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

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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
Page 1: I1I II IRICHARD E. WlNNlE [68048]Co
Page 4 and 5: I RICHARD E. WlNNlE [68048]Countv C
Page 6 and 7: TABLE OF AUTHORITIESSTATE CASES'978
Page 8 and 9: I. INTRODUCTIONThis demurrer is bro
Page 10 and 11: 219-21). The Plaintiffs continue by
Page 12 and 13: Indeed, Plaintiffs' Complaint and M
Page 14 and 15: unconstitutional, as of this point
Page 18 and 19: defendant). For the foregoing reaso
Page 20: I II IDECLARATION OF SERVICEGardner

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

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