Justice Measure

California's Supreme Court justices voiced skepticism Thursday about a challenge to Gov. Jerry Brown's criminal justice initiative. Justices heard oral arguments in a case brought by the California District Attorneys Association.

The case is not a challenge to the substance of Brown's initiative, aimed at reducing the state's prison population, but rather to the way in which proponents attempted to speed up the process of getting the measure on the November ballot. A loss in the case would almost certainly end hopes for Brown to get the measure before voters this year.

Brown's measure, introduced in January, is aimed at reducing the state prison population by giving prisoners a chance for earlier parole and allowing judges, instead of prosecutors, to decide whether a minor should be tried as an adult. In order to expedite the measure's progress toward the November ballot, proponents placed their text inside of an already submitted initiative focused on juvenile justice.

"An initiative was filed that did change substantive law, in regard to a specific subject matter area," said Thomas Hiltachk, a lawyer for the California District Attorneys Association. "That was then bait and switch, gut and amend, hide the pea, whatever you want to call it, and that initiative proposes a result completely different from the original filing." 

The amendment process is allowed under a 2014 law that also established rules for posting measures for public comment. The question before the justices was whether Brown's initiative was "reasonably germane" to the measure it replaced.

Defense of 2014 Law

The case arrived at the Supreme Court after a Sacramento Superior Court judge blocked the measure from moving forward.

"You went from changing a statutory amendment to putting in place a constitutional amendment," said Supreme Court Justice Ming Chin, echoing the concerns of the lower court.

Judging from Thursday's oral arguments, it seemed many of the justices believe that lawmakers enacted the 2014 state law with the full understanding that a change similar to Gov. Brown's revision could take place.

"It wasn’t the bill you wanted and there are many other, perhaps better, ways to structure the initiative process," said Justice Goodwin Liu. "But the Legislature chose this way."

That Legislature also decided to mandate a 30-day public comment period, followed by a five-day window to edit an initiative. Brown's measure wasn't folded into the existing measure until after the public comment period, which opponents say caused "public harm."

"The Legislature knew and chose to ignore that and continue to pursue," said Chief Justice Tani Cantil-Sakauye, "They thought about it and said, 'It doesn’t matter because amendments or proposals are basically for the proponents' benefit.' "

As justices gave deference to the perceived intentions of recent lawmakers, lawyers for Brown's measure argued that the court has a history of allowing these kinds of changes to ballot measures.

This court has upheld far broader reform efforts than the one at issue here," said attorney James Harrison.

Attorneys for the state attorney general's office also spoke at oral arguments, asking that their office be given discretion in deciding when a change is "germane."

California's Supreme Court will have to submit a decision within 90 days. In the meantime, the court has allowed Brown's campaign to continue gathering signatures.