Category: Analysis

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,...

Overview On January 15, 2020, Justice Ming William Chin — the court’s longest-serving sitting member — announced that he will retire in August. His distinguished, 24-year tenure has spanned three chief justices and five governors. Former Governor Pete Wilson, who appointed Justice Chin to the state high court in 1996, praised him as “a model of judicial excellence.” Chief Justice Cantil-Sakauye described Justice Chin as a “valuable mentor” and stated “his loss to this court will be incalculable.” In this article we analyze Justice Chin’s contributions to California law and reflect on his remarkable career. Justice Chin has been a...

Overview The effect a majority of four justices appointed by Governor Jerry Brown might have on the California Supreme Court has been a major question in the past few years. After all, the last time four Brown appointees controlled the court it endured its most chaotic period in the last century. With the fourth Brown appointee (Justice Groban) having completed his first year on the court, we examined the court’s opinions from February 2015 to December 2019 for evidence that such times are upon us again. We found little support for a conclusion that another ultra-partisan-liberal Rose Bird era is...

Overview The California Supreme Court has avoided bright-line rules when analyzing local ordinances under the Article XI, section 5 municipal affairs doctrine.[1] For example, the most recent state high court case on municipal affairs endorsed an interest-balancing approach to determine whether an activity is a matter of local or statewide concern.[2] But while the court disavows a categorical approach, one factor reliably predicts results in municipal affairs decisions: the court rules for the city in nearly every case that concerns local finance, especially taxes. Analysis For this article we reviewed every California Supreme Court municipal affairs case from 1896 to...

Overview This article explains the legal principles involved in the debate about how much responsibility Senator Kamala Harris deserves for criminal convictions that occurred during her tenure as California’s attorney general. The basic answer is: very little.[1] She and her office were uninvolved in the overwhelming majority of individual trial court convictions that occurred during her tenure, because the attorney general has very little practical or legal responsibility for criminal trial matters. And that office has a statutory duty to defend those convictions on appeal, which may sometimes require taking positions that conflict with an attorney general’s personal policy preferences....