Category: Analysis

Overview In some ways this was a big year for the California Supreme Court, with two retirements and two new justices, which included a chief justice retiring and a new chief justice ascending. It was a small year from another perspective: the court issued the fewest opinions in the past 24 years. In this annual review we move away from past concerns about a Brown-Newsom split. Our past research shows that the appointing governor blocs make little difference on this court, and there is now a plurality: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger...

Overview In an emergency, California’s governor can commandeer the county sheriffs and make them part of the state’s emergency response. The COVID-19 pandemic showed that local law enforcement can impede the state’s emergency response, as when some county sheriffs refused to enforce Governor Gavin Newsom’s emergency orders. Governor Newsom could have used constitutional tools to compel sheriffs to enforce his orders: by assuming constitutional power to supervise sheriffs or through judicial orders to compel compliance. Future governors could consider those paths in California’s next emergency. Analysis Patchwork enforcement of gubernatorial emergency orders is problematic To combat the nascent COVID-19 contagion,...

Overview In September 2022 Senator Lindsay Graham proposed a federal law that would ban abortions after 15 weeks into pregnancy.[1] This sets up a constitutional conflict with states that now have express state constitutional protections for abortion rights (California, Michigan, and Vermont). This article considers whether congressional power under the U.S. Constitution’s commerce clause “to regulate commerce” among states allows the federal government to override statewide abortion protections and enact a nationwide abortion ban. The answer is unclear because the U.S. Supreme Court’s commerce clause cases are inconsistent. Past decisions read congressional power over economic activity expansively, which suggests that...

Overview In theory, crime survivors in California have a constitutional right to restitution and a robust statutory framework to enforce their right to restitution. Yet in practice, the vast majority of crime survivors receive little or no restitution. And last-resort public compensation programming (such as the California Victim Compensation Board) fails to make up the difference. This article examines problems in the current restitution framework and proposes a spectrum of solutions to help survivors fulfill their right to restitution: from creating a legislative task force to study restitution outcomes to establishing a publicly funded restitution system that does not rely...

Overview This article provides a pro/con analysis of Proposition 26, “California Sports Wagering Regulation and Unlawful Gambling Enforcement Act,” and Proposition 27, “California Solutions to Homelessness and Mental Health Support Act,” on the November 2022 ballot. Both measures legalize sports gambling but take different forms. The main difference: Proposition 27 would allow online sports betting everywhere, while Proposition 26 would only allow gamblers to place bets in person at Native American tribal casinos and four horse racing tracks. Both propositions attempt to safeguard against underage gambling and prohibit gambling on youth sports, but only Proposition 26 makes it illegal to...

Overview This article provides a pro/con analysis of Proposition 30, “Tax on Income Above $2 Million for Zero-Emissions Vehicles and Wildfire Prevention Initiative,” on the November 2022 ballot. New tax measures like this always raise questions about whether new taxes are needed. Those questions are especially acute when the proposed new taxes are tied to a specific policy goal. Proposition 30 does so: it will increase the tax on personal income above $2 million by 1.75%, pushing the top-earner rate to 15.05%. The revenues would be allocated to the following three sub-funds: Zero-Emission Vehicle Infrastructure Investment Plan Sub-Fund (35% of...

Overview In this article the California Constitution Center presents a pro/con analysis of each measure on the November 2022 ballot in California. This does not encourage a vote for or against any pending measure; it is instead intended only to fairly present the facts and arguments on both sides of the issues and to assist voters by objectively evaluating these measures for legitimate public informational purposes. The measures A complete list of the measures with links to the Ballotpedia descriptions: Proposition 1 Abortion Provides a state constitutional right to reproductive freedom, including a right to abortion. Proposition 26 Gambling Legalizes...

Overview California courts need a better way to evaluate California constitutional provisions that have federal analogues. Some California decisions have erroneously required that “cogent reasons” must exist before a California court construing a California constitutional provision may depart from the U.S. Supreme Court’s construction of the analogous federal provision. That legal standard is suspect: it has no historical or doctrinal support, it is poorly reasoned, and it is inconsistently applied. We read the appropriate legal standard for interpreting analogous constitutional provisions as requiring reference to federal law only in a limited circumstance: when a long history exists of California courts...

Overview Justice Patricia Guerrero likely will be confirmed as California’s 29th chief justice at the Commission on Judicial Appointments hearing on August 26, 2022, just five months after she was confirmed as an associate justice on March 22, 2022. That raises questions about how much judicial experience is necessary to lead California’s judicial branch. The answer is “not much” — reviewing the history of California chief justices shows that judicial branch leaders arrived with much, some, little, or no judicial experience. There is some evidence of correlation between two factors being predictive of success or failure (gauged by length of...