Category: Analysis

Overview California Supreme Court Justice Goodwin H. Liu recently wrote that “the promise of justice in our death penalty system is a promise that California has been unable to keep.”[1] He’s right. The state has struggled for decades to resolve the policy debate over capital punishment after the California Supreme Court banned it in 1972.[2] The electorate reinstated capital punishment by passing Proposition 17 in 1972;[3] the legislature re-enacted the death penalty statute in 1977; the electorate expanded its application with Proposition 7 in 1978; and the voters attempted to accelerate executions by enacting Proposition 66 in 2016.[4] After forty...

Overview The growing popularity of online rental platforms like Airbnb and HomeAway has increased short-term rentals in residential neighborhoods in California, especially along the coast.[1] Short-term rentals can lead to increased noise, trash, disorderly conduct, traffic congestion, and can deplete long-term rental housing in neighborhoods where they exist.[2] The city of Del Mar recently acted on this issue by passing an ordinance restricting short-term rentals in residential areas.[3] The Coastal Commission rejected the ordinance, contending that it impermissibly restricted public access to the coast.[4] Del Mar filed a writ petition to clarify the Coastal Commission’s authority to reject the proposed...

In this recent unanimous opinion (authored by Justice Chin) the California Supreme Court clarified the standard of review for a claim that an Environment Impact Report (EIR) inadequately discusses an issue required by the California Environmental Quality Act (CEQA). Although this issue and its discussion were framed within the specialized area of CEQA law, the court’s opinion is significant to the appellate standard of review and a court’s role in reviewing expert scientific findings. I had the opportunity to be one of the mock justices in a moot court oral argument presented by the plaintiffs, as part of the California...

Overview Assembly Bill 2923, which took effect on September 30, 2018, requires the Bay Area Rapid Transit District to impose transit-oriented development (TOD) zoning guidelines near BART stations. These guidelines empower BART to create higher density residential areas than city zoning plans otherwise allow. The Senate analysis of AB 2923 stated the bill “upends” traditional city and county land use power, concluding that “granting land use authority to a local government that isn’t a municipality sets a significant precedent.”[1] This article examines the constitutional issues AB 2923 raises and the range of legal and policy responses available to its opponents,...

In September 2018, the California Legislature passed—and Governor Brown signed into law—SB 1300. That bill, which took effect on January 1 of this year, amended the Fair Employment and Housing Act to expand the scope of employer liability for nonemployee harassment, prohibit employers from using employment or raises to suppress legally damning information, and limit the circumstances for awarding defendants’ fees and costs. This article takes a closer look at the bill’s addition of section 12923, which elaborates the Legislature’s intent concerning FEHA’s anti-harassment provisions. Section 12923 contains five subsections: Subsection (a) provides that hostile work environment claims do not...

Overview Joshua Groban, Governor Jerry Brown’s final appointment to the California Supreme Court, was confirmed today by the Commission on Judicial Appointments. Court watchers will be very curious to see how the new justice develops as an individual and how he interacts with the existing members. To establish a baseline for answering those questions, and to see if a larger dataset changed the results, we decided to expand on our recent analysis. Previously, we tabulated the court’s opinion and vote records during the thirteen months pro tem justices filled the vacant seat. We evaluated the impact those temporary justices had...

OVERVIEW Ordinarily a court year-in-review article overviews significant cases and any changes in the court’s personnel. Because the California Supreme Court is currently enduring its longest-ever seat vacancy — over thirteen months and counting — we evaluated the impact pro tem justices are having on the court’s voting record. We draw several conclusions: There is a voting record distinction between the senior justices and the justices appointed by Governor Brown; The pro tem justices do not vote in lockstep with the Chief Justice or the majority; Which governor appointed a pro tem justice does not correlate with pro tem voting;...

Overview Proposition 9 (commonly referred to as Three Californias) was a proposed initiative to divide California into three smaller states.[1] The initiative received enough signatures to go on the ballot in November 2018. But in a ruling on a pre-election challenge the California Supreme Court ordered the Secretary of State to remove Proposition 9 from the ballot.[2] Proposition 9 had several flaws that likely would have doomed it in a post-election challenge.[3] But this was a pre-election attack, and courts ordinarily are reluctant to prevent measures from going on the ballot. The court’s order removing Proposition 9 from the ballot...

Overview The California Supreme Court’s recent opinion in People v. Buza (S223698) decided the constitutionality of Proposition 69 (the 2004 “DNA Fingerprint, Unsolved Crime and Innocence Protection Act”) which requires law enforcement officials to collect DNA samples from all persons arrested for a felony offense.[1] The case is significant for both privacy rights and the law of search and seizure. In a sharply divided 4–3 decision the court upheld the act under both the federal and state constitutions. In its decision the California Supreme Court missed a rare opportunity to reassert the independence of the California constitution’s search and seizure...

Overview The voters delivered a mixed message regarding judicial independence in the June 2018 primary election. The phalanx of coordinated challengers to four sitting San Francisco Superior Court judges were soundly defeated, but Santa Clara Superior Court Judge Aaron Persky was recalled by a large margin. Those ballot box contests were examples of the conflicting public policy values of judicial independence and public confidence. Today we examine that conflict in the judicial discipline context. The competing policy concerns The value-set tradeoff in the judicial discipline context is between judicial independence and public confidence. “An impartial and independent judiciary is indispensable...