SCOCAblog by the California Constitution Center and the Hastings Law Journal

Event announcement: Yes on 1

Register here for this free online event. Connecting the Dots What is at stake for religious freedomwhen abortion rights are under attack?Thursday, October 27, 12:00 p.m.-1:15 p.m.Register to receive the Zoom informationHow will Prop. 1 impact the national conversation around abortion rights? Join the Jewish Community Relations Council of the Bay Area and National Council of Jewish Women (NCJW) California, to hear answers. Featuring Liz Reiner Platt, director of the Law, Rights, and Religion Project at Columbia Law School; David A. Carrillo, executive director of the California Constitution Center; and Smriti Krishnan, government relations and advocacy manager at NCJW. REGISTER...

Ballot measure analysis: Proposition 26 and 27

Overview This article provides a pro/con analysis of Proposition 26, “California Sports Wagering Regulation and Unlawful Gambling Enforcement Act,” and Proposition 27, “California Solutions to Homelessness and Mental Health Support Act,” on the November 2022 ballot. Both measures legalize sports gambling but take different forms. The main difference: Proposition 27 would allow online sports betting everywhere, while Proposition 26 would only allow gamblers to place bets in person at Native American tribal casinos and four horse racing tracks. Both propositions attempt to safeguard against underage gambling and prohibit gambling on youth sports, but only Proposition 26 makes it illegal to...

Ballot measure analysis: Proposition 30

Overview This article provides a pro/con analysis of Proposition 30, “Tax on Income Above $2 Million for Zero-Emissions Vehicles and Wildfire Prevention Initiative,” on the November 2022 ballot. New tax measures like this always raise questions about whether new taxes are needed. Those questions are especially acute when the proposed new taxes are tied to a specific policy goal. Proposition 30 does so: it will increase the tax on personal income above $2 million by 1.75%, pushing the top-earner rate to 15.05%. The revenues would be allocated to the following three sub-funds: Zero-Emission Vehicle Infrastructure Investment Plan Sub-Fund (35% of...

November 2022 ballot measures described

Overview In this article the California Constitution Center presents a pro/con analysis of each measure on the November 2022 ballot in California. This does not encourage a vote for or against any pending measure; it is instead intended only to fairly present the facts and arguments on both sides of the issues and to assist voters by objectively evaluating these measures for legitimate public informational purposes. The measures A complete list of the measures with links to the Ballotpedia descriptions: Proposition 1 Abortion Provides a state constitutional right to reproductive freedom, including a right to abortion. Proposition 26 Gambling Legalizes...

We need to clarify the cogent reasons standard

Overview California courts need a better way to evaluate California constitutional provisions that have federal analogues. Some California decisions have erroneously required that “cogent reasons” must exist before a California court construing a California constitutional provision may depart from the U.S. Supreme Court’s construction of the analogous federal provision. That legal standard is suspect: it has no historical or doctrinal support, it is poorly reasoned, and it is inconsistently applied. We read the appropriate legal standard for interpreting analogous constitutional provisions as requiring reference to federal law only in a limited circumstance: when a long history exists of California courts...

How much experience do you need to be California’s chief justice?

Overview Justice Patricia Guerrero likely will be confirmed as California’s 29th chief justice at the Commission on Judicial Appointments hearing on August 26, 2022, just five months after she was confirmed as an associate justice on March 22, 2022. That raises questions about how much judicial experience is necessary to lead California’s judicial branch. The answer is “not much” — reviewing the history of California chief justices shows that judicial branch leaders arrived with much, some, little, or no judicial experience. There is some evidence of correlation between two factors being predictive of success or failure (gauged by length of...

Proposition 1 is good enough

Overview In their SCOCAblog article “Fix the fatal flaw in SCA 10” Allison Macbeth and Elizabeth Bernal argued that California abortion rights, which rely on the same unwritten privacy interests the U.S. Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization, are similarly vulnerable to judicial repeal. They suggested that an initiative measure could add specific, detailed reproductive liberty rights to California’s constitution. Absent that specificity, Macbeth and Bernal argued that a California version of Dobbs remained a risk. Macbeth and Bernal were right to argue for improvements to a law that will constitutionalize a woman’s right to choose...

Handicapping California’s next chief justice

Handicapping California’s next chief justice

Overview In this article we speculate about possible scenarios and candidates for California’s next chief justice. We have no inside knowledge and advocate for no one. Our historical analysis identifies three scenarios: most likely, less likely, and least likely. The most likely scenario is a sitting associate justice being elevated to chief justice, and in this scenario a Court of Appeal justice probably gets nominated to fill the empty seat. The less likely scenario is a Court of Appeal justice being nominated to both fill the empty seat and to serve as chief justice. The least likely scenario is a...

Citizen enforcement laws are playing with fire

Citizen enforcement laws are playing with fire

Overview In 2021 Texas enacted a law (SB 8) that prohibits abortions after the fetal heartbeat has been detected and empowers private citizens to sue anyone who has (or intends to) perform, aid, or abet such an abortion.[1] The law also bars “enforcement” by state and local government, except that a court must award an injunction, statutory damages not less than $10,000, and attorney fees if the claimant prevails.[2] California has now enacted a copycat law (SB 1327) that employs the same mechanisms to permit citizen enforcement of certain California firearms laws.[3] Doing so wrongly validates a law that undermines...

Hail and farewell, Madam Chief Justice

California’s Chief Justice Tani Cantil-Sakauye will retire, she announced this morning in a media conference. Chief Justice Cantil-Sakauye will not file for retention election, and will vacate her position when her term ends in January 2023, having served a full 12-year term as California’s highest judicial officer. Appointed by Governor Arnold Schwarzenegger, she assumed office on January 3, 2011. She will be 63 when she leaves office, having served 32 years on the bench since Governor George Deukmejian first appointed her in 1990. Like her colleagues justices Carol Corrigan and Martin Jenkins, Cantil-Sakauye served at every level of California court...