Category: Analysis

SCOCA year in review 2019

SCOCA year in review 2019

Overview The effect a majority of four justices appointed by Governor Jerry Brown might have on the California Supreme Court has been a major question in the past few years. After all, the last time four Brown appointees controlled the court it endured its most chaotic period in the last century. With the fourth Brown appointee (Justice Groban) having completed his first year on the court, we examined the court’s opinions from February 2015 to December 2019 for evidence that such times are upon us again. We found little support for a conclusion that another ultra-partisan-liberal Rose Bird era is...

Municipal taxes are (almost) always municipal affairs

Municipal taxes are (almost) always municipal affairs

Overview The California Supreme Court has avoided bright-line rules when analyzing local ordinances under the Article XI, section 5 municipal affairs doctrine.[1] For example, the most recent state high court case on municipal affairs endorsed an interest-balancing approach to determine whether an activity is a matter of local or statewide concern.[2] But while the court disavows a categorical approach, one factor reliably predicts results in municipal affairs decisions: the court rules for the city in nearly every case that concerns local finance, especially taxes. Analysis For this article we reviewed every California Supreme Court municipal affairs case from 1896 to...

The Attorney General’s Supervisory Power: Theory and Reality

The Attorney General’s Supervisory Power: Theory and Reality

Overview This article explains the legal principles involved in the debate about how much responsibility Senator Kamala Harris deserves for criminal convictions that occurred during her tenure as California’s attorney general. The basic answer is: very little.[1] She and her office were uninvolved in the overwhelming majority of individual trial court convictions that occurred during her tenure, because the attorney general has very little practical or legal responsibility for criminal trial matters. And that office has a statutory duty to defend those convictions on appeal, which may sometimes require taking positions that conflict with an attorney general’s personal policy preferences....

Article I, Section 12 — Not Section 28 — Governs Bail in California.

Article I, Section 12 — Not Section 28 — Governs Bail in California.

Overview The California Supreme Court is currently considering how to reconcile the apparent conflict between the California constitution’s two bail provisions: Article I, section 12 and Article I, section 28. Under section 12, bail is an “absolute right” granted to criminal defendants with three narrow exceptions; under section 28, bail is discretionary and public safety is the primary consideration. Because constitutional provisions must be reconciled, the apparent conflict is a false choice: rather than choosing between them, the court is likely to harmonize these sections. When a defendant falls within one of section 12’s narrow exceptions (and so would be...

Municipal taxation is now interesting

Municipal taxation is now interesting

Overview Last week the California Supreme Court decided City and County of San Francisco v. UC Regents (S242835 docket and opinion), and in unanimously ruling for the city the court reshaped the local finance landscape and employed a clear new vision for resolving state–local conflicts. The case involved a mundane matter of whether a city can tax private users of parking lots owned by state universities. The universities argued that, as sovereign state entities, their real property operations could not be taxed by local governments.[1] The city argued that the core municipal taxation power was paramount here, and taxing private...

A Coming Executive Branch Civil War Over the Death Penalty?

A Coming Executive Branch Civil War Over the Death Penalty?

Conflict over the death penalty has driven California politics and law since the 1976 reinstatement of capital punishment by the United States Supreme Court in Gregg v. Georgia, and reached a peak moment with the 1986 ouster of Chief Justice Rose Bird and two associate justices of the California Supreme Court. In the last decade or so, it appeared that the conflict between pro- and anti-death penalty advocates had settled into a de facto detente. For the pro-death penalty faction, the death penalty remained on the books, with a declining number of death penalty prosecutions emerging from a small number...

A Governor Probably Can Stop Capital Cases by Executive Order

A Governor Probably Can Stop Capital Cases by Executive Order

Overview The New York Times recently reported that Governor Gavin Newsom is “considering several new steps to dismantle the state’s capital punishment system” and “discussing with the attorney general’s office what role the state could play in blocking prosecutions of new death sentences.” The Times quoted experts who argued that a governor lacks authority to order an attorney general or local prosecutors to stop pursuing capital judgments, and that taking cases from local prosecutors would be “unprecedented.”   No California governor has ever tried to direct state prosecutors to this degree. But that does not mean a governor lacks such...

Liberate the capital docket by sending it to the Court of Appeal

Liberate the capital docket by sending it to the Court of Appeal

Overview California Supreme Court Justice Goodwin H. Liu recently wrote that “the promise of justice in our death penalty system is a promise that California has been unable to keep.”[1] He’s right. The state has struggled for decades to resolve the policy debate over capital punishment after the California Supreme Court banned it in 1972.[2] The electorate reinstated capital punishment by passing Proposition 17 in 1972;[3] the legislature re-enacted the death penalty statute in 1977; the electorate expanded its application with Proposition 7 in 1978; and the voters attempted to accelerate executions by enacting Proposition 66 in 2016.[4] After forty...

Cities Can Stem the Tide of Short-Term Coastal Rental Homes

Cities Can Stem the Tide of Short-Term Coastal Rental Homes

Overview The growing popularity of online rental platforms like Airbnb and HomeAway has increased short-term rentals in residential neighborhoods in California, especially along the coast.[1] Short-term rentals can lead to increased noise, trash, disorderly conduct, traffic congestion, and can deplete long-term rental housing in neighborhoods where they exist.[2] The city of Del Mar recently acted on this issue by passing an ordinance restricting short-term rentals in residential areas.[3] The Coastal Commission rejected the ordinance, contending that it impermissibly restricted public access to the coast.[4] Del Mar filed a writ petition to clarify the Coastal Commission’s authority to reject the proposed...

Opinion Analysis: Sierra Club v. City of Fresno S219783

Opinion Analysis: Sierra Club v. City of Fresno S219783

In this recent unanimous opinion (authored by Justice Chin) the California Supreme Court clarified the standard of review for a claim that an Environment Impact Report (EIR) inadequately discusses an issue required by the California Environmental Quality Act (CEQA). Although this issue and its discussion were framed within the specialized area of CEQA law, the court’s opinion is significant to the appellate standard of review and a court’s role in reviewing expert scientific findings. I had the opportunity to be one of the mock justices in a moot court oral argument presented by the plaintiffs, as part of the California...