Alameda County Defendants' Request for Judicial Notice and ...

I1I II IRICHARD E. WlNNlE [68048]County CounselBy: RICHARD R. KARLSSON [71421]Chief Assistant County CounselBy: DONNA R. ZIEGLER [I424151Assistant County CounselBy: NANCY E. FENTON [73343]Deputy County CounselOffice of County Counsel. County of Alameda1221 Oak Street, Suite 450Oakland, California 94612Telephone: (51 0) 272-6700Attorneys for Sheriff Charles C. Plummer andDistrict Attorney Thomas J. OrloffSUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF ALAMEDA, NORTHERN DIVISIONU.S. POST OFFICE BUILDINGCLIFF GARDNER. DRUG POLICY ALLIANCE. 1and CALIFORNIA'SOCIETY OF ADDICTIONMEDICINE,Plaintiffs,1ARNOLD SCHWARZENEGGER, Governor ofthe State of California; BILL LOCKYER, AttorneyGeneral of the State of California; BRUCEMcPHERSON, Secretary of State of the State ofCalifornia; THOMAS J. ORLOFF, AlamedaCounty District Attorney; and CHARLES C.PLUMMER, Alameda County Sheriff,Defendants.1Case No.: RG06-278911DEFENDANTS SHERIFF CHARLESC. PLUMMER'S AND DISTRICTATTORNEY THOMAS J. ORLOFF'SREQUEST FOR JUDICIAL NOTICEAND OPPOSITION TO PLAINTIFFS'APPLICATION FOR PRELIMINARYINJUNCTIONDate: September 14, 2006Time: 10:OO a.m.Dept: 31Honorable Winifred SmithFee Exempt: Gov Code § 26857County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911

PROOF OF SERVICESuperior Court Case No. RG06-2789111I, the undersigned, say:I am employed in the County of Alameda, State of California, over the age of 18 years andI15 !I not a party to the within cause. My business address is 1221 Oak Street. Suite 463, Oakland, CAOn the date listed below, I served a true and accurate copy of the documentk entitled:118 DEFENDANT SHERIFF CHARLES C. PLUMMER'S AND DISTRICT ATTORNEYTHOMAS J. ORLOFF'S REQUEST FOR JUDICIAL NOTICE AND OPPOSITIONTO PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION9on the party(ies) in this action by placing said copy(ies) in a sealed envelope each addressed asfollows:BILL LOCKYERJONATHAN WEISSGLASSAttorney General of the State of California STACEY M. LEYTONLOUIS R. MAUROALTSHULER, BERZON, NUSSBAUM ET ALSenior Assistant Attorney General 177 Post Street, Suite 300CHRISTOPHER E. KRUEGER San Francisco, CA 94108Supervising Deputy Attorney GeneralKATHLEEN A.LYNCHDaniel N. AbrahamsonDeputy Attorney GeneralTheshia Naidool Tamar Todd1300 1 Street Drug Policy AllianceP.O. Box 944255819 Bancroft AvenueSacramento, CA 94244-2550 Berkeley, CA 94710BY MAIL: I caused such envelope with postage thereon fully prepaid and to be placed inthe United States mail, in the City of Oakland, California.BY PERSONAL SERVICE: I caused such envelope to be delivered by hand on the oficelsof the addresseels.BY FEDERAL EXPRESS OR EXPRESS MAIL: I caused such envelope to be deliveredto an overnight courier service for overnight delivery to the officels of the addresseels.BY FACSIMILE: I caused a copy of such document to be sent via facsimile transmissionto the oficels of the addresseels.25 1I declare under penalty of perjury that the foregoing is true and correct and that thisdeclaration was executed at Oakland, California, on Auaust 18,2006

I RICHARD E. WlNNlE [68048]Countv CounselBy: R~CHARD R. KARLSSON [71421]Chief Assistant Countv CounselBy: DONNA R. ZIEG~ER [I424151Assistant County CounselBy: NANCY E. FENTON 1733431Deputy County CounselOffice of County Counsel, County of Alameda1221 Oak Street, Suite 450Oakland, California 94612Telephone: (510) 272-6700AUG 1 4 2008Attorneys for Sheriff Charles C. Plummer andDistrict Attorney Thomas J. OrloffSUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF ALAMEDA, NORTHERN DIVISIONUS. POST OFFICE BUILDINGCLIFF GARDNER, DRUG POLICY ALLIANCE,and CALIFORNIA SOCIETY OF ADDICTIONMEDICINE,Plaintiffs,ARNOLD SCHWARZENEGGER, Governor ofthe State of California; BILL LOCKYER, AttorneyGeneral of the State of California; BRUCEMcPHERSON, Secretary of State of the State ofCalifornia; THOMAS J. ORLOFF, AlamedaCounty District Attorney; and CHARLES C.PLUMMER, Alameda County Sheriff,Case No.: RG06-278911DEFENDANTS SHERIFF CHARLESC. PLUMMER'S AND DISTRICTATTORNEY THOMAS J. ORLOFF'SDEMURRER TO PLAINTIFFS' CLIFFGARDNER, ET. AL COMPLAINT ANDMEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORTTHEREOF [C.C.P. §§ 430.10(e) AND430.1 O(d)]Date: September 14, 2006Time: 9:00 a.m.Dept: 31Honorable Winifred SmithFee Exempt: Gov Code § 26857Reserved #: 622598(1 County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911

TABLE OF CONTENTS'able of Contents ....................................................................................................... i. .'able of Author~t~es ..................................................................................................................... iiIntroduction ........................................................................................................................ 1' Grounds for Demurrer ............. . 1I. Statement of Facts (Summary of Complaint) .......... ............................................... 1J. County Defendants Grounds for Demurrerand Memorandum of Points and Authorities ............................ ........................................... 4Plaintiffs have failed to allege fads of any irreparable harm byCounty Defendants to Plaintiffs and therefore have failed to statea cause of action for injunctive relief under C.C.P. § 430.10(e) .................................. 4In their Constitutional Challenge to SB 1137, Plaintiffs have failedto allege facts that County Defendants, public officials, haveapplied or have threatened to apply SB 1137 in Alameda Countyand thus Plaintiffs have failed to state a cause of action forinjunctive relief under C.C.P. 5 430.10(e) ................................................................... 6County Defendants are improperly joined in this ConstitutionalChallenge to SB 1137, having never applied the statute andtherefore having no common issue of law or fact arising outof the same transaction with State defendants; they should bedismissed pursuant to C.C.P. 5 43O.lO(d) ................................................................ 10Assuming Plaintiffs seek to establish taxpayer standing underC.C.P. 526(a), they fail to allege facts sufficient to meet the taxpayerstanding requirements under C.C.P. § 430.10(e) ........................................... 11. Conclusion ....................................................... ..... ............,..,...,....................................... 12:ounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911i

TABLE OF AUTHORITIESSTATE CASES'978 Corporation v . Pitchess (1 974) 41 Cal.App.3d 42 ............................................................ 5llfaro v . Terhune (2002) 98 Cal.App.4th 492 ................ ......................................................... 7ltlantic Richfield Co . v . Superior Court (1 975) 51 Cal.App.3d 168 ............................................ 10:ity of Santa Monica v . Superior Court (1964) 231 Cal.App.2d 223 ............................................ 6.,ohen v . Board of Supervisors (1986) 178 Cal.App.3d 447 .................................................... 5. 7>aar v . Yellow Cab Co . (1967) 67 Cal.2d 695 ............................................................................ 5IeHaviland v . Warner Brothers Pictures (1 944) 67 Cai.App.2d 225 ........................................ 6IeMoff v . Board of Police Commissioners (1 981) 122 Cal.App.3d 296 ....................................... 6- .-rske v . Gillespie (1 988) 200 Cal.App.3d 1243 ........................................................................... 8Solden Gate Sightseeing Tours v . City and County of San Francisco(1937) 21 Cal.App.2d 582 ............................................................................................... 5{art v . County ofAlameda (1999) 76 Cal.App.4th 766 ................................................................ 5ioag v . Superior Court (1962) 207 Cal.App.2d 61 1 .................................................................. 10.each v . City of San Marcos (1 989) 213 Cal.App.3d 648 ............................................................ 4. evy v . City of Santa Monica (2004) 114 Cal.App.4th 1252 ........................................................ 4Manchel v . County of Los Angeles (1966) 245 Cal.App.2d 501 .................................................. 6Varin v . Jacuzzi (1 964) 224 Cal.App.2d 549 ............................................................................... 5bcific Legal Foundation v . Brown (1981) 29 Cal.3d 168 ........................................................ 8. 9#chess v . Superior Court (1 969) 2 Cal.App.3d 644 ................................................................... 7robe v . City of Santa Ana (1 995) 9 Cal.4th 1069 .................................................................... 7, 8rorres v . Yorba Linda (1993) 13 caL~pp.4'~ I 035 .................................................................... I1STATESTATUTES:ivil CodeSection 3423(d) ................................................................................................................ 6, 7Section 3423(f) ........................... ..................................................................................... 1:ode of Civil ProcedureSection 379(a) ..................................................................................................................... 10Section 389(a) ..................................................................................................................... 10Section 389(a)(l)(ii) ............................................................................................................. I0:ounty Defendants' Demurrer to Plaintiffs' Complaint I Case No . RG06-276911ii

Section 430.1 O(d) .......................................................................................................... 10, 11Section 430.10(e) ................................................................................................... I , 4, 6, I Section 526(a) ........................................................................................................ I, 4, 8, I Section 526(b) ................................................................................................................... 6, 7Section 526(b)(4) ................................................................................................................... IGovernment CodeSection 26500 ....................................................................................................................... 2Section 26605 ........................ ................................................................................................2County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RGO6-278911iii

I. INTRODUCTIONThis demurrer is brought by County Defendants Thomas J. Orloff, Alameda CountyDistrict Attorney, and Charles C. Plummer, Sheriff of Alameda County (hereinafter "CountyDefendants"), in response to a taxpayer action (C.C.P. § 526(a)) filed by Plaintiffs Cliff Gardner,Drug Policy Alliance and California Society of Addiction Medicine (hereinafter "Plaintiffs")against (i) Arnold Schwarzenegger, Governor of the State of California, (ii) Bruce McPherson,Secretary of the State of California, and (iii) County Defendants. The Complaint is for injunctiveand declaratory relief and alleges four causes of action, only the first of which is assertedagainst County Defendants. The basic contention of the Complaint is that SB 1137, adopted bythe California Legislature and signed into law by Governor Schwarzenegger, is unconstitutionalas it violates Proposition 36, a Constitutional Amendment adopted by the voters in November of2000. The first cause of action alleges that: "[a] temporary restraining order and preliminaryinjunction are necessary because, among other things, placing non-violent drug offenders injails (i) will likely result in earlier release of more serious offenders from overcrowded jails, (ii)causes harm to their drug treatment and lives, and (iii) wastes taxpayer money. Non-violentdrug offenders will be subject to jail immediately after SB 1137 takes effect."II.GROUNDS FOR DEMURRERCounty Defendants demur on the grounds that the first cause of action fails to state factssufficient to constitute a cause of action against the County Defendants (C.C.P. § 430.10(e))and that County Defendants cannot be properly joined in this action because Plaintiffs have notalleged that they have a right to relief against County Defendants arising out of the sametransaction or occurrences, or that there exists a common question of law or fact. (C.C.P. §430.10(d) Additionally, the relief sought, to enjoin public officials from exercising their functionsin a lawful manner, is improper as applied in this case. (See C.C.P. § 526(b)(4) and Civ. Code§ 3423(fNIll.STATEMENT OF FACTS (Summaw of Complaint)Plaintiffs' Complaint states, 'On July 12. 2006, Governor Arnold Schwarzenegger signedSenate Bill 1137, which purports to amend Proposition 36 by, among other things, authorizingCounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 1

1 incarceration of individuals on Proposition 36 probation who commit a first or second drug-related probation violation. SB 1137, thus, unconstitutionally seeks to amend Proposition 36 ina manner contrary to the will of the voters. Plaintiffs seek declaratory and injunctive relief,including the invalidation of SB 11 37." (Complaint, p. 1:ll-15) "Plaintiff Cliff Gardner lives inAlameda County, California. Plaintiff was listed as the official proponent of Proposition 36 whenit was submitted to the California Secretary of State. Plaintii Gardner pays taxes in AlamedaCounty." (complaint, p. 1:17-19) "Plaintiff Drug Policy Alliance is a voluntary association thatadvocates for drug policies ... Plaintiff Drug Policy Alliance has an office in the County ofAlameda." (complaint, p. 1:20-22) "Plaintiff California Society of Addiction Medication (CSAM)... is a specialty society of physicians founded in 1973. CSAM represents 400 Californiaphysicians who specialize in the treatment of substance abuse." (Complaint, p. 1:23-26)"Defendant Thomas J. Orloff is sued in his official capacity as the Alameda County DistrictAttorney. Defendant Orloff has authority to prosecute persons accused of crimes in AlamedaCounty pursuant to Government Code Section 26500 and Alameda County Charter Section2.26.030." (Complaint, p. 2:12-15) "Defendant Charles C. Plummer is sued in his officialcapacity as the Alameda County Sheriff. Defendant Plummer has authority over the AlamedaCounty jail and the prisoners in it pursuant to California Government Code Section 26605 andAlameda County Charter Section 2.56.030." (Complaint, p. 2:16-18)Plaintiffs cite extensively from both Proposition 36 and SB 1137 in support of theirposition that SB 1137 conflicts with Proposition 36. For example, the Ballot Measure Summaryexplains that Proposition 36 "[rlequires probation and drug treatment, not incarceration," forcertain drug crimes ... and the analysis by the Legislative Analyst explains that drug offenders"would receive treatment and supervision in the community, rather than being sent to prison orjail or S~pe~iSed in the community, generally without drug treatment." (Complaint, p. 2:10-17)Plaintiffs' Complaint, however, makes clear that the mandate of Proposition 36 is toward thecourt, not the County Defendants. "Proposition 36 mandates probation and participation in adrug treatment program for all persons convicted of non-violent drug prevention offenses andprovides that '[a] court may not impose incarceration as a condition of probation." (Complaint, p.County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 2

219-21). The Plaintiffs continue by asserting that under Proposition 36 that a drug offender "...may have his or her probation revoked if the court finds that the probation violation ... [by thedrug offender] ... is proved ... " (Complaint, p. 4:23-26)In contrast, Plaintiffs argue that SB 1137 modified Proposition 36's provisions byallowing that: "... SB 1137 authorizes a courtto impose jail sanctions ..." (emphasis added,Complaint, p. 5:20-22) and further "[ilf a second drug-related violation is proved but probation isnot revoked, SB 1137 authorizes a court to impose jail sanctions ..." (emphasis added,Complaint, p. 527-28). Plaintiffs further allege that "SB 1137 authorizes courts to remand thedefendant into custody for up to 30 days [and]... if a court keeps the defendant on Proposition36 probation, the court may impose jail sanctions ..." (emphasis added, Complaint, p. 6:4-7)"Additionally, SB 1137 authorizes courts to exclude certain defendants from Proposition 36probation ..."(emphasis added, Complaint, p. 6:14-15) Finally, Plaintiffs' assert that SB 1137will cause irreparable harm (Complaint, p. 7.:4), but they fail to allege how such harm would becaused to these Plaintiffs or how such harm could possibly be caused to themselves by CountyDefendants. Indeed, other than being named as parties, County Defendants are otherwisenever even mentioned in Plaintiffs' Complaint, Points and Authorities or Declarations.Plaintiffs allege that," ... incarceration that will result under SB 1137 - incarceration that isprohibited by the terms of Proposition 36 -will itself constitute irreparable injury to unnameddrug offenders," yet utterly fail to assert how this harm would be caused to them by CountyDefendants. (Complaint, p. 7:8-15) Indeed, Plaintiffs' prayer for relief in the Complaint (p.10:6-8) requests "[a] temporary restraining order, preliminary injunction, and permanentinjunction restraining Defendants from implementing, enforcing, or giving effect to any of theprovisions of SB 1137 because certain of them are unconstitutional ...," yet Plaintiffs fail toallege facts that assert that County Defendants have or are "implementing, enforcing or givingeffect to any of the provisions of SB 1137."Ill//I111County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 3

IV.COUNTY DEFENDANTS GROUNDS FOR DEMURRER ANDMEMORANDUM OF POINTS AND AUTHORITIES1. Plaintiffs have failed to allege facts of any irreparable harm by CountyDefendants to Plaintiffs and therefore have failed to state a cause of actionfor injunctive relief, under C.C.P. 5 430.10(e).This action is illogical and unwarranted as to County Defendants because none of thelamed Plaintiffs, or even their declarants, assert that he or she is a non-violent drug offendervho is about to be prosecuted or is otherwise threatened to be placed in the County jail by the:ounty Defendants under SB 1137. Though the Plaintiffs allege harm to their pocketbooks will)e caused by the waste of tax dollars (but fail to allege that they will have to pay any greateraxes) by the incarceration of non-violent drug offenders, they fail to allege that the County3efendants -- named in their official capacities as elected district attorney and sheri - have?ither adopted SB 1137 or have threatened to enforce it against the named Plaintiffs.4dditionally, there are no facts alleged that either of the two County Defendants, unlike the:ourts, has the ability to incarcerate or place "non-violent drug offenders in jail". Indeed,'laintiffs' Complaint makes clear that under both Proposition 36 and SB 11 37 incarceration is athe discretion of the California courts. The sole alleged basis for relief against CountyIefendants is that Petitioners are taxpayers and, under C.C.P. 5 526(a), that they can assert;ome waste of taxpayers' funds as a result of the implementation of SB 1137; that bare claimalone, however, is insufficient for relief against County Defendants. "Nowhere in the Complaint)r elsewhere has ...[ taxpayer] ... asserted any threat or injury to himself personally from thexdinance. His interest appears to be limited to his taxpayer's pocketbook, an interest which is;ufficient to confer statutory standing to maintain ...[ an action under section 526(a)] ... but to~hich to our knowledge has never been a substitute for the high degree of existing orhreatened injury required for prejudgment injunctive relief." (Citations omitted, Leach v. City ofSan Marcos (1 989) 213 Cal.App.3d 648-662).A fundamental basis for declaratory relief is that an actual, present controversy existsIver a proper subject. (Levy v. City of Santa Monica (2004) 114 ~al.~pp.4* 1252-1259):ounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 4

Indeed, Plaintiffs' Complaint and Memorandum are replete with factual allegations that,pursuant to SB 1137, only the courts may now place non-violent drug offenders in jail. It isaxiomatic that, to state a cause of action against defendants named in a complaint, one mustShow how that defendant is responsible for the damages alleged. (Hart v. County ofAlameda(1999) 76 Cal.App.4m 766-776).One of the fundamental requirements of a cause of action for a preliminary injunction isa showing that either existing or threatened irreparable harm caused by the named defendantsexist. (7978 Corporation v. Pitchess (1974) 41 Cal. App.3d 42) Indeed, Plaintiffs herein are notentitled to interim relief against County Defendants because they have never set forth factsclaiming immediate, actual or threatened harm to themselves as a result of actions by CountyDefendants. (Cohen v. Board of Supervisors (1986) 178 Cal.App.3d 447-453) Instead, theyhave alleged that they may be harmed as a result of unnamed, non-violent drug offenders, whomay be sent to jail by the courts and, as a result, counties may have to expend greater taxrevenues. To support this contention, Plaintiffs rely upon declarations that cite experiences incounties other than Alameda County. (See Plaintiffs' Declarations to Complaint)While such declarations may support the potential likelihood that incarceration mayoccur in some jurisdictions, such contentions fail to state facts to support an action fordeclaratory relief against County Defendants. It is well settled that while a demurrer admits allmaterial and issuable facts properly pled, it does not admit contentions, deductions andconclusions of fact or law alleged therein. (Marin v. Jacuzzi (1964) 224 Cal.App.2d 549-552,Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695-713) General statements, without supportingdetails or specifications, that complainant will be subject to great expense through the paymentof additional taxes by acts sought to be enjoined is not an adequate basis for relief on groundsof irreparable damages. (Cohen, supra, p. 454).In the instant case, Plaintiffs' allegations are wholly speculative; they cite no actual.pending, or threatened actions by County Defendants that may lead to the damages alleged.Prospective applications of statutes believed to be unconstitutional to Plaintiffs are not ripe foradjudication. (Golden Gate Sightseeing Tours v. City and County of San Francisco (1937) 21County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 5

In this case, this is particularly true since the statute in question, SB 1137, was onlyadopted on July 12, 2006, and Plaintiffs on the very next day, July 13", obtained an ex parteTRO (without adequate notice to Defendants) to prevent its application in Alameda County.Accordingly, as Plaintiffs' standing is that of taxpayers alone, with only highly speculativedamages to their pocketbooks, and no facts to support that SB 1137 has been implemented inAlameda County, County Defendants' and their demurrer should be sustained.2. In their Constitutional Challenge to SB 1137, Plaintiffs have failed to allegefacts that County Defendants, public officials, have applied or havethreatened to apply SB 1137 in Alameda County and thus Plaintiffs havefailed to state a cause of action for injunctive relief, under C.C.P. 5430.1 O(e).'Trial courts should be extremely cautious, and even hesitant and reluctant when askedto enjoin law enforcement officials ... [from enforcing the law] ... with all presumptions favoringthe validity and constitutionality of the enactment of the legislative bodies. It should only beunder extraordinary circumstances that anyone challenging the validity of such a law should begranted immediate relief ...[ nlormally the requirement of a showing of irreparable injury shouldbe applied strictly when preliminary injunction is sought to thwart the enforcement of ...[ laws] ...which are presumed lawful prior to any effective decision to the contrary." (See C.C.P. 5 526(b)and Civ. Code § 3423(d) and City of Santa Monica v. Superior Court (1964) 231 Cal.App.2d223-226, and DeMoff v. Board of Police Commissioners (1981) 122 Cal.App.3d 296-300) "Apreliminary injunction will not lie to restrain the commission of acts when no similar acts havebeen committed in the past, none are threatened in the future and it reasonably appears thatthey will not be committed in the future." (DeHaviland v. WarnerBros. Pictures (1944) 67Cal.App.2d 225) 'As a general rule, a court acts in excess of its jurisdiction if it attempts toenjoin the enactment or enforcement of a public statute." (Manchel v. County of Los Angeles(1966) 245 Cal.App.2d 501-506).While there are numerous cases in which injunctive relief was properly pled for thethreatened or actual enforcement of a statute specifically determined to be invalid or1 I County Defendants' Demurrer to Plaintiffs' Com~laint I Case No. RG06-27891 1 6

unconstitutional, as of this point such a legal determination has not been made regarding SB1137. There is no authoriy where, as here, County Defendants have not threatened theenforcement of SB 1137 against any named party. And further, even if Plaintiffs had so alleged,generally an injunction will not be granted to protect a person from prosecution for allegedcommission of a criminal offense since the court has jurisdiction over criminal offenses and is'the proper forum in which such questions must be determined. (See Pitchess v. Superior Court(1969) 2 Cal.App.3d 644-648, a case in which it was alleged that a constitutional statute wasbeing unconstitutionally applied to the owners of a bar.)The case of Alfaro v. Terhune (2002) 98 ~al.App.4'~ 492-kiO1,cites the four situationswhere public officials may be enjoined from enforcing a public statute by officers of the law for apublic benefit, as exceptions to C.C.P. 5 526(b) and Civ. Code § 3423(d). Those exceptionsare: "(i) where the statute is unconstitutional and there is a showing of irreparable harm to thenamed plaintiffs by defendants, (ii) where the statute is valid but enforced in an unconstitutionalmanner, (iii) where the statute is valid but, as construed it does not apply to the plaintiff and (iv)where the public authorities' actions exceed his or her authority." In the instant case, Plaintiffshave alleged that SB 1137 is unconstitutional under the first exception, but they have utterlyfailed to state facts that show irreparable harm to them as a result of any alleged CountyDefendants' actions. Indeed, they have not even alleged facts to establish that such an actionis either imminent or threatened as to Plaintiffs. (See Cohen, supra, p. 453)More importantly, as set forth by the Supreme Court in Tobe v. City of Santa Ana (1995)9 Ca1.4'~ 1069, there are only two theories under which one may attack the constitutionality of astatute or ordinance. The first is a "facial" challenge, asserting that the statute on its face isunconstitutional. The second theory is that the statute, "as applied", is unconstitutional. In thelatter instance, the Supreme Court has been clear that an "as applied" challenge contemplatesthe analysis of facts in a particular situation that either are occurring or have been applied in thepast. (Tobe, supra, p. 1084) No such facts have been - or can be - alleged in this case as thestatute at issue, SB 1137, was just recently enacted by the Legislature and signed by theGovernor on July 12,2006. (See Complaint, p. 2, v) This Court issued a TRO the very nextCounty Defendants' Demurrer to Plaintiffs' Complaint I Case NO. RG06-278911 7

day preventing application of SB 1137 in Alameda County. While Plaintiffs have alleged generalfears they harbor if implementation of SB 1137 occurs, such as the overcrowding of jails andother potential problems, they have failed to allege any specific factual situation where thestatute has been applied or is about to be applied by the County Defendants.The Plaintiffs herein, only two of whom have any alleged connection whatsoever withAlameda County, have brought this as a taxpayer action pursuant to C.C.P. § 526(a). However,they fail to cite any pending acts in the County of Alameda that would cause any immediateharm to them as taxpayers, in Alameda County, as a result County Defendants' actions withregard to SB 1137. Indeed, they can only speculate as to what they allege "will likely result"(Complaint, p 8:8-9) if County Defendants implement SB 1137 in a manner that theyhypothesize. Such speculation is insufficient to establish a legal basis for a dispute with CountyDefendants. "The courts of this state are not empowered to render advisory opinions to satisfythe curiosity of parties motivated by reasons ulterior to the resolution of an actual dispute. Hererespondents do not claim to have an actual dispute with appellant (or anyone else). ...[ tlhisaction is merely a general challenge to the statute, posed in a vacuum; no specific application ofthe statute is involved." (Fiske v. Gillespie (1988) 200 Cal.App.3d 1243-1246)Wthout any real parties in interest who are presently threatened with the application ofthis statute by the named County Defendants, under the standard of Tobe, supra, p. 1084, thePlaintiffs' Complaint is in reality solely a facial challenge to the constitutionality of SB 1137.The Supreme Court, in the case of Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168-180, described such a purely facial challenge as a heavy burden to prove. "Unlike the federalConstitution, which is a grant of power to Congress, the California Constitution is a limitation orrestriction on the power of the Legislature. Two important considerations flow from this fact.First, the entire lawmaking authority of the state, except the people's right of initiative andreferendum, is vested in the Legislature, and that body may exercise any and all legislativepowers which are not expressly, or by necessary implication denied to it by the Constitution.Secondly, all intendments favor the exercise of the Legislature's plenary authority: 'If there isany doubt as to the Legislature's power to act in any given case, the doubt should be resolvedCounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 8

in favor of the Legislature's action.' Such restrictions and limitations ... bmposed by theConstitution]. .. are to be construed strictly, and are not to be extended to include matters notcovered by the language used." (Citations omitted, italics in original, Pacific Legal Foundation,supra, pp. 180-181) Indeed, in this facial challenge to SB 1137, County Defendants areunnecessary parties because the only legal question is whether SB 1137, when compared toProposition 36, is a proper legislative action.Plaintiffs, no doubt recognizing their heavy burden to prove a facial challenge, wouldinstead prefer this Court to construe their complaint as "an applied" challenge and thereforehave named the County Defendants and attempted to create "an applied" factual situation - butwithout asserting necessary underlying facts of "application". As set forth by the Supreme Courtin Pacific Legal Foundation, however, the Plaintiffs may not attempt a facial challenge and then,to avoid its heavy burden, make an end run demands its high burden via a manufactured"applied challenge." "To support a determination of facial unconstitutionality voiding the statuteas a whole, plaintiffs cannot prevail by suggesting that in some hypothetical situationconstitutional problems may possibly arise as to the particular application of the statute ....Rather [the plaintiffs] must demonstrate that the act's provisions inevitably pose a present totaland fatal conflict with applicable constitutional prohibitions." (Pacific Legal Foundation, supra,pp.180-1B1) The prohibition outlined by the Supreme Court in Pacific Legal Foundation isprecisely what Plaintiffs have attempted to do by naming County Defendants and this Courtshould not sanction their attempt to do so.As SB 1137 was adopted on July 12'h and the TRO issued July 13th, there would be nopending cases in Alameda County, and more importantly, none has been identified by thePlaintiffs. Perhaps if the Plaintiff had waited to file their action until such time as a real party innterest came forward with facts of an "as applied" challenge, they would have more than their>resent facial challenge to present to the court. Plaintiffs, having chosen to move forward withtheir action now, have failed to state a factual cause of action against County Defendants.VI'I1Zounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 9

3. County Defendants are improperly joined in this Constitutional Challengeto SB 1137, having never applied the statute and therefore having nocommon issue of law or fact arising out of the same transaction with Statedefendants, they should be dismissed pursuant to C.C.P. Cj 430.10(d).As set forth above, Plaintiffs' challenge to the statute is a facial attack upon the:onstitutionality of SB 1137 and they have alleged no facts against County Defendants to allowhem to be properly joined in this case. Joinder, under C.C.P. 5 379(a), is improper where'laintiffs fail to allege that they have a right of relief as to each defendant arising out of the;ame transaction or occurrence, or that they have a right adverse to each defendant in thenatter which is a subject of the controversy. (Hoag v. Superior Court (1 962) 207 Cal.App.2dj11, 618-620)Plaintiffs herein have alleged that the Legislature's adoption of SB 1137 and theSovernor's signing of same were unconstitutional in light of Proposition 36. As set forth aboven detail, however, this facial challenge to the constitutionality of SB 1137 has no common~uestion of law or fact in regard to County Defendants. County Defendants did not participate inhe adoption of SB 1137 and no such facts have been alleged. Plaintiffs, as set forth above,lave asserted no factual allegations that SB 11 37 has been applied to anyone in Alameda>ounty, named or unnamed, by County Defendants. Under C.C.P. § 389 (a)(l)(ii), if the CountyIefendants are forced to remain in this case, other county district attorneys and sheriffs must beoined as well because otherwise County Defendants would incur increased obligations, such aslefense costs and potential liability for attorneys' fees, that are not being shared by other:omparable, unnamed defendants. "A person who is subject to service of process whose~inder will not deprive the court of jurisdiction over the subject matter of the action shall beoined if (1) in his absence complete relief cannot be accorded among those already parties orii) leave any of the persons already parties subject to a substantial risk of incurring double,nultiple, or otherwise inconsistent obligations by reason of his claims interest. If he has not)een so joined, the court shall order that he be made a party." (Emphasis added, C.C.P. 5)89(a). (See also, Atlantic Richfield Coo v. Superior Coufl(l975) 51 Cal.App.3d 168, 176, a:ase concerning multiple rights to oil leases and only Atlantic Richfield Co. being named:ounty Defendants' Demurrer to Plaintiffs' Complaint 1 Case No. RGD6-278911 10

defendant). For the foregoing reasons, County Defendants' joinder in this action is improperand County Defendants' demurrer should be sustained under C.C.P. § 430.10(d).4. Assuming Plaintiffs seek to establish taxpayer standing under C.C.P. 5526(a), they fail to allege facts sufficient to meet the taxpayer standingrequirements under C.C.P. 5 430.10(e).If, in fact, the bare allegations of the Complaint are read to assert standing as a taxpayerunder C.C.P. § 526(a), Plaintiffs have failed to state facts sufficient to meet the taxpayerstanding requirements.The Complaint states only that, "Plaintiff Cliff Gardner lives in Alameda County,California," and "pays taxes to the State of California and the County of Alameda." (Complaint,p. 1:17-19) The Complaint makes no factual allegations regarding the payment of taxes byPlaintiff Drug Policy Alliance or Plaintiff California Society of Addiction Medicine. As to PlaintiffDrug Policy Alliance, the Complaint merely stets that Drug Policy Alliance "has an office in theCounty of Alameda;" and as to California Society of Addiction, the Complaint makes noreference to any connection between it and the County of Alameda. (Complaint, p. 1:22-27, p.IISection 526(a) allows certain lawsuits against cities and counties "either by a citizenresident therein, or by a corporation, who is assessed for and is liable to pay, or, within one yearbefore the commencement of the action, has paid, a tax there." (C.C.P. § 526(a)) In Torres v.Yorba Linda (1993) 13 Ca1.App.4'~ 1035, 1048, the court held that payment of sales tax alonedoes not suffice to meet the taxpayer standing requirements of section 526(a). Here, Plaintiff11 Cliff Garner merely alleges he 'pays taxes to the State of California and the County ofAlameda." The Complaint does not allege that Cliff Garner has paid or been "assessed for"property taxes or other local taxes, as required by section 526(a). And it is entirely unclear fromthe Complaint which kind of taxes -sales, property, or other local taxes -Cliff Gardnerallegedly has paid. As to the other Plaintiffs, the Complaint makes no allegations with regard totheir payment of taxes to the County of Alameda whatsoever. Therefore, assuming Plaintiffsseek to establish taxpayer standing under section 526(a), they have failed to allege necessary11 facts to establish standing in that regard(1 County Defendants' Demurrer to Plaintiffs' Complaint / Case No. RG06-278911 11

V. CONCLUSIONFor the foregoing reasons, and because further amendment would be futile given theiming of Plaintiffs' action, County Defendants respectfully ask that this Court sustain theiriemurrer without leave to amend.IATED: August 11,2006/YLC ' f ~'ssistant County Counselw e y s for Alameda County DistrictAttorney and Alameda County Sheriff2ounty Defendants' Demurrer to Plaintifk' Complaint 1 Case No. RG06-278911 12

I II IDECLARATION OF SERVICEGardner v. Schwarzeneaser, et al.Case No. RG06-27891111I, Carol Phillips, declare that:I am a citizen of the United States, over the age of 18 years and not a party to the withinentitled action. I am employed at the Office of the County Counsel, County of Alameda, 1221Oak Street, Suite 450, Oakland, California 94612-4296.I/On August 14, 2006, I served the following document(s):DEFENDANTS SHERIFF CHARLES C. PLUMMER'S AND DISTRICT ATTORNEY THOMASJ. ORLOFF'S DEMURRER TO PLAINTIFFS' CLIFF GARDNER, ET. AL COMPLAINT ANDMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [C.C.P. 55430.10(e) AND 430.10(d)]11 on the following parties:Jonathan WeissglassStacey M. LeytonAltshuler, Berzon, Nussbaum, Rubin &Demain177 Post Street. Suite 300San Francisco, California 94108Telephone (415) 421-71 51Facsimile (41 5) 362-8064Daniel N. AbrahamsonTheshia NaidooTamar ToddDrug Policy Alliance819 Bancrofi WayBerkeley, California 94710Telephone (510) 229-521 1Facsimile (51 0) 848-8839[XX] BY MAIL: I caused true and correct copies of the above document(s) to be placed andsealed in an envelope (or envelopes) addressed to the addressee(@ with postage1 thereon fully prepaid, and I further caused said envelope(s) to be placed in the UnitedStates mail, in the City of Oakland, California.nBY FACSIMILE: I caused a copy (or copies) of such document(s) to be sent via facsimiletransmission to the office(s) of the addressee@).BY PERSONAL SERVICE: I caused true and correct copy (or copies) of the abovedocument(s) to be placed and sealed in an envelope (or envelopes) addressed to theaddressee@) and I caused such envelope(s) to be delivered by hand on the office@) ofthe addressee@).0 BY FEDERAL EXPRESS: I caused true and correct copy (or copies) of the abovedocument(s) to be placed and sealed in an envelope (or envelopes) addressed to theaddressee(s) and I caused such envelope(s) to be delivered to Federal Express forovernight courier service to the office(s) of the addressee(s).11I declare under penalty of perjury that the foregoing is true and correct and that thisdeclaration was executed at Oakland. California on Auaust - 14. 2006.LLA-cRQlzadCarol Phillips /DECLARATION OF SERVICE, Case No. RG05-0247232I I