Category: Analysis

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...

The University of California can require COVID-19 vaccinations

The University of California can require COVID-19 vaccinations

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...

California’s constitutional privacy guarantee needs a reset

California’s constitutional privacy guarantee needs a reset

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...

Two state officials will shape the recall election

Two state officials will shape the recall election

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...

Master the distinctions between mandamus and mandate

Master the distinctions between mandamus and mandate

 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...

The basic structure analysis for initiative amendments

The basic structure analysis for initiative amendments

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...

SCOCA year in review 2020

SCOCA year in review 2020

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....

The Blattner doctrine: resolving nested initiative purposes

The Blattner doctrine: resolving nested initiative purposes

Overview California courts have clarified what subjects the electorate can legislate on, how they may do so, and under what circumstances the legislature can amend initiative statutes. But the courts lack an analysis for divining the electorate’s purpose when an initiative makes changes to an earlier initiative act. This nested initiatives issue recurs frequently, because initiative statutes often amend earlier initiatives, and because most California ballot measures are challenged in court.[1] This article explains how nested initiatives occur, shows why their frequency is likely to increase, and analyzes how one Court of Appeal decision approached nested purposes in Howard Jarvis...

Opinion Analysis: People v. Liggins (2020) 53 Cal.App.5th 55

Opinion Analysis: People v. Liggins (2020) 53 Cal.App.5th 55

Overview In August 2020, the Court of Appeal decided People v. Liggins, a criminal case involving a denial of confrontation rights to a defendant in a probation hearing. In ruling that admitting a hearsay statement — under an exception, but without a showing of unavailability or other good cause — violated the probationer’s confrontation right, the opinion departed from the decade-old Court of Appeal precedent established in People v. Stanphill, which held that due process rights are necessarily satisfied if hearsay is admitted under an established exception. And the Stanphill decision appears to conflict with the standard established by the...

Sheriff removal procedures

Sheriff removal procedures

Overview Reforming oversight of California’s sheriffs recently made the news as part of a broader conversation about rethinking law enforcement. In particular, the Los Angeles board of supervisors is considering options to remove Los Angeles Sheriff Alex Villanueva. As a charter county, Los Angeles has express constitutional power to amend its charter to provide removal procedures for elected county officers like its sheriff. Charter counties have two primary options for removing their sheriffs: recall by the voters and removal by the county governing body. But because the state constitution requires all sheriffs to be elected, a charter county’s board of...