petition for writ of mandate with exhibits - youth law
TRANSCRIPT
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
KIMBERLY LEWIS (No. 144879) Email: [email protected] RICHARD A. ROTHSCHILD (No. 067356) JENNIFER A. FLORY (No. 239004) WESTERN CENTER ON LAW
& POVERTY, INC. 3701 Wilshire Boulevard, Suite 208 Los Angeles, California 90010 Telephone: 213/487-7211 Facsimile: 213/487-0242
DANIEL BRZOVIC (No. _89493) E-mail: [email protected] ANDREW MUDRYK (No. 249173) SEAN RASHKIS (No.232533) PROTECTION & ADVOCACY, INC. 1330 Broadway, Suite 500 Oakland, CA 94612 Telephone: (510) 267-1200 Facsimile: (510) 267-1201
[See Next Page For Additional Counsel]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
MENTAL HEALTH ASSOCIATION IN CALIFORNIA; CALIFORNIA NETWORK OF MENTAL HEALTH CLIENTS; NATIONAL ALLIANCE ON MENTAL ILLNESS CALIFORNIA; DAWNA MOONEY; ARIANNE HASTINGS; ANDREA MASSINI; MIKHAEL GALL
Petitioners and Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, Governor of California; California Department of Mental Health; STEPHEN W. MAYBERG, Director, California Department of Mental Health; DOES 1-10,
Respondents and Defendants.
No.
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
JAMES PREIS (No. 82690) MENTAL HEALTH ADVOCACY SERVICES 3255 Wilshire Boulevard, Suite 902 Los Angeles, CA 90010 Telephone: 213/389-2077 Facsimile: 213/389-2595
PATRICK GARDNER (No. 208119) Email: [email protected] NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: 510/835-8098 Facsimile: 510/835-8099
Attorneys for all Petitioners
STEVEN L. MAYER (No. 62030) Email: [email protected] REBECCA M. KAHAN (No. 244423) HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: 415/434-1600 Facsimile: 415/217-5910
Attorneys for Petitioners MENTAL HEALTH ASSOCIATION IN CALIFORNIA; CALIFORNIA NETWORK OF MENTAL HEALTH CLIENTS; and NATIONAL ALLIANCE ON MENTAL ILLNESS CALIFORNIA
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
INTRODUCTION
1. In November 2004, the voters of California approved Proposition 63, and
thereby enacted an initiative statute entitled the Mental Health Services Act (“MHSA” or the
“Act” ). The MHSA requires that funds generated by a new tax on high incomes be used
only to supplement existing mental health services, and not to replace funds used to pay for
such services prior to the approval of Proposition 63. To ensure compliance with this
requirement, the MHSA also includes a “maintenance of effort” (“MOE”) provision, which
specifically requires that the State maintain pre-existing levels of support for mental health
programs.
2. Among the programs covered by the MHSA’s MOE provision is the Integrated
Services for Homeless Adults with Serious Mental Illness program (the “Homeless Adults
Program”). This program, which existed at the time the MHSA was enacted, provides
persons with severe mental illness housing, job training, mental health services, and other
supports to enable them to rejoin their communities. Without the Program, Californians
such as the individual plaintiffs would be homeless and without adequate treatment.
Because of the Homeless Adult Program, these plaintiffs now have a roof over their heads,
food on the table, a place to take care of personal hygiene, treatment and supportive services,
and opportunities for education and employment.
3. Despite the voters’ intent to maintain pre-existing mental health programs such as
the Homeless Adults Program and the MHSA’s statutory language safeguarding such
programs against financial cuts, in August 2007 Governor Schwarzenegger eliminated the
program through a line-item veto of all the funds appropriated by the Legislature to support
it. He attempted to justify the veto by stating that the Homeless Adults Program could be
continued by substituting a variety of revenue sources, including funding from the MHSA.
However, the MHSA expressly prohibits the use of MHSA funds to pay for mental health
services existing when that measure was passed, including the Homeless Adults Program.
4. Petitioners are mental health advocacy organizations and individuals who receive
mental health services through mental health programs operated by a county or under
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
contract with a city or county. These individuals depend on critical services provided by the
Homeless Adults Program in order to reside and thrive in their communities. As a result of
Governor Schwarzenegger’s illegal reduction in funding for mental health services,
Petitioners are not only in jeopardy of losing the critical mental health services provided in
the Homeless Adults program, they also will be deprived of the expansion of mental health
services promised by Proposition 63 and required by the MHSA. Approximately 4,700
adults with serious mental illness are likely to lose housing, employment, and other support,
thus destroying the progress they have made in managing their illnesses and reintegrating
into society.
PARTIES
A. Petitioners and Plaintiffs.
5. Petitioner and Plaintiff Mental Health Association in California (“MHAC”) is an
organization providing advocacy, education, information and other assistance to ensure that
all people who require mental health services are able to receive the services that they need,
and are not denied any other benefits, services, rights, or opportunities based on their need
for mental health services. MHAC membership includes persons with mental illness.
MHAC has an interest that the provisions of MHSA be followed in order to expand the level
of mental health services available in California so that its members and other persons with
severe mental illness may benefit from these services.
6. Petitioner and Plaintiff California Network of Mental Health Clients (“California
Network” ) is an organization run solely by consumers of mental health services, whose
membership consists of affiliates and over 1500 individuals throughout the state. The
California Network represents mental health consumers and as such is a critical participant
in all statewide mental health policy processes. The California Network also lends support
to consumer self help and mutual support groups and programs throughout the state. It
provides services to consumers such as trainings, networking, conferences, policy advocacy,
education, and information. The California Network has an interest that the provisions of
MHSA be followed in order to both preserve and expand the level of mental health services
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
available in California so that its members and other persons with severe mental illness may
benefit from these services.
7. Petitioner and Plaintiff National Alliance on Mental Illness California (NAMI
California) is a grass roots organization of individuals and families whose lives have been
affected by serious mental illness. NAMI California provides advocacy, education, and
support throughout California and works to provide a system that offers a continuum of care
for the long-term needs of people with mental illness. NAMI California has an interest that
the provisions of MHSA be followed in order to provide expanded services for persons with
severe mental illness.
8. Petitioner and Plaintiff Dawna Mooney is 51 years old and a resident of Berkeley,
California. She has been diagnosed with a psychiatric disorder that makes it difficult for her
to meet her basic needs, including maintaining housing. She has had long periods of
homelessness since 1992. She was accepted into the Berkeley Homeless Adults Program in
April 2005. Prior to that time she was a resident of a public nursing home in Alameda
County, for about six months, and before that she lived in a homeless shelter. Through the
City of Berkeley’s Homeless Adults Program, she receives supported housing and personal
services coordination (case management services). Because of the supportive services she
receives, she has been able to stop using drugs. As part of her program, she is responsible
for various chores where she lives, such as setting the table for meals and cleaning
countertops, which helps her self esteem. When she was homeless, she was forced to eat out
of garbage cans and had no clothes other than those on her back. The Homeless Adults
Program provided her with shelter, a hot shower, a place to eat, and helped her shop for
clothes. Without the help from this Program she believes she would still be homeless. She
has an interest in seeing that the Homeless Adults Program services be restored and continue
both for herself and for other similarly situated persons.
9. Petitioner and Plaintiff Arianne Hastings is 33 years old and a resident of
Berkeley, California. She was homeless for many years. Due to a psychiatric disorder, she
did not attend school after the sixth grade but at age 18 was able to obtain a GED. She has
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
taken some college classes. She is currently unable to work because she is too disoriented,
disorganized, has trouble staying awake, and sometimes has auditory hallucinations. She
first began receiving mental health services from the City of Berkeley about two years ago.
She began receiving supported housing and personal services coordination (case
management services) under the Berkeley Homeless Adults Program about one year ago.
This is the first program that has helped her get her life together after years of homelessness.
She is currently living in a board and care facility with multiple residents but will be moving
to her own apartment soon. Having stable housing has helped her continue to remain stable
on her psychiatric medications. When she was homeless, she had no water, had no place to
keep up her hygiene, and no place to store her medications. Now that she has stable
housing, she has been able to care for herself. She has become healthier by losing 100
pounds. The program has helped her with grocery shopping and clothes shopping, and will
help her buy furniture for her new apartment. Without this program, she believes she would
still be homeless. Now she plans to attend college and develop the skills she needs to work.
10. Petitioner and Plaintiff Andrea Massini is an enrollee of the Homeless Adults
Program in Long Beach, California. In early 2007, Ms. Massini enrolled in the program as a
homeless adult with a drug and alcohol abuse problem who has been diagnosed with a
psychiatric disorder. While enrolled in the Homeless Adults Program, she has received the
assistance she needed to get an apartment, begun transitional employment, received
treatment for her drug and alcohol abuse and her mental illness, and received additional
supportive services that enabled her to stay employed and off the streets. If she were to lose
those services, she believes she would be homeless again soon. She has an interest in seeing
that the Homeless Adults Program services be restored and continue both for herself and for
other similarly situated persons.
11. Petitioner and Plaintiff Mikhael Gall is a homeless adult male with a history of
drug and alcohol abuse who needs mental health services to control the voices that he hears
in his head. He has been identified by the County of Los Angeles as a good candidate for
the Homeless Adults Program and would have been enrolled, but such program no longer
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
exists. In the meantime, he is waiting to enroll in a MHSA-funded full-service partnership
program. He has an interest in seeing that Homeless Adults Programs are not merely
replaced with MHSA-funded programs so that the Homeless Adults Programs are expanded
to serve him and other similarly situated persons who need the services.
B. Respondents and Defendants.
12. Respondent and Defendant Arnold Schwarzenegger is the Governor of the State
of California. He is sued in his official capacity.
13. Respondent and Defendant California Department of Mental Health (“DMH”) is
the state department responsible for complying with the MHSA with regard to the provision
and funding of mental health services, as well as for overseeing the administration of the
MHSA and ensuring that each county or city mental health program that receives MHSA
funds complies with that statute.
14. Respondent and Defendant Stephen W. Mayberg is the Director of DMH and is
responsible for the direction, supervision, and administration of that department. He is sued
in his official capacity. His duties include supervision and control of the implementation of
MHSA to secure full compliance by both DMH and the county and city mental health
programs that receive MHSA funding.
15. Petitioners and Plaintiffs are presently unaware of the true names and capacities
of defendants sued as DOES 1-10, inclusive, and therefore sue these defendants by such
fictitious names. Petitioners and Plaintiffs will amend this complaint to allege their true
names and capacities when these names and capacities are ascertained. Plaintiffs are
informed and believe and on that basis do allege that each of these defendants is responsible
in some manner for events set forth in this Petition and Complaint.
FACTUAL BACKGROUND
A. The Homeless Adults Program (AB 34/2034).
16. The Homeless Adults Program was implemented in 1999 through the passage of
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
Assembly Bill 34. 1999 Stat., ch. 617. What began as a three-county demonstration project
to provide comprehensive mental health services to mentally ill adults who were homeless or
at risk of becoming homeless was expanded in 2000 to 32 other counties and cities through
the passage of AB 2034. 2000 Stat., ch. 518. These two bills amended significant portions
of the Adult and Older Adult Mental Health System of Care Act (“Adult System of Care” )
found in Part 2 of the Welfare and Institutions Code, beginning with Section 5802.1 Both
bills sought to create comprehensive systems of care for severely mentally ill adults and
older adults so that those adults might avoid homelessness, incarceration, or hospitalization.
See 1999 Stat., ch. 617 & 2000 Stat., ch. 518: Sec. 1 (Findings and Declarations).
17. The Homeless Adults Program, as part of the Adult System of Care, targets adults
with serious mental illness who are homeless, at risk of becoming homeless, recently
released from a county jail or state prison, or who are untreated, unstable, and at significant
risk of incarceration or homelessness unless treatment is provided to them. Services are
provided beyond traditional clinical office-based mental health care and are characterized by
small caseloads; 24-hour, 7-day-a-week availability, field based services, housing and work
first focus. These services include transitional and permanent housing, supported housing,
intensive case management or personal services coordination, assistance in obtaining health
care and services, including mental health services, support in maintaining and improving
family and social relationships, pre-vocational and other employment services, and various
other interventions necessary to maintain housing and improve life such as providing
security deposits, furniture, food, clothing and financial assistance and services not provided
by other programs. The program includes the flexibility to provide and pay for whatever it
takes to support the success of the person receiving the care and services in the community.
See Ex. A (Mayberg, Steven, Effectiveness Of Integrated Services For Homeless Adults With
Serious Mental Illness: A Report to the Legislature as Required by Division 5, Section 5814
1All statutory references hereafter are to the Welfare & Institutions Code, unless
specifically otherwise indicated.
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
of the California Welfare and Institutions Code (May 2003) (excerpts)).
18. Respondents have acknowledged the importance of the Homeless Adults
Program. In May, 2003, the Governor and the DMH reported to the State Legislature that
funding the Program “ represents the [Legislature’s and Governor’s] continued interest in
addressing community mental health needs which have largely gone unmet for those persons
whose illness leads them to being homeless or incarcerated, often repeatedly so . . . .[yet
who] frequently either avoid contact with mental health services or ware without any
benefits, including Medi-Cal.” Ex. A at 1.
19. The Homeless Adults Program has been rigorously evaluated and has proved
remarkably successful. The AB2034 Legislative Report contains a study of over 4,800
clients served in the program from November, 1999 through January, 2003, showing that the
number of days of psychiatric hospitalization dropped 55.8%, days of incarceration dropped
72.1% and days spent homeless dropped 67.3%. Ex. A at ii. At the same time the number
of days of full-time employment increased 65.4% and days of part-time employment
increased 53.1%. Id. These results led the Governor and the DMH to conclude that
“enormous benefits, both clinical and fiscal, are likely to accrue from expanding and
increasing these types of services.” Ex. A at 36.
20. The Homeless Adults Program’s success was trumpeted in the Governor’s 2004-
05 Budget Summary, which described the Program as having “a proven track record of
success in treating and providing services to the mentally ill. Additionally, evaluations have
shown that this program leads to significant savings at the local level, and continuing this
program provides essential fiscal relief to counties in these difficult times.” Ex. B
(Governor’s Budget Summary 2004-05 (excerpts)) at 112.
21. The Homeless Adults Program is also highlighted in the final report for the
President’s New Freedom Commission on Mental Health. See Ex. C (Final Report from the
President’s New Freedom Commission on Mental Health (2003) (excerpts)). In April 2002,
the President of the United States directed the newly-formed New Freedom Commission on
Mental Health to study the problems in the mental health system and make concrete
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recommendations for immediate improvements. Ex. C (attaching Executive Order 13263).
The New Freedom Report, among other findings, praised the Homeless Adults Program as
an exemplar that “produce[s] positive outcomes that benefit individuals, families and society
while most efficiently using resources” and recommended that all states and localities
develop a similar “comprehensive strategy” to coordinate mental health and other supportive
services. Ex. C at 44.
22. The Homeless Adults Program was cited during the planning stages of
California’s Ten-Year Chronic Homelessness Action Plan as a program to emulate in
eliminating chronic homelessness. The action plan cites the program for its effectiveness in
serving a variety of client needs, including housing and car management, and points to the
huge reduction in costly hospitalizations and incarcerations while moving clients toward
self-sufficiency through employment. See Ex. D (Drafting California’s Ten-Year Chronic
Homelessness Action Plan: State of California Highlight AB 2034 (June 21-23, 2006)).
23. By 2006, the Homeless Adults Program was serving almost 5,000 individuals per
year with psychiatric disabilities who previously were homeless.
B. The Mental Health Services Act (Proposition 63).
24. In November 2004, the MHSA was enacted by the electorate when it approved
Proposition 63. MHSA imposes an additional one percent tax in California on personal
incomes over one million dollars to pay for “expanded services” for those with mental health
needs “while protecting other vital state services from being cut.” Ex. E (California General
Election, Official Voter Information Guide 32 (Nov. 2, 2004) (excerpts)) at 103 (MHSA
§§2(f) & (g)).
25. The MHSA requires that “ [t]he funding established pursuant to this act shall be
utilized to expand mental health services.” §5891. It therefore provides that MHSA funds
shall not be used to “supplant existing state or county funds utilized to provide mental health
services.” Id. The Act also requires the state to “continue to provide financial support for
mental health programs with not less than the same entitlements, amounts of allocations
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
from the General Fund and formula distributions of dedicated funds as provided in the last
fiscal year which ended prior to the effective date of this act.” Id. Additionally, Section 7 of
the Act, describing the expansion of services for adults with severe mental illness, states,
“The funding shall only cover the portions of those costs of services that cannot be paid for
with other funds including other mental health funds . . .” §5813.5(b).
26. The MHSA provides additional funding for the Adult System of Care programs,
among others, that existed at the time the Act was passed. One such program was the
Homeless Adults Program. Indeed, the MHSA expressly names the Homeless Adult
Program as a model program that should be expanded through the Act. Ex. 3 at 103 (MHSA
§2(e)). It also incorporated the eligibility and scope of service requirements of the Homeless
Adult Program directly into the Act. §5813.5.
27. The Act’s provisions requiring the State to maintain existing levels of support for
existing mental health programs and prohibiting the use of MHSA funds for such purposes
was extensively discussed in the ballot materials that accompanied the submission of
Proposition 63 to the electorate. For example, the Attorney General’s Official Title and
Summary states that the Act “provides funds to counties to expand services” and “ [p]rohibits
state from decreasing funding levels for mental health services below current levels.” See
Ex. E at 32. The Legislative Analyst’s Analysis explained these requirements in more detail:
The proposition specifies that the revenues generated from the tax surcharge must be used to expand mental health services and could not be used for other purposes. In addition, the state and counties would be prohibited from redirecting funds now used for mental health services to other purposes. The state would specifically be barred from reducing General Fund support, entitlements to services, and formula distributions of funds now dedicated for mental health services below the levels provided in 2003-04. [¶] The state would also be prohibited from changing mental health programs to increase the share of their cost borne by a county or to increase the financial risk to a county for the provision of such services unless the state provided adequate funding to fully compensate for the additional costs or financial risk. (Id. at 34 (emphasis added))
28. The fact that the MHSA would require the State to maintain existing levels of
support for existing mental health programs was not disputed by either the proponents or the
opponents of the measure. In fact, the Argument Against Proposition 63 presented to the
voters attacked the MHSA specifically for freezing state spending at existing levels. Id. at
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
37 (“This new law forces the Legislature to continue funding existing mental health
programs at their current level, regardless of their effectiveness or efficiency” (emphasis
omitted)). The Rebuttal to Argument Against Proposition 63 promised that MHSA
“expands a program that works” referring to the Homeless Adults Program. Id.
29. In fact, the Homeless Adults Program is the focus of the Rebuttal to the
Argument Against Proposition 63, contained in the ballot pamphlet:
After decades of neglecting mental illness, California began an experimental, community-based mental health program five years ago. It helps teenagers and adults get the care they need from one place. Special community teams offer treatment, medicines, housing, job training, and other assistance.
The program has been studied extensively. (See www.AB34.org.) The results show that three times more people found employment than had worked previously. Those enrolled had a 66% reduction in hospital days and an 81% reduction in jail days.
A panel of nationally recognized experts calls this program a model for the nation.
Right now, the program is small, reaching fewer than 10% of those who could benefit. Thousands are turned away. (Emphasis omitted)
Proposition 63 makes this new model program available to the thousands now turned away. (Id. (emphasis in original))
30. After the MHSA was enacted, Respondent DMH issued two policy directives to
city and county mental health programs interpreting Section 5891 of the Act and instructing
the cities and counties on their obligations concerning funding mental health services. The
first letter clarifies how MHSA funds must be utilized to expand mental health services:
“The Department has interpreted expansion to represent services not provided or funded in
the county at the time of enactment of the MHSA (new services) or expansion of program
capacity beyond what existed at the time of enactment of the MHSA (expansion of existing
services).” Ex. F (DMH Letter No. 05-04 (July 18, 2005)) at 4. In a subsequent policy
directive letter, the Department sent a county-by-county allocation table of “Resources
Required to be used for Mental Health Services under the Mental Health Services Act.”
Funds allocated for the Homeless Adults Program are listed in the second column for each
participating county under DMH State General Fund Allocations, Community Services,
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totaling $54,282,328 statewide for 2004-2005. Ex. G (DMH Letter No. 05-08 (Oct. 5,
2005)) at Enclosure 1. Thus, DMH agrees that over $54 million must be spent on the
Homeless Adult Program each year to comply with Proposition 63.
31. On August 24, 2007, Respondent Schwarzenegger signed the 2007-2008 state
budget. In doing so, he terminated the Homeless Adult Program by eliminating the
$54,850,000 that the Legislature had appropriated from the general fund for the Homeless
Adults Programs as required by the MHSA. In his veto message he stated that “ [t]his
reduction is necessary to limit program expansions” and that “ [t]o the extent counties find
this program beneficial and cost-effective, it can be restructured to meet the needs of each
county’s homeless population using other county funding sources, such as federal funds,
realignment funds, or Proposition 63 funds.” S.B. 77, 2007-2008 Leg. Sess. (emphasis
added).
32. On September 12, 2007, Respondent DMH announced that it would allocate $64
million in MHSA funds that were previously reserved for planning costs in order to replace
the $55 million in funding previously allocated to local mental health programs for the
Services for Homeless Adults program. This money was not allocated according to the pre-
existing formula for allocating MHSA funds to local mental health programs. The new
formula promised each local mental health program that had lost Homeless Adults Program
funding funds because of the Governor’s veto that it would receive MHSA funds to replace
the funding vetoed by the Governor.
C. Impact Of The Governor ’s Actions To Eliminate Of Homeless Adults Program.
33. As a result of the Governor’s elimination of the funding for the Homeless Adults
Programs, 34 counties and cities, which run or contract for a total of 35 programs, have been
forced to find alternative funding to continue services previously provided to individuals
through the Homeless Adults Programs.
34. Since the 35 local mental health programs stopped receiving dedicated funds from
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the state for the Homeless Adults Program, those programs have been forced to shut down
their Homeless Adult Programs, as they previously existed. In some local mental health
programs the individuals previously served by these programs were moved into similar
services or programs funded by the MHSA, called “ full service partnerships or FSPs.” In
those programs, the one time unused Administrative funds ($64 million) have been
committed to provide serves to this same population. Furthermore, the local mental health
programs themselves had spent money to continue the programs throughout July and August
and were not informed that these expenses would not be paid until the Governor’s veto in
late August. No funding exists to reimburse these expenses.
35. In other local mental health programs, the individuals previously served in the
Homeless Adults Programs have lost these mental health, housing and supportive services
altogether and are now desperately seeking alternative services that might be available from
the county. These individuals are at substantial risk of psychiatric hospitalization,
homelessness and incarceration.
36. Even in those local mental health programs where individuals previously served by
the Homeless Adults Program have been moved into the MHSA full-service partnerships,
those individuals are still at risk of losing their current services once the one time, $64
million, in unused MHSA planning funds from the State runs out in 2008. Moreover, under
the MHSA, that $64 million was required to be used to create a new mental health program,
or expand the Homeless Adults Program or some other pre-existing program, and not to
replace a program that existed when Proposition 63 was enacted.
FIRST CAUSE OF ACTION (Wr it of Mandate To Enforce Welf. & Inst. Code §5891)
37. Petitioners reallege and incorporate by reference each and every allegation
contained in the above paragraphs.
38. Respondents have a clear and present duty to administer the MHSA in accordance
with state law.
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
39. Respondents’ elimination of the Homeless Adults Program violates Section 5891.
Section 5891 requires that the State of California maintain the level of mental health services
existing at the time of the passage of MHSA. Section 5891 also requires that the state or
counties not use MHSA funds to pay for such pre-existing programs.
40. Petitioners are beneficially interested in the respondents’ performance of their
duties. Petitioners are entitled to a writ of mandate under Code of Civil Procedure Section
1085 enjoining respondents’ refusal to maintain the Homeless Adults Program in accordance
with the mandates of the law. At all times relevant to this action, respondents have had the
ability to fulfill their duties under the law.
41. Written demand was made upon the respondents to perform their duties. In direct
contravention of the law and petitioners’ demand, the respondents have failed and refused to
perform their duties expressly mandated by law, despite their ability to carry out those
duties.
42. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of
law. Unless this court grants the relief requested, respondents will continue to fail and
refuse to perform their legal duties. No money damages or other legal remedy could
adequately compensate the petitioners and others for the hardship caused by respondents’
failure to perform their legal duty.
SECOND CAUSE OF ACTION (Injunctive Relief for Violation of Welf. & Inst. Code §5891)
43. Petitioners reallege and incorporate by reference each and every allegation
contained in the above paragraphs.
44. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of
law. Monetary damages cannot adequately compensate for the irreparable injuries caused by
Respondents’ actions in violation of MHSA.
45. Unless enjoined by this Court, Respondents will continue to violate Section 5891
through the elimination of the Homeless Adults Program. Section 5891 requires that the
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
State of California maintain the level of mental health services existing at the time of the
passage of MHSA. Section 5891 also requires that the State not use MHSA funds to pay for
such pre-existing programs, including the Homeless Adults Program.
46. Petitioners are entitled to preliminary and permanent injunctive relief. Absent
intervention by the Court, Petitioners, or others similarly situated, have suffered and will
suffer irreparable harm in that they and the members of their organizations will be forced to
go without the integrated services that the Homeless Adults Program provides and to which
they are entitled under the MHSA. Petitioners and others similarly situated will not have the
access to housing, mental health services, and other supportive services that they need and
will face homelessness, hospitalization, and incarceration.
THIRD CAUSE OF ACTION (Declaratory Relief for Violation of Welf. & Inst. Code §5891)
47. Petitioners reallege and incorporate by reference each and every allegation
contained in the above paragraphs.
48. An actual controversy exists between the petitioners and respondents because
petitioners contend that Respondents’ elimination of the funding for the Homeless Adults
Program violates Welfare and Institutions Code Section 5891. Respondents deny that they
have done anything illegal.
49. Petitioners therefore seek a judicial declaration according to Code of Civil
Procedure Section 1060 that respondents have violated this statutory provision as well as a
declaration that respondents’ actions to eliminate the Homeless Adults Program are in fact
illegal.
PRAYER FOR RELIEF
WHEREFORE, Petitioners request that this Court:
1. Issue its alternative writ of mandate and/or order to show cause ordering
Respondents to reinstate the Homeless Adults Program and issue ongoing and retroactive
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
payment to the counties and cities for such programs or, in the alternative, to show cause
why a peremptory writ as set forth below should not issue;
2. Upon return of the alternative writ and/or the hearing on the order to show cause,
or alternatively in the first instance, issue a peremptory writ ordering Respondent to reinstate
the Homeless Adults Program and issue ongoing and retroactive payment to the counties and
cities for such programs;
3. Issue an order enjoining Respondents from eliminating funding for mental health
services that existed before the passage of MHSA in violation of Welfare and Institutions
Code Section 5891;
4. Issue a declaratory judgment that Respondents’ elimination of the funding for the
Homeless Adults Program violates Welfare and Institutions Code Section 5891; and
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PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. §1085)
5. Grant Petitioners their costs, reasonable attorneys’ fees, and such other relief that
the Court deems proper.
DATED: December __, 2007.
Respectfully,
STEVEN L. MAYER REBECCA M. KAHAN HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN A Professional Corporation
By: STEVEN L. MAYER
Attorneys for Petitioners