COUNTY JUDGE DELAYS DRUG TREATMENT LAW CHANGE

OAKLAND - A change to the state's treatment-not-jail law for drug
users can't take effect until a lawsuit challenging its
constitutionality runs its course, an Alameda County Superior Court
judge ruled Thursday.

After a 35-minute hearing, Judge Winifred Smith wasn't inclined to
deviate from her tentative ruling that a temporary restraining order
she'd issued in July should become a preliminary injunction.The
plaintiffs are likely to succeed on the merits of their case, she found.

The Drug Policy Alliance, the California Society of Addiction Medicine
and Proposition 36 co-author Cliff Gardner of Oakland sued over the
bill's amendment of the drug-treatment law to include letting judges
impose up to five days of jail time to punish drug-use relapses.

Supporters say it's a vital "stick" to augment the "carrot" of
treatment; Proposition 36's original backers say there's no evidence
it helps treatment, and it undermines voters' intent in passing the
original law.

The lawsuit claims it's unconstitutional to significantly amend
Proposition 36 - approved by 61 percent of voters in November 2000 -
without another popular vote. The nonpartisan Legislative Counsel's
office said so in 2005, but the Legislature overwhelmingly passed the
changes in June and Gov. Arnold Schwarzenegger signed it in July.

Deputy Attorney General Kathleen Lynch argued Thursday that the
plaintiffs - who sued under the broad authority of taxpayers, not in
the narrower category of people who potentially could be jailed under
the new bill - lack standing to seek and get a preliminary injunction.

But plaintiffs' attorney Jonathan Weissglass noted one of Proposition
36's stated purposes was to save taxpayers millions of dollars by
diverting people from jail to treatment, and this lawsuit aims to
ensure that happens.

Lynch also argued that SB 1137 doesn't significantly alter Proposition
36's ultimate goal of rehabilitation; it just takes information
gathered from the measure's mandated efficacy studies and seeks to
tweak the program in order to make it work better.

Smith replied that whether or not flash incarceration is a good idea,
the Legislature is severely limited in changes it can make to
voter-approved initiatives and this is "a very different scheme when
interspersed in the rehabilitation process is the threat of
incarceration."

Weissglass argued the same: "The argument about purpose completely
ignores the specific language of the proposition," explicitly
forbidding incarceration.

The new bill specifies that if a court strikes down any part of it,
all its changes automatically will be put on the ballot for a popular
vote.