SCOCAblog by the California Constitution Center and the Hastings Law Journal

Anti-homeless laws may violate California’s equal protection doctrine

Anti-homeless laws may violate California’s equal protection doctrine

Overview Under California’s equal protection doctrine, Los Angeles Municipal Code 56.11 and similar laws that are designed to harass the homeless may be unconstitutional. In 2016, the Los Angeles City Council adopted LAMC 56.11 to address the city’s homeless encampments.[1] The law’s purpose is to “balance the needs” of residents to access “clean and sanitary” public areas with the “homeless population[’s]” property interests, and it prohibits storing “any tangible property” in public areas.[2] The ordinance permits the city to confiscate and destroy such property if it violates the law’s size, placement, or personal attendance requirements after written notice.[3] The ordinance...

SCOCA year in review 2021

SCOCA year in review 2021

Overview Our review of the California Supreme Court year in 2021 will focus on the court’s immediate future, and we see two possible viewpoints there. From one perspective the court is in harmony, with only incremental changes on the horizon. We still see no evidence on the current court of the partisan behavior that characterized voting patterns in its past, consensus continues to dominate, and there is no evidence of a Brown versus senior justices split. Yet from another perspective the court is primed for change, and that potential for change is our primary concern here. Analysis The court’s performance...

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.

Constitutional or Not, Proposition 22 Is Bad for California

Constitutional or Not, Proposition 22 Is Bad for California

Overview On August 20, 2021, Alameda Superior Court Judge Frank Roesch struck down Proposition 22, which would have classified app-based drivers as independent contractors, not employees.[1] Defining those drivers as independent contractors is problematic for California in two ways. As independent contractors, app-based drivers often underpay their taxes and insurance, which creates knock-on effects for the state’s ability to accurately tax this economic sector and financially burdens the state when they fail to pay. And while this classification policy decision may benefit app-based companies in the short term, their unsustainable business models will eventually collapse. Regardless how Proposition 22 fares...

It’s time to amend the Emergency Services Act

It’s time to amend the Emergency Services Act

Overview California’s Emergency Services Act (ESA) contains a provision granting the governor authority to exercise all the police power vested in the state during emergencies.[1] This provision, which is restricted to unforeseen problems and may only be invoked where necessary to further the ESA’s purposes, has been used multiple times: in response to oil shortages in the 1970s, the Medfly infestation in the 1990s, and the 2020–21 wildfires. During the COVID-19 pandemic Governor Gavin Newsom used this power extensively. Although this was an appropriate response to the pandemic, it uncovered a latent defect in the ESA: the absence of mechanisms...

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...