Event announcement: Redistricting, Gerrymandering, and the 2022 Congressional Election
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SCOCAblog by the California Constitution Center and the Hastings Law Journal
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
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
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
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
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
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
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...
Two upcoming recall events
California Votes: The Effort to Recall Governor Gavin Newsom Friday, September 10, 2021 12:00pm to 1:00pm Zoom Webinar Registration link: Webinar: California Votes: The Effort to Recall Governor Gavin Newsom “Post-Mortem” Should the Recall be Recalled or Reformed? Friday, September 24, 2021 4:00 to 6:00 Zoom Webinar Registration link: Webinar: Recall Post-Mortem Should the Recall be Recalled or Reformed?
Answers to the SCOCA trivia challenge
And now the answers to the SCOCA justices trivia quiz. Thanks again to the friendly law librarians, who were good sports and kindly donated their time and expertise to checking these facts. 1. The only justice to serve on the U.S. Supreme Court. Stephen Johnson Field served on the California Supreme Court for about five and half years (as the court’s fifth chief justice for part of that time) before serving nearly 35 years on the U.S. Supreme Court. 2. The only justice born in the 1700s. Alexander Outlaw Anderson was born November 10, 1794 at Soldier’s Rest in Tennessee....
