Category: Analysis

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...

 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...

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...

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....

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...

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...

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...

Overview Public health experts are concerned that the nation will fail to achieve herd immunity against COVID-19 — even after a vaccine becomes available. This is not borrowing trouble: there are already signs that some citizens will refuse inoculations, and states have struggled for years against a public misinformation cabal on vaccines, which has caused resurgent outbreaks of measles and other diseases that only occur when parents refuse to vaccinate their children. Many citizens currently reject even non-invasive disease-fighting techniques like wearing masks in public. Accordingly, it appears certain that at least some will refuse to be inoculated against COVID-19...

Overview California has two legislative bodies: the electorate and the legislature. Practical experience and separation-of-powers theory teach that two political actors simultaneously wielding the same governmental power is a recipe for disaster. Conflict is inevitable, and the greatest risk is a problem known as cycling: when two actors share a power, policy issues can cycle repeatedly between the actors and never be resolved. In this article we examine how the legislative powers of the California electorate and the legislature interact, and use a current initiative proposal as a practical example to show how the restrictions on the legislature’s ability to...

Overview In Palo Alto, a man named Kevin Creaven recently published a notice of intent to begin gathering signatures to qualify a local ballot measure titled “The Wealth Tax Initiative.” The proposed measure would “levy a 2% wealth tax on net worth above $50 million, and a 3% wealth tax on net worth above $1 billion dollars; the revenue will be used to provide every permanent resident of [Palo Alto] a one-time payment of $2,500.” This article details the legal issues a court would likely address when reviewing this ballot proposal. We conclude that the measure is vulnerable to multiple...