Jerry Brown’s Parole Measure and Politics at the California Supreme Court

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When Gov. Jerry Brown announced plans for a ballot measure aimed at making it easier for nonviolent felons to win parole, he described it this way:

“It’s an amended version of an earlier document that was filed,” Brown told reporters. “And the amendments flow from intense conversation with a host of parties, including law enforcement, district attorneys — several police chiefs, sheriffs — and other groups with a long-term interest in the criminal justice system.”

It was a fairly innocuous statement and it went by without much notice, at least by reporters on the phone call that day. But it did not go unnoticed by the California District Attorneys Association.

“In our entire association history we have never sued the governor,” said Patrick McGrath, Yuba County district attorney and president of the California District Attorneys Association. “That’s how serious we view this particular initiative.”

Merced County DA Larry Morse said there was a reason the governor tried to rush his measure through without consulting district attorneys.

“The governor knew that prosecutors would never support a proposal that would sweep away four decades of statutory and voter-approved public safety laws,” Morse said.

Last month the CDAA sued in Sacramento County Superior Court to stop Attorney General Kamala Harris from signing off on the governor’s amended ballot measure. The lawsuit said the changes are “not an amendment of the prior initiative draft — it’s a completely different and new initiative.”

Judge Shelleyanne Chang agreed, saying Harris abused her discretion when she accepted Brown’s changes. The ruling derailed Brown’s measure, but not for long.

After Chang ruled against him, Brown appealed. With the clock ticking on collecting signatures in time to make the November ballot, Brown cited the matter’s urgency in asking the California Supreme Court to stay the lower court’s ruling and allow the attorney general to issue a ballot title and summary while the high court considers the issue. That’s what the Supreme Court did.

At issue is SB1253, a bill that amended California election law in several ways, including allowing proponents to change their ballot measures before the attorney general issues a title and summary. Brown signed it into law in 2014.

“You know there’s no clear law on the subject,” said attorney James Parrinello, an expert in California election law.

“There’s never been a case like this before,” Parrinello said. “And so I think it (the state Supreme Court) made some time to take a look at it carefully.”

In papers filed with the Supreme Court, Brown argues that the new law was intended to allow proponents to change their ballot measure before they begin collecting signatures — without starting back at the beginning of the process.

But Jessica Levinson, election law professor at Loyola University and president of the Los Angeles City Ethics Commission, isn’t so sure.

“I think if the Supreme Court says that this is not a significant enough change to have to restart the clock, then it blows a pretty significant hole in the law and it really will allow for a number of big changes at the last minute,” Levinson said.

Adding a layer of political intrigue to this — three of the seven Supreme Court justices now reviewing his ballot measure are Brown appointees. And the court’s senior jurist, Chief Justice Tani Cantil-Sakauye, is lobbying Brown and the Legislature to restore money cut from court budgets over the past few years.

California Supreme Court Chief Justice Tani Cantil-Sakauye.
California Supreme Court Chief Justice Tani Cantil-Sakauye. (Paul Sakuma/Pool)

Will any of that color the way these justices view things? Professor Levinson doesn’t think so.

“Look, everybody wants something from Governor Brown or everybody got something from Governor Brown,” Levinson says. “At a certain point, we have to trust judges that they’re going to apply the facts of the law.”

But one retired California judge with decades of experience on the bench isn’t so sure.

“It would be disingenuous to pretend it doesn’t cross the mind of a justice or judge that there could be consequences to one’s own position or electability and to have some sense of regret or concern if it’s the governor who appointed you,” this former judge said, adding it wasn’t unheard of to receive angry phone calls from politicians who didn’t like a particular ruling.

Dan Newman, whose firm SCN Strategies is running the campaign for Brown’s ballot measure, dismissed the idea that politics will interfere with the justices’ decision on this matter.

“We trust the court to uphold the law,” Newman wrote in an email.

Meanwhile the governor’s supporters are out collecting signatures for his ballot measure. And the Supreme Court is likely to act quickly, one way or the other.

No matter what it does, there’s sure to be second-guessing of the court’s decision.

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