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Proposition 63

Proposition 63:
Mental Health Services Expansion.

By Cherie Ackerman

Copyright © 2004 by University of the McGeorge School of Law

J.D., McGeorge School of Law, University of the Pacific
to be conferred May 2005
B.A., Liberal Studies, California State University Bakersfield, 2002

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

Proposition 63, The Mental Health Services Act, creates, references, and amends a large number of California law sections. Cal. Prop. 63 (2004) http://www.ss.ca.gov/elections/bp_nov04/prop_63_text_of_proposed_law.pdf (accessed Oct. 17, 2004). The Mental Health Services Act [hereinafter the Act] creates a one percent income tax on all taxable income over one million dollars. (E.g. John Doe has a taxable income of $1.5 million ($1,500,000). Proposition 63’s one percent tax will be on $500,000 in the amount of $5000). The Act declares that the one percent additional tax will be less than “the amount of tax reduction… [realized] through recent changes in the federal income tax law” and will be “a small portion of what [those taxed] save on property taxes by living in California” when compared to the property tax laws of other states. Id. at § 2(g).

The creation of a new tax is a minor part of Proposition 63 when compared to the numerous other additions and changes to the California law. The Act creates a separate fund for the new tax money, requires a minimum amount of the state budget to be allocated to County Mental Health programs, limits the uses of the new tax, and provides for innovation and education in the mental health field. Cal. Prop. 63.

Proposition 63 is seen by drafters and supporters as an attempt to “make good on the promise to fund community mental health services” made with the passage of SB 677 by the 1968 Legislature. Darrell Steinberg and the Campaign for Mental Health: A Little History, April 2004 http://campaignformentalhealth.typepad.com/darrell/2004/04/a_little_histor.html (accessed Sept. 1, 2004).

Proposition 63 is intended to be a follow up to the progress of 1999’s AB 34 which created an experimental community based mental health program offering all needed services under one roof. Id. Since AB 34’s passage, the program has been successful in helping three times more people find work, causing a sixty six percent reduction in the amount of hospital days, and an eighty one percent reduction in the amount of jail days for those enrolled. California Secretary of the State, California Official Voter Information Guide, Rebuttal to Argument Against Proposition 63, at 39 (2004). The program currently reaches only ten percent of people that could benefit and Proposition 63 is viewed as a way to expand and fund an expansion of the program. Id.

II. The Law

A. Existing Law

1. SB 677 (1968)

Senate Bill 677 of 1968 was enacted with the intent to “empty the state hospitals.” The idea was that the State would maintain ninety percent of the funding costs for community programs and “obligate the counties to participate in those programs that had been operational since 1957.” Darrell Steinberg and the Campaign for Mental Health: A Little History, April 2004 http://campaignformentalhealth.typepad.com/darrell/2004/04/a_little_hitor.html (accessed Sept. 1, 2004). According to John Buck, CEO of Turning Point, the idea was to develop community mental health services “but we floundered; people were leaving state hospitals without the skills to live in communities.” Mr. Buck explained SB 677 created a “fragmented system of care” with programs that “failed” to work together. Much of this was due to funding shortages which were caused by later changes in the law. Presentation on Proposition 63 at Sacramento Women’s Alliance Luncheon (Sept. 9, 2004) (notes on file with the University of Pacific, McGeorge School of Law, Capital Center for Government Law and Policy).

2. 1973 State Funding Cap

The 1973 state funding cap caused mental health programs to be “funded at about two percent of the state general fund, as compared to four percent that was spent during the 1960s.” Darrell Steinberg and the Campaign for Mental Health: A Little History, April 2004, http://campaignformentalhealth.typepad.com/darrell/2004/04/a_little_histor.html (accessed Sept. 1, 2004). This left the community care programs with half of the money they were promised when the state handed the responsibility of mental health to its counties. Id.

3. AB 1491 (1991)

The California Legislature enacted AB 1491 in 1991. In the bill description it stated that “[e]xisting law provides for the allocation of funds to counties. This bill would revise the procedures which must be followed in the allocation of those funds.” Cal. AB 1491, Reg. Sess. (1991) (notes on file with the University of Pacific, McGeorge School of Law, Capital Center for Government Law and Policy). The bill modified the language in several code sections changing funding by requiring mental health account funds to be allocated to counties only “to the extent resources are available.” Id.; Cal. Welf. & Inst. § 5600.3.

4. AB 34 (1999) and AB 334 (2001)

The California Legislature enacted AB 34 in 1999. The bill “reappropriat[ed]” $10 million to the State Department of Mental Health to fund grants awarded to counties to provide adult mental health and related services. Cal. AB 34, Reg. Sess. (1999-2000) (notes on file with the University of Pacific, McGeorge School of Law, Capital Center for Government Law and Policy). The bill required the Department to select up to three counties to receive the funds, create plans for services and evaluation strategies, create “a methodology for awarding these grants and to establish a designated advisory committee.” Id. The Department selected Los Angeles, Sacramento and Stanislaus counties. Welcome to AB34 http://www.ab34.org (accessed Oct. 16, 2004). The success in these three counties led to the passage of AB 334 which allowed the expansion of programs to thirty-one additional counties and forty additional providers. Id.; Cal. AB 334, Reg. Sess. (2001-2002) (notes on file with the University of Pacific, McGeorge School of Law, Capital Center for Government Law and Policy). The results of the programs created by these legislative actions are reported to the Department of Mental Health and can be viewed at www.dmh.ca.gov/PGRE/Intergrated_Services.asp and www.ab34.org/data.asp.

B. The Effects of Proposition 63

1. The Tax

Proposition 63 creates a new one percent tax on taxable incomes over one million dollars. The tax is created by adding to and amending sections of the California Revenue and Tax Code. The Act provides for limits on the effects that existing tax laws can have on the Proposition 63 tax. Cal. Prop. 63 §§ 14, 15. The money from the new tax will be deposited into the Mental Health Services Fund, a fund created by Proposition 63. Cal. Prop. 63 § 15.

2. The Fund – The Mental Health Services Fund

All the money earned by the one percent tax is placed in the Mental Health Service Fund [hereinafter MHS Fund]. Id. The State Controller is responsible for depositing a percentage of the money expected to be received from the tax each fiscal year into the fund on a monthly basis. There is a complex percentage scheme laying out the amounts estimated to go into the fund each year as well as a plan for correcting any over or under payments to the fund. Id.

The creation of the fund specifically states that it does not “modify the obligation of health care service plans and disability insurance policies to provide coverage for mental health services….” Cal. Prop. 63 § 15. The Proposition further states that the funds “shall not be used to supplant existing state or county funds utilized to provide mental health services.” Id. It places a duty on the State to continue funding mental health services from the General Fund based on the same formula used during the last fiscal year. Cal. Prop. 63 § 15.

Proposition 63 states the percentage of the fund that is to be spent on each program created or modified in The Mental Health Service Act. The MHS Fund is to be invested the same way as the General Fund. Id. The money is distributed to each county based on need and the allocation percentages. The counties need to use all their money within a limited amount of time and any money remaining will go back to the MHS Fund. Id.

3. The Programs

a) Prevention and Early Intervention

The Prevention and Early intervention program is created to detect and treat mental illness at an early age. Cal. Prop. 63 § 4. There is no specific listing in the new law that says exactly what types of services are to be provided. The Proposition requires the mental health services providing prevention and early intervention be “services similar to those provided under other programs effective in preventing mental illness from becoming severe, and shall include components similar to programs that have been successful in reducing the duration of untreated severe mental health illnesses and assisting people in quickly regaining productive lives.” Id. at § 4. The section does not define the programs beyond these requirements. This minimal definition will be discussed more fully in section III. E. Vagueness.

b) Services for Children with Severe Mental Illness

Proposition 63 requires that the county mental health programs provide services to severely mentally ill children when the services provided by other programs are not adequate or available. Cal. Prop. 63 § 5. The Department of Social Services is directed by Proposition 63 to get federal approval to maximize the number of children and the money available for the program. Cal. Prop. 63 § 6.

c) Education and Training Program

Proposition 63 establishes a plan “to remedy the shortage of qualified individuals to provide services to address severe mental illnesses.” Cal. Prop. 63. § 8. A five-year plan is to be created and approved by the California Mental Health Planning Council. Id. The plan must include additional education of qualified service providers, loans and grants to assist people with education, and outreach to encourage others to become providers. Id.

d) Innovative Programs

The final service program created under Proposition 63 calls for the establishment of innovative programs. Cal. Prop. 63 § 9. This section gives money to the counties to develop new programs, ways of providing access to programs, increase quality of service, and to encourage different agencies to work together to provide services. Id.

4. The Commission – The Mental Health Services and Oversight Commission

Proposition 63 will create the Mental Health Services and Oversight Commission. The commission will consist of twelve people meeting specific requirements, appointed by the Governor and four elected members (Attorney General, Superintendent of Public Instruction, Chairperson of the Senate Health and Human Services Committee, and Chairperson of the Assembly Health Committee). Cal. Prop. 63. § 10. The members of the Commission will not be paid for their services, but will be reimbursed for expenses caused by serving. Id.

The Commission will be responsible for reviewing county mental health program spending and plans for providing services. Id. Additionally the Commission will be made part of the California Mental Health Planning Council, replacing the current advisory commission appointed by the Community Mental Health Services Director. Id.; Cal. Welf. & Inst. Code § 5814.

III. Drafting Issues

Opponents to Proposition 63 are expressing concerns related to the language and drafting of the proposition. One critic has written that “major flaws” are contained within Proposition 63. U.S. Newswire, Group Discovers Major Flaws in California’s Proposition 63 http://releases.usnewswire.com/printing.asp?id=34334 (accessed Sept. 7, 2004). These “major flaws” include a severability clause, the use of language which allows for various interpretations, and authorization for the creation of emergency regulations. Id. These concerns are addressed in the following subsections.

A. Severability Clause

Section 16 of Proposition 63 states “if any provision of this Act is held to be unconstitutional or invalid of any reason, such unconstitutionality or invalidity shall not affect the validity of any other provision.” Cal. Prop. 63 § 16. This type of clause is commonly found in propositions containing multiple laws and changes. However, it is a concern of some that the existence of this clause “’infers that it is already known that there is unconstitutionality in this proposed initiative’.” U.S. Newswire, Group Discovers Major Flaws in California’s Proposition 63 http://releases.usnewswire.com/printing.asp?id=34334 (accessed Sept. 7, 2004). The concern appears to be that unconstitutional sections have been incorporated into Proposition 63 to entice voters; adding sections that the drafters know will fail, but will cause voters, unaware of the unlawfulness, to support the initiative.

Generally, propositions include severability clauses, not to allow for the incorporation of unconstitutional sections and gain votes, but rather as a way of establishing the drafters’ and voters’ intentions should some section of the law be found invalid. Such clauses can be used to support a court ruling that allows constitutional sections to remain effective while removing unconstitutional provisions from the enacted law (i.e. severing sections of a proposition). Regardless of the existence of the severability clause in an initiative, it is still necessary to show that the provision to be severed is grammatically, functionally, and volitionally independent. Gerken v. Fair Political Practices Commn., 6 Cal. 4th 707, 715 (1993).

In order to establish that the sections of Proposition 63 meet this “severability test” all three elements must be met. The first prong: grammatically independent, will require that the grammar and mechanics of the section to be severed will still allow the language of the section to make sense and be applied as law. People’s Advocate, Inc. v. Cal. Super., 181 Cal. App. 3d 316, 330 (1986). Next it will be necessary to show that the section or sections are able to function independently; more specifically that the section is still able to reach Propositions 63’s goals: providing effective mental health services and providing funding for those services. People’s Advocate, Inc., 181 Cal. App. 3d at 331; Cal. Prop. 63 § 2. Finally, when a section is to be severed, it is necessary to show that the section of the proposition would have been adopted by the voters even if they had foreseen partial invalidation. People’s Advocate, Inc., 181 Cal. App. 3d at 331. This final prong can be supported in part by the existence of the severability clause, additionally this element is difficult to defeat so long as “‘some substantive provisions remain’ and should be enforced in order to effectuate the voters’ intent.” Gerken, 6 Cal. 4th at 719 (citing City of Woodlake v. Logan, 230 Cal. App. 3d 1058, 1070 (1991)).

Obviously the severability test is rather “section specific.” Should any section or sections of Proposition 63 be found to be inoperable, the specificity of the test will cause the outcome to be dependent upon what section or sections are to be severed. The purpose and intent behind Proposition 63 specifically discuss providing mental health services and State funding to provide these services. Cal. Prop. 63 § 3. Therefore, the intent behind the initiative may require that at least some of the services remain effective and the ability to fund such services be available in order for severance to occur. While it is common practice for California initiatives to contain a severability clause like the one contained in section 19 of Proposition 63, proponents will still need to meet the burdens of the severability test.

B. Legalese

Proposition 63 was drafted by legislators and lawyers. It was written to amend and add to current California laws. Darrell Steinberg and the Campaign for Mental Health: Will the Legislature Be Able to Use Prop. 63 Money for Any Other Purpose? (July 2004) http://campaignformentalhealth.typepad.com/darrell/2004/07/will_the_legisl.html (accessed Sept. 7, 2004). When legislators draft laws, or in this case ballot propositions, which could amend and clarify existing law, language which mimics and reflects that already found in the law is often used. This language is often convoluted or even legalese. The effect of using “vocabulary specialized to the legal profession” can cause confusion in word meanings and the interpretation of legal phrases; the legal profession may take for granted that a phrase commonly understood in the profession may have several alternative interpretations to others. The American Heritage College Dictionary 774 (Robert B. Costello exec. ed., 3d., Houghton Mifflin Co. 1993).

One example occurs in section 17: “Notwithstanding any other provision of law to the contrary, the department shall begin implementing the provisions of this Act immediately upon its effective date….” The use of word-phrases such as “notwithstanding” in connection with “contrary” can lead to confusion in the actual meaning of the phrase. One commentator has expressed concern that this phrase “is setting the Department of Mental health… above the law.” U.S. Newswire, Group Discovers Major Flaws in California’s Proposition 63 http://releases.usnewswire.com/printing.asp?id=34334 (accessed Sept. 7, 2004). The commentator has taken “Notwithstanding” to mean despite as a preposition, rather than “aside from” in the form of an adjective. The different interpretations lead to two very distinctive meanings of section 17: one reading allows the Department to implement the Act despite laws that would be violated, while the other reading only allows the Department to implement sections aside from those that are found to violate other laws.

This type of phraseology can cause confusion for voters when trying to determine exactly what Proposition 63 will do if it is passed on November 2, 2004. However, voters should be aware that if a statute or initiative can be read in both a constitutional and unconstitutional manner, the courts will generally apply the constitutional reading, reasoning that law writers would not intend to draft an unconstitutional law. Rupf v. Yan, 85 Cal. App. 4th 411, 423-424 (2000). Based on the Rupf principle it seems likely that a court would interpret “notwithstanding” to mean “aside from” believing that the drafters of Proposition 63 did not intend to place the Department of Mental Health above the law.

C. Emergency Regulations

Section 15 of Proposition 63 adds a Welfare and Institutions Code section allowing for the creation of regulations needed for “the department and local agencies to implement [the Act].” Cal. Prop. 63 § 15. In addition to following State procedures for enacting regulations, section 15 allows the director of the department to adopt all regulations in 2005 as emergency regulations. Id. California law allows departments to create emergency regulations, under the Administrative Procedure Act [hereinafter APA]. The APA defines an emergency regulation as a regulation “necessary for the immediate preservation of the public peace, health and safety or general welfare” and allows for such creation when “a state agency makes a finding that the adoption of a regulation is necessary [for the above stated goal].” Cal. Gov. Code § 11346.1 (West 2004). Emergency regulations differ from non -emergency regulations; they do not have to go through the same rigorous approval process prior to becoming effective and there is a limit to the amount of time they can remain in effect.

Commentators are concerned that the creation and use of emergency regulations “is [allowing] the Department of Mental Health…to set itself outside the law.” U.S. Newswire, Group Discovers Major Flaws in California’s Proposition 63 http://releases.usnewswire.com/printing.asp?id=34334 (accessed Sept. 7, 2004 ). While the APA was created “to ensure that those persons or entities whom a regulation will affect have a voice in its creation as well as notice of the law’s requirements so that they can conform their conduct accordingly;” the APA also contains a section that allows for the creation of emergency regulations. Cal. Advoc. For Nursing Home Reform v. Bonta , 130 Cal. App. 4th 498, 507 (2003) (citing Armistead v. St. Personnel Bd. , 22 Cal. 3d 189, 204-205 (1978) and Ligon v. St. Personnel Bd. , 123 Cal. App. 3d 583, 588 (1981)); Cal. Gov. Code § 11346.1. The director of the Department of Mental Health [hereinafter DMH] will be allowed to create emergency regulations “necessary for the immediate preservation of the public peace, health and safety, or general welfare” provided the requirements of the APA are followed. Proposition 63 uses language directly from the APA to ensure its requirements are met. Cal. Prop. §15. While the APA has a 120 effective day limit for most emergency regulations, DMH will be able to create emergency regulations in 2005 that remain in effect beyond the 120 days provided that specific publication and notification requirements within the APA are followed. Id ., Cal. Gov. Code §11346.2 to 11347.3 (West 2004). Section 15 limits the effective period for 2005 emergency regulations to one year. Cal. Prop. 63 § 15. Because the text of Proposition 63 directly references and uses the language of Administrative Procedure Act to incorporate definitions and limits on emergency regulations, it appears likely that the Department creation and use of such emergency regulations would be found valid.

D. Future Changes

The California Constitution states that amending and repealing an initiative can only be effective “when approved by the electors unless the initiative statute permits amendments or repeal without their approval.” Cal. Const. art. II, § 10(c) (emphasis added). Section 18 of Proposition 63 provides for future amendments of the Mental Health Services Act once it is made law. Cal. Prop. 63 § 18. The Act can be amended by a two-thirds vote of the State Legislature as long as the amendment is not contrary to the intent behind the Act. Id. Additionally, the section provides a majority vote of the Legislature with the ability to clarify the collection of the tax created by Proposition 63. Id. This language will allow the legislature to effectively change the sections of law created by Proposition 63 without resubmitting amendments to the voters through the initiative process.

E. Vagueness

As discussed above, the prevention and early intervention section of Proposition 63 provides what may be considered a vague definition of the programs to be created. While the programs are not specifically defined in the new code section, Proposition 63 requires intervention programs to have an emphasis on “reducing suicide, incarcerations, school failure or dropout, unemployment, prolonged suffering, homelessness, and removal of children from their homes.” Cal. Prop. 63 § 4. Additionally, the section allows for the DMH to consult with “mental health stakeholders” in order to revise Welfare and Institution Code section 5840 “in future years to reflect what is learned about the most effective prevention and intervention programs for children, adults, and seniors.” Cal. Prop. 63 § 4. Thus, although the new law would leave some flexibility in the types of programs created, it provides specific goals for the programs to achieve and a mechanism, department revision of section 5840 programs, to ensure that the programs provided continue to meet the initiative’s goals.

The medical field is constantly changing as new treatments are discovered and old methods are invalidated, this make it is necessary to allow for changes in the mental health programs offered. While Proposition 63 allows the Legislature to make changes in the law, when it comes to medical treatments it may be necessary to make changes and modifications in a timelier manner than the legislative process allows. Leaving flexibility and power to make decisions to the parties involved with providing and implementing services may be an attempt to allow for county mental health programs to develop with the field of mental health. Proposition 63 is intended to provide program requirements for counties which must be met in order to receive a portion of the MHS Fund, and while the laws created within the proposition may appear to be vague, methods and responsibility for creating clarity are provided through the ability to create regulations, the commission, and the department.

IV. Constitutional Issues

A. Federal Constitution

There are no Federal Constitutional Issues for Proposition 63.

B. State Constitution

1. Single Subject Rule

The California Constitution states “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Cal. Const. art. II, §8 (d). This section of the Constitution is intended to prevent confusion of voters and to ensure the will of voters is not obstructed. Senate v. Jones, 21 Cal. 4th 1142, 1156-57 (1999). In Jones, the California Supreme Court applied the “reasonably germane test” to determine whether the Constitutional single subject rule was violated. Id. Relying on governing decisions, the California Supreme court explained “’the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. It is enough that the various provisions are reasonably related to a common theme or purpose’” explaining that the initiative must “’fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.’Jones, 21 Cal. 4th at 157 (citing Legislature v. Eu, 54 Cal. 3d 492, 512 (1991) (emphasis added)). In short, the reasonably germane test requires that in order for Proposition 63 to meet the single subject requirement all of its sections must work toward achieving a common goal.

Proposition 63 does not appear to violate the single subject rule. The general goal of Proposition 63 is to maintain and improve mental health programs in California. The proposition imposes a tax, creates a new commission, and defines and expands programs. These may be argued to be three different subjects. However, all of these actions have the same purpose: improving mental health services. It appears that the common purpose of maintaining effective mental health programs in California is achieved by the “common sense relationship” of the tax, the new commission, and the programs in Proposition 63.

2. Requiring State Legislature to keep Funding Mental Health at Current Levels

Section 15 of Proposition 63 will create a new code section requiring mental health services to receive a minimum amount from the General Fund. The State will be required to use the same formula for distribution used in the last fiscal year “which ended prior to the effective date of [the] Act.” This means that there will be a minimum percentage of the budget which must be allocated to mental health services.

Opponents may argue that a requirement of minimum funding is unconstitutional because such a requirement is an appropriation of funds which is a power “left in the hands of the legislature.” County of Sonoma v. Commission on State Mandates, 84 Cal. App. 4th 1264, 1290 (2000). The idea is that by requiring the state to allocate a certain percentage of the General Fund to mental health services each year, a limit is placed on the funds which the Legislature may appropriate to other areas.

Article IV, section 12 of the California Constitution “authorizes the Legislature…to provide by statute for a continuing appropriation to pay for some specified program.” People’s Advocate, Inc. v. Superior Ct. Sacramento, 181 Cal. App. 3d 316, 329 n. 13 (1986). In People’s Advocate, the enacted section was found to be invalid despite the power to provide continued funding through a statute. Id. at 329. The Court’s determination turned on the fact that the formula would set a maximum funding amount, rather than a minimum. The Court reasoned that setting a maximum would place “a legal limit upon the power of the Legislature to enact future appropriations legislation” because they would not be able to appropriate a higher amount if it was determined necessary. Id. at 329 n. 13. The court also explained that because the initiative power is legislative power reserved for the people that the power of the people in enacting laws is governed by the same restrictions. Id. at 328.

The language found in section 15 of Proposition 63 is similar to language of Proposition 98 enacted in the November 1988 General Election which required that the percentage of money from the General Fund given to school districts and community college districts be equal to the percentages used in the 1986-87 fiscal year. Cal. Prop. 98 § 5 (1988). In County of Sonoma, the court determined that the requirement in Proposition 98 did “not appropriate funds” explaining the requirement “merely provides the formulas for determining the minimum to be appropriated every budget year” and that there was “no intent in Proposition 98’s concern for an appropriate level of funding for education that would tie the hands of the legislature in meeting [funding] goal[s].” Id.

Proposition 63’s formula for funding, like that of Proposition 98, is an attempt to provide a minimum and is based on a concern for appropriate funding levels. While there is a difference between the two Propositions (Proposition 98 created a Constitutional Amendment and Proposition 63 will create a statute) this should not be a factor in determining the effectiveness of the formula and funding minimum because Article IV section 12 of the Constitution allows for continued appropriation through statutes.

The General Fund allocation requirement in Proposition 63 does not set a maximum amount that can be appropriated. The requirement is that the same formula used in the last fiscal year to determine the minimum amount allocated to mental health each year. It appears that because such a requirement allows the Legislature to appropriate additional funds, the requirement falls within the powers granted by Article IV section 12 and therefore is constitutional.

V. Public Policy Considerations

A. Proponents’ Arguments for the Mental Health Services Act

1. Unfulfilled Promises

Proponents view Proposition 63 as a fulfillment of a promise made in the 1960’s “with the closing, emptying and shrinking of State mental hospitals.” Proponents argue that people were promised that state hospitals would be closed and they would be given “treatment and housing in their own communities,” but that “only the first half was accomplished: hospitals were closed.” Richard A. Shadoan, M.D., clinical professor, Repairing Broken Promises In California, Psychiatric News, vol. 20 n. 17, at 20 (American Psychiatric Association 2004). The argument continues with the idea that the State originally promised to split the costs of community treatment and living with counties 90/10 but that the promise has fallen short by the State allowing counties to “provide services only to the extent that resources are available.” Darrell Steinberg and the Campaign for Mental Health: A Little History, April 2004, http://campaignformentalhealth.typepad.com/darrell/2004/04/a_little_hitor.html (accessed Sept. 1, 2004). Proponents explain that Proposition 63 is an opportunity to “make good on the promise to fund community mental health services” and that “Californians believe it is now time to fulfill this 40-year-old promise.” Id.; Shadoan, Repairing Broken Promises In California.

2. Expands a Program that Works

Proponents explain that Proposition 63 is an expansion of “a program that works.” They state that Proposition 63 will provide an opportunity to move the already successful AB 34 program beyond the three counties currently receiving funding for programs similar to those found in Proposition 63. California Secretary of the State, California Official Voter Information Guide, Rebuttal to Argument Against Proposition 63, at 39 (2004). These supporters argue that the statistics and data from AB 34 show that community treatment programs work and will in turn save the State and counties additional money by “providing care before people end up on the streets, or behind bars.” Id.; California Official Voter Information Guide, Proposition 63. Mental Health Services Expansion, Funding Tax on Personal Incomes Above $1 Million. Initiative Statute. Argument in Favor of Proposition 63, at 38 (2004). They point to numbers showing that AB 34 housing services are provided “to about 4,500 people statewide who have serious mental illness and have been homeless or at risk of homelessness” and that approximately 4,100 of those in the program were homeless during the year before enrolling. About AB34 http://www.ab34.org/about.asp (accessed Sept. 11, 2004). Additionally, proponents point to the fact that there is a 81% reduction in the number of days spent incarcerated for those involved in the program. California Official Voter Information Guide, Rebuttal to Argument Against Proposition 63, at 39 (2004). However, the Dates and Outcomes section of the AB34 webpage indicates that there is a seventy two percent reduction in the number of days spent incarcerated. Data and Outcomes http://www.ab34.org/data.asp (accessed Sept. 5, 2004). The difference in the reduction of jail time may be due to data being ascertained at different times, or the proponents guessing or trying to make their numbers appear better in campaign materials. The Rebuttal to the Argument Against Proposition 63 specifically references AB34.org when discussing data. California Official Voter Information Guide, Rebuttal to Argument Against Proposition 63, at 39 (2004). AB34.org has a monthly data grid available and it is possible that the proponents calculated the percentage with data more current than that used in the 2003 Legislative Report, the source of the seventy two percent reduction. Monthly Data and Outcomes http://www.ab34.org/data1.asp (accessed Oct. 2, 2004).

While opponents say there “appears to be no provision for saving ‘excess’ revenue,” section 15 of Proposition 63 places a time limit on the County’s use of funds requiring funds “not spent for their authorized purpose…[to] revert to the state to be deposited” back to the Mental Health Services Fund. Cal. Prop. 63 § 15. The time limit depends on which program was funded; it three years for all programs other than “technological needs or education and training [which] may be retained for up to ten years before reverting….” Id. Additionally section 15 requires “in any year in which the funds available exceed the amount allocated to counties such funds shall be carried forward to the next fiscal year” as part of the Mental Health Service Fund, the funds are to be “invested in the same manner in which other state funds are invested,” and the Mental Health Service Fund is to be “increased” by the amount earned on its investment. Id. It “appears” that these provisions allow for the saving of “excess” funds. However, it may be that opponents have definition for “excess” other than “funds available exceed[ing] amount allocated” or “funds allocated to a county which have not been spent.”

Proponents argue that “doing nothing is not an option.” Shadoan, Repairing Broken Promises In California. They argue that Proposition 63 is a well drafted initiative created by “a team of attorneys with their hearts, minds, and souls dedicated to mental health--with years of experience in mental health, legal drafting, the laws relating to funds in the State Treasury, mental health programs, and more.” Darrell Steinberg and the Campaign for Mental Health: Will the Legislature Be Able to Use Prop. 63 Money for Any Other Purpose? (July 2004) http://campaignformentalhealth.typepad.com/darrell/2004/07/will_the_legisl.html (accessed Sept. 7, 2004).

B. Opponents’ Arguments Against The Mental Health Services Act

1. The Tax

Much of the opposition against Proposition 63 is based on the new tax aspect of the initiative. Opponents argue that the Act is a “risky bet that endangers the economic recovery currently underway in California.” Here We Go Again www.politicalmusings.net/archives/2004/07/26/here-we-go-again/ (accessed Sept. 9, 2004). They explain that “the number of millionaires in California is dwindling” and that Proposition 63 may be the “last straw for a certain number of people making over a million dollars.” Id.; Citizens for a Health California, Stop Steinberg’s Tax Scheme, Questions and Answers, http://www.matsonian.com/chc/faq.htm (accessed Aug. 29, 2004).

The California Republican Assembly argues that “this new tax would not necessarily increase funding for mental health services” because not only could State revenues be reduced by millionaires leaving California, but they explain that “the Legislature could shift existing funds to other sources.” California Republican Assembly, CRA General Election Endorsements http://www.ca-ra.org/general.htm (accessed Sept. 7, 2004). However, section 15 of Proposition 63 creates a new MHS Fund and states that “these funds may not be used for any other program” and that funds “may not be loaned to the state General Fund or any other fund of the state” or any other county funds other than those created by the program.

Finally, there is concern regarding Proposition 63’s language allowing for an “annual adjustment amount” when the Department of Finance determines the funding for a future fiscal year. Cal. Prop. 63 § 14. Opponents explain “‘the Act mandates an assumed growth rate in income tax revenues under this tax increase of 7 percent per year after fiscal year 2008; this obviously will fail to materialize in some years, and there appears to be no provision for saving ‘excess’ revenue in other years.’” No On 63, We need real answers http://www.noon63.com/faq.htm (accessed Oct. 2, 2004) (emphasis added.).

2. Not Really a Fix

Opponents make clear that they believe that mental health is a “good cause,” but they explain that it is a “shortsighted substitute for long-term solutions.” California Official Voter Information Guide, Ballot Measure Summary Proposition 63, Arguments Con, at 6 (2004) (emphasis in original). Opponents express concern that the “tax initiative…promises wonderful things but the benefit is much smaller and the price tag is much larger than proponents are telling you.” Argument Against Proposition 63, at 37 (emphasis in original). The major concern is that the entire plan rests on a “highly vulnerable” income source that could collapse with “even slight economic changes.” Id. (emphasis in original). The belief is that because it is impossible to see what future earnings will be, that “economic bubbles” can burst, and because the plan does not provide for such events it will lead to more dangers. California Official Voter Information Guide, Rebuttal to Argument in Favor of Proposition 63, at 36 (2004) (emphasis in original).

Finally, opponents argue that while there may be data showing that similar programs have been effective in providing services, they believe that proponents are forgetting that the providing of services is “not the same thing as reducing mental illness or manifestations.” They believe that more should be done than a “feel-good proposal.” Id. “The bureaucratic allies of Steinberg have a narrow-minded approach to treating illness, and do not produce the results they claim. Medically, their approaches fill people with drugs, but do not give them a cure.” No On 63, We need real answers http://www.noon63.com/faq.htm (accessed Oct. 2, 2004). Psychology professors and members of the medical profession have explained that there is no known cure for mental illness, “but then this is also true of chronic medical problems like rheumatoid arthritis or asthma” however, opponents argue that the programs in Proposition 63 will not do enough, will create more dependence on government services, and will be too unstable to truly make a difference. Elizabeth Kuipers & Paul Bebbington, Is there a cure for mental illness? in Living with Mental Illness: A Book for Relatives and Friends (Souvenir Press 1997) (edited extract: http://www.mentalhealthcare.org.uk/schizophrenia/recovery/cure/ ed. Caroline Moran (2003)); No On 63, We need real answers http://www.noon63.com/faq.htm (accessed Oct. 2, 2004).

VI. Conclusion

In an attempt to provide services and create an effective program for Californians with mental health issues, Proposition 63 will be appearing on the November 2, 2004 ballot. If approved by a majority of voters, the initiative will create a new one percent income tax on all taxable income over one million dollars and use that money to extend, modify, and create county mental health service programs through a special fund only accessible for mental health purposes. Opponents are concerned that the tax will be an unstable income for the programs and will cause additional State revenue decreases should millionaires leave the State. Supporters argue Proposition 63 is "making good" on an over due promise and will not create an overbearing burden on wealthy California citizens. Despite the arguments made for and against the MHS Act, as an initiative statue, the decision will rest in the hands of California’s voters.