Deborah B.

Caplan [SBN 196606]

1 Lance H. Olson [SBN 077634]

2 Richard C. Miadich [SBN 224873]

OLSON HAGEL & FISHBURN LLP
3 555 Capitol Mall, Suite 1425
Sacramento, CA 95814
4 Telephone: (916) 442-2952
Facsimile: (916) 442-1280
5

6 Attorneys for Petitioners

XXXXXXXXXXXXX
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8
555 Capitol Mall, Suite 1425, Sacramento, CA 95814

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9
COUNTY OF SACRAMENTO
Olson Hagel & Fishburn LLP

10

11
XXXXXXXXXXX, CASE NO.:
12 Petitioners,
VERIFIED PETITION FOR WRIT OF
13 v. MANDATE
14 [ELEC. CODE, §§ 13314; 9092]
DEBRA BOWEN, in her official capacity as
15 CALIFORNIA SECRETARY OF STATE,
STATEWIDE ELECTION MATTER
16 IMMEDIATE ACTION REQUESTED
Respondent,
17 STATUTORY DEADLINE: MARCH 5, 2009
18 [PROPOSITION 1E]
19
Date:
20 Time:
Dept.:
21

22
GEOFF BRANDT, in his official capacity as State
23
Printer; the LEGISLATURE OF THE STATE OF
24 CALIFORNIA,

25
Real Parties in Interest.
26

27

28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1

2 Petitioners, XXXXXXXXXX, state as follows:

3 INTRODUCTION

4 1.Petitioners bring this action to challenge certain information to be provided to voters in

5 connection with Proposition 1E, a measure to be considered by the voters at the May 19, 2009 Special

6 Statewide Election. Specifically, petitioners challenge the ballot label and the title and summary

7 prepared by the California Legislature as those materials are not fair and impartial and/or are false and

8 misleading.
555 Capitol Mall, Suite 1425, Sacramento, CA 95814

9 2.In the early morning hours of February 19, 2009, the Legislature passed a series of bills which
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10 have been collectively referred to as the “budget package.” The package of bills was signed by the

11 Governor on February 20, 2009. Because the package relies on a number of constitutional and statutory

12 changes that the Legislature is not authorized to make without voter approval, the Legislature also

13 adopted Senate Bill 19 (Stats. 2009, 3rd Ex. Sess. 2009-10, ch. 7 (“SB 19”)), which calls a Special

14 Election for May 19, 2009. A true copy of SB 19 is attached as Ex. A to Petitioners’ Request for

15 Judicial Notice.

16 3.SB 19 places six measures before the voters on May 19, 2009, but it goes much further than

17 simply presenting the measures for the voters’ consideration. In each case, the Legislature took the

18 responsibility for preparing a “fair and impartial” title and summary and ballot label away from the

19 Attorney General, who is currently entrusted by statute to prepare such materials. Instead, the

20 Legislature imposed its own title and summary and ballot label for each measure, each of which uses

21 language which is not only not fair and impartial, but which is affirmatively false and misleading and

22 which unlawfully uses the ballot description and the title and summary as “advocacy” materials in an

23 attempt to persuade voters to adopt the proposed measures.

24 4.This action concerns one of the six measures, a measure designated by the Legislature as

25 Proposition 1E. The substantive terms of Proposition 1E are found in Senate Bill 10 (Stats. 2009, 3rd

26 Ex. Sess. 2009-10, ch. 15.) (“SB 10.”) A true copy of SB 10 is attached as Ex. B to Petitioners’ Request

27 for Judicial Notice. In brief, SB 10, or Proposition 1E, proposes to amend Proposition 63, a voter

28 initiative adopted in 2004. The core of Proposition 63 is the imposition of a 1% tax on incomes above

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VERIFIED PETITION FOR1 WRIT OF MANDATE
 1 xxxxxxxxxx and the use of that money to create a new Mental Health Service Fund to be used solely for

2 new mental health programs and services. The key to the success of Proposition 63 is its absolute

3 prohibition on the use of the Fund to “supplant” funding for existing programs; that is, the Fund must be

4 used for new programs, thereby expanding mental health programs and services, and cannot be used by

5 the State to pay for existing programs. SB 10, now designated as Proposition 1E, amends Proposition 63

6 to do precisely what Proposition 63 prohibits: it proposes to allow the State to divert nearly half a

7 billion dollars money from the Proposition 63 Fund to assist the State in meeting its General Fund

8 obligations for existing programs – programs the State is already legally required to provide and which it
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9 cannot legally reduce or eliminate.

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10 5.Petitioners allege that the title and summary and ballot label improperly – and incorrectly –

11 suggest that existing programs will be cut unless the proposed amendment is approved and they fail to

12 inform the public that the proposed amendment will actually result in an overall reduction in mental

13 health services and programs. For these reasons, as described more fully below and in the supporting

14 Memorandum of Points and Authorities, petitioners allege that the title and summary and ballot label do

15 not provide a fair and impartial description of the proposed measure and are false and/or misleading and

16 must be corrected or amended by this Court.

17 SIGNIFICANT STATUTORY DEADLINES

18 6. Normally, the Elections Code provides for a 20-day period in which voters are entitled to

19 review the ballot materials and file any legal challenges. (Elec. Code, § 9092.) However, Section 8(c)

20 of SB 19 provides that “[n]otwithstanding Section 13282 of the Elections Code or any other provision of

21 law, the public shall be permitted to examine the condensed statements of the ballot titles for eight days.

22 Any voter may seek a writ of mandate for the purpose of requiring the condensed statements of the

23 ballot titles, or portions thereof, to be amended or deleted only within that eight-day period.” (RJN. Ex.

24 A, p. xx, emphasis added.)

25 7. Late in the day on Friday, February 20, 2009, the Secretary of State’s office issued an

26 Elections Calendar for the May 19, 2009 Special Election with the following deadlines:

27 February 25, 2009 Ballot Labels Available for Inspection

28 February 26, 2009 Remaining Ballot Materials Available for Inspection

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VERIFIED PETITION FOR2 WRIT OF MANDATE
 1 March 5, 2009 Deadline for Inspection and Challenge to Ballot Labels

2 March 18, 2009 Deadline for Inspection and Challenge to Other Materials

3 A true copy of the Secretary of State’s Election Calendar for the Special Election is attached to

4 Petitioners’ Request for Judicial Notice as Ex. D.

5 8. This action seeks to correct both the ballot label and the title and summary. Although

6 only the lawfulness of the ballot label must be litigated within the eight-day period imposed by SB 19,

7 the lawfulness of the title and summary must be litigated by March 18, 2009. Petitioners have filed

8 these actions together because the arguments related to the ballot label and the title and summary are
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9 significantly intertwined, petitioners believe it is in the interest of judicial economy to address them
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10 together, and the second deadline is only slightly later than the March 5 deadline. The Court may

11 choose to address only the ballot label before the March 5 deadline and reserve the title and

12 summary issues to be resolved before the March 18 deadline, but the ballot label challenge must

13 be resolved on or before March 5, 2009.

14

15

16 PARTIES

17 9.Petitioner XXXXXXXXX, a registered voter in the State of California, is the

18 XXXXXXXXXXXXX.

19 10.Petitioner XXXXXXXXX, a registered voter in the State of California, is the

20 XXXXXXXXXXXXX.

21 11.Petitioner XXXXXXXXX, a registered voter in the State of California, is the

22 XXXXXXXXXXXXX.

23 12.Respondent Debra Bowen is the Secretary of State of California and is the state’s chief

24 elections officer. She is charged with the duty of preparing a ballot pamphlet with respect to statewide

25 initiative measures as well as ballots, ballot materials, sample ballots, and other voting materials. (Elec.

26 Code, §§ 9081-9086.) Elections Code sections 9092 and 13314 require that the Secretary of State be

27 named as a respondent in this proceeding. She is sued in her official capacity only.

28 13.Respondent Geoff Brandt is the State Printer of the State of California. He is charged with

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VERIFIED PETITION FOR3 WRIT OF MANDATE
 1 printing the ballot pamphlet prepared by the Secretary State. Elections Code section 9092 requires that

2 the State Printer be named as a real party in interest in this proceeding. He is sued in his official capacity

3 only.

4 14.Real Party in Interest California Legislature is the body in which the California Constitution

5 vests all legislative power not reserved to the people. In passing SB 19, the California Legislature

6 designated the content of the ballot label and title and summary for Proposition 1E and directed the

7 Secretary of State to include the same in all official ballot materials for the May 19, 2009 Special

8 Statewide Election. Elections Code section 9092 requires the California Legislature be named as a real
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9 party in interest in this proceeding.

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10 ALLEGATIONS

11 15.On February 20, 2009, the Governor signed a series of bills which have been collectively

12 referred to as the “budget package.” Because the package relies on a number of constitutional and

13 statutory changes that require voter approval, the Legislature adopted Senate Bill 19 (also referred to as

14 SB3X 19, or SB 19), which calls a Special Election for May 19, 2009. (RJN, Ex. A.)

15 16.Proposition 1E is one of six measures the Legislature is presenting to voters on the May 19,

16 2009 ballot. The substance of Proposition 1E can be found in Senate Bill 10 (also referred to as SB3X

17 10, or SB 10). (RJN, Ex. B.) Because SB 10 seeks to amend the terms of the Mental Health Services

18 Act, created by Proposition 63, the terms of SB 10 must be approved by the voters before they can

19 become operative.

20 17.Proposition 63, adopted by voters in 2004, imposed a 1% tax on persons with incomes over $1

21 million and directed that the revenues from this tax would be placed in a new Mental Health Service

22 Fund. That Fund is to be used to directly pay for new and expanded mental health services and

23 programs. The key to Proposition 63’s success is the requirement that monies from the Fund cannot be

24 used to supplant existing funding and counties cannot qualify for the new funding unless they maintain

25 their existing level of financial support for mental health services.

26 18.Proposition 1E proposes to amend Proposition 63 to divert almost $500 million away from the

27 Mental Health Services Fund and direct those monies to the State General Fund. Although Proposition

28 1E states that this money be used by the State to support the Early and Periodic Screening, Diagnosis and

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VERIFIED PETITION FOR4 WRIT OF MANDATE
 1 Treatment Program (“EPSDT”), once monies are diverted to the General Fund, there is no legal

2 prohibition against using them for other, non-mental health purposes. Moreover, funding for the EPSDT

3 is required as a condition of California’s participation in Medicaid and that program will be funded

4 regardless of whether Proposition 1E is adopted by the voters.

5 19.The Elections Code directs the Attorney General to prepare an impartial ballot label and title

6 and summary describing the purpose and effect of each ballot measure presented to the voters. (Elec.

7 Code, §§ 9050-51, 13247, 13280-81.) In SB 19, the Legislature overrode these provisions for each of the

8 measures it is presenting to voters on the May 19 ballot and instead imposed titles and summaries and
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9 ballot labels for each proposed measure that were prepared by the Legislature. (See RJN, Ex. A.) The
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10 Attorney General is prohibited from revising any of these ballot labels or titles and summaries, although

11 he is directed to add a fiscal summary based on the analysis provided by the Legislative Analyst’s Office

12 (“LAO”). (Id.)

13 20.SB 19 directs that the SB 10 shall be presented to the voters as “Proposition 1E” and that the

14 ballot materials for Proposition 1E shall include a specific ballot label and title and summary set forth

15 therein. (Id. at p. xx.) The ballot label required by the Legislature reads as follows :
“MENTAL HEALTH FUNDING BUDGET. Helps balance the state budget and preserve
16 funding for children’s mental health services by providing temporary flexibility in the
Mental Health Services Act to fund the Early and Periodic Screening, Diagnosis, and
17 Treatment Program for children.”
18
The title and summary required by the Legislature reads as follows:
19 ENSURES FUNDING FOR CHILDREN'S MENTAL HEALTH SERVICES. HELPS
BALANCE STATE BUDGET. Guarantees that certain funding intended for mental
20
health programs goes toward mental health services for children. Provides a temporary,
21 two-year flexibility in the Mental Health Services Act (Proposition 63 of 2004) to allow
the state to fund the Early and Periodic Screening, Diagnosis, and Treatment Program for
22 children and young adults under age 21. Guarantees and protects more than $225 million
in flexible funding for mental health programs. Helps balance state budget during this
23 difficult economic time.
24

25 21.On February 26, 2009, the Attorney General’s fiscal summary was added to the ballot label,
26 which reads as follows:

27 Fiscal Impact: State General Fund savings of about $230 million annually for two years
(2009-10 and 2010-11). Corresponding reduction in funding available for Mental Health
28 Services Act programs.

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VERIFIED PETITION FOR5 WRIT OF MANDATE
 1
Petitioners are not challenging the Fiscal Impact provided by the Attorney General; they are only
2
challenging the portion of the ballot label provided in SB 19.
3
22.Also on February 26, 2009, the LAO analysis of Proposition 1E was released. [decide whether
4
to summarize] A true copy of the LAO analysis is attached to Petitioners’ Request for Judicial Notice as
5
Ex. C.
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23.Elections Code section 9051 requires the title and summary prepared by the Attorney General
7
to be a “true and impartial statement of the purpose of the measure” that is “neither an argument, nor be
8
555 Capitol Mall, Suite 1425, Sacramento, CA 95814

likely to create prejudice, for or against the proposed measure.” (Elec. Code, § 9051.) The shorter ballot
9
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label and ballot summary are to be “condensed” versions of the title and summary. (Elec. Code, §§
10
13247, 13280-81.) The requirement that the title and summary be fair and impartial applies equally to
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the Legislature when it assumes the responsibility for preparing the title and summary and ballot
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argument.
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24.This action is brought pursuant to Elections Code section 9092, which provides that this court
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may issue a writ of mandate to prevent the publication of material in the ballot pamphlet that is “false,
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misleading or inconsistent with the requirements of [the Elections Code] or Chapter 8 (commencing with
16
Section 88000) of Title 9 of the Government Code” and Elections Code section 13314, which authorizes
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the Court to issue a peremptory writ of mandate “upon proof . . . that an error, omission, or neglect”
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violates the California Constitution and “that issuance of the writ will not substantially interfere with the
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conduct of the election.” (Elec. Code § 13314(a)(2).)
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25.The title and summary and ballot label imposed by the Legislature for Proposition 1E are not
21
fair and impartial and are likely to create prejudice in favor of the measure in several ways including, but
22
not limited to, the following: They fail to inform the voters that the measure amends Proposition 63 in a
23
way the results in a permanent loss of almost $500 million in Proposition 63 funds. They fail to inform
24
the voters that the result of Proposition 1E will be a reduction in mental health services and instead
25
inaccurately suggest that current services will be maintained. They inaccurately suggest that the Early
26
and Periodic Screening, Diagnosis, and Treatment Program will not be provided unless Proposition 1E is
27
adopted. They inaccurately suggest that Proposition 1E is necessary to provide “flexibility” in the use of
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VERIFIED PETITION FOR6 WRIT OF MANDATE
 1 Proposition 63 funds despite the fact that the State is already legally allowed to borrow such funds.

2 26.The title and summary and ballot label imposed by the Legislature for Proposition 1E also

3 false and/or misleading as those terms are used in Elections Code section 9092.

4 27.Upon information and belief, the non-English translations of the ballot label and title and

5 summary will accurately translate the current English versions imposed by the Legislature, and will

6 require correction or amendment to the same extent the English versions require correction or

7 amendment.

8 28.Petitioners have no other adequate remedy at law and will suffer immediate and irreparable
555 Capitol Mall, Suite 1425, Sacramento, CA 95814

9 injury unless this Court issues a writ of mandate deleting or amending the biased, false and/or misleading
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10 statements as described herein.

11 29.Petitioners are informed and believe, and on that basis allege, that issuance of a writ requiring

12 the amendments and deletions set forth below will not interfere with the printing and distribution of the

13 ballot pamphlet. According to the Secretary of State’s May 19, 2009 California Special Statewide

14 Election Calendar (RJN, Ex. D), the period for public review and legal challenges to any ballot label

15 contained in the Special Election provisions of SB 19 began February 25 and ends March 5, 2009. The

16 period for public review and legal challenges to the remaining ballot materials for the Special Election,

17 including the title and summary, began February 26 and ends March 18, 2009.

18

19 FIRST CLAIM

20 [BALLOT LABEL FOR PROPOSITION 1E]

21 30.Petitioners incorporate paragraphs 1 through xxx of this Petition.

22 31.The Official Ballot Label states, in part, that Proposition 1E:

“MENTAL HEALTH FUNDING BUDGET. Helps balance the state budget and preserve
23 funding for children’s mental health services by providing temporary flexibility in the
Mental Health Services Act to fund the Early and Periodic Screening, Diagnosis, and
24 Treatment Program for children.”
25
32.The Legislature’s ballot label for Proposition 1E required by SB 19 to be provided in the ballot
26
materials mailed to voters for the Special Election is not fair and impartial and constitutes an
27
impermissible use of public funds to attempt to bring about a particular result in an election campaign.
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VERIFIED PETITION FOR7 WRIT OF MANDATE
 1 (Stanson v. Mott (1976) 17 Cal.3d 206.)

2 33.The ballot label for Proposition 1E is also false and/or misleading.

3 34.To ensure neutrality and prevent the ballot label from being false and/or misleading, this Court

4 should replace this statement with the following:

5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

6 35.This suggested language is a fair and accurate reading of Proposition 1E.

SECOND CLAIM
7
[BALLOT TITLE AND SUMMARY FOR PROPOSITION 1E]
8
555 Capitol Mall, Suite 1425, Sacramento, CA 95814

9 36.Petitioners incorporate paragraphs 1 through XX of this Petition.

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10 37.The Official Title and Summary for Proposition 1E is as follows:

ENSURES FUNDING FOR CHILDREN'S MENTAL HEALTH SERVICES. HELPS
11 BALANCE STATE BUDGET. Guarantees that certain funding intended for mental health
12 programs goes toward mental health services for children. Provides a temporary, two-
year flexibility in the Mental Health Services Act (Proposition 63 of 2004) to allow the
13 state to fund the Early and Periodic Screening, Diagnosis, and Treatment Program for
children and young adults under age 21. Guarantees and protects more than $225 million
14 in flexible funding for mental health programs. Helps balance state budget during this
difficult economic time.
15

16 38. The Legislature’s ballot label for Proposition 1E required by SB 19 to be provided in the
17 ballot materials mailed to voters for the Special Election is not fair and impartial and constitutes an

18 impermissible use of public funds to attempt to bring about a particular result in an election campaign.

19 (Stanson v. Mott (1976) 17 Cal.3d 206.)

20 39.The title and summary is also false and/or misleading.

21 40.To ensure neutrality and prevent the title and summary from being false and/or misleading,
22 this Court should replace this statement with the following:

23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
24 41.This suggested language is a fair and accurate reading of Proposition 1E.
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VERIFIED PETITION FOR8 WRIT OF MANDATE
 1 RELIEF

2 WHEREFORE, Petitioners pray that this Court:

3 1. Issue an alternative writ of mandate compelling Respondent to amend the ballot label and

4 title and summary for Proposition 1E or, in the alternative, to show cause before this Court at a

5 specified time why Respondent has not done so;

6 2. Issue a peremptory writ of mandate commanding Respondent to amend the ballot label

7 and title and summary for Proposition 1E as set forth above, and to conform any translations of these

8 materials to the changes ordered by this Court;

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9 3. Award Petitioners attorneys’ fees and costs incurred in connection with this matter; and
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10 4. Grant other such and further relief as the Court may deem necessary.

11

12 Dated: February ____, 2009

Respectfully submitted,
13

14 OLSON HAGEL & FISHBURN LLP

Deborah B. Caplan
15 Lance H. Olson
Richard C. Miadich
16

17 By: ____________________________________
18 DEBORAH B. CAPLAN
Attorneys for Petitioners XXXXXXXXX
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VERIFIED PETITION FOR9 WRIT OF MANDATE
 1 /var/www/apps/scribd/scribd/tmp/scratch2/15263377.doc

2 VERIFICATION

4 I, JIM HARD, declare that I am the Petitioner herein.

6 I have read the foregoing PETITION FOR WRIT OF MANDATE and know the contents thereof.

7 The same is true of my own knowledge, except as to those matters which are herein alleged on

8 information and belief, and as to those matters, I believe them to be true.

555 Capitol Mall, Suite 1425, Sacramento, CA 95814

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10 I declare under penalty of perjury under the laws of the State of California that the foregoing is

11 true and correct.

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Dated: August ____ , 2005 _______________________________________
13 JIM HARD
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VERIFIED PETITION FOR10WRIT OF MANDATE