Category: Uncategorized

The California Supreme Court Should Consider Using Summary Reversal

The California Supreme Court Should Consider Using Summary Reversal

The California Supreme Court has a problem. There is tension between its mission to give each case due consideration, and the need to keep its docket under control. This piece proposes a possible solution: summary reversal.[1] On average, each year the court considers twenty capital cases, forty related habeas corpus petitions, 5200 petitions for review in civil and criminal matters, and 3400 writ petitions (primarily noncapital habeas corpus petitions). 2013 Court Statistics Report (2013) at 5. Except for oral argument weeks, the justices meet each week in conference to discuss and vote on between 150 and 300 petitions. Goodwin Liu,...

What if SCOCA Decided to Fund the State Bar with Judicial Branch Fees?

What if SCOCA Decided to Fund the State Bar with Judicial Branch Fees?

In this article we consider a simple separation of powers issue with serious implications: Can the California judicial branch fund the State Bar of California by imposing fees on practitioners?[1] We think this is a problem in two stages. The first question (whether the judiciary can impose such fees) raises one sort of separation of powers issue, and the second (the likely consequences) requires a different analysis. Background The state bar was created by statute in 1927. It received constitutional entity status in 1966, when article 6, section 9 of the California constitution was added: “The State Bar of California is...

U.S. Senate: Be Afraid of State Supreme Courts

U.S. Senate: Be Afraid of State Supreme Courts

President Obama has nominated Merrick Garland, chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, for appointment as a justice of the U.S. Supreme Court. Senators who are at all familiar with the system of dual sovereignty created by the U.S. Constitution will move quickly to act on that nomination, because without a full bench the nation’s high court is severely limited in its ability to prevent state supreme court decisions from being the final word. So to all the Federalists in the chamber: fear the state supreme courts. Because unless you act on this...

Do felony disenfranchisement laws in California violate the Equal Protection Clause of the Fourteenth Amendment?

Do felony disenfranchisement laws in California violate the Equal Protection Clause of the Fourteenth Amendment?

I.  Introduction Equal protection is once again the doctrine of the day. It figured prominently in the same-sex marriage cases: a losing argument in SCOCA, and the dispositive principle in SCOTUS. As Anne Gordon noted in her recent post entitled “Is SB 277 a denial of the right to education?,” the pending litigation over school funding (which will be heard before the California Court of Appeal on January 27 and is likely to reach SCOCA) also largely turns on equal protection. And there is another issue on the horizon that might ultimately call for SCOCA resolution: felon disenfranchisement. This post...

California Gets an “F” Grade in Judicial Accountability, and We Have Questions

California Gets an “F” Grade in Judicial Accountability, and We Have Questions

The Center for Public Integrity (“CPI”) conducts periodic evaluations of all three branches of government in each state.[1] In the CPI’s just-published report on California, the state judiciary received an F grade. This is a significant drop from the C-minus California received in 2012, the last time the CPI evaluated the state. But the last three years have seen significant advancements in judicial transparency, as the state judiciary has broadened public access to the branch’s records and the state’s counties have continued to expand online access to court records.[2] So how have things gone from “not great” to “failing” in...

Petitions for Review: A Long-Odds Gambit

Petitions for Review: A Long-Odds Gambit

Here we review and analyze the grant rate data for SCOCA review petitions. Our conclusion is that, on average, any given petition has a 4% chance of being granted. The Court’s Role in the California Judiciary We begin with context. The Supreme Court of California is the state’s highest court, and its primary role is to resolve the big questions, settle appellate court splits, and ensure uniformity in the law. California Rules of Court, Rule 8.500(b)(1). Granted, capital cases (discussed below) are an exception to this, but the fact remains that in the majority of the cases SCOCA hears, the...

Stephen Johnson Field: Near-Great Justice, or Near-Greatest Justice?

Stephen Johnson Field: Near-Great Justice, or Near-Greatest Justice?

Let us set the playing field. Stephen Johnson Field is no John Marshall. Nor is he Holmes, nor Brandeis, nor Story. He lacks the weight of Warren, the influence of Black, the force of Rehnquist. We do not argue otherwise. This is our modest proposal: When considering the vast tier of second-rate justices, Justice Field deserves to be at the top.[1] Field set the pace for the also-rans; of those justices whose ideas were discarded, Field’s had the most force. He is the most distinguished of the indistinguishable, as measured by numbers, substance, or more subjective qualifications. David S. Terry,...

A Brief Look at SCOCA’s October Oral Arguments

A Brief Look at SCOCA’s October Oral Arguments

On the calendar for hearing on October 6, 2015: Howard Jarvis Taxpayers Association et al. v. Padilla The California legislature passed a bill that would have placed an advisory question, in the form of Proposition 49, on the November 2014 ballot for voters to determine whether to call upon the U.S. Congress to overturn Citizens United v. Federal Election Commission (2010). The issue is whether the California legislature had the authority to place a nonbinding measure on the ballot seeking the views of the electorate. The court issued an order to show cause for why the relief prayed for in...

SCOCA seeks comment

SCOCA seeks comment

The California Supreme Court has released a proposal seeking comment on whether to: (1) amend the rule on publication of appellate opinions to eliminate the automatic depublication of opinions when the Supreme Court grants review; and (2) amend the rule on citation of opinions to address the citation of published appellate opinions while they are under review and following decision on review. The proposal and detailed background materials are available here; click on “Supreme Court” on the Invitation to Comment website.

Is SB 277 a denial of the right to education?

Is SB 277 a denial of the right to education?

Last week, Governor Jerry Brown signed SB 277, which requires all children (except for those exempt due to “medical reasons”) to get vaccinated against many common childhood illnesses, including measles, whooping cough, and chicken pox. Opponents of SB 277 were vocal, characterizing their crusade not as a fight against vaccines, but as a fight for parental rights. SB 277 mandates vaccines as a condition for attending school, public or private. Because children who are not vaccinated may not attend school, it raises the question of whether this bill infringes on those children’s right to education under the California Constitution. Education...