SCOCAblog by the California Constitution Center and the Hastings Law Journal
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...
The California constitution subjects tax increases proposed by a local government to vote at a general election, but does this requirement also apply to an initiative measure proposed by the people themselves? The particular provision of the California constitution at issue, Article XIIIC, section 2(b), added by Proposition 218 in 1996, does not indicate whether or not it also applies to initiative measures. The Court of Appeal decision[1] under review in this case found that this provision did not govern initiative measures. Therefore, under this reasoning, initiative measures do not need to be submitted to a vote at a general...
A proposed legislatively-referred amendment to the California constitution (Assembly Constitutional Amendment 10) would lower the voting age from 18 to 17 in California, if it passes the state legislature and is adopted by the electorate. This article considers whether a state has the power to set voting age requirements for its electors, and the effect of federal law. It concludes that California has legal authority to make this change, but there are potential conflicts with federal election law. Steps to Reform Several things need to happen for this proposal to take effect. First, both houses of the state legislature must...
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 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...
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...
Recently there has been much public discussion about whether Santa Clara Superior Court Judge Aaron Persky should be recalled. We thought it would be useful to provide an overview of the facts about judicial recalls in California, their history, and the issues involved. This article takes no position on the merits question of whether Judge Persky should be recalled. The Issues Involved In general, the design of California’s judiciary is influenced by some competing policy alternatives, known as “value sets.” In a value set, favoring one alternative over another reflects a decision to advance a particular policy goal, and one...
The California Supreme Court Historical Society is hosting an event to celebrate the publication of Constitutional Governance and Judicial Power: The History of the California Supreme Court. The event is Tuesday 15 November, 5:00 to 7:30 p.m. in the Milton Marks Auditorium at 455 Golden Gate Avenue in San Francisco. 5:00 – 6:00 panel discussion with Chief Justice Cantil-Sakauye and former Chief Justice George 6:00 – 7:30 reception with drinks and snacks Click here to register!
Registration is now open for the California Constitution Center’s conference on the California Supreme Court. Click here to register. Visit the conference page for more information. There are only 200 tickets available, and this event always sells out, so don’t delay!
Several months ago, Brandon Stracener wrote a post suggesting that the California Supreme Court (the “Court”) should use summary reversals instead of granting and transferring or depublishing erroneous Court of Appeal decisions. Citing the U.S. Supreme Court’s summary reversal procedure and the Ninth Circuit’s use of memorandum dispositions, Mr. Stracener claims that the use of summary reversals will improve efficiency and eliminate miscarriages of justice. Mr. Stracener’s goal is certainly commendable. Procedures that help the Court manage its workload should always be welcome, and errors, as a general principle, should be corrected whenever possible. But the Court is not the...
