SCOCAblog by the California Constitution Center and the Hastings Law Journal

Announcement: The Concurrence Matrix

Announcement: The Concurrence Matrix

Announcing a new data analytics tool for SCOCA watchers: a justices voting relationship matrix, available here: SCOCA Justices Concurrence Matrix Similar to the SCOTUSblog voting relationships chart on its statistics page (scroll to the bottom), this tool tracks the agreement rate of the justices relative to each other as a percentage value. The methodology is simple: any justice who concurs in the judgment counts as an “agree” in a given case even if that justice writes separately. SCOTUSblog does the same, counting agreement “in full, in part, or in judgment.” You will note that the “KW” values are grayed out....

Balancing Judicial Independence Against Public Confidence

Balancing Judicial Independence Against Public Confidence

Overview The voters delivered a mixed message regarding judicial independence in the June 2018 primary election. The phalanx of coordinated challengers to four sitting San Francisco Superior Court judges were soundly defeated, but Santa Clara Superior Court Judge Aaron Persky was recalled by a large margin. Those ballot box contests were examples of the conflicting public policy values of judicial independence and public confidence. Today we examine that conflict in the judicial discipline context. The competing policy concerns The value-set tradeoff in the judicial discipline context is between judicial independence and public confidence. “An impartial and independent judiciary is indispensable...

Public Officials Do Not Automatically Forfeit Their Offices Under Article XII, Section 7

Public Officials Do Not Automatically Forfeit Their Offices Under Article XII, Section 7

Introduction Article XII, section 7 of California’s constitution provides: “A transportation company may not grant free passes or discounts to anyone holding an office in this State; and the acceptance of a pass or discount by a public officer, other than a Public Utilities Commissioner, shall work a forfeiture of that office.”[1] We conclude that this section should not be taken literally: Article XII, section 7 does not mean that a public official who accepts free or discounted transportation automatically forfeits their office. The section’s history suggests that it was never so intended, and forfeiture of office is a disfavored...

Constitutionally Suspect Special Property Tax Exemptions

Constitutionally Suspect Special Property Tax Exemptions

Constitutionally Suspect Special Property Tax Exemptions by David and Michael Belcher Overview This article outlines the history of specific property tax exemptions in the California constitution, explores the unconstitutionality of such provisions, and considers why these provisions remain in the state constitution. Non-profit colleges in California have been exempt from paying property taxes since Proposition 4 passed in 1914. Previously four institutions—Stanford University, the California School of Mechanical Arts, the California Academy of Sciences, and Cogswell Polytechnical College—were covered by specific constitutional amendments that exempted them from paying property taxes.[1] Although those provisions granted the institutions “special privileges” contrary to...

Opinion Analysis: Briggs v. Brown (2017) Part 3

Opinion Analysis: Briggs v. Brown (2017) Part 3

Overview California is the land of the big issue ballot initiative. But with the attempt to solve big issues through the ballot initiative process come big constitutional problems. Justice Cuéllar’s dissent in Briggs v. Brown addresses a specific problem with Proposition 66: the unconstitutionality of its provision requiring courts to resolve both the direct appeal and habeas corpus petition of a capital case within five years. That dissent raises an important issue concerning big issue ballot initiatives in general: What happens when the central animating provision of a ballot initiative is unconstitutional? What can (or should) the reviewing court do...

Opinion Analysis: Briggs v. Brown (2017) Part 2

Opinion Analysis: Briggs v. Brown (2017) Part 2

Introduction This is the second of three articles about the California Supreme Court’s recent decision in Briggs v. Brown (2017) 3 Cal.5th 808. The first article focused on the changes made by Proposition 66 to capital appeal and habeas procedures in California. This article considers the various separation of powers approaches in the opinions.[1] The court’s resolution of that issue—whether Proposition 66’s mandatory five-year deadline for resolving direct capital appeals and habeas petitions violated the California constitution’s separation of powers doctrine—was noteworthy in that all seven justices agreed that the mandatory deadline violated the separation of powers doctrine and was...

How the Gann Limit Interacts with Cap-and-Trade

How the Gann Limit Interacts with Cap-and-Trade

Overview This article explores whether California should include revenue from its cap-and-trade program in the state’s appropriations limit. California voters enacted Article XIII B of the state constitution in 1979 (Proposition 4) to constrain state and local spending. That provision limits state appropriations to 1978 spending levels, plus the growth of the state’s population and personal income. This is commonly called the “Gann Limit,” after the measure’s author, conservative political activist Paul Gann. It applies to spending from tax revenues and other proceeds, including regulatory licenses, user charges and fees, and tax revenue investment. The state reached the Gann Limit...

California Supreme Court Upholds Mandatory First Contract Arbitration For Farmworkers

California Supreme Court Upholds Mandatory First Contract Arbitration For Farmworkers

One of Jerry Brown’s signature achievements during his first term of office was securing the passage of the California Agricultural Labor Relations Act of 1975 (ALRA). Farmworkers are excluded from coverage under the National Labor Relations Act, and the ALRA was the first (and still only) state statute to establish a comprehensive system for protecting the right of farmworkers to form unions and engage in collective bargaining. The ALRA has fallen short of its promise, however, due in part to the seasonal and migratory characteristics of farm labor, which pose obstacles to union organization and stable bargaining relationships and which...

Some Thoughts on California’s Fiscal Constitution

Some Thoughts on California’s Fiscal Constitution

The California Supreme Court currently has at least two cases relating to California’s fiscal constitution on its current docket;[1] two were decided this summer.[2] The phrase “fiscal constitution” is a term of art that designates all the many provisions of the constitution that dictate how governments can raise and spend money. The fiscal constitution of the federal government is very sparse. The fiscal constitution of the state of California is enormously lengthy and complicated. Many of its provisions date to 1879 and are contained in the thirty-six sections of Article XIII, but also see the twenty-three sections of Article XVI....

Opinion Analysis: Briggs v. Brown (2017) Part I

Opinion Analysis: Briggs v. Brown (2017) Part I

Introduction In the November 2016 elections, the California electorate narrowly approved Proposition 66: The Death Penalty Reform and Savings Act. Proposition 66 enacted a series of statutory reforms that can be grouped under three general categories: (1) provisions to expedite review in capital appeals and habeas corpus proceedings; (2) provisions governing the confinement of prisoners sentenced to death and the administration of the death penalty; and (3) provisions pertaining to the California Habeas Corpus Resource Center.[1] It was promptly challenged in court, and on August 24, 2017, the California Supreme Court issued its opinion on the challenge in Briggs v....