Ron BRIGGS, Petitioner, v. Edmund G. BROWN, Jr., as Governor, etc., et al., Respondents; Californians to Mend, Not End, the Death Penalty, etc., Intervener., 221 Cal. Rptr. 3d 465

Werdegar, J. Liu, J. Kruger, J. Hoch, J. CONCURRING OPINION BY LIU, J. Liu, J. Proposition 66 amended Penal Code

section 190.6, subdivision (

d) to say that state death penalty appeals and habeas corpus proceedings must be completed within five years. All members of the court agree that this provision imposes no legally enforceable obligation.

My colleagues disagree on how they reach this conclusion: The court holds that the five-year provision is "directive" and not mandatory (maj. opn., ante , 221 Cal.Rptr.3d at pp. 501-502, 400 P.3d at p. 59), whereas Justice Cuéllar's concurring and dissenting opinion contends that the provision is mandatory and unconstitutionally intrudes on the prerogatives of the judicial branch (conc. & dis. opn., post , at p. 525, 400 P.3d at p. 79). I believe both positions are reasonable.

Like Justice Cuéllar, I find it stunning that Proposition 66's proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66. (Conc. & dis. opn., post , 221 Cal.Rptr.3d at pp. 513-514, 518-521, 400 P.3d at pp. 69-70, 73-76.) However, the electorate passed Proposition 66 against a backdrop of precedent construing similar mandates as nonmandatory when necessary to save their constitutionality (maj. opn., ante , at pp. 493-498, 400 P.3d at pp. 52-57), and we presume the electorate is " 'aware of existing laws and judicial construction thereof' " ( People v.

Gonzales (2017) 2 Cal.5th 858, 869, 216 Cal.Rptr.3d 285, 392 P.3d 437 ). Although I am unsure whether I would construe voter intent as flexibly as our decisions have, I acknowledge this is one way of enforcing the separation of powers and there is a lot of water over the dam in our case law.

So, although no one really disagrees that "the voters intended the five-year limit to be mandatory" (maj. opn., ante , at p. 500, 400 P.3d at p. 59), our precedent supports the court's approach of imputing to the voters a further intent not to unconstitutionally impair the judicial function (id. at p. 501-502, 400 P.3d at p. 59).

All members of the court agree that if the five-year limit were mandatory, it "would undermine the courts' authority as a separate branch of government." (Id. at p. 501, 400 P.3d at p. 59; conc. & dis. opn., post , at p. 528, 400 P.3d at pp. 81-82.) I write separately to highlight that whether the five-year limit is directive or unconstitutional, it does not and could not bind those charged with implementing Proposition 66. It is clear that a majority of the 2016 electorate voted "to shorten the time that the legal challenges to death sentences take." (Voter Information Guide, Gen.

Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 105 (2016 Voter Guide).) But Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity-not this court, not the Judicial Council, not the Legislature-can simply wave a magic wand and make it so. Although there may be ways to streamline the process, realistic reforms must emanate from a clear understanding of the way the postconviction death penalty process works in California.

As explained below, the five-year limit is not grounded in the realities of California's death penalty process or in the reasonable possibilities for reform. Thus, in addition to lacking strict enforceability, the five-year limit cannot serve as a realistic benchmark to guide courts or the Judicial Council as they implement Proposition 66. It is instead "an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice." (Maj. opn., ante , 221 Cal.Rptr.3d at p. 501, 400 P.3d at p. 59.) I.

Today there are nearly 750 prisoners on death row in California; they comprise roughly a quarter of all condemned inmates in the United States. The process for reviewing death judgments is complex and multilayered, and the incidence of reversible error is significant. (See U.S.

Dept. of Justice, Bur. of Justice Statistics, Capital Punishment, 2013-Statistical Tables (2014) p. 19, tbl. 16, available at https://www.bjs.gov/content/pub/pdf/cp13st.pdf [as of Aug. 24, 2017] [reporting that 38 percent of the 8,466 prisoners sentenced to death between 1973 and 2013 had their convictions or sentences overturned]; Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995 (2000) 78 Tex.

L.Rev. 1839, 1850 [reporting that state and federal courts nationwide found prejudicial error in 68 percent of capital cases between 1973 and 1995].) In California, after a death judgment has been imposed in the trial court, the defendant is entitled to an automatic appeal to review any errors that may have occurred during trial. ( Pen. Code, § 1239, subd. (b) ; all undesignated statutory references are to this code.) The defendant is also entitled to file a petition for a writ of habeas corpus to assert violations of statutory or constitutional rights not apparent in the trial record.

Habeas corpus petitions may be filed in state and federal courts. (§ 1473; 28 U.S.C. § 2254.) Capital defendants are entitled to counsel on direct appeal and in state habeas proceedings. (See Douglas v. People of State of Cal. (1963) 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811 [recognizing the constitutional right of indigent criminal defendants to representation on appeal]; Gov. Code, § 68662.) On average in California, it takes three to five years after a death judgment to appoint appellate counsel. ( Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050, 1056 ( Jones ), revd. by Jones v.

Davis (9th Cir. 2015) 806 F.3d 538.) In April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed for habeas corpus petitions. (2016 Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, p. 105.) About half of those waiting for appointment of habeas counsel have been waiting for over 10 years. ( Jones , at p. 1058.) The dearth of attorneys willing to take on these assignments is due in part to the sheer enormity of the undertaking.

A single death penalty case can and often does dominate a lawyer's practice for well more than a decade. Direct appeals in this court are completed on average 11.7 to 13.7 years after the death judgment. ( Jones , supra , 31 F.Supp.3d at p. 1057.) Many appeals take considerably more time. (See, e.g., People v. O'Malley (2016) 62 Cal.4th 944, 199 Cal.Rptr.3d 1, 365 P.3d 790 [25 years from judgment of the death to resolution on appeal]; People v. Cunningham (2015) 61 Cal.4th 609, 189 Cal.Rptr.3d 737, 352 P.3d 318 [19 years]; People v.

Brown (2014) 59 Cal.4th 86, 172 Cal.Rptr.3d 576, 326 P.3d 188 [18 years].) State habeas review is completed on average more than 17 years after the death judgment. ( Jones , at p. 1059.) In April 2016, there were 337 direct appeals and 263 state habeas corpus petitions pending in this court. (2016 Voter Guide, supra , analysis of Prop. 66 by Legis.

Analyst, p. 105.) As of 2014, only 81 inmates out of the more than 900 sentenced to death in California since 1978 have completed the postconviction review process in both state and federal court. ( Jones , supra , 31 F.Supp.3d at p. 1060.) Of those 81, about half have received relief from their death sentences, 13 have been executed, and 17 have had their executions stayed. ( Id. at p. 1069.) In 2008, the California Commission on the Fair Administration of Justice (Commission) studied the death penalty postconviction process. (Cal.

Com. on the Fair Admin. of Justice, Final Report (2008) (Commission Report).) The Commission was chaired by former Attorney General and Los Angeles District Attorney John Van De Kamp, and it included law enforcement officials, prosecutors, public defenders, and academics. The Commission held hearings and gathered input from a broad cross-section of stakeholders. (Id. at p. 113.) The Commission made several recommendations to expedite what was widely regarded as a dysfunctional process.

Recognizing that difficulties in appointing appellate counsel were a major source of delay, the Commission concluded that "[t]he most direct and efficient way to reduce the backlog of death row inmates awaiting appointment of appellate counsel would be to again expand the Office of the State Public Defender." (Id. at p. 132.) The Commission recommended increasing the State Public Defender's budget by one-third. (Id. at p. 133.) In the alternative, the Commission recommended increasing the compensation of private appellate attorneys who take death penalty cases. (Id. at pp. 132-133.) To address the even greater delays in appointing habeas counsel, the Commission recommended expanding the Habeas Corpus Resource Center from 34 lawyers to 150 lawyers, which would have required a five-fold increase over the then-current $14.9 million annual budget. (Id. at p. 135.) These recommendations were not implemented.

The Commission also addressed the backlog of death penalty appeals pending in this court. This court decides 20 to 25 death penalty appeals each year and issues a published opinion in each case.

It typically takes two to three years for this court to decide an appeal once it has been fully briefed. (Commission Report, at p. 147.) The Commission endorsed the proposal of then Chief Justice Ronald George to amend the state Constitution so that this court would have discretion to transfer fully briefed death penalty appeals to intermediate appellate courts, provided that the Commission's recommendations for appointing appellate and habeas counsel were also implemented. (Commission Report, at pp. 147-148.) This court also decides approximately 30 habeas corpus petitions each year; although we do not typically issue published opinions in these cases, our deliberative process includes the preparation of lengthy internal memoranda carefully examining each issue raised in each petition.

The Commission endorsed a proposal to allow capital habeas corpus petitions to be filed in superior court, with a right of appeal to the Court of Appeal and Supreme Court. (Id. at p. 148.) In 2013, a coalition of law enforcement officers, prosecutors, and crime victims proposed a ballot initiative, called the Death Penalty Reform and Savings Act of 2014 (2014 Proposed Initiative), that was similar in many ways to Proposition 66. The 2014 Proposed Initiative did not incorporate the Commission's proposals to expand the Office of the State Public Defender or the Habeas Corpus Resource Center.

But it did include some of the other Commission recommendations. One of the Proposed Initiative's key provisions was an amendment of

article VI,

section 11, subdivision (

a) of the California Constitution to provide that Courts of Appeal have appellate jurisdiction over death penalty cases, just as they have over other cases. (2014 Proposed Initiative, § 4.) Further, the 2014 Proposed Initiative would have added a new

section to

article VI authorizing this court to review Court of Appeal decisions in capital cases and to summarily affirm if there are no errors affecting the judgment and there is no need to secure uniformity of law or address an important question of law. (2014 Proposed Initiative, § 5.) Also consistent with the Commission's recommendations, the 2014 Proposed Initiative would have added

section 1509, subdivision (a), requiring that all habeas corpus petitions be transferred to the court imposing the capital sentence unless good cause is shown. These changes were intended to address one of the findings of the Proposed Initiative: "The California Supreme Court is overloaded with death penalty appeals, causing lengthy and unnecessary delays. Spreading these death penalty cases among the Courts of Appeal (like the federal courts do) will allow the defendants' claims to be heard sooner. The Supreme Court has suggested a similar change.

Experts have concluded this change will save hundreds of millions of dollars." (2014 Proposed Initiative, § 2 (7).) Moreover, the 2014 Proposed Initiative would have amended

article I,

section 27 of the California Constitution to add a provision substantially similar to

section 190.6, subdivision (d) (

section 190.6(d) ) as amended by Proposition 66. It would have provided that "[s]tate courts shall complete the state appeal and initial state habeas corpus review" within five years after entry of judgment or after adoption of Judicial Council rules to expedite the capital appeal process. (2014 Proposed Initiative, § 3.) After some signature gathering, the initiative proponents decided to postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform State Executions , Mercury News (May 11, 2014) p.

B4.) Proposition 66, the result of that delayed effort, retains many of the features of the 2014 Proposed Initiative. But the proponents abandoned any effort to amend the California Constitution. (See Cal. Const., art.

II, § 8, subd. (b) [requiring signatures equal to 8 percent of the votes cast in the last gubernatorial election to place an initiative amending the state Constitution on the ballot, but only 5 percent for a statutory initiative].) In particular, Proposition 66 omitted the proposal to amend the state Constitution to give Courts of Appeal jurisdiction over direct appeals in capital cases, and it placed the five-year limit in a statute (

section 190.6(d) ) rather than in

article I of the Constitution. Proposition 66 also omitted the 2014 Proposed Initiative's finding that this court is overloaded with death penalty appeals, but it retained the provision in

section 1509, subdivision (

a) to authorize transfer of capital habeas petitions to the superior court. Proposition 66 does not increase the availability of appellate and habeas attorneys, beyond requiring this court to compel certain criminal appellate attorneys to take death penalty appeals against their will. (§ 1239.1, subd. (b).) It is unclear how effective this strategy will be in light of the shrinking and graying pool of private appellate attorneys. (See Miller, Wanted: Appellate Lawyer.

Pay:$70/hr. , The Recorder (June 15, 2006).) Although it is possible that compelling appellate attorneys to take capital cases will increase the number of capital appellate attorneys, it is also possible that this obligation will result in fewer criminal appellate attorneys or will lead to the appointment of attorneys ill-suited for the arduous and lengthy commitment required for a capital appeal. Further, the new provision that this court "shall only grant extensions of time for briefing for compelling or extraordinary reasons" (§ 1239.1, subd. (a)) may accelerate the filing of appellate briefs.

But there are reasons why capital briefs are lengthier-opening briefs of 300 to 500 pages, raising 30 to 40 claims, are common-and often take several years to complete. Capital cases involve a three-stage process in which the jury must determine (1) whether the defendant is guilty of first degree murder, (2) whether certain special circumstances are present, and (3) whether the defendant should receive the death penalty or a sentence of life without the possibility of parole. (§§ 190.2, subd. (a), 190.3; see e.g., People v.

Masters (2016) 62 Cal.4th 1019, 1027-1041, 199 Cal.Rptr.3d 85, 365 P.3d 861.) Each of these stages may give rise to claims of legal error, and a labyrinth of procedural default and forfeiture rules strongly incentivizes capital defendants to raise every conceivable claim of error. (See, e.g., In re Robbins (1998) 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 ; In re Clark (1993) 5 Cal.4th 750, 767-768, 21 Cal.Rptr.2d 509, 855 P.2d 729 ; In re Waltreus (1965) 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 ; In reDixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513 ; 28 U.S.C. § 2254(b)(1).) In addition, the record in capital cases is usually massive, often comprising more than 5,000 pages of trial transcript plus several thousand pages of exhibits, juror questionnaires, and additional materials-all of which must be carefully reviewed.

Moreover, the irrevocable nature of the death penalty heightens the stakes and prompts appellate attorneys to be as thorough and careful as possible in their briefing. Whatever the statutory standard for granting extensions of time, attorneys must be given sufficient time to complete their briefs. Even if these measures do accelerate the filing of an appeal in this court, Proposition 66, unlike the 2014 Proposed Initiative, does not increase the number of courts hearing death penalty appeals.

Because of the sheer scale of the briefing, the enormity of the record, and the number of claims typically raised by each defendant, this court devotes considerable time and attention to capital appeals. We could increase the number of such appeals we resolve each year, but only at the expense of noncapital cases.

As the court today makes clear, Proposition 66 cannot override the constitutional doctrine of separation of powers and compel this court to alter its docket by deciding more capital cases and fewer noncapital ones. (Maj. opn., ante , at p. 501-502, 400 P.3d at 59 [construing § 190.6(d)"to maintain the courts' discretionary control over the conduct of their business"].) Although transfer of capital habeas corpus petitions to the superior court may expedite the adjudication of those petitions, superior courts asked to help reduce this court's substantial backlog of habeas corpus cases will likely require additional resources to address petitions that are often as lengthy and time consuming as direct appeals. (See, e.g., In re James David Beck (filed Nov. 28, 2012, S206945) [320-page petition for writ of habeas corpus with 12 claims, numerous subclaims, and 18 volumes of exhibits].) It is unclear whether the Legislature will appropriate funds for this purpose.

Nor does Proposition 66 expedite the appointment of capital habeas attorneys. And the constitutionality of Proposition 66's restrictions on successive petitions ( § 1509, subd. (b) ) has yet to be fully tested. (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 492-493, 400 P.3d at pp. 51-52.) To put the postconviction process into perspective, let us consider a real example. A case not far from the norm is that of Robert Mark Edwards. He was convicted of first degree murder with burglary-murder and torture-murder special circumstances, and he was sentenced to death in September 1998.

Counsel was appointed four years later in October 2002. Counsel filed a record correction motion in October 2003. The record correction process was completed, and a record of appeal filed in this court, in February 2005. The record consists of 29 volumes of the clerk's transcript, with a total of 9,117 pages; this includes 6,597 pages of juror questionnaires. The reporter's transcript, i.e., the transcript of the trial, spans 39 volumes with a total of 5,957 pages.

The opening brief (431 pages) was filed in December 2006; the Attorney General's brief (270 pages) was filed in February 2008, and the reply brief (140 pages) was filed in November 2008. Also in November 2008, counsel had to withdraw because he was being appointed to the superior court. New counsel was appointed in January 2009 and, after getting up to speed on the case, filed a 79-page supplemental brief in September 2010. A supplemental respondent's brief was filed in March 2011, and a supplemental reply brief was filed in April 2011.

Additional supplemental briefing was ordered by this court in December 2012 to address recently decided cases of this court and the United States Supreme Court; this briefing was filed in January 2013. Altogether, the briefing raised some 38 issues. The case was argued in May 2013, and the judgment was affirmed in August 2013. ( People v. Edwards (2013) 57 Cal.4th 658, 161 Cal.Rptr.3d 191, 306 P.3d 1049.) Meanwhile, habeas corpus counsel was not appointed until November 2010, 12 years after the death judgment. A 524-page habeas corpus petition was filed in November 2013.

The Attorney General's 187-page informal response was filed in October 2014, and a 433-page reply to the informal response was filed in December 2015. The petition remains pending in this court. In Edwards's case, 19 years have passed since the judgment of death. The direct appeal has been completed, the state habeas corpus petition has not been decided, and the case has not yet begun its lengthy sojourn in federal court.

It is not clear how Proposition 66 would have appreciably accelerated the appointment of appellate or habeas counsel, shortened the record correction process, abbreviated the multiple rounds of briefing addressing numerous issues drawn from a voluminous trial record, or reduced the amount of time the fully briefed case was pending in this court.

In sum, the protracted nature of the postconviction death penalty process is the product of several factors, including chronic delays in appointing appellate and habeas counsel, limitations on funding for the Office of the State Public Defender and Habeas Corpus Resource Center, the enormity of the record and the scale of the parties' briefing in light of the peculiar nature of the death penalty, and the fact that all appeals go to a single court, inevitably resulting in a bottleneck. II.

Section 190.6(d), as amended by Proposition 66, provides: "The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (

b) of

Section 28 of

Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases.

The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision." I agree that

section 190.6(d), construed in light of our precedent, is "directive." (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 502-503, 400 P.3d at p. 60.) But what does directive mean? Our case law suggests that the answer depends on the nature of the statutory directive and the judicial interest at stake. In People v. Engram (2010) 50 Cal.4th 1131, 116 Cal.Rptr.3d 762, 240 P.3d 237 ( Engram ), we addressed

section 1050, subdivision (a)'s language that "criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings." Based on the statutory context and history, we said this provision "cannot properly be interpreted to require a trial court completely to forgo or abandon consideration of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually overwhelms the resources available to the court for the disposition of both criminal and civil matters." ( Engram , at p. 1152, 116 Cal.Rptr.3d 762, 240 P.3d 237.) We then went further to reject the argument that the statute forbids the allocation of certain courtrooms or judges exclusively to civil matters. ( Id. at pp. 1153-1154, 116 Cal.Rptr.3d 762, 240 P.3d 237.) We relied on case law demonstrating that the statute was not intended to preclude a superior court from maintaining separate departments handling civil and criminal matters in the interest of efficiently organizing and adjudicating claims within its jurisdiction. ( Ibid. ) Thurmond v.

Superior Court (1967) 66 Cal.2d 836, 59 Cal.Rptr. 273, 427 P.2d 985 ( Thurmond ), a paternity action, involved statutory provisions requiring the court to grant a continuance when the attorney for one of the parties is a member of the Legislature and the Legislature is in session.

We held that the provisions "should be given full force and effect wherever and whenever it may be done without unduly adversely affecting the rights of others," and we prescribed a number of factors the court should consider in exercising its discretion as to whether a continuance should be granted. ( Id. at p. 840, 59 Cal.Rptr. 273, 427 P.2d 985.) In In re Shafter-Wasco Irr.

Dist. (1942) 55 Cal.App.2d 484, 130 P.2d 755 ( Shafter-Wasco ), the court declined to treat as mandatory a statutory deadline requiring judicial resolution of an appeal concerning the dissolution of an irrigation district to be decided three months after the appeal is filed.

The court instead construed the statute as directing the court "to give this appeal as early a hearing and decision as orderly procedure in this court will permit." ( Id. at p. 489, 130 P.2d 755.) In each of these cases, the court interpreted as "directive" a seemingly mandatory statute that threatened to impair core judicial functions, and the decisions make clear that courts have authority to determine the proper weight to be given to the statutory directive. That determination is contextual.

In some cases, as in Thurmond , the directive statute can serve as a default that constrains judicial discretion unless certain conditions apply. ( Thurmond , supra , 66 Cal.2d at p. 840, 59 Cal.Rptr. 273, 427 P.2d 985.) In Engram , the force of the statute was more vague; we construed the directive to give priority to criminal cases over civil cases as subject to the open-ended condition that "such precedence [must be] consistent with the ends of justice." ( Engram , supra , 50 Cal.4th at p. 1161, 116 Cal.Rptr.3d 762, 240 P.3d 237.) And Shafter-Wasco , in interpreting a statutory deadline as a directive "to give this appeal as early a hearing and decision as orderly procedure in this court will permit" ( Shafter-Wasco , supra , 55 Cal.App.2d at p. 489, 130 P.2d 755 ), said it was ultimately up to the court to determine a reasonable timeframe for deciding the appeal.

Directive statutes that set realistic time limits on judicial decisions may inform how quickly cases should be decided, although the issue is ultimately left to judicial discretion. But when a time limit purports to dictate what is not "reasonably possible" to achieve (maj. opn., ante , 221 Cal.Rptr.3d at p. 503, 400 P.3d at pp. 60-61), it cannot serve as a meaningful benchmark. Such is the case with the five-year time limit in

section 190.6(d). The realities of California's postconviction death penalty process mean that without a radical reorganization of this court's functions, a restructuring of the role of lower courts beyond what Proposition 66 provides, and a significant infusion of resources from the Legislature, the five-year time limit is not remotely close to realistic. This impracticality is underscored by the fact that

section 190.6(

d) says nothing about how the five-year limit should be met. And this deficiency is compounded by the fact that

section 190.6(

d) differs from other statutory deadlines in terms of its scope: The five-year limit does not require one particular court to meet a particular deadline in one particular proceeding; it is directed at a complex judicial process involving multiple courts, multiple actors, and multiple proceedings. (Maj. opn., ante , 221 Cal.Rptr.3d at p. 498-499, 400 P.3d at p. 57.) The five-year deadline imposed on the entire state death penalty postconviction process is so sweeping in its objective yet so vague on the means of accomplishing the objective that it does not provide useful guidance for those charged with implementing Proposition

Section 190.6(

d) purports to delegate the challenge of meeting the five-year limit to the Judicial Council, which is supposed to "continuously monitor the timeliness of review of capital cases and ... amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision." But how is the Judicial Council supposed to bring about the vast acceleration of the death penalty process necessary to meet the five-year deadline?

The Judicial Council has no authority to direct the Legislature to appropriate more funds to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. It has no authority to change the state Constitution to permit Courts of Appeal to hear death penalty appeals. And it has no authority to require this court or any other court to devote a greater proportion of its docket to death penalty cases at the expense of other cases that fall within its constitutional responsibilities.

The delegation of broad rulemaking power to the Judicial Council spared the voters (and the proponents of Proposition 66) from having to make difficult choices as to what should be sacrificed for the sake of dramatically expediting the death penalty. But these are precisely the choices that the lawmaking authority, whether the Legislature or the electorate, must make with clarity, transparency, and fidelity to separation-of-powers principles if it wishes to create a mandate that can lawfully and practically guide the Judicial Council's quasi-legislative rulemaking. Such a mandate is lacking here. Of course,

section 190.6(

d) is only one part of Proposition 66; the proponents of Proposition 66 stated at oral argument that the five-year limit "is not the centerpiece" of the initiative. Proposition 66 prescribes several specific reforms, such as a new rule for granting extensions of time for briefing (§ 1239.1, subd. (a)), new rules concerning appointment of counsel (id ., subd. (b)), and a requirement that initial habeas corpus petitions be filed in or transferred to the sentencing court absent good cause ( § 1509, subds. (a), (g) ) with either party having a right to take an appeal to the Court of Appeal (§ 1509.1, subd. (a)).

The Judicial Council may prescribe rules to effectuate these provisions, and the efficacy of these measures in expediting the death penalty process remains to be seen. But whether Proposition 66 actually speeds up (or slows down) the process will have nothing to do with

section 190.6(d)'s unelaborated and unrealistic directive that state death penalty appellate and habeas corpus proceedings "shall" be completed within five years. The court properly acknowledges that this provision reflects the voters' desire to shorten the postconviction death penalty process. But the five-year limit, construed as directive or simply unconstitutional, has no binding effect and provides no guidance for responsible actors charged with the fair and efficient administration of justice. We Concur: Werdegar, J. Kruger, J. Hoch, J. CONCURRING AND DISSENTING OPINION BY CUÉLLAR, J. Cuéllar, J.

What voters most need so they can exercise their constitutionally protected franchise effectively is clarity and candor. Particularly at a time when public discourse dwells on foreign interference in our electoral process, social media bots, and manipulated Facebook news feeds, it is possible-perhaps even easy-to forget how millions of voters endeavor to familiarize themselves with the candidates and issues of the day, and to understand the consequences of their vote.

Voters who sought to do so by studying Proposition 66, the Death Penalty Reform and Savings Act of 2016 (Proposition 66), would not recognize the initiative the majority purports to uphold today. What reasonable voters would have clearly recognized instead-based on the statutory text, the official description by the Legislative Analyst, and the arguments made by the initiative's proponents-is that Proposition 66 contained a genuine, enforceable, five-year deadline for completion of the state court appeal and resolution of the initial habeas corpus petition in death penalty cases.

Candor requires us to be equally clear about whether such a deadline accords with our law: It does not. A statutory limit on the amount of time a court may spend deciding a case is an intrusion on quintessential judicial functions and violates the California Constitution's separation of powers provision. (See Cal. Const., art.

III, § 3.) Only by misconstruing this mandatory five-year time limit as nothing more than an "exhortation" for faster death penalty adjudication does the majority sidestep this outcome. (Maj. opn., ante , 221 Cal.Rptr.3d at p. 501-502, 400 P.3d at p. 59.) In doing so, the majority disregards the electorate's clear purpose in enacting Proposition 66 and fails to promote forthright deliberation.

It distorts our statutory and constitutional jurisprudence, and-by insisting the mandate be treated as both a mere "exhortation" yet one "not empty" of legal meaning-leaves in its wake grave uncertainty about the rules and standards the Judicial Council is supposed to adopt to render meaningful that exhortation. (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 501-502, 502-503, 400 P.3d at pp. 59, 60.) Proposition 66 further runs afoul of the California Constitution by purporting to authorize an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition. (See § 1509.1.) The Constitution grants this court exclusive appellate jurisdiction "when judgment of death has been pronounced." ( Cal.

Const., art. VI, § 11, subd. (a).) To the extent the majority finds otherwise, I dissent with respect. I. Our first task is to answer a question as simple as it is important: What kind of time limit did the voters enact? When voters face the often daunting process of considering a new statute or constitutional amendment at the ballot box, state law directs the Secretary of State to prepare a voter information guide. The guide must include a complete copy of each proposed measure, the arguments and rebuttals for and against, and an analysis prepared by the Legislative Analyst. ( Elec.

Code, §§ 9082, 88001.) Sometimes the guide runs hundreds of pages. But it is the primary means by which voters inform themselves about the policy choices in an election, and this court considers it a key resource in determining the meaning and validity of the laws enacted by voter initiative. So when it falls to us to interpret and apply a voter-enacted initiative-"our primary goal" being "to determine and give effect to the underlying purpose of the law" ( Goodman v.

Lozano (2010) 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77 )-we rely in particular on the analyses and arguments contained in the voter information guide, along with the text of the initiative, in identifying the statute's purpose and determining how it should be construed. ( People v. Morales (2016) 63 Cal.4th 399, 406, 203 Cal.Rptr.3d 130, 371 P.3d 592.) Now imagine a reasonable voter consulting the voter information guide to Proposition 66. What would the voter have gleaned-immediately-about the initiative's purpose?

In the very first of its findings and declarations, the initiative stated that our "death penalty system is ineffective because of waste, delays, and inefficiencies." (Voter Information Guide, Gen.

Elec. (Nov. 8, 2016) Prop. 66, § 2, subd. (1), p. 212 (Voter Guide).) The findings and declarations went on to lament that "[f]amilies of murder victims should not have to wait decades for justice" and that "[h]undreds of killers have sat on death row for over 20 years." (Id ., § 2, subd. (3), p. 213.) The findings and declarations concluded by promising that if enacted, "[a] capital case can be fully and fairly reviewed by both the state and federal courts within ten years." (Id ., § 2, subd. (10), p. 213.) To fulfill that explicit promise, the initiative added and amended various provisions of the Penal Code to include several new procedures.

One of them was a requirement that "the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases" within five years of the entry of judgment. ( Pen. Code, § 190.6, subd. (d), italics added; all undesignated statutory references are to the Penal Code.) The ballot pamphlet told voters, in typeface as conspicuous as it was emphatic, that this provision "Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years." (Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, p. 106; see generally Elec. Code, § 9087, subd. (b) [the Legis.

Analyst must provide an analysis that is "easily understood by the average voter," which "may contain background information, including ... the effect of enacted legislation which will become effective if the measure is adopted"].) In the event the process "takes more than five years, victims or their attorneys could request a court order to address the delay." (Voter Guide, supra , analysis of Prop. 66 by Legislative Analyst, p. 106; see Pen.

Code, § 190.6, subd. (e) ["If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate"].) That's why proponents, in explaining "WHAT PROPOSITION 66 DOES," assured voters that if enacted, all state appeals should henceforth "be limited to 5 years." (Voter Guide, supra , argument in favor of Prop. 66, p. 108.) Then the 2016 general election took place.

With the aforementioned provisions at the heart of the initiative-and no doubt influenced by promises made in the Voter Guide-voters narrowly enacted Proposition 66. Petitioner then immediately filed this petition for writ of mandate. In it, he advanced a separation of powers challenge to the provision requiring California courts to resolve the automatic appeal and initial habeas corpus petition in capital cases within five years.

But here's the twist: At oral argument, the initiative's proponents (intervener Californians to Mend, Not End, the Death Penalty) admitted that an actual five-year deadline would "perhaps not" be constitutional. The proponents instead let it slip that the initiative's five-year deadline is not a deadline after all, but just a "goal" that has no real consequence if it goes unmet.

The Attorney General, also purportedly arguing in support of Proposition 66, added that this five-year "goal" was not "binding" and is really just "an invitation to take up the question of how long these appeals should take." This is what might be charitably described as a novel reinterpretation of the initiative's five-year deadline for resolution of the automatic appeal and initial capital habeas corpus petition. It is at odds-entirely-with what the initiative says, how it was designed to work, and how it was sold.

Even more remarkably, the majority blithely accepts this neutering of what clearly appeared to the voters to be a five-year deadline into a mere palaver on the processing of death penalty cases.

And not just any palaver: By reimagining the initiative as nothing more than an earnest exhortation calling on courts to consider dialing up the speed of death penalty adjudication, the majority upholds something quite different from the initiative considered and enacted by the electorate, leaving in its wake uncertainty about how we interpret initiatives and whether the time limits included in Proposition 66 have any legal effect. A.

Section 190.6, subdivision (

d) provides: "The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (

b) of

Section 28 of

Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases.

The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision." (Italics added.) Petitioner argues that a statute purporting to dictate when a court shall hear and determine a case would unconstitutionally interfere with the judiciary and violate the separation of powers. Both the Attorney General and intervener-proponents so concede.

Little wonder: With but one exception, state supreme courts have unanimously concluded that the timing of a judicial decision is a core judicial function, protected from legislative encroachment. ( State v. Buser (2015) 302 Kan. 1, 9 ( Buser ); see, e.g., Sands v. Albert Pike Motor Hotel (1968) 245 Ark. 755, 434 S.W.2d 288, 291-292 ["as laudable as the purpose intended may be," requiring a court to decide a workers' compensation case within 60 days is "an unconstitutional exercise of a judicial function by the legislative branch"]; State ex rel. Kostas v.

Johnson (1946) 224 Ind. 540, 69 N.E.2d 592, 595 [declaring that because "no department of the state government can be controlled or embarrassed by another department of the government, unless the Constitution so ordains," "statutes undertaking to fix the time within which courts shall act in certain cases or matters" are unconstitutional and void]; Atchison, T. & S. F. Ry. Co. v.

Long (1926) 122 Okla. 86, 251 P. 486, 489 ( Long ) ["to compel the courts to give a hearing to a particular litigant at a particular time, to the absolute exclusion of others who may have an equal claim upon its attention, strikes a blow at the very foundation of constitutional government. The right to control its order of business and to so conduct the same that the rights of all litigants may properly be safeguarded, has always been recognized as inherent in courts...."]; Schario v.

State (1922) 105 Ohio St. 535, 138 N.E. 63, 64 ["Manifestly, when a case can be heard and determined by a court must necessarily depend very largely upon the court docket, the quantity of business submitted to the court, the nature, the importance, and the difficulties attending the just and legal solution of matters involved.

It would be obviously unfair to the court, as well as unfair to other parties likewise interested in the early and expeditious determination of their causes, to require a court to suspend or delay equally important matters theretofore submitted to the court for its consideration and determination in order to give preference to the hearing and determination of some particular case or character of cases.

At least that is a matter that should be most properly and wisely left to the sound discretion of the court."].) "To strip [courts] of that authority" over the control of judicial business "would necessarily render them so impotent and useless as to leave little excuse for their existence." ( Long , at p. 489.) The majority does not contest a court's inherent authority to manage its docket in a manner that best promotes the pursuit of justice. (Maj. opn., ante , 221 Cal.Rptr.3d at p. 496, 400 P.3d at p. 55.) What the majority claims instead is that, under our precedent, "statutes may not be given mandatory effect, despite mandatory phrasing, when strict enforcement would create constitutional problems." (Id . at p. 498, 400 P.3d at p. 56.) But the responsibility we shoulder is to render constitutional rulings clear enough to foster meaningful deliberation rather than simply offering vague references to "constitutional problems," and to construe statutes in a manner that preserves the integrity of the democratic process.

A statute's purpose is paramount and may not be disregarded. Language is not putty. And it is not for us to declare, in gross, that a legislative body will never be understood as having enacted an unconstitutional law, for the question whether the enacting body had such a purpose will depend on the particular statutory text, structure, and legislative history. So it is one thing to declare a statute unconstitutional when it cannot be saved, yet quite another to pretend a statute means what it does not simply so it can be saved.

The latter course takes the court well beyond adoption of a saving construction when the statute reasonably allows it, into a realm straining the court's norms as well as its powers. ( Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187, 185 Cal.Rptr. 260, 649 P.2d 902 [" ' "If this court were to insert in the statute all or any of the ... qualifying provisions [required to render it constitutional], it would in no sense be interpreting the statute as written, but would be rewriting the statute...." ' "].) Saving an unsound construction is neither possible nor desirable.

Indeed, what we actually do when legislation might seem to regulate the time afforded the judiciary to decide motions or cases is instead quite different from what the majority describes. We require a clear statement that such regulation was contemplated. (See Garrison v.

Rourke (1948) 32 Cal.2d 430, 436, 196 P.2d 884 ( Garrison ) ["an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication"].) This particular clear statement rule is one closely related to the constitutional avoidance canon, which requires courts to avoid, where possible , interpreting a statute in a way that might render it unconstitutional. ( Ibid . [finding it unnecessary to decide whether a purported time limit for the resolution of an election contest would "defeat or interfere with the exercise of ... the judicial power ... in the absence, as here, of provisions clearly indicating that intent" (citations omitted, italics added) ].) When faced with an attempt to impose a deadline on a court's decisionmaking power, we have sometimes found the absence of a clear statement to impose a mandatory or enforceable deadline where no " 'consequence or penalty is provided for failure to do the act within the time commanded.' " ( Edwards v.

Steele (1979) 25 Cal.3d 406, 410, 158 Cal.Rptr. 662, 599 P.2d 1365.) On other occasions, we have focused on "the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment." ( Ibid . ) As this court recently (and unanimously) reiterated, " '[t]here is " ' no simple, mechanical test' " for making this determination.' [Citation.] The question is ultimately one of legislative intent ." ( Kabran v.

Sharp Memorial Hospital (2017) 2 Cal.5th 330, 343, 212 Cal.Rptr.3d 361, 386 P.3d 1159, italics added ( Kabran ).) Indeed: Because the mandatory nature of a statutory deadline depends on intended legislative purpose, we may not simply characterize such a deadline as directive where (as here) "the Legislature clearly expresses a contrary intent." ( People v. Allen (2007) 42 Cal.4th 91, 102, 64 Cal.Rptr.3d 124, 164 P.3d 557.) This, too, is the principle at the heart of our analysis in People v. Engram (2010) 50 Cal.4th 1131, 116 Cal.Rptr.3d 762, 240 P.3d 237 ( Engram ). There, we held that

section 1050's general policy giving criminal cases precedence over civil cases did not require the Riverside County Superior Court to assign criminal cases to the limited number of courtrooms "reserved for specialized civil matters or to the several judges from outside the county who had been assigned specifically to that court to assist in the trial of long-delayed civil matters." ( Engram , at p. 1138, 116 Cal.Rptr.3d 762, 240 P.3d 237.) One sentence in

section 1050 provided that "criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings." But what we explained is that "the statute explicitly declares that such precedence is to be applied '[i ]n accordance with ' the policy set forth in the preceding sentence, that is, in accordance with the policy of expediting criminal cases 'to the greatest degree that is consistent with the ends of justice .' " ( Engram , at p. 1151, 116 Cal.Rptr.3d 762, 240 P.3d 237, quoting § 1050, subd. (a).) Accordingly, the single sentence in

section 1050 "clearly" could not be interpreted to deprive the superior court "of the ultimate control over the cases within its jurisdiction." ( Engram , at pp. 1151-1152, 116 Cal.Rptr.3d 762, 240 P.3d 237 ; see id . at p. 1161, 116 Cal.Rptr.3d 762, 240 P.3d 237 ["a statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question"].) A candid analysis of a statute's purpose was also pivotal to In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484, 130 P.2d 755.

The Court of Appeal construed a statute providing that an appeal of a judgment concerning an irrigation district's dissolution " 'must be heard and determined within three months after the taking of such appeal.' " ( Id . at p. 486, 130 P.2d 755.) The Court of Appeal acknowledged that "[s]uch language is usually construed as mandatory," but cautioned that it is also " 'in many cases ... directory merely.' " ( Id . at p. 488, 130 P.2d 755.) Because "courts should construe statutes so they may be held constitutional where it is reasonably possible to do so" ( id . at p. 488, 130 P.2d 755 ), the Court of Appeal concluded that this language could and would be construed as reflecting a purpose to grant the appeal "as early a hearing and decision as orderly procedure in this court will permit" ( id . at p. 489, 130 P.2d 755 ).

And in Garrison , supra , 32 Cal.2d 430, 196 P.2d 884, we held that a statute providing that a court " 'shall' " ( id . at p. 435, 196 P.2d 884 ) decide an election contest within 10 days should not be interpreted as mandatory where "the consequence or penalty for the failure of the court to file findings of fact and conclusions of law within the designated period was not included in the statute" ( ibid . ) and where a mandatory effect would "lead to the result of defeating the aims and purposes of the statute" ( id . at p. 437, 196 P.2d 884 ).

What we may not do, under the guise of the avoidance canon, is " 'rewrite the law or give the words an effect different from the plain and direct import of the terms used.' " ( People v. Leal (2004) 33 Cal.4th 999, 1008, 16 Cal.Rptr.3d 869, 94 P.3d 1071 ; accord, Salinas v. United States (1997) 522 U.S. 52, 59-60, 118 S.Ct. 469, 139 L.Ed.2d 352.) For good reason: Invoking the canon when there's no plausible

interpretation of a statute that can avoid a constitutional conflict does justice neither to the enacted statute, the voters' will, nor the constitutional values at stake. Courts do not have the power to disregard a clear statement that a judicial deadline is mandatory, nor to construe a mandatory deadline to be something other than what it is. Yet that is precisely what the majority confesses it has done. I respectfully submit that the majority's construction of the five-year deadline in

section 190.6, subdivision (

d) is no exercise in judicial restraint, but instead an undisclosed and unjustified judicial reformation of the statute. That provision, as enacted by the voters, clearly states that "[w]ithin five years of the adoption of the initial rules or the entry of [the death] judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases." True: By itself, the word "shall" in subdivision (

d) does not necessarily indicate that a mandatory or compulsory meaning was intended, for we have frequently construed the word "shall" to be directory. (See Engram , 50 Cal.4th at p. 1151, fn. 8, 116 Cal.Rptr.3d 762, 240 P.3d 237 ; Garrison , supra , 32 Cal.2d at p. 437, 196 P.2d 884 ; Thurmond v. Superior Court (1967) 66 Cal.2d 836, 839, 59 Cal.Rptr. 273, 427 P.2d 985 ( Thurmond ); Lorraine v.

McComb (1934) 220 Cal. 753, 757, 32 P.2d 960 ( Lorraine ).) What the majority-and Justice Liu's concurring opinion-neglect to mention is that we have never done so in the face of a clear indication that the time limit or other restriction on judicial discretion was designed precisely to have mandatory effect. (Cf. Engram , at p. 1151, 116 Cal.Rptr.3d 762, 240 P.3d 237 [the provision of

section 1050 granting criminal cases precedence in trial setting over civil cases was explicitly subject to the policy set forth in the preceding sentence "of expediting criminal cases 'to the greatest degree that is consistent with the ends of justice ' "]; Garrison , at p. 437, 196 P.2d 884 [a mandatory

interpretation would "defeat[ ] the aims and purposes of the statute"]; Thurmond , at p. 839, 59 Cal.Rptr. 273, 427 P.2d 985 [a mandatory

interpretation "was not intended by the Legislature"]; Lorraine , at p. 757, 32 P.2d 960 ["We cannot ascribe to the legislature the intent to make the action of the parties compulsory upon the court in each instance"].) In each of these cases, a directory

interpretation advanced the legislative purpose. Which is exactly the opposite of what a directory

interpretation does to the most reasonable understanding of the electorate's purpose in enacting the five-year deadline. Subdivision (

e) of

section 190.6 expressly provides a mechanism by which crime victims can seek to enforce the deadline: "If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate." In their briefs, all of the parties agreed that Proposition 66 "requires" or "directs" state courts to complete the automatic appeal and review of the initial state habeas corpus petition within five years, and that the five-year deadline is-and was intended to be-enforceable through a petition for writ of mandate. The penalty set forth in

section 190.6, subdivision (

e) thus confirms that the voters' unambiguous purpose was to enact a mandatory, enforceable deadline, not "an exhortation ... to handle cases ... expeditiously." (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 501-502, 400 P.3d at p. 59; see Kabran , supra , 2 Cal.5th at p. 343, 212 Cal.Rptr.3d 361, 386 P.3d 1159.) Note that a different subdivision of

section 190.6 already provided, prior to Proposition 66, that "it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing." ( § 190.6, subd. (c), italics added.) The voters' approval of different language in subdivision (

d) strongly suggests that a different purpose was intended. (See Klein v.

United States of America (2010) 50 Cal.4th 68, 80, 112 Cal.Rptr.3d 722, 235 P.3d 42.) Note too that the Penal Code, prior to the enactment of Proposition 66, was replete with precatory language to expedite death penalty cases. (E.g., §§ 190.6, subd. (a) ["The Legislature finds that the sentence in all capital cases should be imposed expeditiously"]; 1239.1, subd. (a) ["It is the duty of the Supreme Court in a capital case to expedite the review of the case"].) It is not a reasonable inference that the voters sought merely to echo such provisions' effect when they adopted statutory language providing "Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases." ( § 190.6, subd. (e).) Although the text and structure at issue here are sufficient to demonstrate the voters' purpose, the materials in the voter information guide extinguish whatever doubts could conceivably remain.

As stated above, a heading in the Voter Guide's analysis told voters in bold and italicized type that Proposition 66 "Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years." (Voter Guide, supra , analysis of Prop. 66 by Legis.

Analyst, p. 106.) The Legislative Analyst went on to explain that "[i]f the process takes more than five years, victims or their attorneys could request a court order to address the delay." (Ibid .) Whether this remedy is workable or not in principle, every last one of the cases cited by the majority lacks the essential ingredient clearly present here: a statutory provision explicitly providing for a penalty or consequence if the time limit were exceeded.

It's quite telling that "neither the initiative's text nor its supporting materials describe any intention" to merely elaborate on the existing precatory language to expedite death penalty cases. ( People v. Valencia (2017) 3 Cal.5th 347, 357, 220 Cal.Rptr.3d 230, 397 P.3d 936 ( Valencia ).) This deadline has teeth-indeed, the kind of teeth a reasonable voter would have readily observed.

So did the Legislative Analyst, who referred, five times , to the five-year "requirement" or stated that the initiative "requires" completion of state court review within five years. (Voter Guide, supra , analysis of Prop. 66 by Legis.

Analyst, pp. 106-107.) In describing "WHAT PROPOSITION 66 DOES," intervener-proponents, too-in sharp contrast to their revisionist concession at oral argument-confirmed to voters that "[a]ll state appeals should be limited to 5 years" if the initiative were enacted. (Voter Guide, supra , argument in favor of Prop. 66, p. 108.) And the uncodified findings and declarations in the initiative itself were replete with representations that the initiative "will" mean that defendant's legal claims will be heard sooner and that victims "will" receive timely justice. (Voter Guide, supra , Prop. 66, § 2, subds. (6), (10), p. 213; cf.

Valencia , supra , 3 Cal.5th at p. 360, 220 Cal.Rptr.3d 230, 397 P.3d 936 ["the alleged effect on the Three Strikes Reform Act is not reflected in the uncodified provisions of Proposition 47 that set forth the purposes of the measure"].) Indeed, the mandatory five-year deadline represented a significant statutory change, whose fiscal impact the Legislative Analyst sought to estimate. (Voter Guide, supra , analysis of Prop. 66 by the Legis.

Analyst, p. 107 ["the requirement that each challenge generally be completed in five years ... could result in the filing of fewer, shorter legal documents"; "the ongoing fiscal impact of the measure on state costs related to legal challenges to death sentences is unknown"]; ibid . ["the state would incur annual cost increases in the near term to process hundreds of pending legal challenges within the time limits specified in the measure"; "such costs could be in the tens of millions of dollars annually for many years"]; cf.

Valencia , supra , 3 Cal.5th at p. 365, 220 Cal.Rptr.3d 230, 397 P.3d 936 ["the analysis provides no [fiscal] estimate of any effect on third strike offenders and their crimes nor any discussion of the fiscal effects on the state prison system"].) By construing the five-year deadline as mandatory, we promote , instead of defeat, the repeatedly highlighted purpose of the initiative. (Cf.

Engram , supra , 50 Cal.4th at p. 1150, 116 Cal.Rptr.3d 762, 240 P.3d 237 [construing the preference for criminal cases as mandatory would be inconsistent with the statutory purpose " 'to expedite these proceedings to the greatest degree that is consistent with the ends of justice' "]; Garrison , supra , 32 Cal.2d at p. 437, 196 P.2d 884 [construing the 10-day limit as mandatory would "lead to the result of defeating the aims and purposes of the statute"].) In short, all relevant ballot materials reinforced the idea that the five-year deadline was mandatory and could be enforced by a petition for writ of mandate.

The campaign for Proposition 66 itself did so, too. (See California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 177, 148 Cal.Rptr. 875, 583 P.2d 729 ["evidence of [the proposition's] purpose may be drawn from many sources"]; id . at p. 178, 148 Cal.Rptr. 875, 583 P.2d 729 [examining newspaper and campaign literature concerning the proposition]; see generally Hodges v.

Superior Court (1999) 21 Cal.4th 109, 114, 86 Cal.Rptr.2d 884, 980 P.2d 433 ["we are obliged to interrogate the electorate's purpose, as indicated in the ballot arguments and elsewhere"].) The website for "No on 62, Yes on 66" pledged that "Proposition 66 will ensure justice for both victims and defendants by [¶] Reforming the Appeals Process," which included four bullet points, the first of which was "Limit all state appeals to 5 years." Proposition 66 supporter (and San Bernardino County District Attorney) Michael Ramos wrote that "Proposition 66 ensures that all appeals are heard within five years." An editorial in the online Times of San Diego reiterated that "Prop. 66 reforms will speed up the appeals process, ensuring appeals are heard within 5 years." Even the president and CEO of the Criminal Justice Legal Foundation, which appears here as counsel for intervener-proponents, stated that Proposition 66 "compresses the process." No one on the "Yes on 66" side was telling voters "It's really just a goal, not a deadline." (Cf.

Valencia , supra , 3 Cal.5th at p. 350, 220 Cal.Rptr.3d 230, 397 P.3d 936 ["the ballot materials for Proposition 47 supplied no notice to voters that the measure intended to amend the resentencing criteria of the Three Strikes Reform Act"].) When we are trying to determine what the voters enacted, what voters were told matters.

After all, the question whether a time limit is mandatory or directive "is ultimately one of legislative intent." ( Kabran , supra , 2 Cal.5th at p. 343, 212 Cal.Rptr.3d 361, 386 P.3d 1159.) Where, as here, the text, structure, and history do not permit us to characterize the five-year deadline as merely a goal, the avoidance canon "has no role to play." ( Warger v. Shauers (2014) --- U.S. ----, 135 S.Ct. 521, 529, 190 L.Ed.2d 422.) Given this backdrop, there is a straightforward, readily-grasped constitutional flaw in

section 190.6, subdivision (d).

So far as I can see, courts across the country have found a violation of the separation of powers in every single case addressing a legislative attempt to impose an enforceable judicial deadline. (See, e.g., Buser , supra , 302 Kan. at p. 2 [invalidating a statutory deadline that required parties to file a joint request with the court " 'that such decision be entered without further delay' " if the Supreme Court failed to file its decision on a submitted matter within 180 days]; Co ate v.Omholt (1983) 203 Mont. 488, 662 P.2d 591, 593 [invalidating a statutory deadline that authorized a referral to the judicial standards commission when a court failed to issue a decision in 90 days]; State ex rel.

Watson v. Merialdo (1954) 70 Nev. 322, 268 P.2d 922, 926 [invalidating a statutory deadline that required the judge's salary be withheld for failure to issue a decision in 90 days]; In re Grady (1984) 118 Wis.2d 762,348 N.W.2d 559, 569-570 [same].) The five-year deadline in

section 190.6, like the deadlines in the cases above, includes a penalty or consequence for its violation:

Section 190.6, subdivision (

e) authorizes a party or victim to petition for writ of mandate to enforce the deadline. Accordingly, the separation of powers doctrine requires us to strike down this mandatory five-year deadline. B. The majority's efforts to avoid this conclusion are far from convincing. The majority's misguided analysis begins, but does not end, with its reliance on an exceedingly narrow and unjustified reading of

section 190.6, subdivision (e). In the majority's view, "the delay" that may be the subject of a petition for writ of mandate is limited to the delay in filing the opening appellate brief under subdivision (b). (See maj. opn., ante , 221 Cal.Rptr.3d at pp. 498-499, 400 P.3d at p. 57.) But there is no such limitation in the part of subdivision (

e) that authorizes the writ of mandate. There is such a limitation in the first sentence of subdivision (e)-which addresses the validity of the underlying judgment or the viability of the appeal-but it is quite obvious that this sentence and the writ of mandate sentence serve different purposes and thus have different scopes of operation. The first sentence of new subdivision (

e) represents a slight modification of

section 190.6, former subdivision (d), which provided: "The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this

section shall not be a ground for granting relief from a judgment of conviction or sentence of death." (Stats. 1996, ch. 1086, § 1, p. 7656.) Because the only "time limit provided by this section" (ibid .) at that time was the briefing deadline in subdivision (b), it became necessary, once

section 190.6 had been amended to include another time limit, to clarify that the first sentence of subdivision (

e) applied only to the deadline in subdivision (b). But the second sentence in subdivision (

e) is entirely new. It does not purport to create a remedy against a party -yet it is a party, after all, who does or does not comply with a briefing deadline. Rather, the second sentence creates a remedy against a court : "either party" or "any victim" may "petition for writ of mandate" against "a court" for "the delay." ( § 190.6, subd. (e), italics added.) Now consider the implication of inferring a restriction in the scope of this sentence, as the majority proposes.

Doing so would mean that the "party" who had failed to submit a timely opening appellate brief would be able to seek relief from "a court" for "the delay" in the party's timely filing of its own brief-a remedy without a right if there ever was one. Given its context, the structure of the statute, and the materials presented to the voters, we can safely conclude that what the second sentence in subdivision (

e) means is precisely what it says: Either party, or any victim, may seek relief by petition for writ of mandate when a court fails to comply with a deadline set forth in

section 190.6. What's more, a reasonable member of the electorate would also have considered the concluding sentence of

section 190.6, subdivision (e). This sentence expressly provides that a victim's right to enforcement of the Victims' Bill of Rights ( Cal. Const., art. I, § 28 ) includes standing to enforce the rights set forth in

section 190.6, subdivision (d) -i.e., the five-year deadline. Subdivision (d), in turn, explicitly links the five-year deadline to the constitutional "right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (

b) of

Section 28 of

Article I of the California Constitution, includ[ing] the right to have judgments of death carried out within a reasonable time." The majority's reading-which denies victims standing to enforce the five-year deadline-simply makes the final sentence of subdivision (

e) disappear. The majority says it must construe the five-year deadline as directory "regardless of how the ballot materials characterized" it because there is no "workable" means of enforcing the deadline. (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 498, 499-500, 400 P.3d at pp. 56-57, 58.) The majority cited no support for this conclusion because none exists, nor did it offer any compelling argument for why this approach makes sense. That the scheme is unworkable is both true and easily understood. Of course there's no tribunal in which a party could seek a writ of mandate directed to us.

But even more important, compliance with the five-year deadline depends in large part on a series of discretionary determinations by superior courts, the Court of Appeal, and this court-yet mandamus cannot be used to " ' "control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations]." ' " ( City of Torrance v.

Superior Court (1976) 16 Cal.3d 195, 201-202, 127 Cal.Rptr. 609, 545 P.2d 1313.) So the majority is right to conclude that the mandate mechanism-no matter how it is interpreted-is a hollow promise. Yet the question before us is not the workability of an arrangement involving a petition for writ of mandate to enforce the five-year deadline. It is instead whether a reasonable voter would have understood the purpose of the mandate mechanism to make the five-year deadline not merely an aspiration, but an enforceable reality. And subdivision (

e) of

section 190.6 is indeed a clear statement that the five-year deadline is mandatory, not directory. Everything before us-the text and structure of the initiative, its unambiguous purpose, the ballot materials, and the construction endorsed by all of the parties-would lead a reasonable voter to believe that this provision, which had attracted so much attention, constituted a real deadline, and one that could be enforced by a petition for writ of mandate.

When the text of a voter initiative provides that government "shall" complete some action within a specified period of time ( § 190.6, subd. (d) ), the analysis of the initiative in the ballot pamphlet confirms that the new law "requires" completion of some action within the specified period of time (Voter Guide, supra , analysis of Prop. 66 by Legis.

Analyst, pp. 106-107), and the proponents' argument there and in its general campaign promises that the new law "will" achieve that objective (see ante , fn. 3 and accompanying text), a reasonable voter would conclude that the initiative imposes an enforceable deadline. So, too, when the initiative goes so far as to authorize aggrieved parties to obtain a judicial writ to enforce the time limit, a reasonable voter would feel confident that the new law enacts real, meaningful control over the judicial function.

Moreover, nothing in our case law, the case law from any other jurisdiction, or in the inherent logic of constitutional or statutory

interpretation makes the characterization of a statutory time limit for judicial processes turn on whether the enforcement mechanism would be "workable." (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 499-500, 400 P.3d at p. 58.) It's doubtful that any mechanism to enforce a statutory deadline on the resolution of a case or motion could ever be entirely workable, since such a deadline (as the majority concedes) would necessarily interfere with the court's control over its docket and thus violate the separation of powers. (See maj. opn., ante , at pp. 500-501, 400 P.3d at pp. 58-59.) The majority's interpretive move, in reality, is to declare that it would never recognize any deadline as mandatory.

Our court has the power to take a "different" approach from that of every other court inside or outside of California (ibid .), but it is hard to see how this approach squares with our mission, when interpreting a statute, to construe it in a manner that gives effect to the legislative purpose. (See Goodman v. Lozano , supra , 47 Cal.4th at p. 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77.) Equally unpersuasive is the majority's next justification for construing the clearly mandatory deadline as merely directory.

According to the majority, it was not sufficient that the text, structure, context, and legislative history demonstrated that the deadline was mandatory. Rather, the ballot materials also needed to inform the voters about "the details of an enforcement mechanism" and "how such an order could effectively result in compliance." (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 499-500, 400 P.3d at p. 58.) If such a requirement is to be plucked out of thin air-as I fear this one has been-then it needs a compelling substantive or institutional justification that the majority does not provide.

To my knowledge, we have never required the voters to sit through a constitutional law lecture before we would be willing to interpret a law as it was written. Such a requirement strikes me as inconsistent with the very 83-year-old case the majority purports to be vindicating.

Unlike this case, Lorraine did not even involve a constitutional challenge ( Lorraine , supra , 220 Cal. at p. 756, 32 P.2d 960 )-we instead considered only the mandatory/directory character of a statute providing that a court " 'shall' " postpone a trial or hearing for up to 30 days " 'when all attorneys of record of parties who have appeared in the action agree to such postponement.' " ( Id . at p. 754, 32 P.2d 960.) Tellingly, we did not inquire whether the Legislature had sufficiently ruminated about "the details" of the rule's operation or what effect it would have on a court.

Instead, in accordance with our longstanding rule that the mandatory/directory distinction "is ultimately one of legislative intent" ( Kabran , supra , 2 Cal.5th at p. 343 ), we focused on whether the Legislature had "the intent to make the action of the parties compulsory upon the court in each instance." ( Lorraine , at p. 757, 32 P.2d 960 ; see also Thurmond , supra , 66 Cal.2d at p. 839, 59 Cal.Rptr. 273, 427 P.2d 985.) Finding no such intent, we declared the statutory text to be properly interpreted as directory. ( Lorraine , at p. 757, 32 P.2d 960.) That's quite a contrast with the five-year deadline here, which even the majority concedes was meant to be mandatory. (Maj. opn., ante , --- Cal.Rptr.3d at p. ----, ---- - ----, --- P.3d at p. ----, ---- - ----.) When a statute encroaches on a court's discretion in managing its docket-and there is a clear statement the statute is mandatory, not directory-then we have no option but to provide the public and the other branches with the requisite clarity of decision and doctrine by declaring the statute unconstitutional as a violation of the separation of powers.

Indeed, that is precisely what Verio Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315, 208 Cal.Rptr.3d 436 ( Verio ) held.

At issue in Verio were amendments to two civil procedure statutes we had previously construed in Thurmond , supra , 66 Cal.2d 836, 59 Cal.Rptr. 273, 427 P.2d 985 to be directory. ( Verio , supra , 3 Cal.App.5th at p. 1325-1326, 208 Cal.Rptr.3d 436.) In 1968, one year after Thurmond , the Legislature amended each of those statutes to add a new provision stating that a continuance or extension of time requested by a party or attorney who is a member of the Legislature then in session "is mandatory," unless the court determined that the continuance or extension of time would defeat or abridge a right to relief in specified proceedings. ( Code Civ.

Proc., §§ 595, 1054.1, subd. (b).) In contrast to the majority's approach in this case, the Verio court recognized that the clearly mandatory provisions of the amended statutes rendered them distinguishable from the statutes we construed in Lorraine , Thurmond , and Engram . ( Verio , at pp. 1329-1330, 208 Cal.Rptr.3d 436.) Precisely because the 1968 amendments "explicitly describe[d] the continuance or extension of time as 'mandatory,' " the court held "that sections 595 and 1054.1 are unconstitutional to the extent they purport to be mandatory." ( Id . at p. 1330, 208 Cal.Rptr.3d 436.) The majority holds out Verio as an example of a court interpreting a statute as directory, despite its mandatory phrasing.

Verio does not even mildly support the majority's position. The Verio court "refused to give the statutes mandatory effect" (maj. opn., ante , --- Cal.Rptr.3d at p. ----, ---P.3d at p. ----) for the simple reason that the amendments making the statutes mandatory had been struck down as unconstitutional. ( Verio , supra , 3 Cal.App.5th at p. 1330, 208 Cal.Rptr.3d 436.) The remainder of the statutes, though, could still be given effect in a manner consistent with our jurisprudence on severability and the statutory design. (See Legislature v.

Eu (1991) 54 Cal.3d 492, 535, 286 Cal.Rptr. 283, 816 P.2d 1309.) The invalid mandatory provisions were set forth in a separate subdivision (see Code Civ. Proc., § 1054.1, subd. (b) ) or a separate paragraph ( id ., § 595, 2d par.) and were grammatically severable. (See Verio , at p. 1325, 208 Cal.Rptr.3d 436.) The invalid mandatory provisions were functionally severable, in that their removal would not affect or disrupt the operation of either statute.

And the court could be sure that the Legislature would have maintained the pre-amended version of the statutes, had it foreseen the invalidation of the 1968 amendments, because " '[t]he legislative policy of granting continuances of court proceedings so as not to interfere with the functions of the Legislature ... has been the law since 1880.' " ( Verio , at p. 1326, 208 Cal.Rptr.3d 436, quoting Thurmond , supra , 66 Cal.2d at p. 840, 59 Cal.Rptr. 273, 427 P.2d 985.) These aspects of the case showcase why Verio did not interpret mandatory language as directory. It instead invalidated the mandatory provisions.

The remaining statutory text, excised of the unconstitutional provisions, was the same statutory text we had already construed as directory in Thurmond . Consequently, Verio declared that those statutes "should continue to be treated as directory." ( Verio , at p. 1330, 208 Cal.Rptr.3d 436, italics added.) Ironically, it is the part of Verio that is on point-the part declaring mandatory provisions unconstitutional-that the majority ignores. Instead the majority relies on the part of Verio that read directory language to be directory, but that

part is of no assistance here. No one-not the majority, not the Attorney General, not the intervener-proponents-claims the five-year deadline is somehow severable from the mandatory aspects of the initiative. (See Katyal & Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change (2015) 128 Harv. L.Rev. 2109, 2121, fn. 47 ["When a court uses the rewriting power, it is, in effect, implicitly assuming the outcome of the severability analysis and acting with less candor and transparency than a court that does the analysis explicitly"].) And nothing in the record suggests the voters would have preferred a directory

interpretation of the five-year deadline to its invalidation. To the contrary: Several statutes already offered what the majority calls "an exhortation to the parties and courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice." (Maj. opn., ante , 221 Cal.Rptr.3d at p. 501, 400 P.3d at p. 59; see §§ 190.6, subds. (a), (c), 1239.1, subd. (a).) There is no reason to think the voters, when they enacted Proposition 66, wanted merely to pile on.

As a sister state supreme court explained nearly a century ago, "[F]or us to merely hold the provisions of the act under consideration directory would afford poor consolation, for it was doubtless the intention of those sponsoring this measure to provide a method for a speedy disposition of such matters, and to hold the provisions of the measure merely directory would enable the courts to take as much time as they saw fit to dispose of the questions presented, which would be no improvement over the method provided by law as it existed before this measure was initiated." ( Long , supra , 251 P. at p. 490.) Litigants and policymakers are unlikely to discover much improvement-or "benefit" (maj. opn., ante , 221 Cal.Rptr.3d at p. 495, fn. 28, 400 P.3d at p. 54, fn. 28)-in the majority's implausible construction of the five-year deadline, either.

It would be exceptionally difficult, and potentially quite fraught, for the Judicial Council to implement whatever might all

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