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

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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
Page 1: I1I II IRICHARD E. WlNNlE [68048]Co
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Page 6 and 7: TABLE OF AUTHORITIESSTATE CASES'978
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 16 and 17: in favor of the Legislature's actio
Page 18 and 19: defendant). For the foregoing reaso
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Alameda County Defendants' Request for Judicial Notice and ...

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