Legislature's Attempt To Amend Prop. 36 Held Invalid

Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure: I helped draft Prop. 36.) In Gardner v. Schwarzenegger (here), the Court of Appeal held that SB 1137 was an invalid amendment to Prop. 36. As the court explained, the provisions of the bill "permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion." The court had no difficulty finding this irreconcilable with the pro-treatment, anti-incarceration purposes of the initiative.

One interesting provision of SB 1137 is that it provided that the entire bill would be submitted to the electorate if any of its provisions were held invalid. (The Legislative Counsel had opined that the bill was an improper amendment to Proposition 36.) The court held this provision unconstitutional, too, as an invalid referendum of an already-enacted statute. Nor could this provision be upheld under the constitutional provision permitting the Legislature to put amendments to initiatives on the ballot, because the statute had already taken effect (although it was immediately enjoined).

This decision seems clearly right. I see no reason why it should be reviewed by the California Supreme Court.