Category: Uncategorized

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...

Governor Jerry Brown 2.0:  Judicial Appointments, Now New And Improved

Governor Jerry Brown 2.0:  Judicial Appointments, Now New And Improved

In this article we evaluate two points held by today’s conventional wisdom.  One posits that Jerry Brown has, in his second stint as governor, been slow to fill judicial vacancies, and that there is an unusually high number of open judicial seats.  The other is a suspicion that the judicial appointments by Governor Brown version 2.0 will be in the style of Governor Brown version 1.0.  Our evaluation is that both theories are empirically less than true. (Recognizing that the first Governor Brown was Jerry Brown’s father Pat Brown, for convenience we will ignore that fact.) To the first point about...

The role of a state high court at the intersection of federalism and state sovereignty

The role of a state high court at the intersection of federalism and state sovereignty

The Alabama Supreme Court was in the news recently, after it ordered a halt to same-sex marriage licensing in that state. It became the first state high court in the nation to challenge a federal court order to permit same-sex marriage in its state. Such an action by a state high court raises issues of state sovereignty and federalism. This country has a federal system, in which states as sovereign political entities joined together in a system of collective government and ceded some sovereignty to a uniting central government, while retaining a great measure of self-governance. Federalism describes the principles...

Opinion Analysis: Berkeley Hillside Preservation v. City of Berkeley

Opinion Analysis: Berkeley Hillside Preservation v. City of Berkeley

On March 2, 2015, the California Supreme Court issued its decision in Berkeley Hillside Preservation v. City of Berkeley, which addressed the meaning of the “unusual circumstances” exception to the California Environmental Quality Act’s (“CEQA”) categorical exemptions. Specifically, the Court “granted review to consider the proper interpretation and application” of section 15300.2, subd. (c) of the Guidelines for Implementation of CEQA (“Guidelines”), known as the “unusual circumstances exception.” That provision provides: “Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment...

Seek “Top Court” Review?

Seek “Top Court” Review?

* This posting is an excerpt from the forthcoming 5th Edition of Myron Moskovitz’s book, Winning an Appeal. The Problem Most jurisdictions have two levels of appellate courts: an intermediate appellate court, and what I call the “Top Court.” In New York, the Top Court is called the Court of Appeals. In most other states, it is called the State Supreme Court. And, of course, the “Toppest Court of All” is the U.S. Supreme Court. If you lost in the intermediate appellate court, you can then ask the Top Court to hear your case via a petition—called a “petition for certiorari,”...

Johnson v. Department of Justice – Equal Protection and Mandatory Registration for Sex Offenders

Johnson v. Department of Justice – Equal Protection and Mandatory Registration for Sex Offenders

This is the first of two SCOCAblog posts on the recent opinion of Johnson v. Department of Justice. Keep a look out for a second posting with further analysis early next week. Summary: California’s sex offender registration scheme, Penal Code section 290 et seq., treats defendants convicted of engaging in non-forcible oral sex with a minor differently than those who engage in vaginal sex with a minor. Most pertinent to this case, the statutes give judges discretion whether or not to impose registration on an adult who has non-forcible vaginal sex with a 16-year-old, but lifetime registration is mandatory for an...

SCOCA Chambers Staff:  Annual Clerks or Staff Attorneys – or Both?

SCOCA Chambers Staff: Annual Clerks or Staff Attorneys – or Both?

We revisit a conversation of ancient vintage about the relative merits of judicial staff attorneys versus annual law clerks in the chambers of California Supreme Court justices. The staff attorneys are long-term professionals, while the annual law clerks are typically recent law school graduates who serve just a year or so (thus the name). This is distinct from the related debate about the role these attorneys play in the court’s decisionmaking process. That discussion is for another day – today we only compare staff attorneys and annual clerks. This conversation has been going on for many years – most recently...