Tag Archives: California Supreme Court

A Conversation with Chief Justice of California Tani G. Cantil-Sakauye

by Brian Leubitz

Note: Old text moved beneath the fold

If you didn’t have a chance to catch the live stream of the thoroughly enjoyable conversation with Chief Justice Tani G. Cantil-Sakauye, put it on your list of videos to watch when you have an hour or so. The video isn’t up on the PPIC website, but it should be available soon here. In the meantime, as this is a blog that spends many pixels on budget issues, I’ll include a bit of my own recording on the subject.

The underlying point is this: You can’t cut 30% of the budget of one of the largest systems of justice in the nation and expect that there will be no substantial service cuts. Over three years, $1B was cut in general fund spending on the courts. Considering the current annual budget is not much more that figure on an annual basis, that’s real money. Despite courts only accounting for 1.2% of the general fund, we get an enormous return on that investment.

However, it is inordinately difficult to adjust to such large cuts so quickly. In LA, 10 courts were closed, Fresno had seven courts closed, and in perhaps the most dramatic instance, San Bernardino County’s three closures meant that some residents of the county will have to drive 175 miles to get to court. Now, you might say that those are folks that are far from everything. That might be true, but for many these will just make it too difficult to access the justice system.  And ultimately, access to justice is the very heart of the judicial branch’s mission.

PPIC president Mark Baldassare spent a good chunk of the time with the Chief Justice discussing the death penalty and sentencing reform. On the death penalty front, she noted that one of the biggest causes of delay in the system was a lack of qualified attorneys willing to take on death penalty appeals. The work drags on for years, and requires a level of skill and commitment that is just simply difficult to find, never mind the issue of the pay. The courts are also working on implementing hybrid sentencing, including both jail and service time, in an attempt to reduce recidivism.

The Chief Justice also touched on the importance of civics education, the initiative process, and how much time of the Supreme Court is spent litigating those ballot measures.

At any rate, it was an hour well spent, check the PPIC site for the video when available.

The Chief Justice is about to sit down at the Public Policy Institute of California for a wide ranging conversation about the courts and their place in the state’s government.

Join us for a wide-ranging conversation with Tani G. Cantil-Sakauye-chief justice of California and leader of the state’s judicial branch-about the challenges and opportunities facing the courts as they seek to serve the needs of Californians. Topics include the relationship between California’s three branches of government, the effects of budget cuts on the court system, the importance of civics education, and the state supreme court’s role in the initiative process. (PPIC)

Brown Nominates Goodwin Liu to Replace Carlos Moreno

Jorde Symposium 2010Liu will have big shoes to fill

by Brian Leubitz

The news of Carlos Moreno’s retirement earlier this year was not entirely surprising, yet it did leave a big hole on the California Supreme Court.  Moreno was the only Justice appointed by a Democrat, and while the Court was fairly moderate on social issues (see marriage equality 1 and 2), it often tilted to the Right on economic issues.

Moreno was a voice that sought fairness and a standard of law that imposed rights and duties on corporations just as it did on ordinary citizens.  His strength of character and perseverance were essential to building a reasonable consensus on the court.  Jerry had quite the shoes to fill when Moreno announced his retirement.

There was a big push for a Latino, and while that goal was not achieved, the appointment of Goodwin Liu will fill many other goals for the Court.

Gov. Jerry Brown nominated UC Berkeley law professor Goodwin Liu to the California Supreme Court Tuesday, giving the state high court a fourth Asian justice and a collegial liberal who is likely to be strongly supportive of civil rights.

Liu was President Obama’s pick for a seat on the U.S. 9th Circuit Court of Appeals, but he failed to garner enough Republican support. Liu, 40, has never been a judge, but his colleagues at Berkeley, including conservatives, strongly endorsed him for the position.(LA Times)

Liu will be a strong voice for ordinary Californians on the Court. While hardly a radical leftist, he does have a sincere respect for civil rights.  While President Obama was not willing to spend the “political capital” to get him on the federal appellate bench, he will be allowed a fairly simple confirmation here.  He may face some pressure when he faces a retention vote in the general election, but unless something drastically changes between now and then, nothing will really come of it.

Liu’s appointment gives the Court a strong representation in the Asian community.  However, the Court will have no Latinos or African-Americans, something the Governor would be wise to rectify in the next appointment process.

Sheila Kuehl’s Analysis Of the Prop 8 Decision

One of the smartest people in politics, gay or straight, is former California State Senator Sheila James Kuehl, the first openly LGBT person ever elected to the California Legislature. She sent out this brilliant analysis of the California Supreme Court Prop 8 ruling in Strauss v. Horton yesterday. Kuehl is thought to be running for Zev Yaroslavsky’s Los Angeles County Supervisor seat in 2014 (!) when he is termed out and the 3rd District Seat is open.

Read the analysis, in its entirety, below the fold.

The Opinion

Today, the California Supreme Court ruled on the validity of Proposition 8, the measure adopted by California voters last November to add a new section 7.5 to Article I of the California Constitution, as follows: “Only marriage between a man and a woman is valid or recognized in California”.

The measure was challenged by a coalition of organizations and individuals who favor the ability of same-sex couples to marry on three bases:

1.  That the measure adopted by the voters 52% to 48% was not a simple amendment to the state Constitution, which may be adopted by a majority vote, but, rather, a revision to the Constitution, which may not.  The Constitution may only be changed in one of these two ways, and, if the change is actually a revision to the Constitution, it must either be passed by a two-thirds vote of each house of the state Legislature and put to a vote of the people, or proposed through a constitutional convention and put to a vote.

2.  The second challenge theorized that Prop 8 violated the separation of powers principle because it abrogated a previous Supreme Court decision which held that, under Equal Protection and Due Process principles, same sex couples had the same right to marry in California as opposite sex couples.

3.  The Attorney General advanced a different theory: that the “inalienable” right articulated by the Court in the Marriage Cases could not be abrogated by a majority vote unless there was a compelling state interest in doing so.

The Court rejected all three, holding that they were required to find that the Constitution could be amended by a majority of voters in any election, even if the amendment abrogated a fundamental right previously articulated by the Court.

How Could They Say That?

The Court set out the legal principle that distinguishes an amendment from a revision: That it must change the basic governmental plan or framework of the Constitution.  In deciding whether Prop 8 did, indeed, change the Constitution at such a basic level, the Court decided it did not, and, also, that it did not “entirely repeal or abrogate” the rights articulated in the Marriage Cases.

This is where the Court seriously lost its way.

Marriage is Just A Word….Not

Here’s what the majority opinion said, which I think is not only seriously in error, but a cowardly about-face from their language in the Marriage Cases, which is reprinted in the next section.

First: today’s decision:

“In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us.  Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases – that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”  (Marriage Cases, supra, 43 Cal.4th at p. 829).  Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion.  Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”

In other words….what’s the big deal about the word “marriage”?

As it turns out, quite a bit.  Here’s what the same Court said about it in the Marriage Cases:

First, it set out the principle it quotes in the new opinion:

“In responding to the Attorney General’s argument, the majority opinion stated that “[w]e have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a ‘marriage,’ ” because “[w]hether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.

But, then, the Court answers its own question as to the importance of the word Marriage:

“The current statutes – by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership _ pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.”

It is a distinction that makes an enormous difference and, therefore, should be seen as a revision to the state’s Equal Protection and Due Process requirements.

By hanging its decision that Prop 8 was an amendment and not a revision on the slim and dishonest statement that same sex couples are not denied legal rights by denying them the “word” marriage, the Court errs.

Justice Moreno, in Dissent

Bless his heart and his mind. Here is what he says:

The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does.  The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters.  (Cal. Const., art. II, § 8.)  Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspect classification such a fundamental change that it can only be accomplished by revising the California Constitution, either through a constitutional convention or by a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters?  (Cal. Const., art. XVIII.)

For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).)  The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities.  It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”

Me, too.

Supreme Court Perverts Power of Initiative Process

In 1964, Stanley Kubrick produced the Cold War film Dr. Strangelove, or “How I Learned to Stop Worrying and Love the Bomb.”  By upholding Proposition 8, the California Supreme Court has learned to stop worrying and love the initiative process.  It’s an apt analogy, because today’s decision leaves an unchecked power of the voters to strike a “bomb” through our basic Constitutional protections.  Not only did the Court minimize Prop 8’s effect on the right to marry, using logic that contradicted last year’s decision on the same subject.  It set up a dubious distinction between “amendments” and “revisions” to the state Constitution, which will allow virtually any ballot measure to pass as a mere “amendment.”  Without adequate safeguards that a “revision” was meant to place, equal protection is no longer sacred – because the power of the ballot is supreme.  At the same time, the Court ruled that the 18,000 same-sex couples who legally wed last year are still married – because to invalidate these licenses would be an undue violation of due process and property rights.  While that was a wise decision, it remains a mystery why such a right is more important than equal protection.

California is famous for its wacky initiative process – where the voters get to decide on a myriad of complicated matters, much of which could arguably be better left to elected leaders.  But the grounds for overturning Prop 8 was not about the 48% of voters who disagreed with taking marriage rights away from same-sex couples.  It was that some rights are too important to be stricken by mob rule, and the state Supreme Court’s job is to protect these constitutional protections – even if a bare majority of the electorate (without safeguards) wants to change the Constitution.  The Court has declared “open season” on the rights of all minorities, setting a dangerous precedent for future elections.  Here’s why …

Court Contradicts Itself on the Term “Marriage”

In May 2008, the state Supreme Court ruled that same-sex couples have a constitutional right to marry – as a natural extension of the right to privacy, due process and the right to raise a family.  Now, the same Court says Prop 8 is not unconstitutional because it carves out a “narrow exception” to these rights.  It only changes the definition of “marriage,” not the rights or benefits that committed same-sex couples enjoy with domestic partnership – nor does it alter the right to raise a family.

This opinion clearly contradicts last year’s ruling – where the Court said the very term “marriage” was a necessary component, so that same-sex couples can have their family relationships accorded the “same dignity, respect and stature of others.”  What the Court effectively said today is that gay people didn’t really lose anything substantive with the passage of Prop 8.  But if true, they also did not gain anything important from last year’s Court decision.  Back then, the Court made it clear it was a crucial right.

The Unchecked Power of Voters to Change the Constitution

Granted, the Court will say Prop 8 changed the state Constitution – and thus last year’s interpretation is irrelevant and obsolete.  But while the people have “sovereign power” and can “alter or reform” the Constitution as they see fit, our framework does not allow them to make all changes to the state Constitution.  A minimum threshold of voters can collect signatures to put an “amendment” on the ballot, but only the state legislature – or a constitutional convention – can initiate a major “revision.”  And the Court failed to understand both the history and basic structure of this distinction.

Before 1911, California did not have an initiative process – and all “amendments” had to come from the state legislature.  Every state that distinguishes between “amendments” and “revisions” (and California based its constitution off New York) has a common thread – none of them allow the people alone to make the most profound changes.  An “amendment” to the California Constitution is there to “improve” the existing framework, but a “revision” would substantially alter its “substance and integrity.”  Even states that passed equivalents of Prop 8 only generally did so after the legislature put it on the ballot.

The Court said Prop 8 was not a revision because it “simply changes the substantive content of … one specific subject area – the … designation of ‘marriage.'”  It did not alter the “scope” of the Constitution, and only has a “limited effect on the fundamental rights of privacy, due process and equal protection.”  The Court even implied that only changes affecting a wide spectrum of our Constitution are protected from the whims of the public opinion – and explicitly said that a revision is not anything that “abrogates a foundational constitutional principle of law.”  Based upon the Court’s narrow definition, it is hard to see how any change to the Constitution would qualify as a “revision.”

Open Season on the Rights of Minorities

Prop 8 is a major change to the Constitution that cannot just be left to the voters, because it deprives equal protection to a specific minority group.  But the Court quietly dismissed this concern, because it was not the first time in California history that a majority took rights away from a minority.  In 1964, the voters passed a measure allowing homeowners to racially discriminate when selling their property – which was struck down in federal court.  In 1996, California passed Prop 209 to repeal affirmative action.  And in 1894, the state passed a measure to deprive voting rights for anyone who didn’t speak English.

How did the Court conclude that none of these ballot measures were revisions?  At the time, no one sued to have them repealed for that particular reason – a dubious basis to conclude that they were therefore proper “amendments.”  According to this Court, it is acceptable for the voters – without any scrutiny by the legislature or a constitutional convention – to amend the Constitution to repeal basic rights from a minority group.  

This creates a dangerous precedent. What if, after September 11th, California had passed an amendment requiring Muslims to travel with passes?  The Court dismissed such concerns as a “dubious factual premise of a highly unrealistic scenario of future events.”

But Property Rights are Protected …

If there is one bright spot from today’s Court decision, the 18,000 same-sex couples who wed before November 4th are still legally married – despite efforts by Kenneth Starr to convince the Court otherwise.  California law presumes that ballot measures are not retroactive, without clear and unambiguous proof that it was the voters’ intent.  But the Court also pointed out that these couples had acquired “vested property rights as lawfully married spouses,” and to suddenly take their licenses away would be a blatant violation of due process.

It is unclear why the Court believes the “will of the people” is more important than the equal protection rights of minorities, but not the due process of property owners.  If we are to take the Court’s logic on what constitutes a valid “amendment” and uphold the validity of Prop 8, anything that doesn’t obviously change the “scope” of the California Constitution can be enacted by the voters – without any restrictions.  By that rationale, due process would take a back seat – and the 18,000 marriage licenses would be null and void.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.  He is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

CA Marriage Equality Fight: Ballot Initiative Unlawful, Says Legal Analyst

(It’ll be interesting to see what comes of this. – promoted by Lucas O’Connor)

In an analysis published today on both Metnews.com and the Log Cabin Republicans blog, Kevin Norte wrote a scathing analysis of the legal issues behind the anti-equality initiative which is currently working its way through validation proceedings and aimed at the California ballot in November. Norte has been a research attorney for the Los Angeles Superior Court since 1991.

According to Norte’s analysis, the initiative cannot legally proceed to the ballot because it constitutes a revision, not just an amendment, of the California Constitution.

If this is the case, then the GLBT people of California have nothing to fear from this ballot initiative. It’s already dead in the water. It’s a moot point. Even if it was passed, it could not be enforced. It’s already as archaic as the anti-sodomy, anti-miscegnation and Jim Crow laws are.

More after the jump…

Norte cites several sets of case law, but what it boils down to is that California citizens can amend the Constitution by ballot initiative, but they cannot change the fundamental parts of it (such as fundamental rights granted, and fundamental workings of the government) by ballot initiative. Changes of that scale are called revisions, and revisions can only be accomplished by a constitutional convention and popular ratification of the changes made by the convention, or by the Legislature passing the change and submitting it to the electorate for popular ratification.

With the CA Supreme Court ruling on May 15th, marriage was reaffirmed as a fundamental right in California, and furthermore, sexual orientation was placed into a protected category, subject to strict scrutiny. Therefore, a ballot initiative cannot take away that fundamental right, because that kind of a change is a revision of the Constitution, necessitating a constitutional convention. Additionally, any attempt to do so will come under the heading of strict scrutiny, which means that the government must show a compelling reason why it is excluding people from marriage. That cannot be done; there is no compelling reason. Ron George and his fellow justices made sure that they eliminated those arguments in their majority opinion.

The kicker? This:

Therefore, Schwarzenegger, Bowen, Leno and Newsome should use their constitutional powers to obtain an opinion of the Attorney General as to whether the initiative is an amendment or a revision that would revise the fundamental right to marry as it applies to same gender couples because it would remove that right for them and deny gays and lesbians equal protection as it applies to that fundamental right.

In other words, they’re going to have to ask Jerry Brown his legal opinion on this, and then follow it. Jerry Brown, mind you. The champion of the little guy and the minority.

Thank you, Ron George and the other justices who ruled for us. You set this ruling in stone six ways from Tuesday, and the way the law in California works, there’s no way the bigots can countermand you. You have done an amazing thing for the people of this state.

I can hardly wait to see how this pans out.

(Please recommend this diary. Send the links above to your state representatives and senators, too, if you’re in California. It’s important that the message get out there that there’s a real, legal, constitutional basis for denying the ballot initiative a space on the ballot, regardless of the number of signatures.)

Thanks are owed to a good friend of mine, Joe Decker, on LiveJournal, who spotted this and pointed it out to others. Thanks also to UTBriancl for asking me to re-post this Daily Kos diary here on Calitics. I’m honored.

What a beautifully surreal week…

(Cross posted at Living in the O.) 

This week has been kind of amazing, in an extremely surreal way. It seemed almost appropriate that we had 90+ degree weather in Oakland during the end of the week – a perfect setting for so many historic events to take place in…

On Wednesday, Karen Bass was sworn in as the Speaker of the Assembly. She is the first African-American woman to lead any state or federal legislature, and it was inspiring to read her speech. From what I heard from those who were in Sacramento, it was even more incredible to be part of the excitement.

But the real excitement for me came yesterday morning, when I received an alert from Equality California about the California Supreme Court’s decision (PDF) to overturn the ban on same-sex marriage. I was a bit surprised at my reaction – I was teary eyed at the moment I heard and those tears have returned several times as I’ve thought about what this means.

It’s odd because for most of my life, I haven’t thought much about marriage. It never really seemed that necessary or even desirable to me. But yesterday, when I found out that I could now marry my girlfriend if we wanted to, I realized that this right is incredibly important to me. (My girlfriend certainly helped me come to this realization by showing up at my office unannounced yesterday afternoon with popsicles for me and all my co-workers.)

Today, it hit me again when I got another email with an FAQ about marriage, in light of the decision. It became so concrete when I found out that I could get married almost immediately to anyone I wanted, no matter his/her gender (well, assuming s/he wanted to marry me). Really, I could get married next month, and the gender of my partner wouldn’t be an obstacle.

I know this probably all sounds obvious considering the ruling, but it’s taken a day and a half to fully settle in. It completely alters my life options, and I couldn’t be much more elated by this.

This evening, riding home on the bus, I ran into Rebecca Kaplan. I hadn’t realized until I read her Daily Kos diary earlier this week, but if elected to the Oakland City Council, she would be Oakland’s first openly lesbian elected official. In this surreal and wonderful week filled with firsts and changes, it seemed appropriate that as I ended the week, I ran into someone who’s poised to make history on June 3rd.

State Supreme Court To Review Same-Sex Marriages

California’s legislature has already passed a law allowing for same-sex marriage.  The Governor vetoed it, citing a prior initiative (Prop. 22) that banned it as “the will of the people” (I guess that the legislators choose themselves).  At the time, Schwarzenegger also said that a variety of challenges to Prop. 22 were working their way through the legal system, and that the courts should decide.  Here’s the relevant passage in a story about his veto.

In 2000, voters overwhelmingly approved Proposition 22, an initiative that banned same-sex marriage in California. Several court cases on the constitutionality of banning same-sex marriage are making their way through the court system.

Schwarzenegger said the ultimate decision will be made by a court.

Well, the Governor is getting his wish.  On the flip…

The California Supreme Court agreed unanimously Wednesday to decide whether same-sex couples should be permitted to wed, prolonging the legal battle for another year.

Meeting in closed session, the state’s highest court voted without comment to review an October appeals’ court ruling that upheld the prohibition on same-sex marriage. The court is not expected to issue a ruling until the end of next year.

Here, then, is the question.  Now that the Governor has essentially given the court final say on the question of gay marriage, when they render their verdict (which, depending on which legal expert you talk to, appears to be before a court that is inclined to overturn the appeals court and legalize it), will he declare that the system has worked, or will he complain about “activist judges subverting the will of the people,” the same judges he asked to solve the mess in the first place?

Another nugget in the LA Times article is that the anti-gay marriage crowd is seeking to put an initiative banning it on the 2008 ballot.  Now, will Schwarzenegger support that effort, or, since the ultimate decision is supposed to be made by a court, will he oppose it?

You see what happens when you have no principles?  You end up talking yourself square into a corner.

On a separate front, this is a good day for those who believe in equality and fairness, and although it’ll take at least a year, it’s going to be a true test of how seriously this overwhelmingly Republican court (6 Republicans, 1 Democrat) takes the idea of civil rights.

California Sup. Ct. Supports Online First Amendment Rights

The California Supreme Court handed down their decision in Barrett v. Rosenthal(PDF) today. (H/t to Kos.)  Basically, the court says that the Communications Decency Act of 1996 protects website operators from liability for defamatory statements made by others and for statements that the website owner merely reproduces.  In those cases, the defamed party only has a cause of action against the original author of the statement.

We granted review to decide whether section 230 confers immunity on “distributors.”  Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term “user.”  We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct.  We conclude that  section 230 prohibits “distributor” liability for Internet publications.  We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use.  Accordingly, we reverse the Court of Appeal’s judgment.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences.  Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

Sweet! Any of you readers care to make some defamatory statements?  It ain’t my problem.  But on a more serious note, this is a great victory for the Internet.  Whether this reading of the CDA holds up nationally is a different question, though.