timothy c. draper - horvitz & levyhorvitzlevy.com/230f70/assets/files/documents/preliminary...

TIMOTHY C. DRAPER 55 E. 3rd Avenue, San Mateo, CA 94401

Email: [email protected]

July 13, 2018

VIA TRUE FILING Hon. Chief Justice Cantil-Sakauye and Associate Justices Chin, Corrigan, Liu, Cuéllar, and Kruger Supreme Court of California 350 McAllister Street San Francisco, CA 94102 [email protected] CC: [email protected] RE: Planning & Conservation League v. Padilla (Draper), Case No. S249859

Preliminary Opposition to Petition for Writ of Mandate Dear Hon. Chief Justice and Associate Justices: Pursuant to this Court’s July 10, 2018 request, I submit this preliminary opposition to the Petition for Writ of Mandate (“Petition”) filed on July 9, 2018 by the Planning and Conservation League (“Petitioner”) against Respondent Alex Padilla, in his capacity as Secretary of State. I write to explain why the above-entitled Petition should be denied.

First, I was not properly served with the Petition. Petitioner purported to serve me at an email address that does not belong to me, and Fed Ex’ing the documents to me at my business address is not a proper method of personal service required by law. Presumably the Court used the incorrect email address too, as I only became aware of this Court’s order dated July 10, 2018, in which it requests that I respond to the petition by July 13, 2018, yesterday, on July 12, 2018 by complete happenstance. Second, pre-election review of the Initiative of which I am the proponent (Proposition 9) at this late hour is inappropriate. Indeed, as indicated more fully below, my efforts to qualify the Initiative ended in the middle of April when I submitted over 600,000 total petition signatures, well more than the 365,000 valid signatures needed to qualify my measure for the ballot. This lawsuit could have been brought weeks or even months ago. Instead, I have been given just a day or two to respond to a complex, multi-faceted attack

mailto:[email protected]

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 on my Constitutional right to initiative. The Petition should be dismissed based on the doctrine of laches. Third, even if the Petition was properly served and timely brought, it is not the type of action that is typically subject to pre-election review. Petitioner asserts a claim that the initiative “revises” rather than “amends” the state Constitution to shoe-horn into an exception to this Court’s basic rule against pre-election review. But the initiative does neither. It proposes a “statute” and a statute does not “amend” or “revise” the Constitution. In fact, the statute, if enacted by the voters, is just one step in a multi-step process that may or may not result in the transformation of the single state of California into three states. Lastly, as a substantive challenge to the initiative, Petitioner does not come close to showing “clear invalidity” in violation of the state Constitution or United States Constitution. At best, Petitioner asserts several complex and untested claims about the scope of initiative power. These claims are better left for resolution after the election if Proposition 9 passes. However, as indicated more fully below, I believe even those legal claims are incorrect. The concept of breaking this enormous State into smaller, more manageable states is not new. In fact, the voters of California were asked to, and did approve, the Pico Act in 1859, which asked Congress to approve splitting the State into two. Congress never acted on that request, as it might not do if Proposition 9 is approved. Thus, voter involvement in this important policy debate is not foreign to our Constitution, and contrary to Petitioner’s dire warnings, giving voters a chance to speak on Proposition 9 would not “invite other similar initiative abuse.” (Pet. at p. 7.). This Court’s long history of jealously guarding the exercise of initiative power should not be cavalierly disregarded now, especially on such a truncated timetable. I. Petitioners Did Not Properly Serve Me with Process, Prejudicing the

Important Constitutional Rights of Myself and the Californians Who Signed the Cal3 Petition.

Under the Code of Civil Procedure, a petition for writ of mandate is to be served on the necessary parties before filing with the Court. Petitioner’s “Proof of Service” represents to this Court that such service took place. It did not. A. Petitioner’s Attempt to Serve the Petition by Overnight Courier Failed. I was named as the “Real Party in Interest” by Petitioner in the instant matter and am therefore an adverse party. In an original writ proceeding, service must ordinarily be made or notice given to the respondent and the real party in interest before the petition is filed. (Code Civ. Proc. § 1088 [“with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 notice of the application, when given, must be at least ten days. The writ cannot be granted by default]; Superior Court v. District Court of Appeal (Christensen) (1966) 65 Cal.2d 293, 296 [Court of Appeal “did not have jurisdiction” to issue mandamus because statutory requirements for service were not satisfied].) In the absence of proof of personal service or substituted service, the court will not issue a writ. (Younger v. Jordan (1954) 42 Cal. 2d 757, 758 [“The question then arises as to whether we may proceed to a final determination of this controversy without either personal service upon Hazel J. Younger or some form of substituted service which is authorized by law. We have concluded we may not”].) A FedEx Overnight package containing the Petition was apparently received in my office on Tuesday, July 10, 2018. However, the use of FedEx Overnight Courier to deliver the Petition does not constitute personal service under Code of Civil Procedure section 415.10, substituted service under section 415.20, or mail service under section 415.30, nor does Petitioner even attempt to offer evidence of compliance with those sections. The Proof of Service appended to the Petition states that it was transmitted via FedEx on July 9, 2018 to “2882 Sand Hill Road, Suite 150, Menlo Park, California 94205” and via email to “[email protected].” The former is the address of my business, DFJ Venture Capital. However, Fed Ex does not comply with the service requirements of Code of Civil Procedure sections 415.10, 415.20, or 415.30. Therefore, at the time of this Court’s order dated July 10, 2018, I still would have not have been served with process as required by statute and the Due Process Clause. B. Petitioner’s Attempt to Serve the Petition Electronically Failed. Service via email does not remedy Petitioner’s errors. First, service via electronic means is only allowed if “a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person.” (CCP section 1010.6(a)(2)(A)(i); Cal. Rule of Court 8.78 (a)(1).) A party agrees to accept e-service by either serving notice on all parties that the party accepts e-service and filing the notice with the court (specifying the e-service address at which the party agrees to accept service) or by e-filing any document with the court. (CRC 8.78 (a)(2).) A self-represented party is exempt from e-filing requirements unless he chooses to follow them. (CRC 8.71(b).) I am presently self-represented, and at no time was I asked to, nor did I ever agree to, accept electronic service of the Petition. Thus, Petitioner did not obtain my consent to electronic service. As this Court has not otherwise ordered service via electronic means in the instant matter, the service was accordingly ineffective. Second, and very importantly, the email address listed in the Proof of Service appended to the Petition, [email protected], is incorrect and does not belong to me. Thus, I

mailto:[email protected]

mailto:[email protected],

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 was not properly served, or given any kind of notice, by electronic means either, nor was there any proceeding below where I could have made such an agreement. The Petitioner’s attempt to serve the Petition on me electronically has therefore failed. Presumably any order or direction issued by this Court to that email address also failed to give me notice. While I am filing this Opposition electronically I am doing so pursuant to a request by this Court, and in so doing I do not intend to waive any right to move to dismiss the Petition on the ground that I have yet to be properly served, and I otherwise reserve my rights. This action requires full briefing and discussion of complicated issues because “[a] premature interposition of the judiciary constitutes an unwarranted limitation upon this reserve power [of direct democracy].” (Gayle v. Hamm (1972) 25 Cal.App.3d 250, 258.) Truly, the right of initiative is “one of the most precious rights of our democratic process.” (Rossi v. Brown (1995) 9 Cal.4th 688, 695.) As Petitioner’s service was ineffective, and as I only learned of this Court’s order yesterday (July 11, 2018) by happenstance and have not had a full opportunity to respond on behalf of myself and the Californians who have signed on to the Cal3 movement via the initiative petition, all of whose precious rights of initiative will be affected, fairness and law dictate that the Petition be denied. II. Pre-Election Review Is Inappropriate in the Instant Matter. A. Petitioner’s Delay and Resulting Short Time Frame Threatens to

Prejudice the Important Constitutional Rights of Californians. Petitioner, proponent of the status quo, seeks pre-election review, though such relief is often disfavored. This Court disfavors pre-election review for good reason, not the least of which is that such action would “disrupt the electoral process by preventing the exercise of the people's franchise.” (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) Time limitations are one caution. (See Wind v. Hite (1962) 58 Cal.2d 415, 416.) First, pre-election review is inappropriate because the petition was not timely filed. In a case recently filed in this Court and dismissed (Messina v. Padilla - Supreme Court Case No. S24732), the Chief of the Elections Division of the Office of the Secretary of State, Jana M. Lean, stated under penalty of perjury that any action by this Court to remove a ballot initiative is already too late. She stated:

Given the strict printing and logistical constraints, a resolution by the June 28, 2018 ballot qualification deadline enables the Office of the Secretary of State to direct its resources toward the processing of only those ballot measures that will appear in the voter information guide. A resolution of this matter before June 28, 2018 would enable the Secretary of State to avoid any

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018

unnecessary preparation and collection of materials in accordance with statutory requirements.

Should this matter not be resolved by June 28, 2018, then resolution of this matter by July 23, 2018, at the absolute latest, would enable the Office of the Secretary of State to meet its statutory duty to make the voter information guide – indicating what will appear on the ballot – available for public display between July 24, 2018, and August 13, 2018, and avoid unnecessary costs for typesetting and proofing the material for printing which occurs during the public display period.

(Lean Decl. paragraphs 7-8, filed in Messina v. Padilla, Supreme Court Case No. S24732, emphasis added.) I request the Court take judicial notice of this Declaration pursuant to California Evidence Code section 452(d)(1). Thus, the Secretary of State’s office has confirmed the short period of time in which cases seeking to strike measures from the ballot must be decided – by July 23, 2018 “at the latest.” One must wonder, then, given these short time constraints, what took Petitioner so long to file its lawsuit. I submitted more than 600,000 petition signatures on or about April 19, 2018. Only 365,880 valid signatures were required to qualify my initiative for the ballot. Thus, it was clear to just about everyone that the initiative would qualify for the November 2018 General Election ballot. By June 12, 2018, the Secretary of State had received certifications from the 58 County elections officials that the initiative did, in fact, qualify for the ballot. (Secretary of State, Initiative and Referendum Qualification Status <http://elections.cdn.sos.ca.gov/ballot-measures/pdf/1814-finalrandomsample-6-13-18.pdf> [as of July 13, 2018].) (Pet. at p. 15.) This fact was widely reported in the press.1 Thus, Petitioner dragged its feet for at least one entire month if not two leading up to its filing the immediate action seeking this Court’s rushed judgment in the face of statutory duties required of our State’s public officials. As discussed previously, this delay threatens my due process rights, providing me with just a day or so to respond to the Petition and requiring this Court to “drop everything” to consider Petitioner’s untimely request. Petitioner’s delay additionally threatens to seriously prejudice the important First Amendment rights of the petition signatories. (See Doe v. Reed (2010) 561 U.S. 186, 190 [“An individual expresses a view on a political matter when he signs a petition under [a state’s] referendum procedure”].) The Petition must therefore be denied.

1 In fact, the Initiative measure qualified a day before that and was widely publicized. (See, e.g., Tolan, “This is really happening: Measure to split California into three states qualifies for November ballot,” The Mercury News (June 12, 2018) < https://www.mercurynews.com/2018/06/12/ballot-measure-split-california-three-states/> [as of July 13, 2018].) That article noted that “A poll conducted in April found that only 17 percent of registered California voters favored the proposal, while 72 percent opposed it.”


B. This Challenge Should Be Heard After the Election When There Is Time to Develop the Record.

This Court has intervened very rarely and in limited circumstances to order removal of an initiative measure from the ballot. These rulings occurred earlier in the ballot measure process and never in situations such as this where the opposing party was deprived of an opportunity for a full response by fault of the petitioner for failure to serve the adverse party. As Petitioner’s delay has resulted in such a state of affairs that would lead to a manifestly unjust result, this is a situation akin to what was contemplated in Independent Energy Producers Ass’n v. McPherson, wherein this Court stated that “because this type of challenge is one that can be raised and resolved after an election, deferring judicial resolution until after the election—when there will be more time for full briefing and deliberation—often will be the wiser course.” (Independent Energy Producers Ass'n v. McPherson (2006) 38 Cal.4th 1020, 1030.) Therefore, whatever the merits of Petitioner’s claims, at this late stage in the game the Petition must be denied so that full briefing and argument may occur.

Petitioner relies on Independent Energy Producers Assn., supra, for the proposition that pre-election review is appropriate when the initiative “is not the type of measure that may be adopted through the initiative process.” However, that is not the entire holding, and Petitioner intentionally avoids the unhelpful statements in this Court’s decision. The Court actually held if the initiative is not the type of measure proper for the initiative process, the Court should consider if post-election relief is available and if such post-election relief is available the court should disfavor pre-election resolution. Here, where post-election relief is available, the case suggests that pre-election challenge is inappropriate and any challenge to the substance of Proposition 9 should be adjudicated only post-election. C. Petitioner’s Claims Are Not the Type This Court Has Deemed

Appropriate for Pre-Election Review. Petitioner’s efforts to convince this Court that the issues raised in its Petition are of the kind that may overcome the strong presumption against pre-election review must fail. First, pre-election review is far from “necessary” as Petitioner claims because this Court has almost always adjudicated similar claims, including that a proposed amendment to the state constitution amounts to a constitutional “revision” that may not be enacted by initiative, on a post-election basis. (See, e.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 350.) As discussed previously, this is the wiser course considering Petitioner’s self-inflicted service of process error and resulting prejudice to me and Cal3 supporters. Nothing prevents Petitioner from filing this case after the election has occurred, if Proposition 9 is approved, when the record will be better-developed.

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 Second, Petitioner’s attempt to shoe-horn into a claim that this Court might choose to consider pre-election (Constitutional “amendment” vs. “revision”), which it contends entitles the Petition to pre-election review, really only asks this Court to adjudicate disguised substantive claims that this Court has repeatedly held should be decided post-election. Therefore, it is inappropriate to decide such substantive claims before the statute actually passes. Although “the rule does not preclude pre-election review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters… because it amounts to a constitutional revision rather an amendment,” Proposition 9 does not even purport to amend the state Constitution. (Senate of State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1153.) The constitutional issue raised under article XVIII is whether the initiative “amends” the Constitution (which is permissible) or whether it “revises” the Constitution, which is not. Proposition 9 proposes the enactment of a statute. Therefore, it is neither an “amendment” nor a “revision” of the Constitution. No case has ever held that an initiative statute, which does not amend the constitution, can amount to a constitutional “revision” and Petitioner can name none. At best, the Petition raises other claims challenging the validity of the proposed statute, but not because it “revises” the Constitution. Rather, the Petition asserts that the initiative is substantively invalid, a claim that this Court has steadfastly held should be considered after the election. (Independent Energy Producers Ass'n v. McPherson, supra, 38 Cal.4th at 1030.) Indeed, Proposition 9 proposes to enact the first of many steps that may lead to the creation of three new states, which will undoubtedly enact their own Constitutions. What becomes of the current Constitution is its inapplicability, not its revision or substantive change. The effect will not be a “revision” of the old constitution any more than the current state Constitution is a revision of the Treaty of Guadalupe-Hidalgo. Rather, there will be new Constitutions for three new, separate states that will be legally distinct from one another and from the former State of California. Therefore, despite Petitioner’s creative wording, the initiative is not a “revision” to the current Constitution, making their challenge substantive in nature and accordingly lacking in any basis for pre-election review by this Court within the rule announced in Jones.

D. Pre-election Review Is Not Appropriate Because Resolution of the Constitutional Issues Is Not “Straightforward and Clear,” And No Judicial Precedent Supports the Relief Petitioner Seeks.

Under the California Constitution, “all political power is inherent in the people.”

(Cal. Const. Art. II, § 1.) This political power includes the power to propose the adoption or amendment of statutes and constitutional amendments by initiative. (Cal. Const. Art. II,

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 § 8.) Petitioner suggests Proposition 9 “constitutes a patent misuse of California’s initiative process,” and that allowing Proposition 9 on the ballot would “invite other similar initiative abuse,” but Petitioner fails to validate its hyperbole by reference to any facts or law.

In Brosnahan v. Eu (1982) 31 Cal.3d 1, 4, this Court held that a “clear showing of invalidity” is usually needed to “prevent the exercise of the people’s franchise.” Petitioner has raised no argument to overcome this important presumption. Importantly, to sustain Petitioner’s challenge would prematurely cut-off debate on this important issue, depriving Californians the opportunity to reach a settled consensus on a longstanding public policy topic, namely, whether California is “too big to govern.” (Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, 1002 [“by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight… the Court merely prolongs and intensifies the anguish”] Scalia, J., dissenting.) For the reasons that follow, Petitioner has failed to show that Proposition 9 is “clearly invalid” and the people must therefore be allowed to discuss, debate, and determine.

Petitioners are simply wrong when they assert that ample time remains for the Court

to adjudicate the allegedly disputed issues -5 weeks - (Pet. at p. 27) or that the “constitutional issues are straightforward and clear.” (Pet. at p. 28.) The issues in play are not susceptible to quick resolution.

Moreover, no case law commands or supports Petitioner’s relief or its claim of

“straightforward and clear” constitutional issues. Petitioner identifies no case law suggesting that an initiative statute can “revise” the Constitution or that ultimate nullification of the current Constitution in favor of three newly enacted Constitutions by three new states approved by Congress results in a “revision.” And, finally, Petitioner identifies no case law suggesting that, under the federal constitution, citizens may not consent via the initiative process to the creation of a new state. While this may be because there are no cases on point, such a fact counsels in favor of denying Petitioner’s relief, in order to validate citizens’ political power through the initiative process, not prematurely shutting down the initiative process.

Petitioner relies on inapposite cases with irrelevant holdings to support its claims.

First, Petitioner contends Proposition 9 must fail because as an initiative statute it must conform to the constitution, rather than conflict with, disregard or change the constitution. (Pet. at pp. 35-37.) However, recitation of the general rule does not render applicable the cases Petitioner cites, which concerned efforts to pass initiatives that violated specific constitutional provisions. (Legislature v. Deukmejian (1983) 34 Cal.3d 658 [effort to redistrict more than once every ten years as permitted]; Wallace v. Zinman (1927) 200 Cal. 585 [violated “single subject” rule for initiatives]; Hotel Employees & Restaurant

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 Employees Union v. Davis (1999) 21 Cal.4th 585 [initiative to establish gaming on Indian reservations violated constitutional prohibition on gaming].) Each involved an overt affront to a clear constitutional mandate. Petitioner identifies no specific constitutional provision Proposition 9 similarly targets and offends.

Second, Petitioner suggests Proposition 9 fails as a matter of law because it

“improperly” seeks to revise or nullify the present government structure embodied by the existing constitution (Pet. at pp. 37-40), but none of the examples cited by Petitioner, which concerned constitutional amendments or revisions, attempted what Proposition 9 attempts, taking the first legislative step towards the creation of three new states which will, in-turn, adopt three new constitutions. The result would be nullification of the California Constitution, not its “revision.” Indeed, there is no indication that such new constitutions would be “revisions” of the current California Constitution in any sense of the word because there is no assurance that even one sentence in the three new states’ constitutions will be any different than the existing California Constitution. Thus, in McFadden v. Jordan (1948) 32 Cal.2d 330, 347, the Court rejected an attempt to create and empower a commission to raise and distribute revenues because it went beyond the lines of the existing constitution. In Amador Valley Joint Union High School Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, the Court upheld Proposition 13 as an amendment to the existing constitution. In Legislature v. Eu (1991) 54 Cal.3d 492, this Court approved of Proposition 140 and its impact on term limits because the existing powers of the Legislature and the relationship between the branches of government were unaffected. But again, Proposition 9 attempts nothing of the sort.

The Petition also claims that Proposition 9 seeks to enact a law that the electorate

does not have the power to adopt. This argument must fail. Legislation is the act of “declaring a public purpose and making provisions for the ways and means of its accomplishment.” (San Bruno Committee for Economic Justice v. City of San Bruno (2017) 15 Cal.App.5th 524, 534.) Proposition 9 does just that. Indeed, the current boundaries of the State are set forth by statute. (Government Code sections 160-172.) Is that not “legislation?” It follows that a successive statute may amend these boundaries. Further, there is no controlling authority, and Petitioner points to none, that a statute may not be the mechanism to convey legislative consent to Congress for the purpose of establishing three new states within the current boundaries of the State of California. The “legislature” is further instructed to proceed following Congressional consent to take the actions necessary to establish a new state such as winding down the prior State’s assets and providing for succession. This requirement, enacted via statutes, are “legislative function[s], to be performed in accordance with the State's prescriptions for lawmaking.” (Arizona State Legislature v. Arizona Independent Redistricting Com'n (2015) 135 S.Ct. 2652, 2668.) This includes the reserved initiative power, manifested herein via Proposition 9. (Id.) As the Supreme Court observed in Arizona State Legislature, “we see no constitutional barrier to a State’s empowerment of its people by embracing the [initiative] form of lawmaking.”

Letter to Hon. Chief Justice and Associate Justices of the California Supreme Court Case No. S249859 – Preliminary Opposition to Petition for Writ of Mandamus July 13, 2018 (Id.) At best, the Petition raises an unsettled issue of law. This falls far short of the “clear showing of invalidity” needed to strike a measure from the ballot. (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.)

While Petitioner cites to a recent dissenting opinion by Chief Justice Roberts to

support its claim that the “Legislature” as defined in the federal constitution at article 4, section 3 is only the representative body which makes the laws of the people (Pet. at p. 42, fn. 9), a thoughtful commentator, Vikram Amar, has suggested that “direct popular consent” could suffice under article 4, section 3 of the federal constitution to cede state property. He has stated:

“Finally, Article IV, section 3 provides that no new state shall be carved out of territory from existing states ‘without the Consent of the Legislatures of the States concerned . . . .’ Although the question does not seem to have been discussed in case law or literature, I see no constitutional reason why direct popular consent, or consent through a special convention, should not suffice to validly cede state property.”

(Symposium Article: Direct Democracy and Article II: Additional Thoughts on Initiatives and Presidential Elections, 35 Hastings Const. L.Q. 631.) More importantly, the particular claim made by Petitioner in the instant matter – that “Legislature” means “institutional Legislature” as opposed to a state’s reserved power which may be exercised by the people – for the purpose of consenting to end a current state and create three new states, has never been addressed by any decision. Obiter dicta in a dissenting opinion, such as the one Petitioner cites, does not carry the force of law, and indeed the controlling opinion in the particular case Petitioner cites belies its claim because it embraces a broad definition of “Legislature” that includes the initiative power. (Arizona State Legislature v. Arizona Independent Redistricting Com'n (2015) 135 S.Ct. 2652, 2668 [“In sum, our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State's prescriptions for lawmaking, which may include the referendum and the Governor's veto”].) As that case demonstrates, “the meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, dependent upon the character of the function which that body in each instance is called upon to exercise.” (Id.) As no case has addressed this particular use of the word “legislature,” the initiative is far from “clearly invalid” and is therefore no basis for striking Proposition 9 from the ballot. (Brosnahan, supra, 31 Cal.3d at 4.)


E. Pre-election Review Is Inappropriate Because the Petition is

Premature, Relieving the Court of Any Obligation to Decide the Substantive Issues Raised.

In addition, the Petition should be denied on the grounds it is wholly premature:

none of the triggering events that could warrant consideration of the legal issues raised has occurred. Proposed sections 173 and 174 of the Government Code, as summarized on pages 10 and 11 of the Petition, remain dormant: California’s 58 counties have not been divided into 3 new states; the Governor has not transmitted any election results to Congress for its approval or rejection of the three state plan; no debts or assets of California have been distributed, etc. (Pet. at pp. 10-11.) Proposition 9 has not even been voted on, let alone passed. In short, nothing that could transpire to justify the relief sought herein has occurred.

Petitioner cites Legislature v. Deukmejian (1983) 34 Cal.3d 658 for the proposition

that “special difficulties” will be imposed upon the State if Proposition 9 were to pass, justifying striking it from the ballot pre-election, but that case is inapposite. In that case, the public sought to adopt state redistricting maps by initiative in violation of the Constitution’s “one per decade” rule. This Court intervened because what was sought was a special election which would impose on state and local governments costs “estimated at $15 million,” not a regularly-scheduled one as here which entails no similar concerns. (Id. at 666.) More importantly, that special election at issue in Deukmejian, if the initiative maps were approved by the voters, “would make the orderly conduct of [the immediately succeeding] election impossible” since the special election approving the maps would have been held just before important deadlines for the June Primary Election. (Id.)

These exigent factors are obviously unmet here. Despite Petitioner’s alarmist

language, the aforementioned provisions of Proposition 9 would not interfere with the orderly conduct of State operations, and especially not with an election that relies on the public’s understanding of the applicable district boundaries, as in Deukmejian. Once passed, Proposition 9 will enact a statute that will set in motion a process intended to ultimately lead to the creation of three new states. The immediate effect will be to direct elected officials to begin the process. The State’s direction with regard to its assets and operations will depend on the resolution of that next step – whether Congress approves. Therefore, there is no exigency within this Court’s decision in Deukmejian. In any event the initiative at issue therein was “clearly invalid” by prior caselaw, unlike here where it is unresolved at best. (Id. at 790 [Real Parties advanced only “a novel theory” in support of the initiative to rebut a “long line of California decisions which hold that the constitutional limitation to a single, valid decennial redistricting precludes a further change in district boundaries”].) Thus, Petitioner has fallen far short of carrying its heavy burden in this matter.


III. Conclusion

The initiative “is in essence a legislative battering ram which may be used to tear through the exasperating tangle of the traditional legislative procedure and strike directly toward the desired end.’” (Amador Valley Joint Union High Sch. Dist. v. State Bd. Of Equalization (1978) 22 Cal.3d 208, 229.) Proposition 9 is such a battering ram. This Court should not reject decades of deference to the exercise of initiative power to stop Proposition 9 from appearing on the ballot at the eleventh hour and without full consideration of the legal issues presented by the petition

For the foregoing reasons, I respectfully request the Court deny the Petition.

Respectfully submitted,

Timothy C. Draper

STATE OF CALIFORNIASupreme Court of California

PROOF OF SERVICE

STATE OF CALIFORNIASupreme Court of California

Case Name: PLANNING AND CONSERVATION LEAGUE v. PADILLA (DRAPER)Case Number: S249859

Lower Court Case Number:

1. At the time of service I was at least 18 years of age and not a party to this legal action.

2. My email address used to e-serve: [email protected]

3. I served by email a copy of the following document(s) indicated below:

Title(s) of papers e-served:Filing Type Document Title

LETTER Letter re Petition for writ of mandateService Recipients:

Person Served Email Address Type Date / TimeJohn KilleenCalifornia Dept of Justice, Office of the Attorney General258395

[email protected] e-Service

7/13/2018 3:21:24 PM

Timothy DraperCourt Added

timdraper.com e-Service

7/13/2018 3:21:24 PM

Timothy DraperTimothy DraperPro Per


7/13/2018 3:21:24 PM

Tracie CampbellCalifornia Dept of Justice, Office of the Attorney General


7/13/2018 3:21:24 PM

This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, and belief.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

7/13/2018Date

/s/Timothy DraperSignature

Draper, Timothy (Pro Per) Last Name, First Name (PNum)

Timothy DraperLaw Firm

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