Category: Analysis

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...

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...

Does California still have a meaningful separation of powers doctrine?

Does California still have a meaningful separation of powers doctrine?

Overview In this article I address what I view as a significant breakdown in California’s constitutional order. I begin with an overview of separation of powers doctrine to explain the importance of the non-delegation doctrine — which prohibits the state legislature from giving away its lawmaking powers. I then explain California’s three tests for distinguishing between legitimate and illegitimate delegations of authority. And in all of this, I aim to address a controversy: that Governor Newsom’s exercise of “all police powers of the state” in formulating rules restricting individual liberties and shuttering businesses during 2020–21 violated separation of powers and...

The deadline for SCOCA justices to file for retention

The deadline for SCOCA justices to file for retention

Overview California Chief Justice Tani Cantil-Sakauye assumed office on August 25, 2010, and secured retention in the November 2010 general election. Her current term ends on January 1, 2023. When asked at the recent SCOCA Conference 2022 whether she intended to seek another term, the Chief Justice said “I’m still thinking about it.” We confirmed how long the Chief Justice has to consider that question: the deadline for a SCOCA justice to file for retention in the November 2022 election is August 15, 2022. Analysis California appellate justices serve 12-year terms.[1] Before their terms expire on the Monday after the...

Fix the fatal flaw in SCA 10

Overview The reproductive choice rights the United States Supreme Court recognized almost fifty years ago rely on two unwritten fundamental rights: to privacy, and liberty interests in retaining control of one’s body. With the U.S. Supreme Court poised to abrogate those rights in Dobbs v. Jackson Women’s Health Organization, Californians will retain their state constitutional rights and statutory protections for reproductive liberty. Yet those California constitutional rights rely on a similar foundation — judicial interpretations of California’s textual constitutional privacy right. That leaves the state constitutional protection for reproductive liberty vulnerable to the same judicial reinterpretation that federal abortion doctrine...

California knows how to avoid partisan gerrymandering

California knows how to avoid partisan gerrymandering

Overview The redistricting season happens once every ten years, and it is always characterized by two things: fierce partisan struggles for control of the maps that will determine political power in the next decade, and anguished complaints about how politicized the process is. The current redistricting cycle is no different, featuring the usual allegations of partisan gerrymandering and consequent legal challenges to proposed district maps across the country. This boring-but-important topic receives less news coverage than it merits, and consequently it is rarely a target for major reforms. For example, a recent Pew poll found that most Americans are unaware...

Exit taxes in California? Not so fast.

Exit taxes in California? Not so fast.

Overview In the past two years members of California’s Assembly twice tried to advance tax bills (AB 2088 and AB 310) that were designed to capture revenue from wealthy residents who fled the state to avoid the other income tax increases in those bills.[1] Both would have imposed a tax (levied annually for 10 years) on a California resident who leaves the state. This article argues that such an exit tax has grave legal defects that should prevent a state from imposing a wealth-based exit tax on its former residents. Analysis The two bills employed distinct approaches to capturing revenue...

Anti-homeless laws may violate California’s equal protection doctrine

Anti-homeless laws may violate California’s equal protection doctrine

Overview Under California’s equal protection doctrine, Los Angeles Municipal Code 56.11 and similar laws that are designed to harass the homeless may be unconstitutional. In 2016, the Los Angeles City Council adopted LAMC 56.11 to address the city’s homeless encampments.[1] The law’s purpose is to “balance the needs” of residents to access “clean and sanitary” public areas with the “homeless population[’s]” property interests, and it prohibits storing “any tangible property” in public areas.[2] The ordinance permits the city to confiscate and destroy such property if it violates the law’s size, placement, or personal attendance requirements after written notice.[3] The ordinance...

SCOCA year in review 2021

SCOCA year in review 2021

Overview Our review of the California Supreme Court year in 2021 will focus on the court’s immediate future, and we see two possible viewpoints there. From one perspective the court is in harmony, with only incremental changes on the horizon. We still see no evidence on the current court of the partisan behavior that characterized voting patterns in its past, consensus continues to dominate, and there is no evidence of a Brown versus senior justices split. Yet from another perspective the court is primed for change, and that potential for change is our primary concern here. Analysis The court’s performance...