Category: Analysis

Overview Attorneys preparing for oral argument before the California Supreme Court need to know how long it will take the court to order the case on calendar for argument. A previous SCOCAblog article showed that in general the court is taking longer to do so than in past years. To give attorneys the best estimate of the current pace, we evaluated the court’s most recent performance by calculating the average time it took for argument to occur from September 2023 to June 2024.[1] For that period we found: We also tracked the interval between the preliminary oral argument notification letter...

Overview This article unpacks the relationship California courts have with federal constitutional law via the Aranda/Bruton doctrine, which protects criminal defendants in joint trials against inculpative hearsay statements admitted against their codefendant under the Sixth Amendment’s confrontation clause.[1] The 2023 Supreme Court case Samia v. United States appears to constrict the federal Bruton doctrine significantly. In effect, though, it won’t. Bruton and its progeny do very little to protect criminal defendants, and lockstepping prevents California from doing any more. Rather than insulating California from rights-abrogating federal law, Proposition 8 (also called the Victim’s Bill of Rights) forces California to sway...

Overview State officials would benefit from a clear analytical approach to combating the new presidential administration’s onslaught of executive orders. We propose adapting Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer as a model for evaluating how to deploy state power against attempts to impose policy by federal executive decree.[1] Youngstown was a horizontal separation-of-powers decision that analyzed federal executive action against congressional power; here we show how its framework applies equally well to vertical federalism conflicts between the federal executive and the states. Analysis A proposed model for approaching conflicts between states and the federal executive...

Overview The November 2024 election ballot in Alameda County saw an unusual occurrence: overlapping recalls of the Alameda district attorney and the Oakland mayor. Media coverage of these recalls portrayed those separate county and city contest results as being very similar. But a more detailed look shows a noted discrepancy in the vote totals among the Oakland voters who could cast ballots for both officials. Price did significantly better in Oakland than Thao, mainly because a significant number of the pro-Price voters did not also cast a ballot in the mayoral recall. This is probably explained at least in part...

Overview The U.S. Supreme Court has consistently denied the press’s requests for special constitutional protection under the First Amendment. This is unlikely to change under the Roberts Court. In fact, the Court may roll back existing press protections in the coming years. Press advocates must now look to other sources of protection instead. One promising possibility is state constitutions. California’s constitution, in particular, operates as a valuable yet underutilized source of protection for journalists and other newsgatherers. Discussion The Press Clause of the First Amendment has little independent meaning. For decades, the high court has extended protection for the press...

Overview This year the California Supreme Court demonstrated that the past few years were a transition phase and gave some signs of what is to come. One year ago, in our 2023 year-in-review article, we observed that the court had settled into stasis, coalescing into such high unanimity that it simultaneously ruled out any appearance of partisan bias while also sparking concerns from other court watchers about uncritical groupthink and bare-minimum productivity. This year one factor in that discussion (the three-way split between the appointing governor blocs) remains the same, and in practice such partisan affiliation markers still provide no...

Overview The key takeaway from the California Supreme Court’s recent decision in Castellanos v. State of California (S279622) is less about the initiative power or workers’ compensation and more about framing: how a court or advocate can control a case and direct its outcome by carefully defining the question to be answered. Here, by limiting the question presented to a narrow issue, the court set itself up to give a clear answer. This limited approach contrasts with the court’s comprehensive treatment of the Taxpayer Protection and Government Accountability Act in Legislature v. Weber (S281977). This contrast is explained by the...

Overview The California Supreme Court’s decision in Legislature v. Weber (S281977) is about power, in three ways: the scope of the initiative’s ability to alter branch powers, the distribution of power among the branches and the judiciary’s role in maintaining that balance, and how the amendment–revision analysis now incorporates what we would view as core powers questions. In this article we explain why the court’s decision to invalidate the Taxpayer Protection Act is best viewed through the core powers lens because the court first identified a core power, found that it was materially impaired or defeated, and employed the judiciary’s...

Overview During the oral argument in Castellanos v. State of California (S279622), the justices several times posed this question to counsel: could the voters by initiative abolish workers’ compensation? We would have answered that question: “Certainly not, your honor, because the electorate cannot defeat or materially impair the constitutional power of a branch with a statutory initiative.” That simple answer flows, as we explain below, from our view that California’s core powers analysis should apply to the voters when they act against another branch. Analysis Review: the core powers analysis should apply to the electorate To briefly recap our previous...

Overview California has a housing crisis: according to one housing affordability index, only 15% of California households can afford a home at the state’s median home price.[1] The legislature has attempted to increase housing supply by requiring cities to meet new housing targets through housing elements, which are part of a city’s general plan.[2] But current housing element law leaves untouched the local direct democracy powers of initiative and referendum.[3] This has generated lawsuits and confusion. For example, Encinitas voters have quashed multiple housing element amendments with referenda, spurring litigation challenging that practice.[4] Those lawsuits produced divergent results: one judge...