Category: Analysis

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...

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...