Category: Analysis

Castellanos is about framing

Castellanos is about framing

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...

Legislature v. Weber is about power

Legislature v. Weber is about power

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...

No, you can’t abolish a constitutional power by statutory initiative

No, you can’t abolish a constitutional power by statutory initiative

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...

California’s legislature can prevent costly conflicts between state housing laws and local voters

California’s legislature can prevent costly conflicts between state housing laws and local voters

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...

The core powers analysis should apply to the electorate

The core powers analysis should apply to the electorate

Overview By granting review in Legislature v. Weber (S281977) the California Supreme Court may have committed itself to resolving one of the most difficult questions in California constitutional law: distinguishing between an impermissible constitutional revision and a permitted constitutional amendment. The California Constitution Center recently argued that this question is best avoided until after the election. That’s partly because engaging in preelection review likely requires the court to confront the constitutional conundrum presented by an initiative amendment that attacks a core branch power. If resolving that question is truly necessary, we argue here that the best approach is to apply...

An argument for zero-based state constitutional interpretation

An argument for zero-based state constitutional interpretation

Overview Article I, section 24 of the California constitution states that “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”[1] Nevertheless, the California Supreme Court generally does not interpret the California constitution independently. Instead, the state high court generally follows the U.S. Supreme Court’s interpretation of analogous constitutional provisions unless there are “cogent reasons” not to do so.[2] That is the wrong approach because it violates the will of the California voters to have the California constitution serve as an independent guarantee of rights, and it offends the California’s independent sovereignty from the...

SCOCA year in review 2023

SCOCA year in review 2023

Overview Our word to describe the California Supreme Court in 2023 is coalescence. It makes no difference how long a justice has served, who appointed the justice, what political party they vote for, or what kind of toast they like — the metrics we track for this court all show collapsing trends with few divergences. The three-way split between the appointing governor blocs remains: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger (Corrigan). But those looking for polarized voting blocs or even a lone dissenter will be disappointed: this court most often operates as a...

Appellate rules of thumb

Appellate rules of thumb

Overview Experienced California appellate practitioners sometimes rely on two rules of thumb. One posits that when the California Supreme Court grants a petition for review, the court reverses about 60% of the time and affirms the other 40% of reviewed cases; call this the “60–40 rule.” The other bit of conventional wisdom (call it the “rule of thirds”) holds that the court’s docket is divided roughly into thirds: about one-third each of automatic capital appeals, general criminal, and general civil cases. In this article we evaluate these hypotheses. We found that the rule of thirds is inaccurate: at least 40%...

Why we’re not worried about SCOCA productivity

Why we’re not worried about SCOCA productivity

Overview In this conclusion to our series on the California Supreme Court’s recent performance we argue that the valid concerns some have raised about the court’s opinion output do not constitute a crisis. Annual decision tallies are just one performance metric that decreases in significance when considered with other factors. Comparing the decades 2000–10 with 2010–21, in the later period there were fewer petitions for review, more vacancies, more new justices without prior judicial service, a new grant-and-hold policy, and changes in individual justice performance. Considered together those distinctions can explain both the higher annual figures in the past and...

Intersex individuals are protected by the California constitution’s right to privacy

Overview Children born with intersex traits are often subjected at birth to unnecessary sex-defining surgeries without their consent. This article argues that the California constitution’s privacy protection for bodily autonomy extends to an intersex child’s interest in making intimate decisions that will shape the course of their life. Cosmetic surgeries fail to further any compelling interest justifying the invasion of this fundamental privacy right. Consequently, intersex children who are subjected to nonconsensual sex-defining surgeries have viable constitutional privacy claims against the medical actors involved. Analysis Nonconsensual surgeries to “normalize” sex trait variations can cause lasting harm to intersex children. Intersex...