BEFORE THE COMMISSION ON STATE MANDATES STATE OF CALIFORNIA IN RE MANDATE REDETERMINATION: FIRST HEARING: ADEQUATE SHOWING ON: Welfare and Institutions Code sections 6601, 6602, 6603, 6604, 6605, and 6608; As added or amended by Statutes 1995,

Chapter 762 (SB 1143); Statutes 1995,

Chapter 763 (AB 888); Statutes 1996,

Chapter 4 (AB 1496). Sexually Violent Predators (CSM-4509) As Alleged to be Modified by: Proposition 83, General Election, November 7, 2006 Filed on January 15, 2013 By the Department of Finance, Requester. Case No.: 12-MR-01 Sexually Violent Predators (CSM-4509) STATEMENT OF DECISION PURSUANT TO GOVERNMENT CODE

SECTION 17500, ET SEQ.; CALIFORNIA CODE OF REGULATIONS, TITLE 2, DIVISION 2,

CHAPTER 2.5,

ARTICLE 7. (Adopted July 26, 2013) (Served August 2, 2013) STATEMENT OF DECISION The Commission on State Mandates (Commission) heard and decided this mandate redetermination during a regularly scheduled hearing on July 26, 2013. Hasmik Yaghobyan appeared for the County of Los Angeles, the claimant in the SVP test claim. Craig Osaki appeared for the Los Angeles County Public Defender’s Office. Jack Weedin appeared for the California Public Defenders’ Association. Timothy Barry appeared for the County Counsel of San Diego. Geoffrey Neill appeared for the California State Association of Counties.

Allan Burdick appeared as a member of the public. Michael Byrne and Susan Geanacou appeared for the Department of Finance. The law applicable to the Commission’s determination of a reimbursable state-mandated program is

article XIII B,

section 6 of the California Constitution, Government Code

section 17500 et seq., title 2, California Code of Regulations 1189 et seq., and related case law. The Commission adopted the staff analysis at the hearing by a vote of 7 to 0, and directed staff to notice a second hearing to determine whether to adopt a new test claim decision to supersede the previously adopted test claim decision. 1

Summary of the Findings The Commission finds that the Department of Finance (DOF) has made an adequate showing that the state’s liability pursuant to

article XIII B,

section 6(

a) of the California Constitution, for the CSM-4509 mandate has been modified based on a subsequent change in law. Specifically, Welfare and Institutions Code sections 6601, 6604, 6605, and 6608 imposed duties expressly included in Proposition 83, adopted by the voters on November 7, 2006. Government Code

section 17556(

f) proscribes the Commission from finding “costs mandated by the state” for costs incurred as a result of statutes that impose duties that are expressly included in a ballot measure approved by the voters. Pursuant to Government Code

section 17570(b)(d)(4), the Commission will hold a second hearing to determine if a new test claim decision shall be adopted to supersede the previously adopted test claim decision.

COMMISSION FINDINGS Chronology 06/25/1998 The Commission adopted the test claim statement of decision for Sexually Violent Predators, (CSM-4509), approving reimbursement for certain activities under Welfare and Institutions Code sections 6601, 6602, 6603, 6604, 6605, and 6608. 1 09/24/1998 The Commission adopted parameters and guidelines. 2 11/08/2006 California voters approved Proposition 83, which amended and reenacted several sections of the Welfare and Institutions Code. 3 10/30/2009 The Commission adopted amended parameters and guidelines. 4 01/15/2013 DOF filed a request for redetermination of CSM-4509. 5 01/24/2013 Commission staff deemed the filing complete. 02/13/2013 The State Controller’s Office (SCO) submitted comments. 6 02/13/2013 The County of Los Angeles requested an extension of time to file comments. 02/13/2013 The California State Association of Counties (CSAC) requested an extension of time to file comments. 02/14/2013 The County of San Diego requested an extension of time to file comments. 02/15/2013 The Executive Director granted an extension of time for the submittal of all comments until March 27, 2013, and set the matter for the first hearing on July 26, 2013. 1 Exhibit B, Test Claim Statement of Decision. 2 Exhibit C, Test Claim Parameters and Guidelines. 3 See Exhibit A, Request for Redetermination. 4 Exhibit D, Test Claim Amended Parameters and Guidelines. 5 Exhibit A, Request for Redetermination. 6 Exhibit E, SCO Comments on Request for Redetermination. 2

03/19/2013 California District Attorneys’ Association (CDAA) submitted comments on the request for redetermination. 7 03/22/2013 CSAC submitted comments on the request for redetermination. 8 03/25/2013 California Public Defenders’ Association (CPDA) submitted comments on the request for redetermination. 9 03/25/2013 District Attorney of San Bernardino County submitted comments on the request for redetermination. 10 03/25/2013 County of San Bernardino submitted comments on the request for redetermination. 11 03/26/2013 District Attorney of Sacramento County submitted comments on the request for redetermination. 12 03/26/2013 District Attorney of Los Angeles County submitted comments on the request for redetermination. 13 03/27/2013 County of Los Angeles submitted comments on the request for redetermination. 14 03/27/2013 Alameda County Public Defender submitted comments on the request for redetermination. 15 03/27/2013 County Counsel of San Diego County submitted comments on the request for redetermination. 16 03/29/2013 Alameda County District Attorney submitted comments on the request for redetermination. 17 7 Exhibit F, CDAA Comments on Request for Redetermination. 8 Exhibit G, CSAC Comments on Request for Redetermination. 9 Exhibit H, CPDA Comments on Request for Redetermination. 10 Exhibit I, County of San Bernardino District Attorney Comments on Request for Redetermination. 11 Exhibit J, County of San Bernardino Comments on Request for Redetermination. 12 Exhibit K, County of Sacramento District Attorney Comments on Request for Redetermination. 13 Exhibit L, County of Los Angeles District Attorney Comments on Request for Redetermination. 14 Exhibit M, County of Los Angeles Comments on Request for Redetermination. 15 Exhibit N, Alameda County Public Defender Comments on Request for Redetermination. 16 Exhibit O, County Counsel of San Diego Comments on Request for Redetermination. 17 Exhibit P, Alameda County District Attorney Comments on Request for Redetermination. 3

05/09/2013 Commission staff issued the draft staff analysis and proposed statement of decision. 18 05/17/2013 DOF submitted comments on the draft staff analysis. 19 05/28/2013 CPDA submitted comments on the draft staff analysis. 20 05/31/2013 County of Los Angeles submitted late comments on the draft staff analysis. 21 I.

Background The Sexually Violent Predator Program and Alleged Subsequent Change in Law The Sexually Violent Predators (SVP) program established civil commitment procedures for the civil detention and treatment of sexually violent predators following the completion of an individual’s criminal sentence imposed for certain sex-related offenses. Before civil detention and treatment are imposed, the county counsel or district attorney is required to file a petition for civil commitment. A trial is then conducted to determine beyond a reasonable doubt if the person is a sexually violent predator.

If the person alleged to be a sexually violent predator is indigent, the county is required to provide the indigent person with the assistance of counsel and experts necessary to prepare the defense. The Commission concluded, in the CSM-4509 test claim statement of decision, that Welfare and Institutions Code sections 6601(i), 6602, 6603, 6604, 6605(b)-(d), and 6608(a)-(

d) as enacted or amended by the 1995 and 1996 test claim statutes, imposed a reimbursable state-mandated program on counties within the meaning of

article XIII B,

section 6, of the California Constitution. 22 On November 7, 2006, the voters approved Proposition 83, also known as “Jessica’s Law.” Proposition 83 effected a number of amendments to the Penal Code, including strengthening penalties for kidnapping and sexual offenses perpetrated upon children, and expanding the

definitions of certain sexual offenses, especially by removing the requirement of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” from the

definitions of several crimes. 23 Proposition 83 also mandated consecutive sentences for a number of sexual offenses, 24 mandated a minimum 25 year sentence for a “habitual sexual offender,” as defined, 25 and required persons released on parole from a “registerable sex offense” to be monitored for the 18 Exhibit Q, Draft Staff Analysis and Proposed Statement of Decision. 19 Exhibit R, DOF Comments on Proposed Statement of Decision. 20 Exhibit S, CPDA Comments on Draft Staff Analysis. 21 Exhibit T, County of Los Angeles Comments on Draft Staff Analysis. 22 Exhibit B, Test Claim Statement of Decision, at p. 12. 23 See, e.g., Penal Code sections 209, 220, 269, as amended by Proposition 83 (adopted November 7, 2006). 24 See Penal Code

section 667.6, as amended by Proposition 83. 25 Penal Code

section 667.71, as amended by Proposition 83. 4

duration of their parole by a global positioning system device, for which the parolee is responsible to pay unless granted a waiver by the Department of Corrections.26 As directly relevant here, Proposition 83 also amended and reenacted provisions of the Welfare and Institutions Code, including sections 6601, 6604, 6605, and 6608 which were among the test claim statutes approved by the Commission in CSM-4509.

Section 6601(

k) was amended by Proposition 83 to provide that a civil commitment under

article 4 shall toll the term of an existing parole, where applicable. This means that if a person were granted parole but subsequently civilly committed, that individual’s parole would not run concurrently, but would be “tolled,” and the remaining parole would be served after the civil commitment ends. The test claim statute, as approved in CSM-4509, provided that a civil commitment “shall not toll, discharge or otherwise affect the term of parole,” meaning that a term of parole could run concurrently with a civil commitment, but that release from civil commitment would not discharge any remaining term of parole. The remainder of

section 6601 was reenacted by Proposition 83 without amendment.

Section 6604 was amended by Proposition 83 to provide that if a court or jury determined that a person is a sexually violent predator, the person “shall be committed for an indeterminate term.” The test claim statute, as approved in CSM-4509 had provided for a two year civil commitment, with an option for an extended commitment order from the court.

Section 6605 was amended by Proposition 83 to provide that if the Department of Mental Health deems that the person’s condition has changed, and that unconditional release or a conditional release to a less restrictive environment is appropriate and in the best interests of the person and conditions can be imposed to adequately protect the community, the Director “shall authorize the person to petition the court” for conditional release or unconditional discharge.

The test claim statute, as approved by the Commission, required an annual notice to the person of his or her right to petition the court for release, and provided for an annual examination of his or her mental condition, but not, as the more recently amended

section requires: “consideration of whether the committed person currently meets the definition of a sexually violent predator” and whether conditional release is appropriate in a particular case.” Based on the plain language, the prior

section 6605 was focused on the right of the individual to be annually evaluated for release, and to petition for release. As the

section reads after Proposition 83, the focus is on the Department of State Hospitals making a determination that a person’s condition has changed, and “authorizing” that person to petition for release. And finally, Proposition 83 amended

section 6608 to provide that, notwithstanding the provisions of

section 6605, a person may petition the court for “conditional release or an unconditional discharge” without approval from the director of the Department of Mental Health. The test claim statute stated “conditional release and subsequent unconditional discharge.” 27 26 Penal Code

section 3000.07, as added by Proposition 83. 27 Compare Penal Code sections 6601, 6604, 6605, and 6608 (as added or amended by Stats. 1995, ch. 762; Stats. 1995, ch. 763; Stats. 1996, ch. 4) with Penal Code sections 6601, 6604, 6605, and 6608, as amended by Proposition 83. 5

Mandate Redetermination Process under

Section 17570 Government Code

section 17570 provides a process whereby a test claim decision may be redetermined and superseded by a new test claim decision if a subsequent change in law, as defined, has altered the state’s liability for reimbursement. The redetermination process calls for a two stage hearing; at the first stage, the requester must make “an adequate showing which identifies a subsequent change in law as defined by Government Code

section 17570, material to the prior the claim decision, that may modify the state’s liability pursuant to

Article XIII B,

section 6, subdivision (

a) of the California Constitution.” 28 A subsequent change in law is defined in

section 17570 as follows: [A] change in law that requires a finding that an incurred cost is a cost mandated by the state, as defined by

Section 17514, or is not a cost mandated by the state pursuant to

Section 17556, or a change in mandates law, except that a “subsequent change in law” does not include the amendments to

Section 6 of

Article XIII B of the California Constitution that were approved by the voters on November 2, 2004. A “subsequent change in law” also does not include a change in the statutes or executive orders that impose new state-mandated activities and require a finding pursuant to subdivision (

a) of

Section 17551. 29 If the Commission finds, at the first hearing, that the requester has made an adequate showing, “when considered in light of all of the written responses, rebuttals and supporting documentation in the record and testimony at the hearing, the commission shall publish a decision finding that an adequate showing has been made and setting the second hearing on the request to adopt a new test claim decision to supersede the previously adopted test claim decision.” 30 II. Positions of the Requester, Test Claimant, and Interested Parties and Persons A.

Department of Finance, Requester DOF submitted a request to adopt a new test claim decision regarding Welfare and Institutions Code sections 6601, 6602, 6603, 6604, 6605, and 6608, pursuant to Government Code

section 17570. DOF asserts that Proposition 83 constitutes a subsequent change in the law, as defined in

section 17570, which, when analyzed in light of

section 17556, results in the state’s liability under the test claim statutes being modified. DOF argues that “the state’s obligation to reimburse affected local agencies has ceased.” 31 Specifically, DOF argues that because sections 6601, 6604, 6605, and 6608 were included in their entirety in Proposition 83, the voters reenacted the entirety of those sections, “including the portions not amended,” and therefore the test claim statutes impose duties expressly included in the voter-enacted ballot measure.

DOF also argues that “[t]he remainder of the mandate’s Welfare and Institutions Code sections that were not expressly included in the ballot measure are, nevertheless, necessary to implement the ballot measure.” DOF concludes that “all activities found to be reimbursable by the Commission in the Sexually Violent Predator mandate are no longer reimbursable pursuant to Government 28 Code of Regulations, Title 2,

section 1190.05(a)(1). 29 Government Code

section 17570, as added by Statutes 2010,

chapter 719 (SB 856). 30 California Code of Regulations, Title 2,

section 1190.05(a)(5)(B). 31 Exhibit A, Request for Redetermination, at p. 2. 6

Code

section 17556, subdivision f, as they are either: (1) expressly included in Prop 83 or, (2) necessary for the implementation of Prop 83.”32 B. County of Los Angeles, Claimant for CSM-4509 The County of Los Angeles filed comments on the redetermination request, summarized as follows: The County opposes the DOF's request to adopt a new test claim on the basis that: 1) the extraneous text included in the body of Prop 83 did not constitute a change in the law; 2) Prop 83 did not convert activities identified in the Commission's 1998 Statement of Decision to activities necessary to implement Prop 83, therefore, no longer reimbursable; and 3) Government Code

Section 17570 is unconstitutional. 33 The County’s position relies on its reasoning that Statutes 2006,

chapter 337 (SB 1128), enacted as urgency legislation on September 20, 2006, made most of the same substantive amendments to the code that would be enacted by Proposition 83 less than two months later. The County reasons that because the law in effect immediately prior to the passage of Proposition 83 was substantially the same, Proposition 83 cannot constitute a subsequent change in law. The County argues: The changes actually proposed by Prop 83 were few and narrow, particularly in light of revisions to SVP laws that had recently been codified by S8 1128.

The Secretary of State's practice of giving textual context to a ballot proposal by including unaffected statutory provisions is a benign protocol intended to fully inform the voters. Affirmation of existing law most certainly does not give rise to the change in law contemplated by

Section 17570. 34 Thus, the County also implies, in the excerpt above, that sections 6601, 6604, 6605, and 6608 were reproduced in the ballot measure in their entirety as a matter of “protocol,” not because the ballot measure was intended to effect substantive or pervasive changes. Finally, the County argues that

section 17570 is unconstitutional on separation of powers grounds, and because it is “an infringement of

article XIII B,

section 6, of the California Constitution.” 35 In response to the draft staff analysis and proposed statement of decision, the County argues in late comments that DOF’s delay of “nearly six and a half years after the passage of Proposition 83” in bringing this reconsideration request was unreasonable because the Legislature in 2008 directed the Commission to set aside and reconsider the Sexually Violent Predators mandate “upon final resolution of any pending litigation challenging the constitutionality of subdivision (

f) of

section 17556.” the County also states that the current redetermination process was made effective October 19, 2010, but that DOF “waited until January 2013.” Finally, the County argues that Proposition 83’s standards for defining a person as an SVP and for releasing an SVP, 32 Ibid. 33 Exhibit M, County of Los Angeles Comments, at p. 1. 34 Exhibit M, County of Los Angeles Comments, at pp. 1-2. 35 Exhibit M, County of Los Angeles Comments, at p 5. 7

once adjudicated, should not be applied to “pre Prop 83 offenders.”36 The County argues that to end mandate reimbursement for offenders determined to be sexually violent predators prior to the adoption of Proposition 83 would violate the rights of offenders and “nullify judges’ sentencing orders.”37 C. State Controller’s Office The SCO agrees with DOF “that the eight activities previously determined to be reimbursable in the Statement of Decision adopted on June 25, 1998 cease to be reimbursable.” 38 D. Other Interested Parties and Persons 1.

California District Attorneys’ Association; San Bernardino County District Attorney’s Office The CDAA and the San Bernardino County DA argue that “[t]he application of Government Code § 17556(

f) to Proposition 83 in order to terminate state subvention of mandated sexually violent predators is legally incorrect.” CDAA continued: The Department of Finance contention that the mere recitation of any portion of a statute contained in a proposition, brings it within the "expressly included in" language of Government Code § 17556(

f) regardless of whether the sections mandating local activity were amended or not, and whether or not the intent of the initiative and purpose of the initiative was to eliminate the subvention requirements of

Article XIII B §6 by operation of Government Code § 17566(f), is not warranted. Such an

interpretation would make the application of the statute so over broad and vague that no voter, local official, or legal analyst could accurately predict whether state mandated subvention would cease to exist as they voted to pass any ballot initiative that referenced existing law. 39 They also argue that there is no evidence, including in the ballot materials, that the voters intended Proposition 83 to terminate the state’s liability under

article XIII B,

section 6, to 36 Exhibit T, County of Los Angeles Comments, at pp. 1-2. 37 This assertion is not relevant to the issue at hand: whether this program imposes a reimbursable state mandate when analyzed in the context of Proposition 83. LA County implies that ending reimbursement would affect the rights of persons alleged to be, or adjudicated to be, sexually violent predators, and that those effects constitute an enactment in violation of the United States Constitution’s proscription against ex post facto laws. An ex post facto law is one which alters the legal consequences of

an act after the act is committed, and the United State Supreme Court has held that the prohibition only applies to criminal statutes. A change in mandate reimbursement does not violate the prohibition, or affect in any way how an individual alleged to be a sexually violent predator is treated under the law, or what process is due.

The redetermination of the test claim does not impact the rights of criminal defendants, rather it resolves who must pay for the costs of implementing the law: the state, if it is a state-mandated program; or the county, if it is not.. 38 Exhibit E, SCO Comments, at p. 1. 39 Exhibit F, CDAA Comments, at p. 1; Exhibit I, San Bernardino County DA Comments, at p. 1. 8

reimburse the test claim statutes. To support this argument they cite a letter from the Legislative Analyst’s Office (LAO) and DOF to then-Attorney General Lockyer, in which “[t]he unequivocal conclusion of both officials is that the costs of the SVP program would remain a reimbursable by the state.” They assert that this conclusion should be given great weight, “despite the Department of Finance’s now changed opinion.”40 2. California State Association of Counties CSAC argues, in its comments, that the state’s liability has not been affected by Proposition 83.

Specifically, CSAC argues that the California Constitution mandates reimbursement for new programs or higher levels of service, subject to “four exceptions, but none of them are relevant in this case.” CSAC argues that “[i]n particular, there is no exception for a ballot measure that voters pass years later that does not substantively amend any of the language that established the mandate in the first place.” 41 CSAC further argues that the SVP program was unaffected by the passage of Proposition 83: “[b]ecause the ballot measure made no substantive changes to the reimbursable aspects of the program, the SVP program established by the Legislature would have remained in place whether voters approved or disapproved Proposition 83.” CSAC also notes that “SB 1128, by Senator Alquist, amended Sections 6600, 6601, 6604, 6604.1, and 6605 of the Welfare and Institutions Code, among many others,” less than two months prior to the election in which Proposition 83 was adopted, and that therefore Proposition 83 made no substantive changes to the law in effect at that time.

Finally, CSAC argues that the request should be rejected because the Director of DOF “told the voters that counties would be reimbursed.” CSAC cites the ballot materials and the analysis published leading up to the election: At the time Proposition 83 went to the ballot, the chief analysts representing both the Administration and the Legislature- the Director of Finance and the Legislative Analyst- agreed that all county costs related to the SVP commitment process would be reimbursed by the state.

They stated the fact that counties would be reimbursed four times in their official fiscal analysis provided to the Attorney General, and voters decided the outcome of Proposition 83 based in part on that assurance.

In their official fiscal analysis of the ballot measure required by law, the Legislative Analyst and Director of Finance state unequivocally that Proposition 83 would increase state costs to, among other things, "reimburse counties for their costs for participation in the SVP commitment process." 42 CSAC implies that these analyses constitute evidence of voter intent, which in turn should be given substantial weight in evaluating whether a subsequent change in law has occurred. 40 Exhibit F, CDAA Comments, at p. 4; Exhibit I, San Bernardino County DA Comments, at p. 4. 41 Exhibit G, CSAC Comments, at p. 1. 42 Exhibit G, CSAC Comments, at p. 3. 9

3. California Public Defenders’ Association and Alameda County Public Defender’s Office CPDA and Alameda County Public Defender’s Office submitted substantially identical comments opposing the request for redetermination, in which they argue:

(1) The 2012 legislative amendment and re-enactment of the Sexually Violent Predator Act (SVP

A) either confirmed the viability of the Sexually Violent Predator Mandate (CSM-4509), or, arguendo, superseded any impact that Proposition 83 may have affected on the mandate;

(2) Misrepresentation and the doctrines of estoppel and unclean hands bar the DOF's redetermination request;

(3) Proposition 83 did not effectuate a "subsequent change in the law" as contemplated by Government Code

section 17570; and

(4) Government Code section17570 is unconstitutional. 43 The comments note that in 2012, the Legislature enacted substantive amendments to the SVP program, which, it is argued, “superseded any impact” of Proposition 83.

CPDA and the Alameda County Public Defender’s Office argue that due to the 2012 amendments to the relevant codes sections “Proposition 83 is no longer the statutory authority supporting the SVPA; consequently the cost incurred by local agencies to comply with the 2012 legislatively enacted SVPA is a cost mandated by the state.” 44 The comments cite the LAO and DOF analysis of Proposition 83, and argue that DOF should now be estopped from seeking redetermination of the SVP mandate because of the position taken prior to the election on Proposition 83. 45 The comments also focus on the 2006 legislative amendment to the SVP program, arguing that DOF’s request for redetermination “is misleading because the statutory language quoted from the SVPA by the DOF's January 15, 2013, request, as well as that include [sic] in the actual proposition, was not the statutory language in effect at the time Proposition 83 was passed on November 7, 2006.” 46 And finally, the comments assert that

section 17570 is unconstitutional, because it is unconstitutionally vague, with respect to the term “subsequent change in law,” and because it violates separation of powers doctrine. 47 In response to the draft staff analysis, CPDA submitted further comments, strenuously reiterating its arguments with respect to the unclean hands and estoppel doctrines.

CPDA argues in its comments that prior reconsiderations conducted at the direction of the Legislature with respect to four prior test claims, and ultimately struck down by the court of appeal, demonstrate that a legal process or mechanism for reconsidering a test claim was in effect at the time Proposition 83 was 43 Exhibit H, CPDA Comments, at p. 1; Exhibit N, Alameda County Public Defender’s Comments, at p. 2. 44 Exhibit H, CPDA Comments, at p. 2; Exhibit N, Alameda County Public Defender’s Comments, at p. 3. 45 Exhibit H, CPDA Comments, at pp. 3-4: Exhibit N, Alameda County Public Defender’s Comments, at pp. 4-5. 46 Exhibit H, CPDA Comments, at p. 4; Exhibit N, Alameda County Public Defender’s Comments, at p. 5. 47 Exhibit H, CPDA Comments, at p. 6; Exhibit N, Alameda County Public Defender’s Comments, at p. 7. 10

adopted, and that therefore the analysis included in the ballot materials was incorrect and misleading to voters, and estoppel principles, or unclean hands doctrine, should be applied to bar DOF from bringing its redetermination request under

section 17570.48 4. County of San Bernardino The County of San Bernardino argues that DOF’s

interpretation of

section 17556 is legally incorrect. San Bernardino focuses on the intent of the voters in adopting Proposition 83, stating: The Department of Finance's flawed

interpretation of the "expressly included" language of Government Code

Section 17556(

f) fails to consider whether the ballot language intended to enact or change the state reimbursement of mandated activities. San Bernardino also implies that no subsequent change in law has occurred, reasoning that “[t]he statutory changes in the initiative did not relieve counties of their preexisting state mandated activities per Welfare and Institutions Code

section 6601 through 6604.” 49 5.

Sacramento County District Attorney’s Office The Sacramento County DA argues that no subsequent change in law has occurred, and that “the legislature still retains a true choice in whether to have the duties imposed on local government in the statute remain with local governments, or change the statutes so that the mandated duties are performed at the state level.” The Sacramento County DA focuses on the fact that Proposition 83 permits the Legislature “to amend, by a statute passed by a roll call vote of two- thirds of each house,” and implies that the failure to relieve local agencies of the duties imposed by Proposition 83 constitutes a reimbursable state mandate.

The Sacramento County DA argues further that “[t]he fact that pre-existing law has simply been recited again, either in a statute re-enacted by the legislature, or as part of a new ballot measure…does not amount to a change in the law for § 17570 purposes.” The Sacramento County DA focuses on the fact that “the mandated activities at issue here were in place before the initiative was enacted,” and concludes that “there has been no change in the applicable law.” 50 Finally, the Sacramento County DA argues that DOF’s redetermination request was never intended by the voters, and that a new test claim decision eliminating reimbursement would provide a windfall to the state, and impose a hardship on local governments. 51 6.

Los Angeles County District Attorney’s Office The County of Los Angeles DA argues that “[t]he activities for which the county is being reimbursed, the basis for the Commission's Statement of Decision, and the need for reimbursement from the State in order to comply with SVP laws have not changed since the Statement of Decision was adopted.” 48 Exhibit S, CPDA Comments on Draft Staff Analysis. 49 Exhibit J, County of San Bernardino Comments. 50 Exhibit K, Sacramento County District Attorney’s Office Comments, at pp. 1-2. 51 Exhibit K, Sacramento County District Attorney’s Office Comments, at p. 3. 11

The County of Los Angeles DA argues that Proposition 83 “simply reaffirmed many of the changes already effectuated by SB 1128,” that “the changes actually proposed by Prop 83 were few and narrow,” and that “[a]ffirmation of existing law certainly does not give rise to the change in law contemplated by

Section 17570.” 52 The County DA argues that “inclusion, within the text of an initiative, of language that is unaffected by proposed revisions to the law does not constitute a change in the law,” 53 The County of Los Angeles DA further asserts that “[a]n activity may not fairly be recharacterized as "necessary to implement" another activity simply because an antecedent activity may have been affected by a change in the law,” and that “a reimbursable activity does not cease to be a reimbursable activity because it happens to have constitutional implications.” And the County of Los Angeles DA argues that “Prop 83's mere reaffirmation of legislative action does not constitute a change in the law.” 54 Additionally, the County of Los Angeles DA proffers a theory of equitable estoppel, based on the LAO and DOF analysis of Proposition 83 leading up to the election, discussed below, and the conclusion that Proposition 83 would not affect mandates. 55 Finally, the County DA asserts that

section 17570 is unconstitutional, as a violation of separation of powers doctrine. 56 7. County Counsel of San Diego The County Counsel of San Diego argues that “Jessica’s Law [Proposition 83] did not make any changes material to the relevant statutes as they existed immediately before the adoption of Jessica’s Law,” that the 2012 reenactment “supersedes any effects that Jessica’s Law may have had on the state’s obligation,” that “DOF’s Request is based on the unconstitutionally broad language in

Section 17556(

f) that impermissibly directs the commission to apply the ballot measure exception to previously enacted legislation.” The County Counsel of San Diego further argues that “DOF’s Request relies on the unconstitutionally broad definition of what constitutes a ‘subsequent change in the law’ set forth in

Section 17570.” 57 8. Alameda County District Attorney’s Office The Alameda County DA argues that Proposition 83 did not make any material changes to the responsibilities of county counsel offices or district attorneys’ offices; that DOF’s

interpretation of

section 17556(f) “cannot be the correct

interpretation;” and that DOF’s request “should be rejected on common law principles of laches and estoppel.” 58 III. Discussion Under

article XIII B,

section 6 of the California Constitution, local agencies and school districts are entitled to reimbursement for the costs of state-mandated new programs or higher levels of service.

In order for local government to be eligible for reimbursement, one or more similarly 52 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 2-3. 53 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 4-5. 54 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 4-8. 55 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 8-10. 56 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 11-12. 57 Exhibit O, County Counsel of San Diego Comments, at p. 2. 58 Exhibit P, Alameda County District Attorney’s Comments, at pp. 2-5. 12

situated local agencies or school districts must file a successful test claim with the Commission. “Test claim” means the first claim filed with the Commission alleging that a particular statute or executive order imposes costs mandated by the state. Test claims function similarly to class actions and all members of the class have the opportunity to participate in the test claim process and all are bound by the final decision of the Commission for purposes of that test claim. The Commission is the quasi-judicial body vested with exclusive authority to adjudicate disputes over the existence of state-mandated programs within the meaning of

article XIII B,

section 6. 59 The determination whether a statute or executive order imposes a reimbursable state-mandated program is a question of law. 60 In making its decisions, the Commission must strictly construe

article XIII B,

section 6, and not apply it as an “equitable remedy to cure the perceived unfairness resulting from political decisions on funding priorities.” 61 Under Government Code

section 17570, upon request, the Commission may consider the adoption of a new test claim decision to supersede a prior test claim decision based on a subsequent change in law which modifies the states liability. The first hearing in the mandate redetermination process is, pursuant to the Government Code and the Commission’s regulations, to determine only whether the requester has made an adequate showing that the state’s liability has been modified based on a subsequent change in law, as defined. Therefore, analysis of

section 17556(f), as well as consideration of the comments submitted by interested parties, will be limited to whether the request, when considered in light of all of the written responses and supporting documentation in the records of this request, has a substantial possibility of prevailing at the second hearing.” 62 A thorough mandates analysis to determine whether and to what extent the state’s liability has been modified, considering the applicable law, the arguments put forth by the parties and interested parties, and the facts in the record, will be prepared for the second hearing on this matter. 59 Kinlaw v.

State of California (1991) 53 Cal.3d 482, 487; Government Code sections 17551; 17552. 60 County of San Diego v. State of California, (1997) 15 Cal.4th 68, 109. 61 County of Sonoma v. Commission on State Mandates, (2000) 84 Cal.App.4th 1265, 1280, citing City of San Jose v. State of California (1996) 45 Cal.App.4th 1802, 1817. 62 Code of Regulations, Title 2,

section 1190.05 (Register 2010, No. 48). This regulation describes the standard for the first hearing as follows: The first hearing shall be limited to the issue of whether the requester has made an adequate showing which identifies a subsequent change in law as defined by Government Code

section 17570, material to the prior test claim decision, that may modify the state’s liability pursuant to

Article XIII B,

section 6, subdivision (

a) of the California Constitution. The commission shall find that the requester has made an adequate showing if it finds that the request, when considered in light of all of the written responses and supporting documentation in the record of this request, has a substantial possibility of prevailing at the second hearing. 13

A. Finance’s Argument for the Adoption of a New Test Claim Decision to Supersede the Prior Decision in Test Claim (CSM-4509). On May 28, 1998, the Commission heard the CSM-4509 test claim on the Sexually Violent Predators program. That test claim alleged that the following Welfare and Institutions Code sections imposed reimbursable state-mandates: 6250, and 6600 through 6608, as amended by Statutes 1995,

chapter 762; Statutes 1995,

chapter 763; and Statutes 1996,

chapter 4. 63 The Commission approved reimbursement only for the following activities under sections 6601, 6602, 6603, 6604, 6605, and 6608: 1. Designation by the County Board of Supervisors of the appropriate District Attorney or County Counsel who will be responsible for the sexually violent predator civil commitment proceedings. (Welf. & Inst. Code, § 6601, subd. (i).) 2. Initial review of reports and records by the county’s designated counsel to determine if the county concurs with the state’s recommendation. (Welf. & Inst. Code, § 6601, subd. (i).) 3.

Preparation and filing of the petition for commitment by the county’s designated counsel. (Welf. & Inst. Code, § 6601, subd. (i).) 64 4. Preparation and attendance by the county’s designated counsel and indigent defense counsel at the probable cause hearing. (Welf. & Inst. Code, § 6602.) 5. Preparation and attendance by the county’s designated counsel and indigent defense counsel at trial. (Welf. & Inst. Code, §§ 6603 and 6604.) 6.

Preparation and attendance by the county’s designated counsel and indigent defense counsel at subsequent hearings regarding the condition of the sexually violent predator. (Welf. & Inst. Code, §§ 6605, subds. (

b) through (d), and 6608, subds. (

a) through (d).) 7. Retention of necessary experts, investigators, and professionals for preparation for trial and subsequent hearings regarding the condition of the sexually violent predator. (Welf. & Inst. Code, §§ 6603 and 6605, subd. (d).) 8. Transportation and housing for each potential sexually violent predator at a secured facility while the individual awaits trial on the issue of whether he or she is a sexually violent predator. (Welf. & Inst. Code, § 6602.) All remaining provisions of the test claim statutes were denied. 65 63 Exhibit B, Test Claim Statement of Decision. 64 The Test Claim Statement of Decision cites subdivision (j), but subdivision (

j) addresses time limits, not a petition for commitment. The Commission therefore assumes that this is a typographical error, and that the citation intended is to subdivision (i). 65 Exhibit B, Test Claim Statement of Decision, at p. 12. The numbers attached to the activities above are assigned by DOF, in its request for redetermination; the same numbering is adopted in this analysis, for purposes of expedience and clarity, rather than utilizing the bulleted list adopted by the Commission in the test claim statement of decision. 14

DOF asserts, in its request for a new test claim decision, that activities 1, 2, 3, and 6, approved in the test claim statement of decision, were expressly included in Proposition 83. Activities 1, 2, and 3 involve the county’s role in filing and litigating a civil commitment hearing on behalf of the state. These activities are required by

section 6601(i), and while DOF concedes that Proposition 83 did not make amendments to subdivision (i), specifically, it amended and reenacted the entirety of

section 6601, including the activities approved under subdivision (i). Activity 6 is required by sections 6605 and 6608. The sections encompassing these activities were reenacted and amended also by Proposition 83. 66 DOF asserts that the reenactment of sections 6601, 6604, 6605, and 6608 is sufficient to implicate the “expressly included in” limitation of

section 17556(f), prohibiting the Commission from finding “costs mandated by the state,” which supports the adoption of a new test claim decision. As discussed above, Proposition 83 reenacted in whole sections 6601, 6604, 6605, and 6608, and required counties to perform the same activities approved in the CSM-4509 test claim. DOF asserts as well that Activities 4, 5, and 7 are necessary to implement Proposition 83, and therefore these requirements also have been superseded by the ballot initiative. 67 DOF, relying on

section 17556(f), therefore brings this request to adopt a new test claim decision, in accordance with the provisions of

section 17570. DOF’s request does not clearly identify activity 8, regarding the transportation and housing of potential sexually violent predators during the civil detention proceedings process. DOF, however, asserts that the entire program is no longer eligible for reimbursement under

article XIII B,

section 6 of the California Constitution. 68 The draft staff analysis for this redetermination stated that DOF’s submission was silent on activity 8, and made no specific allegation regarding whether activity 8 remains reimbursable. In response to the draft staff analysis, DOF submitted a corrected page 5 of its narrative and analysis, in which activity 8 is clearly identified, and is asserted to derive from Welfare and Institutions Code

section 6602, which, DOF asserts, is necessary to implement

section 6604. 69 B.

Section 17556(

f) is Not Self-Executing: Commission Action Pursuant to

Section 17570 is Required Where a Commission Decision on the Test Claim Statutes has been Previously Adopted. Government Code

section 17556(

f) provides that the Commission “shall not find” costs mandated by the state if: The statute or executive order imposes duties that are necessary to implement, or are expressly included in, a ballot measure approved by the voters in a statewide or local election. This subdivision applies regardless of whether the statute or 66 Exhibit A, Redetermination Request, at pp. 1-2. 67 Exhibit A, Redetermination Request, at pp. 2-3. 68 Exhibit A, Redetermination Request, at p. 2. 69 Exhibit R, DOF Comments on Draft Staff Analysis, at p. 1. The bulleted paragraph was mislabeled in the original, and the correction to DOF’s request is technical in nature. 15

executive order was enacted or adopted before or after the date on which the ballot measure was approved by the voters.70 California School Boards Association v. State of California makes clear that the statutory exclusion from reimbursement contained in the first sentence is consistent with the subvention requirements of

article XIII B,

section 6. 71 The court in CSBA I reasoned that the subvention requirement applies to mandates imposed by the Legislature, not by the voters; the voters’ powers of initiative and referendum are reserved powers, and not vested in the Legislature, and are therefore not limited by

article XIII B,

section 6. CSBA I holds that the reimbursement requirement applies only to state-mandated costs, not costs incurred by way of “the people acting pursuant to the power of initiative.” 72 “Having established that costs imposed on local governments by ballot measure mandates need not be reimbursed by the state,” and thus approving the statutory exclusion to the extent of statutes “expressly included in” a ballot measure, the court considered also whether activities embodied in a test claim statute that are “necessary to implement” a voter-enacted ballot measure are subject to reimbursement.

In San Diego Unified School District v. Commission on State Mandates, costs that were incidental to a federal mandate were not reimbursable under

section 17556(c), because those costs were imposed under Education Code provisions “adopted to implement a federal due process mandate.” The CSBA I court therefore concluded that “[t]he language of [section 17556(f)] relieving the State of the obligation to reimburse a local government for duties ‘necessary to implement’ a ballot measure is unobjectionable because it corresponds to the Supreme Court’s holding in San Diego Unified that state statutes codifying federal mandates are not reimbursable.” 73 The court rejected, however, the “reasonably within the scope of” test also provided in subdivision (

f) at that time, and the Legislature amended the code

section the following year to excise the offending language. 74

Section 17556(

f) also states that the rule “applies regardless of whether the statute or executive order was adopted prior to or after the date on which the statute or executive order was enacted or issued.” This provision, like the “reasonably within the scope of,” and “necessary to implement” tests, first appeared in

section 17556 in 2005. 75 This last provision, stating that the order of enactment is not material to the analysis under

section 17556(f), has not yet been 70 As amended by Statutes 2010,

chapter 719 (SB 856). 71 California School Boards Association v. State of California (CSBA I) (Cal. Ct. App. 3d Dist. 2009) 171 Cal.App.4th 1183, 1206-1207; 1210. 72 Ibid. 73 California School Boards Association v. State (CSBA I) (Cal. Ct. App. 3d Dist. 2009) 171 Cal.App.4th 1183, at p. 1213 [emphasis added], citing San Diego Unified, supra, (2004) 33 Cal.4th 859. 74 Government Code

section 17556(f) (Stats. 2010, ch. 719 (SB 856) [amended to remove “reasonably within the scope of,” as an alternative test to “expressly included in,” or “necessary to implement,” consistent with the court’s decision in CSBA I, supra]). 75 As discussed above, the “reasonably within the scope of” test has been disapproved by the courts and removed from the code; compare Statutes 2004,

chapter 895 (AB 2855) to Statutes 2005,

chapter 72 (AB 138). 16

determined in the courts.76 However, the Commission must presume that the statutes enacted by the Legislature are constitutional.77 In the context of a ballot measure enacted after the test claim decision on the same program has been adopted, an analysis under

section 17556(

f) cannot be entertained absent the redetermination process provided in

section 17570. The Commission’s process is the sole and exclusive venue in which eligible claimants vindicate the reimbursement requirement of

article XIII B,

section 6, and the Commission’s decision on a test claim is final and binding, absent judicial review. 78 A later-enacted ballot measure expressly including the same duties imposed by a test claim statute that was previously determined to impose a mandate cannot, of its own force, undermine the Commission’s mandate determination in a prior test claim decision. Nor can there be any resolution of the issue of whether other requirements, which are not expressly included in the ballot measure, but may be necessary to implement the ballot measure, continue to be reimbursable, without the matter being heard and determined by the Commission pursuant to Government Code

section

Section 17570 thus provides the mechanism for considering

section 17556(

f) when there is a subsequent change in law, as defined, “material to the prior test claim decision, that may modify the state’s liability” pursuant to

article XIII B,

section 6. “Subsequent change in law,” is defined in

section 17570(a)(2) as follows: [A] change in law that requires a finding that an incurred cost is a cost mandated by the state, as defined by

Section 17514, or is not a cost mandated by the state pursuant to

Section 17556, or a change in mandates law, except that a “subsequent change in law” does not include the amendments to

Section 6 of

Article XIII B of the California Constitution that were approved by the voters on November 2, 2004. A “subsequent change in law” also does not include a change in the statutes or executive orders that impose new state-mandated activities and require a finding pursuant to subdivision (

a) of

Section 17551. 79

Section 17570 provides, then, an opportunity to redetermine a test claim decision previously decided, but for which the decision might be materially different in accordance with

section 17556, if determined on the basis of a subsequent change in law. C. The Department of Finance has made an Adequate Showing that the State’s Liability has been Modified. DOF brings this request to adopt a new test claim decision relying on Government Code

section 17556(f), and Proposition 83. DOF asserts that because Proposition 83 reenacted in whole sections 6601, 6604, 6605, and 6608 of the Welfare and Institutions Code, which were 76 The constitutionality of Government Code sections 17570, in conjunction with

section 17556, is being challenged in California School Boards Assoc., et al. v. State of California, Commission on State Mandates, John Chiang, as State Controller, and Ana Matosantos, as Director of the Department of Finance, Alameda County Superior Court, Case No. RG11554698. 77 California School Boards Association v. State of California, (CSBA II) (Cal. Ct. App. 4th Dist. 2011) 192 Cal.App.4th 770, 795; Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 837. 78 CSBA I, supra, 171 Cal.App.4th 1183, at pp. 1199-1200. 79 Government Code

section 17570, as added by Statutes 2010,

chapter 719 (SB 856). 17

previously found by the Commission, as amended by Statutes 1995, chapters 762 and 763, and Statutes 1996,

chapter 4, to impose a reimbursable state-mandated program, those sections are made non-reimbursable by the “expressly included in” exception provided for in

section 17556(f). Furthermore, DOF argues that because the remaining code sections approved (6602 and 6603) are inextricably linked to the provisions reenacted, the entire mandated program is made non-reimbursable by the operation of

section 17556(f). The comments filed on this request challenge DOF’s position, and are addressed below. 1. Subsequent Statutory Changes to the Test Claim Statutes Enacted Before or After Voter Approval of the Ballot Measure are Not Relevant to the Determination Whether Proposition 83 is a Subsequent Change in Law That Modifies the State’s Liability as Determined in CSM-4509. a. Statutory Changes Prior to the Ballot Measure (SB 1128) Several comments note that many of the amendments to the Welfare and Institutions Code outlined by Proposition 83 were earlier enacted by SB 1128 (Statutes 2006,

chapter 337) and, therefore, Proposition 83 does not constitute a “subsequent change in the law” in accordance with

section 17570. 80 CSAC argues that “many of the changes [DOF] claim[s] voters made were in fact made by the Legislature.” 81 And CPDA argues that S.B. 1128 contained many of the same or substantially similar amendments to the SVPA as did Proposition 83, for example, providing for indeterminate commitments and expansion of the list of qualifying offenses. Therefore, Proposition 83 does not constitute a "subsequent change in the law" as contemplated by Government Code

section 17570. 82 In addition, the County of Los Angeles District Attorney’s Office comments state that “[i]n 2006, the legislature passed Senate Bill 1128 (SB 1128), urgency legislation that went into effect on September 20, 2006…[l]ess than two months later, the electorate passed Prop 83, commonly known as "Jessica's Law"…[which] simply reaffirmed many of the changes already effectuated by SB 1128.” However, it is irrelevant to the analysis of Proposition 83 whether there were substantive changes to the law in effect immediately prior to its enactment, or whether Proposition 83 made any substantive changes to the SVP code sections.

The analysis of whether a subsequent change in law has occurred turns on whether, under 17556(f), there are now any costs mandated by the state, where a ballot measure expressly includes some of the same activities as the test claim statutes that were found to impose a reimbursable mandate in CSM-4509.

Here, with respect to the code sections reenacted in Proposition 83, it must be said that the test claim statutes impose duties that are expressly included in a voter-enacted ballot measure. 83 Therefore, DOF has made an adequate showing 80 See, e.g., Exhibit G, CSAC Comments, at pp. 2-3; Exhibit H, CPDA Comments, at pp. 4-5. 81 Exhibit G, CSAC Comments, at p. 2. 82 Exhibit H, CPDA Comments, at p. 4. 83 See Government Code

section 17556(f). 18

that the state’s liability as determined in CSM-4509 has been modified, and thus DOF has a substantial possibility of prevailing at the second hearing. b. Statutory Changes After Approval of the Ballot Measure (2012 Legislative Reenactment) In a similar line of argument, CPDA asserts that the 2012 statutes superseded the ballot proposition, as follows: The enactment of A.B. 1488, A.B. 1470, and S.B. 760 in 2012 pertaining to the SVPA result in a cost mandated by the state as defined by Government Code

section 17514. The entire text of the sections amended by legislation in 2012, including the portions not amended, was reenacted by the Legislature pursuant to

Article IV,

section 9, of the California Constitution. The remainder of the SVPA sections that were not expressly included in the 2012 legislation are, nevertheless, necessary to implement the 2012 legislation under Government Code

section 17556, subdivision (f), and therefore are mandated by statute and thus reimbursable under California Constitution

Article XIII B,

section 6. Therefore, Proposition 83 is no longer the statutory authority supporting the SVPA; consequently the cost incurred by local agencies to comply with the 2012 legislatively enacted SVPA is a cost mandated by the state. 84 The CPDA comments demonstrate a misunderstanding of the operation of

section 17556. There is no indication from the plain language, or from the broader statutory framework, that

section 17556 is meant to operate in this alternative respect; where a ballot measure removes a mandate from the reimbursement requirement, a subsequent statute on the same program can only be subject to the reimbursement requirement if it imposes duties beyond those which are expressly included in or necessary to implement the ballot measure. Wholesale reenactment of a statute by the voters triggers the exclusionary provisions of

section 17556(f), but subsequent amendment and reenactment by the Legislature does not defeat the application of

section 17556(

f) in the same manner. The analysis turns on only whether the test claim statute imposes duties expressly included in or necessary to implement the ballot measure. If so, those duties are not reimbursable, irrespective of any subsequent reenactment. If the 2012 statute imposes duties in excess of what was required under prior law, and no 17556 exceptions apply, then those activities could be found to impose a new program or higher level of service and costs mandated by the state. However, a new test claim would have to be filed for the Commission to hear and decide the issue on the 2012 statute.

The Commission’s jurisdiction and findings in this matter only extend to the test claim statutes pled in CSM-4509 (Sections 6601, 6602, 6603, 6604, 6605, and 6608, as amended by Statutes 1995,

Chapter 762 (SB 1143); Statutes 1995,

Chapter 763 (AB 888); and Statutes 1996,

Chapter 4 (AB 1496)) as those sections are alleged to be modified by Proposition 83, approved by the voters on November 7, 2006. 2. Some of the Requirements of the Test Claim Statutes Approved in CSM-4509 Impose Duties Expressly Included In a Ballot Measure.

Section 17556(

f) provides that the Commission shall not find costs mandated by the state, within the meaning of

section 17514, if the statute or executive order imposes duties that are expressly 84 Exhibit H, CPDA Comments, at p.2. 19

included in a ballot measure enacted by the voters in a statewide or local election, and that this exception to the reimbursement requirement applies regardless of whether the statute or the ballot measure was enacted first. DOF, relying on

section 17556(f), has alleged that the reenactment of sections 6601, 6604, 6605, and 6608 in Proposition 83 results in those sections, which were found to impose reimbursable mandates in CSM-4509, impose duties that are expressly included in a ballot measure approved by the voters in a statewide election. CDAA argues, in its comments, that DOF reads

section 17556(

f) incorrectly: The Department of Finance contention that the mere recitation of any portion of a statute contained in a proposition, brings it within the "expressly included in" language of Government Code § 17556(

f) regardless of whether the sections mandating local activity were amended or not, and whether or not the intent of the initiative and purpose of the initiative was to eliminate the subvention requirements of

Article XIII B §6 by operation of Government Code § 17566(f), is not warranted. Such an

interpretation would make the application of the statute so over broad and vague that no voter, local official, or legal analyst could accurately predict whether state mandated subvention would cease to exist as they voted to pass any ballot initiative that referenced existing law. But CDAA overstates the case, implying that “any ballot initiative that referenced existing law” could result in a mandate redetermination. Proposition 83 goes much further than simply “referenc[ing] existing law;” entire code sections that were approved for reimbursement are reenacted by the voters in Proposition 83.

A finding for the DOF in this case does not lead to the unpredictable upending of mandates law that CDAA’s comment implies. Moreover, the plain language of

section 17556(

f) supports DOF’s

interpretation:

section 17556(

f) does not require that a test claim statute be amended by a ballot proposition, or that the entire

section or program be included in a ballot proposition.

Section 17556(

f) only prohibits a finding of costs mandated by the state if the statute upon which a test claim finding is to be made “imposes duties that are…expressly included in ” a ballot measure, whether the ballot measure is enacted before or after the statute. Furthermore, as discussed below, whether eliminating subvention was intended by the voters in Proposition 83, as raised by CDAA, is not dispositive where

section 17556 is applicable. 3. Equitable Defenses Raised are not Applicable to this Request for Redetermination. a. Misrepresentation, Unclean Hands, Equitable Estoppel Several comments have raised equitable defenses against DOF’s request, suggesting that because DOF’s analysis of Proposition 83 leading up to the election on the measure gave no indication that mandate reimbursement would be in peril, DOF’s request for a new decision on the SVP mandate should be rejected.

CPDA argues that “misrepresentation, unclean hands, and estoppel bar the DOF’s redetermination request.” CPDA cites “a letter dated September 2, 2005, addressed to the honorable Bill Lockyer, California Attorney General, issued pursuant to Elections Code

section 9005, authored by Elizabeth G. Hill, Director of the Legislative Analyst's Office (LAO) and Tom Campbell, Director of the DOF,” in which it is stated that Proposition 83 would have no effect on state reimbursement.” CPDA argues that “[g]iven the DOF's stated position that the passage of Proposition 83 would not affect state reimbursement to counties, the DOF has "unclean 20

hands" and should be estopped from currently asserting the Sexually Violent Predator mandate (CSM-4509) is no longer a cost mandated by the state.” CPDA goes on to argue that the voters were misled by the ballot pamphlet, prepared in reliance on the letter cited: Not only was the electorate misled by the foregoing analysis and the September 2, 2005, letter, so were local government officials.

Had local government officials not been lulled into a false sense of security, it is reasonably probable they would have publically [sic] opposed Proposition 83 given the financial ramifications due to the loss of mandate monies now proposed by the DOF. It is also reasonably probable that the electorate would have rejected Proposition 83 due to the same concerns.

Furthermore, the probability of defeat would have increased had the electorate been accurately apprised of what law they were voting to replace- i.e., S.B. 1128 and not the language included in the ballot proposition, as discussed in the next section. 85 The County of Los Angeles DA argues, for its part, that “the Legislative Analyst's Office (LAO), in association with the Department of Finance, sent California Attorney General Bill Lockyer a fiscal analysis of the initiative eventually known as Prop 83.” The DA argues that “California courts have long held that voters are presumed to carefully review published materials that concern the initiatives on which they vote, including measures that are more complex.” The DA concludes, therefore, that “[a]s the electorate is presumed to have relied upon the state's broadly publicized assurances regarding the state's assumption of the fiscal costs associated with Prop 83 were it to pass, the state is foreclosed from using Prop 83 as the basis of its invocation of

Section 17570 and request for a new test claim decision.” 86 CDAA does not explicitly invoke equitable defenses, but argues that: The unequivocal conclusion of both officials is that the costs of the SVP program would remain a reimbursable by the state. "The portion of costs related to changes in the Sexual Violent Predators program would be reimbursed by the state." Since official duties are presumed to be correctly performed (Evidence Code § 664), the Director of Finance, the Legislative Analyst and the Attorney General must have been aware of the interaction of Government Code§ 17556(

f) on Proposition 83 and the state mandate in

Article XIII B §6 in drawing their conclusion that the SVP program would remain reimbursable. Strong weight should be given to this conclusion, despite the Department of Finance's now changed opinion. 87 The defenses of unclean hands and misrepresentation are not neatly applied in this case.

Unclean hands doctrine provides that a court of equity may refuse to grant relief to a party that has engaged in some improper or inequitable conduct related to the controversy. 88 If asserted successfully against DOF, the doctrine would prohibit DOF from obtaining relief (i.e., prevailing in its request for a new test claim decision) because of some alleged inequitable conduct.

CPDA argues, as cited above, that DOF misrepresented the effect of Proposition 83 on mandates 85 Exhibit H, CPDA Comments, at pp. 3-4. 86 Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 8-10. 87 Exhibit F, CDAA Comments, at p. 4. 88 See California Jurisprudence 3d, Equity,

section 26. 21

reimbursement, and that the measure might not have been successfully adopted had the effect been known.89 This argument assumes that the alleged “misrepresentation” induced the electorate to adopt Proposition 83, which is now alleged to impose harm upon the claimants, or conferred a benefit upon DOF. There is, obviously, no evidence as to what voters might have chosen had they been given different information with respect to mandate reimbursement in the voter information pamphlet.

More importantly, there is no evidence that local government officials would have had any impact on the outcome, had they not “been lulled into a false sense of security.”90 CPDA’s argument also assumes that DOF, as the requesting party, should be barred from “relief.” But unclean hands, as an equitable doctrine, should not be applied where another injustice would result; moreover, “[i]t is well settled that public policy may favor the nonapplication of the doctrine as well as its application.” 91 Here, the denial of DOF’s request on the basis of unclean hands could result in the imposition a subvention requirement, even if no state-mandated program exists.

Article XIII B,

section 6 requires reimbursement for state- mandated new programs or higher levels of service that impose costs mandated by the state, as defined. The courts have held that the statutory exclusions to “costs” 92 for statutes implementing a federal mandate, or statutes necessary to implement a voter-enacted ballot initiative, are consistent with the reimbursement requirement of

article XIII B,

section 6, because in such cases the mandate does not derive from the state Legislature or the governor. 93 Proposition 83 clearly reenacted some of the provisions of the Welfare and Institutions Code that had been the subject of an earlier test claim.

Article XIII B,

section 6, as implemented by Government Code 17556, no longer requires reimbursement for mandated activities imposed by, or necessary to implement, Proposition 83. To deny “relief” to DOF on the basis of an unclean hands defense would be to ignore

article XIII B,

section 6 of the California Constitution and the implementing statutes of the Government Code. Additionally, what all of the above comments fail to acknowledge is that in 2006 the conclusion that Proposition 83 would have no fiscal effect on local government was correct, and was not a misrepresentation of the facts as they existed at that time. When Proposition 83 was enacted, there was no process for redetermining a test claim; thus there would have been no effect on mandate reimbursement. Only after the mandate redetermination process embodied in

section 17570 was added to the code in 2010 was there any possibility of utilizing Proposition 83 to change a prior mandate finding. 94 Therefore, any representation that might be alleged to have 89 Exhibit H, CPDA Comments, at pp. 3-4. 90 Exhibit H, CPDA Comments, at pp. 3-4. 91 Health Maintenance Network v. Blue Cross of Southern California (Cal. Ct. App. 2d Dist. 1988) 202 Cal.App.3d 1043, at p. 1061. 92 See Government Code

section 17556 (Stats. 2005, ch. 72 (AB 138); Stats. 2010, ch. 719 (SB 856)). 93 San Diego Unified School District v. Commission on State Mandates (2004) 33 Cal.4th 859; California School Boards Association v. State of California (2009) 171 Cal.App.4th 1183. 94 Statutes 2010,

chapter 719 (SB 856). 22

misled the voters was provided in good faith, and cannot now support a defense of ‘unclean hands.’ In comments filed in response to the draft staff analysis, CPDA strenuously disputes this point, arguing that the draft “erroneously rejects the equitable defense of unclean hands,” and that the draft “incorrectly states” that when Proposition 83 was adopted, no mechanism or process for redetermination existed.” CPDA argues that “[d]uring the relevant periods surrounding the passage of Proposition 83 (2005 through 2006), [former] Government Code sections 17570 and 17556, subdivision (f), expressly provided for the redetermination of test claims.” 95 CPDA cites to former Government Code

section 17570, as that

section appeared in 1986, which provided: On November 30 of each year the Legislative Analyst shall submit a report to the Legislature regarding each unfunded statutory or regulatory mandate for which claims have been approved by the Legislature pursuant to a claims bill during the preceding fiscal year.

The Legislative Analyst shall review each such statute or regulation in light of its estimated future costs recoverable through the claims process and recommend, in each case, whether the Legislature should reconsider its original enactment of that statute or the state agency should reconsider its adoption of the regulation to repeal, modify, or make permissive its provisions.

The Legislative Analyst shall submit the report to the Joint Legislative Budget Committee, the chairs of the fiscal committees, and the chairs of the policy committees in each house which have jurisdiction over the subject matter of these statutes or regulations. 96 CPDA’s argument presumes that former

section 17570 might be read to provide for a process of reconsideration or redetermination of a prior test claim decision; but nothing in the language of former

section 17570 provides authority for the Commission to reconsider a test claim. Former

section 17570 only required the Legislative Analyst’s Office to provide recommendations to the Legislature regarding possible amendments to the underlying test claim statutes or regulations. It did not provide authority for the Commission to reconsider a prior final test claim decision based on a subsequent change in the law. Additionally, CPDA argues that the “regardless of…before or after” language of

section 17556 , as amended by AB 138 in 2005, evidences inherent authority for the Commission to reconsider a test claim. CPDA argues that “[p]ursuant to Legislative directive [sic] contained in A.B. 138 the CSM redetermined and set aside the ‘Open Meetings Act’ and ‘Brown Reform Act’ test claims in September, 2005.” 97 CPDA also cites the reconsideration of “School Accountability Report Cards” in 2005, 98 and concludes: 95 Exhibit S, CPDA Comments on Draft Staff Analysis, at p. 2 [emphasis added]. 96 Statutes 1986,

chapter 879,

section 13 [emphasis added]. 97 Exhibit S, CPDA Comments on Draft Staff Analysis, at p. 2. See also, Statutes 2005,

chapter 72 (AB 138)

section 17 [directing the Commission to set aside and reconsider Open Meeting Act (CSM-4257) , and Brown Act Reform (CSM-4469)]. 98 See Statutes 2004,

chapter 895 (AB 2855)

section 18 [directing the Commission to reconsider School Accountability Report Cards (97-TC-21)]. 23

When Proposition 83 took effect on November 8, 2006, the CSM had completed reconsideration of the foregoing three test claim redeterminations. The assertion that there was "no process or mechanism by which to redetermine a test claim" during the time period of 2005 through 2006 is disingenuous. Although the court in California School Boards reversed these redeterminations, the ruling was not handed down until March 9, 2009, nearly three years after the passage of Proposition 83.

Therefore, the Draft Staff Analysis erroneously and inaccurately portrayed the state of the law vis-a-vis redetermination of test claims during the relevant period of 2005 through 2006 surrounding the passage of Proposition 83. 99 CPDA implies that the fact of these other test claims being reconsidered shows that a process or mechanism existed when Proposition 83 was adopted and, thus, statements that Proposition 83 would have no fiscal effect on local government was either in error or constituted an intentional misrepresentation.

CPDA’s conclusion falters, however, because in the case of each of the mandates that CPDA cites, the Legislature directed the Commission (i.e., expressly required the Commission) to reconsider those specific test claims by statute. 100 AB 138 amended

section 17556 to include the “before or after” language regarding a test claim statute implementing a ballot measure mandate, as discussed above, and also directed the Commission to reconsider three mandates decisions, in light of the amended Government Code provisions. 101 Absent such action by the Legislature, the Commission did not have authority to reconsider a prior decision. However, as CPDA points out, the court of appeal eventually rejected the actions of the Commission, on the ground that the Legislature’s directive to the Commission to reconsider these prior claims was not consistent with separation of powers principles. 102 As discussed at length above,

section 17556 is not self executing; it requires some process or mechanism by which the test claim can come before the Commission. In the case of a ballot measure adopted after the test claim decision addressing a particular program, the proper mechanism is the mandate redetermination process provided in

section 17570. It is well-settled that administrative agencies, such as the Commission, are entities of limited jurisdiction. Administrative agencies have only the powers that have been conferred on them, expressly or by implication, by statute or constitution. An administrative agency may not substitute its judgment for that of the Legislature. When an administrative agency acts in excess of the powers conferred upon it by statute or constitution, its action is void. 103 The Government Code gives the Commission jurisdiction only over those statutes or executive orders pled by an eligible claimant 99 Exhibit S, CPDA Comments on Draft Staff Analysis, at p. 3. 100 See Statutes 2005,

chapter 72 (AB 138)

section 17; Statutes 2004,

chapter 895 (AB 2855)

section 18. 101 Statutes 2005,

chapter 72 (AB 138)

section 17 [directing the Commission to reconsider Mandate Reimbursement Process (CSM-4202)]. 102 California School Boards Association v. State of California (Cal. Ct. App. 3d Dist. 2009) 171 Cal.App.4th 1183. 103 Ferdig v. State Personnel Board (1969) 71 Cal.2d 96, 103-104. 24

in a test claim, and grants the Commission a single opportunity to make a final decision on the test claim. Government Code

section 17559 grants the Commission statutory authority to reconsider prior final decisions, if a request to reconsider is made within 30 days after the Statement of Decision is issued based on an error of law, but no other section, until the addition of

section 17570 in 2010, provided standing authority and a process to redetermine a prior final Commission decision. The Alameda County District Attorney’s Office argues that “[t]he Department of Finance request for a new test claim, filed some six and one-half years after the passage of Proposition 83, is untimely and should be rejected on common law principles of laches and estoppel.” 104 The doctrine of estoppel is misplaced in this case.

The essence of an estoppel, “if it is applicable at all in these circumstances, is that the party to be estopped has by false language or conduct led another to do that which he would not otherwise have done and as a result thereof that he has suffered injury.” 105 Estoppel is applied “where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts.” 106 Estoppel generally binds “not only the immediate parties but also those in privity with them;” and as applicable here, agents of the same government are held to be in privity with one another. 107 And, estoppel is available against the government, but “estoppel will not be applied against the government if the result would be to nullify a strong rule of policy adopted for the benefit of the public or to contravene directly any statutory or constitutional limitations.” 108 As discussed above, whatever representations were made regarding the effect on mandate reimbursement prior to the adoption of Proposition 83, and however local governments might have detrimentally relied on those representations, they were true when made, and only later did the circumstances allow for mandate reimbursement to be modified.

Moreover, to apply estoppel against DOF in this case would “contravene directly” the statutory and constitutional limitations on reimbursement, and would “effectively nullify” the mandate redetermination process created in the Government Code. Furthermore, the premise that counties have detrimentally relied upon reimbursement is tenuous at best. Even if this redetermination results in mandate reimbursement being discontinued, the activities required under the test claim statutes will continue to be required.

There cannot be detrimental reliance unless a party alters its behavior; here, the existence of the required activities does not turn on whether those activities are reimbursed. 104 Exhibit P, Alameda County DA Comments, at p. 5. 105 In re Lisa R. (1975) 13 Cal.3d 636, at p. 645. 106 Nicolopulos v. Superior Court (Cal. Ct. App. 2d Dist. 2003) 106 Cal.App.4th 304, at p. 311 [citing Brookview Condominium Owners’ Ass’n v. Heltzer Enterprises-Brookview (Cal. Ct. App. 4th Dist. 1990) 218 Cal.App.3d 502, at p. 512. 107 Hartway v. State Board of Control, (Cal. Ct.

App. 1st Dist. 1976) 69 Cal.App.3d 502 See also Carmel Valley Fire Protection Dist. v. State of California (Cal. Ct. App. 2d Dist. 1987) 190 Cal.App.3d 521, at p. 535 [citing Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, at p. 398]. 108 Transamerica Occidental Life Insurance Co. v. State Board of Equalization (Cal. Ct. App. 2d Dist. 1991) 232 Cal.App.3d 1048, at p. 1054 [internal citations omitted]. 25

Accordingly, the arguments alleging misrepresentation, unclean hands, and equitable estoppel do not apply in this case. b. Laches, or Unreasonable Delay of Cause of Action The Alameda County District Attorney’s Office and County of Los Angeles also argue that DOF was not required to delay this request for reconsideration “nearly six and a half years after the passage of Proposition 83.” During this time, counties relied on mandate reimbursement from the state to perform the required duties.

As a result, the counties argue that the DOF’s request is untimely and that under the equitable doctrine of laches, the claim should be denied. As raised by the Alameda County DA, the defense of laches is based on an assertion that the plaintiff unreasonably delayed bringing an action, and that the defendant has been prejudiced by the delay, such that granting relief would be inequitable. The Alameda County DA asserts that a delay of more than six years after the passage of Proposition 83 is unreasonable.

But as discussed above, the mandate redetermination process was only added to the Government Code in 2010. 109 Prior to that, even if Proposition 83 were known to have undermined the 1998 mandate finding regarding the SVP program, there was no mechanism in place to bring the issue before the Commission. Therefore, any delay that might be attributed to DOF cannot be said to begin until such mechanism was provided, in Government Code

section 17570, as added by Statutes 2010,

chapter 719 (SB 856). In comments filed in response to the draft staff analysis, the County of Los Angeles disputes this conclusion. The County argues that a mechanism or process was put in place by Statutes 2008,

chapter 751,

section 75 (AB 1389), which directed the Commission to reconsider the Sexually Violent Predators test claim (CSM-4509). However, the 2008 statute that the County cites clearly and unambiguously directed the Commission to wait until the CSBA decision was finalized: Notwithstanding any other provision of law, the Commission on State Mandates, upon final resolution of any pending litigation challenging the constitutionality of subdivision (

f) of

Section 17556 of the Government Code, shall reconsider its test claim statement of decision in CSM-4509 on the Sexually Violent Predator Program to determine whether Chapters 762 and 763 of the Statutes of 1995 and

Chapter 4 of the Statutes of 1996 constitute a reimbursable mandate under

Section 6 of

Article XIIIB of the California Constitution in light of ballot measures approved by the state’s voters, federal and state statutes enacted, and federal and state court decisions rendered since these statutes were enacted. 110 This statute was enacted as an urgency statute on September 30, 2008. The CSBA decision was handed down March 9, 2009, and addressed both the constitutionality of

section 17556(f), and the statutes that directed the Commission to reconsider the prior test claim decisions in Open Meetings Act, Brown Act Reform and School Accountability Report Cards. Because the statute cited above directed the Commission to reconsider the SVP mandate only after final resolution of the CSBA matter, which ultimately declared that the Legislature’s attempt to force a reconsideration of a final decision of the Commission, on a case by case basis, violates 109 Government Code

section 17570 (Stats. 2010, ch. 719 (SB 856)). 110 Statutes 2008,

chapter 751 (AB 1389)

section 75 [emphasis added]. 26

separation of powers principles,111 no “mechanism and process”112 to reconsider this particular test claim existed at any time prior to the enactment of

section 17570 in Statutes 2010,

chapter 719 (SB 856).113 The County of Los Angeles also points out that the current statute providing a process for redetermination was enacted, in response to CSBA, in Statutes 2010,

chapter 719 (SB 856). The County implies, but does not clearly state, that failing to take advantage of that process until January of 2013 constitutes an unreasonable delay. 114 A new test claim must be filed by June 30 of the fiscal year following the year in which the test claim statute at issue became effective, or the year in which the claimant first incurred costs under the statute. But

section 17570 only requires that a redetermination request be filed “on or before June 30 following a fiscal year in order to establish eligibility for reimbursement or loss of reimbursement for that fiscal year.” 115 It does not contain a statute of limitations. Moreover, laches requires, in addition to an unreasonable delay in bringing an action, either acquiescence or prejudice to the other party resulting from the delay. Here, it is difficult to identify any prejudice that results from DOF’s delay. As discussed, DOF would have had no right or ability to bring this matter before 2010. And from the effective date of

section 17570 to the time of filing this request, in the intervening two years and three months, the claimants have continued to receive reimbursement. The statute provides that if DOF prevails, reimbursement will be ended beginning in the 2011-2012 fiscal year, based on the filing date of this redetermination request. 116 Had DOF filed this request two years earlier, the potential reimbursement period affected would have begun in the 2009-2010 fiscal year.

Therefore, eligible claimants for the CSM-4509 mandate have not been harmed by DOF’s delay in filing this request for redetermination, and may have, in fact, benefited from it. c. Equitable defenses are not applicable to mandates law. Ultimately, the proffered equitable arguments of misrepresentation, unclean hands, equitable estoppel, laches, and unreasonable delay, are inapplicable to this case. The Commission is vested, pursuant to the Government Code, with sole and exclusive jurisdiction to determine mandates claims.

Whether a statute requires reimbursement is a question of law, to be decided by the Commission, or the courts on review, and “legislative disclaimers, findings, and budget control language are not determinative.” 117 Thus the question of reimbursement must be 111 CSBA v. State of California (2009), 171 Cal.App.4th 1183, p.p. 1202-1203. 112 Exhibit T, County of Los Angeles Comments on Draft Staff Analysis, at p. 2. 113 Government Code

section 17570 (Stats. 2010, ch. 719 (SB 856)). 114 Exhibit T, County of Los Angeles Comments on Draft Staff Analysis, at p. 2. 115 Government Code

section 17570(f) (Stats. 2010, ch. 719 (SB 856)). 116

Section 17570(f) (Stats. 2010, ch. 719 (SB 856)) [“A request for adoption of a new test claim decision shall be filed on or before June 30 following a fiscal year in order to establish eligibility for reimbursement or loss of reimbursement for that fiscal year.”] 117 County of Los Angeles v. Commission on State Mandates, (Cal. Ct. App. 2d Dist. 2003) 110 Cal.App.4th 1176, 1186; 1194. See also, Government Code

section 17552, which states that “This

chapter shall provide the sole and exclusive procedure by which a local agency or school 27

evaluated by the Commission, exclusively, pursuant to

article XIII B,

section 6 of the California Constitution, on the basis of the statutes and case law that guide Commission decisions generally, and legislative declarations are irrelevant to the Commission’s determination of whether a state mandate exists. 118 The Commission, as a quasi-judicial body, has the sole and exclusive authority to adjudicate whether a state-mandate exists. 119 As has been said by the courts of appeal, “[i]n making its decisions, the Commission cannot apply

article XIII B as an equitable remedy to cure the perceived unfairness resulting from political decisions on funding priorities.” 120 The purpose of the mandates process is to enforce the Constitution, by way of its implementing statutes, including Government Code

section 17556. If a local government is not entitled to reimbursement pursuant to the operation of the statutes and the Constitution, public policy cannot support application of equitable defenses or remedies. 4. Constitutionality of

Section 17570 Several comments have raised the constitutionality of

section 17570. 121 The Commission is not the proper venue for airing constitutional arguments regarding the Commission’s governing statutes. The Commission must presume that the Government Code statutes pertaining to the Commission’s processes are constitutional, including

section 17570, pursuant to

article III,

section 3.5 of the California Constitution. 122 The Commission therefore declines to address the constitutional concerns of the interested parties and persons. 5. Conclusion The issue for this first hearing is whether DOF has made an adequate showing that the state’s liability has been modified based on a subsequent change in law. A subsequent change in law, as discussed above, is defined as a change in law that requires a finding that an incurred cost is a cost mandated by the state under

section 17514, or is not a cost mandated by the state under

section 17556. Here, a

section 17556 analysis will indisputably result in a finding that at least some portion of the activities imposed by the test claim statutes are expressly included in Proposition 83. It is not necessary in this hearing to consider the extent to which the test claim statutes may be necessary to implement Proposition 83. It is sufficient, at this time, to determine district may claim reimbursement for costs mandated by the state as required by

Section 6 of

Article XIII B of the California Constitution.” 118 CSBA v. State of California (2009), 171 Cal.App.4th 1183, p. 1203; see also, County of Los Angeles v. Commission on State Mandates, supra., p. 1194. 119 Id. 120 City of San Jose v. State of California (1996) 45 Cal.App.4th 1802. 121 See Exhibit M, County of Los Angeles Comments, at p. 5; Exhibit H, CPDA Comments at p. 6; Exhibit N, Alameda County Public Defender’s Comments; Exhibit L, County of Los Angeles District Attorney’s Office Comments, at pp. 11-12; and Exhibit O, County Counsel of San Diego Comments at p. 2. 122 CSBA II, supra, 192 Cal.App.4th 770, 795; Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 837. 28

that at least some number of the mandated activities imposed by the test claim statutes have been modified by a subsequent change in law. IV. CONCLUSION Based on the foregoing, the Commission finds that DOF has made a sufficient showing to proceed to a second hearing for a determination on whether to adopt a new test claim decision. 123 The Commission hereby directs Commission staff to notice the second hearing and to prepare a full mandates analysis on the issue of whether the Commission shall adopt a new test claim decision to supersede the Commission’s previously adopted test claim decision in CSM-4509. 123 See Government Code

section 17570(d) (Stats. 2010, ch. 719 (SB 856)). 29