Category: Analysis

California knows how to avoid partisan gerrymandering

California knows how to avoid partisan gerrymandering

Overview The redistricting season happens once every ten years, and it is always characterized by two things: fierce partisan struggles for control of the maps that will determine political power in the next decade, and anguished complaints about how politicized the process is. The current redistricting cycle is no different, featuring the usual allegations of partisan gerrymandering and consequent legal challenges to proposed district maps across the country. This boring-but-important topic receives less news coverage than it merits, and consequently it is rarely a target for major reforms. For example, a recent Pew poll found that most Americans are unaware...

Exit taxes in California? Not so fast.

Exit taxes in California? Not so fast.

Overview In the past two years members of California’s Assembly twice tried to advance tax bills (AB 2088 and AB 310) that were designed to capture revenue from wealthy residents who fled the state to avoid the other income tax increases in those bills.[1] Both would have imposed a tax (levied annually for 10 years) on a California resident who leaves the state. This article argues that such an exit tax has grave legal defects that should prevent a state from imposing a wealth-based exit tax on its former residents. Analysis The two bills employed distinct approaches to capturing revenue...

Anti-homeless laws may violate California’s equal protection doctrine

Anti-homeless laws may violate California’s equal protection doctrine

Overview Under California’s equal protection doctrine, Los Angeles Municipal Code 56.11 and similar laws that are designed to harass the homeless may be unconstitutional. In 2016, the Los Angeles City Council adopted LAMC 56.11 to address the city’s homeless encampments.[1] The law’s purpose is to “balance the needs” of residents to access “clean and sanitary” public areas with the “homeless population[’s]” property interests, and it prohibits storing “any tangible property” in public areas.[2] The ordinance permits the city to confiscate and destroy such property if it violates the law’s size, placement, or personal attendance requirements after written notice.[3] The ordinance...

SCOCA year in review 2021

SCOCA year in review 2021

Overview Our review of the California Supreme Court year in 2021 will focus on the court’s immediate future, and we see two possible viewpoints there. From one perspective the court is in harmony, with only incremental changes on the horizon. We still see no evidence on the current court of the partisan behavior that characterized voting patterns in its past, consensus continues to dominate, and there is no evidence of a Brown versus senior justices split. Yet from another perspective the court is primed for change, and that potential for change is our primary concern here. Analysis The court’s performance...

Article 1, section 28 — not section 12 — controls bail under the California constitution

Article 1, section 28 — not section 12 — controls bail under the California constitution

Overview Confusion reigns about the constitutional status of bail because the California constitution contains two contradictory provisions on the subject. Article 1, section 12 provides that “[a] person shall be released on bail by sufficient sureties” except for certain enumerated exceptions.[1] But article 1, section 28 says “[a] person may be released on bail by sufficient sureties” except for capital crimes.[2] Worse: section 28 directs courts to make public safety and the safety of the victim the “primary considerations in bail decisions.”[3] Some view bail as an absolute right under section 12, yet that is difficult to reconcile with the...

A profile of California Supreme Court Justice Leondra Reid Kruger

A profile of California Supreme Court Justice Leondra Reid Kruger

Overview In this article the California Constitution Center evaluates Justice Leondra R. Kruger’s record on the California Supreme Court. We searched for evidence of partisan behavior, and focused on defining her alignment and orientation. We conclude that Justice Kruger is the median justice on a court that is closely aligned within a narrow band on the spectrum of possible orientations. We see no evidence of partisan ideology or voting behavior by Justice Kruger, who instead proceeds from a neutral approach that produces equivalent proportions of relatively liberal and conservative results. And we maintain our view that the current California Supreme...

Blanket Nonenforcement Policies Are Unconstitutional in California

Blanket Nonenforcement Policies Are Unconstitutional in California

Overview In local jurisdictions around the country, self-described “progressive prosecutors” like San Francisco district attorney Chesa Boudin have asserted (among other things) an absolute prerogative to suspend enforcement of laws they disfavor. Amid rising concern about crime, such nonenforcement policies are attracting attention and controversy nationwide. In San Francisco itself, the mayor plans to step up enforcement, while Boudin faces a recall election in June.[1] Yet an important dimension has been missing from local public debates over prosecutorial nonenforcement: Whatever their policy merits, and whatever their validity in other states, policies like Boudin’s are at odds with California’s constitution. Analysis...

Recall reforms analysis

Recall reforms analysis

Together with recall expert Joshua Spivak and other colleagues, the California Constitution Center presented the attached analysis of the various pending recall reform proposals to the joint California legislative committee hearing on October 28, 2021.

Religious exemptions may spark a revolution

Religious exemptions may spark a revolution

Overview Religious exemptions to mandatory vaccination programs may spark a revolution in religion jurisprudence. Existing U.S. Supreme Court religion doctrine should disfavor religious exemptions: under Employment Division v. Smith, a religious belief does not excuse compliance with neutral laws of general application.[1] And some state constitutions (like California’s) arguably bar giving religious individuals or organizations a benefit (like vaccination exemption) that is unavailable to others. But three factors may force an evolution here: federal law will not permit inquiry into sincerity; several high court justices seem ready to overturn Smith; and after Espinoza v. Montana state constitutions now arguably can’t...

Opinion Analysis: In re Humphrey (S247278)

Opinion Analysis: In re Humphrey (S247278)

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...