State may not be able to stop funding counties’ implementation of Jessica’s Law

The California Supreme Court ruled Monday the Commission on State Mandates erred when it used a 2006 voter initiative that redefined "sexually violent predator" to terminate the state's obligation to reimburse counties for the cost of counsel in civil commitment proceedings.

Rather than fully reversing the superior court's denial of relief requested by a number of California counties, Justice Mariano-Florentino Cuéllar, who wrote the unanimous opinion, reversed the trial court's dismissal of the counties' request for relief and remanded the matter back to the commission "so it can determine, in the first instance, whether and how the initiative's expanded definition of an SVP may affect the state's obligation to reimburse the counties for implementing the amended statute." County of San Diego v. Commission on State Mandates, 2018 DJDAR 10985 (Cal. Nov. 19, 2018).

"We appreciate the Court clarifying the scope of amendments the Legislature may make to measures enacted by voters and look forward to making our argument to the Commission on State Mandates regarding why the amendments to the definition of sexually violent predator in Prop 83 changed state mandates regarding sexually violent predators to voter mandates," said Ali Bay, a spokesperson for Gov. Jerry Brown, in a statement.

The Department of Finance would have to reimburse some $1 billion in unpaid expenses if the commission reverses its stance.

The San Diego County Counsel's office, which represented the counties at oral argument, had not issued a statement by press time Monday, but amici curiae said the decision was an important first step in correcting course.

"The main issue that we have as counties and cities is ensuring the state meets its constitutional obligation to reimburse us for the rules it imposes," said Jennifer B. Henning, litigation counsel for the California State Association of Counties. "Exceptions should be viewed narrowly.

When the Sexually Violent Predator Act was enacted in 1995, the commission directed the state's finance department to reimburse counties for designated counsel responsible for civil commitment proceedings, an undertaking the department estimated to cost approximately $20.74 million in 2013 and $21.79 million the following year, according to court documents.

But when voters approved the Sexual Predator Punishment and Control Act, or Jessica's Law, in 2006, the department asked the commission to reconsider the state's financial responsibilities.

Jessica's Law broadened the definition of "sexually violent predator" by allowing the corrections department to designate prisoners as predators after one felony sex crime instead of two and removing the limitation that only one prior juvenile adjudication of a sexually violent crime could be used as a qualifying conviction.

In December 2013, the commission issued a statement that the new law "amended and reenacted wholesale most of the code sections that gave rise to the mandated activities" the state had been funding. In determining the counties' obligations were now voter-mandated rather than state-mandated, the commission terminated the state's obligation to pay for the civil commitment proceedings.

In response, the counties of San Diego, Los Angeles, Orange, Sacramento, and San Bernardino filed a complaint for declaratory relief.

San Diego County Superior Court Judge Richard E. Strauss dismissed the counties' complaint in 2015, ruling, "The effect of voter approval cannot be ignored as transforming certain requirements of the act into voter-approved mandates." But on appeal, the 4th District Court of Appeal determined the duties of representation and prosecution were not affected by the voter initiative, also known as Proposition 83.

The state high court heard arguments for the case in September and, on Monday, issued a directive for the trial court to order the commission to reconsider the financial burden of Jessica's Law as it applies to local governments.

"We conclude that the commission's approach is at odds with the constitutional requirement that the state reimburse local governments for the costs of complying with state mandates," Cuéllar wrote. "If the term 'ballot measure' in Government Code Section 17556 were defined as automatically including every provision subject to constitutionally compelled restatement in an initiative, it would sweep in vast swaths of the California Code."

Laura B. Arnold, who worked in the San Diego County public defender's sexually violent predator unit when the litigation began and who wrote an amicus brief as chair of the mental health and civil commitment committee of the California Public Defender's Association, said the commission's new analysis may delay reimbursement even longer.

While the state has numbers concerning how many inmates are evaluated by the corrections department to receive the predator designation, data collection stops at the referral phase, when it is up to district attorneys or county counsel to pursue a petition for civil commitment, she said.

"State and county are looking at a different pool of individuals, because there's a narrowing down process when you apply the additional criteria for filing petitions," Arnold added.