SCOCAblog by the California Constitution Center and the Hastings Law Journal
Overview On March 25, 2021, the California Supreme Court handed down its long-awaited decision in In re Humphrey (S247278). The case presented two key questions concerning bail: whether cash bail is unconstitutional, and how to resolve two apparently conflicting California constitutional provisions concerning bail. The decision answered the first question, and demurred on the second: The court held that pretrial detention based solely on a person’s inability to pay is unconstitutional. Because liberty is the norm in the criminal justice system, there is a fundamental right to bail, and bail may be denied only in narrow and unusual circumstances. Yet...
Our nation faces a problem: as civil discourse becomes more partisan and heated, with fewer spaces available for neutral debate and collaborative discussion, more people will become discouraged and react by turning away from civic engagement. That’s especially true for students, who often search in vain for meaningful ways to be effective change agents. Both adults and students can become disillusioned and cynical about the democratic process when opportunities for civic engagement and conversation are lacking. But it’s far worse when a student tunes out — that’s our future turning away. The solution is not less engagement, but more; not...
Overview As we continue the steady march toward full-scale reopening, colleges and universities across the country are preparing their return to in-person instruction in a post-pandemic world. Some colleges have announced that they will require students to be vaccinated before they return to campus, while California’s postsecondary institutions are assessing their public health safety plans for next fall. Yesterday the University of California and California State University announced that they will “require COVID-19 vaccinations for all students, faculty and staff on campus properties this fall once the Food and Drug Administration gives formal approval to the vaccines and supplies are...
May 7, 2021, 1:00 to 5:00Click here to register! Every ten years, based upon the census, states redraw lines for congressional and state legislative seats; some win, some lose. This intensely political process was delayed and reshaped this year by the global pandemic. By the end of April, the relevant data will be released and the second California Citizens Redistricting Commission will go to work. It must confront the potential loss of a congressional seat, changes to the Voting Rights Act, defining communities of interest, and new rules governing how incarcerated individuals will be geographically assigned, among other issues. Program...
Overview California voters passed Proposition 11 in 1972, which amended the state constitution to include a fundamental right to privacy. The ballot arguments expressed a clear voter intent to set a high bar for invaders to justify privacy invasions.[1] Yet the California Supreme Court misinterpreted Proposition 11, and all but abrogated the electorate’s intent when it instead set a low bar to justify privacy invasions. California’s constitutional privacy doctrine needs a reset: Hill v. National Collegiate Athletic Association should be disavowed, and privacy doctrine should return to something closer to what the voters intended with Proposition 11. Analysis How the...
Overview March 17, 2021 was the deadline for proponents seeking Governor Gavin Newsom’s recall to submit verified signatures to certify a recall election.[1] Assuming the proponents have met the requirements (which seems likely) Governor Newsom will face a recall election.[2] Lieutenant Governor Eleni Kounalakis and Secretary of State Shirley Weber will play key roles in that recall election, because California law provides limited instructions and broad discretion for their duties. This means that these two state officials will make decisions that could greatly shape the election process and the race for a potential successor. Analysis The road ahead If all...
Overview The writ of mandate developed around 150 years ago to allow for judicial action when all else failed. Since then, its evolution has produced confused interpretations of the writ’s essential aspects. This article provides practical guidance for employing mandate and mandamus writs in California: which writ to bring, whether both would be appropriate and desirable, and how to anticipate the fact that a court always retains equitable discretion to deny a petition. This article concludes with a brief survey of structural changes that would do away with administrative mandamus and even the traditional writ of mandate altogether, save for...
Overview Although California voters may amend the constitution by initiative, they cannot use the initiative to revise it. This amendment–revision distinction could be an important limit on the electorate’s initiative power. But the California Supreme Court has used this doctrine to invalidate part of an initiative on only two occasions.[1] While the test for determining when an initiative is a revision is well-established, critics argue that it is inconsistently applied.[2] The problem is that the existing doctrine is incomplete: it asks only whether an initiative changed the state constitution’s “basic governmental plan or framework.”[3] Recent cases have clarified that this...
Overview California can and should adopt a parliamentary system. This article analyzes how a hypothetical initiative measure (Proposition X) that proposes converting the state government to a parliament would interact with the existing political structure and constitutional doctrine, and reaches two primary conclusions: a state parliamentary government would survive constitutional scrutiny, and it would provide overdue political reform to California. Proposition X would survive legal challenges, including the amendment–revision and separation of powers doctrines, and the federal constitution’s guarantee clause. And Proposition X would unlock the benefits of a parliamentary system: empowering minority parties and checking the governor’s power. Analysis...
Overview Let’s first agree that 2020 was terrible: a calamitous presidency, raging wildfires, civil unrest, and a once-in-a-century pandemic. Those combined disasters forced California courts into improvise-and-adapt mode, with the Chief Justice and the Judicial Council exercising emergency powers to keep the courts running. Court appearances shifted to video, trial judges conducted spaced-out-and-masked trials, electronic filings and service became standard procedure, and the California Supreme Court itself held remote argument. The business of the courts and the administration of justice continued. And that difficult evolution mostly happened as things usually do in our state courts: quietly, and with minimal drama....
