Author: California Constitution Center

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...

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...

SCOCA Year in Review 2017: (Almost the) Brown Court

SCOCA Year in Review 2017: (Almost the) Brown Court

SCOCA Year in Review 2017: (Almost the) Brown Court With Justice Werdegar’s retirement (her last day was August 31), Governor Brown has a rare opportunity to appoint a fourth justice to the California Supreme Court. That will create a Brown-appointee majority on the seven-member court. To provide some perspective on what that could mean, in this article we analyze the court’s recent performance. Of course, no one but Governor Brown knows when a new justice will be appointed, and no one knows for sure what effect that person will have on the court. Rather than speculate about those unknowns, this...

Event announcement: Federalism Now conference

Event announcement: Federalism Now conference

FEDERALISM NOW UC Berkeley School of Law Friday 03 November 2017 9:00 to 5:30 Free admission, registration required. Click here to register! This full-day conference will bring together a diverse set of scholars, practitioners, and policymakers to explore what federalism means now. In this era of shifting state and federal policy positions, what constraints and opportunities does federalism present? Can people of different views agree on rules and principles to guide us going forward? The day is divided between a framing panel and two topical panels, one focusing on federalism and environmental law (climate change, specifically) and the other focusing...

Event announcement: SCOCA year in review, featuring Justice Cuéllar

Event announcement: SCOCA year in review, featuring Justice Cuéllar

The SCCBA Appellate Law Committee presents The CA Supreme Court: A Conversation With Justice Mariano-Florentino Cuéllar Download the invite: 8.29.17 The CA Supreme Court AUGUST 29, 2017 12:00 PM – 2:00 PM SCCBA SEMINAR & CONFERENCE CENTER 31 NORTH SECOND STREET, 4TH FLOOR SAN JOSE, CALIFORNIA 95113 REGISTER ONLINE ALSO OFFERED AS LIVE WEBCAST Please join us for a conversation with Justice Mariano-Florentino Cuéllar and a Review of Significant Decisions During the 2016-2017 Term SPEAKERS: Justice Mariano-Florentino Cuéllar, one of the newest Justices on the California Supreme Court. Justice Cuéllar is the former Stanley Morrison Professor of Law at Stanford...

California’s Constitution is Not the Longest

California’s Constitution is Not the Longest

Californians sometimes complain about the length of their state constitution and the frequency of its amendments. For example, on June 18, 2014, California Assembly member Mike Gatto (D-Los Angeles) wrote in a Los Angeles Times editorial: “[o]f the more than 200 written constitutions in the world, California’s is the third-longest.”[1] That’s not true. It’s not merely untrue, it’s wrong for several reasons. First, there are far more than 200 written constitutions currently in force worldwide. According to the Constitute Project, there are 191 active national charters. But there are even more subnational constitutions. Besides the 50 state constitutions in the...

Happy Trails, Justice Werdegar

Happy Trails, Justice Werdegar

Yesterday Justice Kathryn Mickle Werdegar announced her intent to retire from the California Supreme Court, effective August 31, 2017. We wish her a happy retirement. Bob Egelko at the San Francisco Chronicle wrote a good overview of Justice Werdegar’s major contributions to the law. So instead of focusing on her substantive legal work, we looked at the effect this retirement will have in the broader context of gubernatorial appointments. Since 1934, the only way to become a SCOCA justice is to be appointed by a governor and confirmed by the Commission on Judicial Appointments; after appointment, justices stand for uncontested...

Federalism Is Your Friend

Federalism Is Your Friend

Federalism allows state courts to disagree with their federal counterparts. Some say that this principle of state sovereignty is now more important than ever. We say that, as a design feature intended to protect individual liberty, federalism is always important. Today we consider this question: “What can a state high court do when it disagrees with federal precedent?” The answer is always the same: rely on the state constitution as may be appropriate. Overview The federalist design of this country’s system for integrating fifty-one governments is based on the theory that dual sovereignty will better protect individual liberty by empowering...

CalExit: Good Luck With That

CalExit: Good Luck With That

This week some notice has come to a fringe theory that California could and should secede from the United States. We reject both propositions. States Have No Power to Secede The first problem California secessionists face is the absence of any authority for secession. There is no legal basis for a state to secede from the Union. Article 4, section 3 of the U.S. constitution has a procedure for adding new states or subdividing existing states—both require Congress to consent.[1] But there is no procedure, at all, in the federal constitution for a state to secede. And Article 3, section...