SCOCAblog by the California Constitution Center and the Hastings Law Journal
May 7, 2021, 1:00 to 5:00Click here to register! Every ten years, based upon the census, states redraw lines for congressional and state legislative seats; some win, some lose. This intensely political process was delayed and reshaped this year by the global pandemic. By the end of April, the relevant data will be released and the second California Citizens Redistricting Commission will go to work. It must confront the potential loss of a congressional seat, changes to the Voting Rights Act, defining communities of interest, and new rules governing how incarcerated individuals will be geographically assigned, among other issues. Program...
Overview California voters passed Proposition 11 in 1972, which amended the state constitution to include a fundamental right to privacy. The ballot arguments expressed a clear voter intent to set a high bar for invaders to justify privacy invasions.[1] Yet the California Supreme Court misinterpreted Proposition 11, and all but abrogated the electorate’s intent when it instead set a low bar to justify privacy invasions. California’s constitutional privacy doctrine needs a reset: Hill v. National Collegiate Athletic Association should be disavowed, and privacy doctrine should return to something closer to what the voters intended with Proposition 11. Analysis How the...
Overview March 17, 2021 was the deadline for proponents seeking Governor Gavin Newsom’s recall to submit verified signatures to certify a recall election.[1] Assuming the proponents have met the requirements (which seems likely) Governor Newsom will face a recall election.[2] Lieutenant Governor Eleni Kounalakis and Secretary of State Shirley Weber will play key roles in that recall election, because California law provides limited instructions and broad discretion for their duties. This means that these two state officials will make decisions that could greatly shape the election process and the race for a potential successor. Analysis The road ahead If all...
Overview The writ of mandate developed around 150 years ago to allow for judicial action when all else failed. Since then, its evolution has produced confused interpretations of the writ’s essential aspects. This article provides practical guidance for employing mandate and mandamus writs in California: which writ to bring, whether both would be appropriate and desirable, and how to anticipate the fact that a court always retains equitable discretion to deny a petition. This article concludes with a brief survey of structural changes that would do away with administrative mandamus and even the traditional writ of mandate altogether, save for...
Overview Although California voters may amend the constitution by initiative, they cannot use the initiative to revise it. This amendment–revision distinction could be an important limit on the electorate’s initiative power. But the California Supreme Court has used this doctrine to invalidate part of an initiative on only two occasions.[1] While the test for determining when an initiative is a revision is well-established, critics argue that it is inconsistently applied.[2] The problem is that the existing doctrine is incomplete: it asks only whether an initiative changed the state constitution’s “basic governmental plan or framework.”[3] Recent cases have clarified that this...
Overview California can and should adopt a parliamentary system. This article analyzes how a hypothetical initiative measure (Proposition X) that proposes converting the state government to a parliament would interact with the existing political structure and constitutional doctrine, and reaches two primary conclusions: a state parliamentary government would survive constitutional scrutiny, and it would provide overdue political reform to California. Proposition X would survive legal challenges, including the amendment–revision and separation of powers doctrines, and the federal constitution’s guarantee clause. And Proposition X would unlock the benefits of a parliamentary system: empowering minority parties and checking the governor’s power. Analysis...
Overview Let’s first agree that 2020 was terrible: a calamitous presidency, raging wildfires, civil unrest, and a once-in-a-century pandemic. Those combined disasters forced California courts into improvise-and-adapt mode, with the Chief Justice and the Judicial Council exercising emergency powers to keep the courts running. Court appearances shifted to video, trial judges conducted spaced-out-and-masked trials, electronic filings and service became standard procedure, and the California Supreme Court itself held remote argument. The business of the courts and the administration of justice continued. And that difficult evolution mostly happened as things usually do in our state courts: quietly, and with minimal drama....
Overview California courts have clarified what subjects the electorate can legislate on, how they may do so, and under what circumstances the legislature can amend initiative statutes. But the courts lack an analysis for divining the electorate’s purpose when an initiative makes changes to an earlier initiative act. This nested initiatives issue recurs frequently, because initiative statutes often amend earlier initiatives, and because most California ballot measures are challenged in court.[1] This article explains how nested initiatives occur, shows why their frequency is likely to increase, and analyzes how one Court of Appeal decision approached nested purposes in Howard Jarvis...
In the wake of President Trump’s capture of the federal judiciary, and the prospect of an enduring 6–3 conservative majority at the U.S. Supreme Court, liberal voices have proposed several plans to radically revise our system of government. Among these ideas are abolishing the Electoral College, expanding the nation’s high court, and calling a convention to rewrite the federal constitution. All of those options are impractical or undesirable, and creative solutions like this are snark hunts that distract from winning elections. The political process, not judicial intervention, should be the primary means of enacting a policy agenda, because political policy-making...
Overview In August 2020, the Court of Appeal decided People v. Liggins, a criminal case involving a denial of confrontation rights to a defendant in a probation hearing. In ruling that admitting a hearsay statement — under an exception, but without a showing of unavailability or other good cause — violated the probationer’s confrontation right, the opinion departed from the decade-old Court of Appeal precedent established in People v. Stanphill, which held that due process rights are necessarily satisfied if hearsay is admitted under an established exception. And the Stanphill decision appears to conflict with the standard established by the...
