Category: Analysis

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...

Overview In City of Morgan Hill v. Bushey, the California Supreme Court granted citizens the right to challenge zoning ordinances by referendum — even though a successful referendum would reject zoning that conformed with an amended general plan and leave inconsistent zoning in place.[1] Bushey resolved a tension between honoring the electorate’s constitutional referendum power and state land use law requiring zoning be consistent with the general plan.[2] The decision held that the referendum power prevails when a government has some other means to achieve consistency between the zoning and the general plan.[3] This changes the law from previous Court...

Overview Some churches have resisted California’s quarantine orders, even suing the state for exemptions. These churches argue that the religious liberty guarantees in the federal and state constitutions require California to accommodate them by allowing in-person religious services during the COVID-19 pandemic. That argument lacks merit. The state can limit otherwise sacrosanct constitutional rights when necessary to defend public health. In a pandemic, the federal constitution does not require the government to treat churches differently from other places where people might gather and spread contagion. The California constitution is even more restrictive, and generally prohibits the state from preferring churches...

Overview In response to the COVID-19 pandemic, several states have taken steps to limit travel into their states. Governors in Rhode Island, Florida, and Texas implemented interstate travel restrictions. In one instance, a state’s governor considered stopping cars with license plates from a specific state suffering more acutely from COVID-19 than others. Going forward, other states may consider similar measures, especially as some states that have benefited from taking strong measures to curb the spread of COVID-19 face the prospect of exposing their citizens to sources from outside their state. In light of recent discussion about the balance of power...

Overview On March 16, California’s Senate adopted SR-86 (Atkins), which amends that chamber of the state legislature’s standing rules to permit Senate and committee meetings in an emergency where “one or more Senators participate in the meeting remotely by telephone, teleconference, or other electronic means.” It also permits Senators to participate remotely by electronic means to vote during a rollcall vote. While the federal constitution might bar Congress from adopting remote meeting-and-voting rules, no comparable impediments apply to California’s legislature. The state constitution broadly empowers the legislature to adopt rules for its proceedings. And nothing in California law prohibits the...

Overview On March 17, Governor Newsom put the California National Guard on alert to assist the state’s efforts to combat the COVID-19 pandemic. This has raised questions about the Guard’s composition, the scope of its authority, and its role — along with concerns about whether the Guard’s activation shows that martial law has taken hold. To be clear: martial law has not been declared, and activating the Guard has little relation to suspending civil authority. Guard call-ups happen frequently in California, and martial law has never been declared in this state. The Guard is being called up to provide disaster...

Overview On March 23, Chief Justice Cantil-Sakauye issued a statewide order suspending all civil and criminal jury trials for 60 days to curb the spread of the COVID-19 virus. That order was necessary and proper. As head of the state Judicial Council, the Chief Justice holds the ultimate power to suspend court operations during a crisis. That authority flows from the judiciary’s inherent power of self-preservation, the constitutional provisions governing court administration, and statutes giving the Chief Justice the power to suspend trials when an epidemic strikes. Suspending all jury trials for 60 days is a difficult decision in response...

Overview The Emergency Services Act gives California’s governor broad emergency authority. Typically, the state constitution requires policy decisions (what we should do going forward) to be made through the deliberative legislative process.[1] But in a crisis, that authority (what we should do right now) may be consolidated and exercised by one executive. After declaring an emergency, a governor may disregard statutory law to direct state resources in responding to the crisis. By granting the governor these powers, the state legislature delegated its power to fix public policy and deploy funds during emergencies. This raises some separation of powers concerns that,...