SCOCAblog by the California Constitution Center and the Hastings Law Journal

California’s quarantine orders need not exempt churches

California’s quarantine orders need not exempt churches

Overview Some churches have resisted California’s quarantine orders, even suing the state for exemptions. These churches argue that the religious liberty guarantees in the federal and state constitutions require California to accommodate them by allowing in-person religious services during the COVID-19 pandemic. That argument lacks merit. The state can limit otherwise sacrosanct constitutional rights when necessary to defend public health. In a pandemic, the federal constitution does not require the government to treat churches differently from other places where people might gather and spread contagion. The California constitution is even more restrictive, and generally prohibits the state from preferring churches...

California can restrict, but not close its borders.

California can restrict, but not close its borders.

Overview In response to the COVID-19 pandemic, several states have taken steps to limit travel into their states. Governors in Rhode Island, Florida, and Texas implemented interstate travel restrictions. In one instance, a state’s governor considered stopping cars with license plates from a specific state suffering more acutely from COVID-19 than others. Going forward, other states may consider similar measures, especially as some states that have benefited from taking strong measures to curb the spread of COVID-19 face the prospect of exposing their citizens to sources from outside their state. In light of recent discussion about the balance of power...

The California Attorney General’s constitutional authority over criminal justice reform during the COVID-19 pandemic

The California Attorney General’s constitutional authority over criminal justice reform during the COVID-19 pandemic

Overview The COVID-19 pandemic has transformed nearly every aspect of life in California, including our criminal justice system.[1] It also may portend economic dire straits.[2] These circumstances will compel California to make difficult choices, including in the capital case arena — which has always been “the antithesis of efficient and effective use of government time and resources.”[3] The state Attorney General can mitigate some of these issues by using that office’s constitutional authority to exercise leadership in criminal justice reform. This can be done by acknowledging errors in capital and other criminal cases, arguing for changes in existing law where...

The pandemic exposes the need to fix the federalism debate

The pandemic exposes the need to fix the federalism debate

Overview During the 2008 financial crisis, President-elect Obama’s Chief of Staff, Rahm Emanuel, famously said, “You never want a serious crisis to go to waste.”[1] The present pandemic is no exception. Examples of political and economic opportunities abound: the debates over the appropriate legislative response to the pandemic,[2] schemes to defraud frightened consumers and merchants,[3] the emergence of a “coronavirus economy,”[4] and even the mad dashes to hoard ordinary goods like toilet paper,[5] groceries,[6] and personal protective equipment.[7] And given the human propensity to forget our vulnerabilities between crises, the more negative of these examples will likely repeat themselves. Yet...

Emergency diploma privileges are not the solution to coronavirus-caused bar exam delays

Emergency diploma privileges are not the solution to coronavirus-caused bar exam delays

As the number of states electing to delay the July bar exam in response to the coronavirus pandemic increases, so too have the calls for state bar associations to waive the exam requirement altogether.[1] Such an “emergency diploma privilege” would allow new graduates to practice law without first passing a state-administered bar examination. As the explanation goes, allowing a law degree to substitute for a bar exam this year would not only resolve current uncertainty over when bar exams can be safely administered (especially in harder-hit states like California and New York), but also allow these new attorneys to offer...

California’s legislature can — and should — meet remotely

California’s legislature can — and should — meet remotely

Overview On March 16, California’s Senate adopted SR-86 (Atkins), which amends that chamber of the state legislature’s standing rules to permit Senate and committee meetings in an emergency where “one or more Senators participate in the meeting remotely by telephone, teleconference, or other electronic means.” It also permits Senators to participate remotely by electronic means to vote during a rollcall vote. While the federal constitution might bar Congress from adopting remote meeting-and-voting rules, no comparable impediments apply to California’s legislature. The state constitution broadly empowers the legislature to adopt rules for its proceedings. And nothing in California law prohibits the...

Mustering the militia is not martial law

Mustering the militia is not martial law

Overview On March 17, Governor Newsom put the California National Guard on alert to assist the state’s efforts to combat the COVID-19 pandemic. This has raised questions about the Guard’s composition, the scope of its authority, and its role — along with concerns about whether the Guard’s activation shows that martial law has taken hold. To be clear: martial law has not been declared, and activating the Guard has little relation to suspending civil authority. Guard call-ups happen frequently in California, and martial law has never been declared in this state. The Guard is being called up to provide disaster...

The Chief Justice’s Order Suspending Jury Trials was Lawful and the Right Call

The Chief Justice’s Order Suspending Jury Trials was Lawful and the Right Call

Overview On March 23, Chief Justice Cantil-Sakauye issued a statewide order suspending all civil and criminal jury trials for 60 days to curb the spread of the COVID-19 virus. That order was necessary and proper. As head of the state Judicial Council, the Chief Justice holds the ultimate power to suspend court operations during a crisis. That authority flows from the judiciary’s inherent power of self-preservation, the constitutional provisions governing court administration, and statutes giving the Chief Justice the power to suspend trials when an epidemic strikes. Suspending all jury trials for 60 days is a difficult decision in response...

The Governor’s Powers Under the Emergency Services Act

The Governor’s Powers Under the Emergency Services Act

Overview The Emergency Services Act gives California’s governor broad emergency authority. Typically, the state constitution requires policy decisions (what we should do going forward) to be made through the deliberative legislative process.[1] But in a crisis, that authority (what we should do right now) may be consolidated and exercised by one executive. After declaring an emergency, a governor may disregard statutory law to direct state resources in responding to the crisis. By granting the governor these powers, the state legislature delegated its power to fix public policy and deploy funds during emergencies. This raises some separation of powers concerns that,...

Parcel taxes are likely unconstitutional. The legislature should fix that.

Parcel taxes are likely unconstitutional. The legislature should fix that.

Overview Local governments have increasingly relied on parcel taxes — taxes on property that are assessed independent of a property’s value — to generate revenue and avoid longstanding tax reform measures like Proposition 13. The California Supreme Court’s recent decision in California Cannabis Coalition v. City of Upland lowered the threshold for voters to pass such taxes, so they are likely to increase. Parcel taxes, however, are legally suspect and largely unregulated: statutes barely mention parcel taxes,[1] and almost no judicial decisions or legal scholarship discuss them.[2] The current unregulated parcel tax system is untenable and requires judicial and legislative...