Supreme Court Rejects "Free Exercise" Defense To Unruh Act Claim

On August 18, 2008, the California Supreme Court decided North Coast Women's Care Medical Group, Inc. v. Superior Court (here), holding that neither the federal nor the California Constitution exempts a medical clinic's physicians from complying with the Unruh Act's prohibition against discrimination based on a patient's sexual orientation. With respect to the federal constitution, the Court held that (1) the federal constitution's "free exercise" clause did not provide a religious exemption to generally applicable regulatory laws that are neutral with respect to religion; and (2) the Unruh's Act's non-discrimination requirement did not violate the doctors' free speech rights. With respect to the state constitution, the Court held that the "free exercise/liberty of conscience" provision embodied in Article I, Section 4 did not give physicians a constitutional defense against the plaintiff's Unruh Act claim. Notably, the Court did not decide whether claims under this provision must be evaluated using the deferential federal standard set forth in Employment Division v. Smith, 494 U.S. 872 (1990), which holds that the federal constitution's "free exercise" clause does not create an exemption to neutral laws of general applicability, or instead must satisfy a more stringent standard such as "strict scrutiny." The Court avoided this issue by holding that the state constitution's free exercise clause did not provide an affirmative defense even if "strict scrutiny" applied, because the Unruh Act serves the State's compelling interest in preventing discrmination and there are no less restrictive means to achieve that goal.

Court of Appeal Rejects Claim That Dolan/Nollan Applies To Facial Challenge To Local Ordinance

In Action Apartments v. City of Santa Monica (here), the Court of Appeal for the Second Appellate District has rejected an attempt to expand scrutiny under the Takings Clauses of the federal and California Constitution. The plaintiff, represented by lawyers from the Pacific Legal Foundation, claimed that the "nexus" and "rough proportionality" tests applicable to adjudicative exactions under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), applied to a facial challenge to local land use legislation--in this case, an ordinance imposing new affordable housing requirements on developers of multi-family housing. This had been settled law under San Remo Hotel v. City and County of San Francisco, 27 Cal. 4th 643 (2002), and earlier cases, but the plaintiff contended that the law had changed when the U.S. Supreme Court decided Lingle v. Chevron U.S.A., 544 U.S. 528 (2005), where the Court held that the "substantially advance" test enunciated in Agins v. City of Tiburon, 447 U.S. 255 (1980), was no longer part of Takings Clause jurisprudence. However, the Action Apartment court held that this was a misreading of Lingle, which had disclaimed any intent to disturb the Court's other prior rulings under the Takings Clause.

As the result of this ruling, the Court of Appeal did not need to decide whether the plaintiff's Takings Clause challenge was also barred by Home Builders Ass'n v. City of Napa, 90 Cal. App. 4th 188 (2001), where the court upheld another affordable housing ordinance against a facial challenge under the Takings Clause. (I represented intervenors in the Napa case, who successfully defended the local affordable housing ordinance.)

This holding makes no change from current law, and is unlikely to warrant review by either the California Supreme Court or the United States Supreme Court.

PPIC Poll Assesses Support For Three Initiative Constitutional Amendments

A new publication released by the nonpartisan Public Policy Institute of California (PPIC), available here, shows that Californians currently favor Proposition 4 by a 47-44 margin. The measure would require 48-hour parental notification before a minor has an abortion. Proposition 8, which would ban same-sex marriage, is opposed by a 40-54 margin. Proposition 11, which would turn redistricting over to a citizens' commission, leads with a 39-36 margin, with 25% undecided.

The November 2008 election and the California Constitution

This fall’s statewide ballot has four initiative constitutional amendments. Most notably, Proposition 8 would reverse the California Supreme Court’s ruling in In re Marriage Cases, available here, which found a right of same-sex couples to marry in the California Constitution. (Howard Rice represented the City and County of San Francisco in this case.) Proposition 4 would amend the California Constitution to require parental notification before a minor obtains an abortion; Proposition 9 is a “victim’s rights” criminal justice initiative; Proposition 11 would take redistricting out of the hands of the Legislature and give it to a newly-created commission.

In addition, one statutory initiative has already been subject to constitutional challenge. In July a petition for writ of mandate was filed by two former Governors (Gray Davis and Pete Wilson), joined by numerous district attorneys, seeking to remove Proposition 5 (a sentencing reform initiative) from the ballot. Among other things, the Petitioners claimed that provisions in the initiative creating a "Secretary of Rehabilitation and Parole" were unconstitutional, because the initiative gives the Secretary a fixed term. They also claimed that the initiative invalidly gave this new official too much power over the State's parole policy and over the Governor's appointments to the parole board. Finally, they assailed the provisions of the initiative that would require drug treatment for several classes of non-violent drug offenders, contending that these provisions unconstitutionally delegate judicial powers. The petition and the supporting memorandum are available here.

The proponent of the initiative filed a lengthy preliminary opposition (here), responding to all these claims. For example, he defended the fixed term authorized by the initiative by relying on numerous cases that have authorized legislative limits on the Governor's appointment power. He also made the additional argument that pre-election review of a statewide measure is improper where the petition (a) does not challenge the power of the electorate to adopt it and (b) challenges only a portion of the measure. In other words, if a measure is within the electorate's initiative power, it cannot be removed from the ballot unless all of its provisions are clearly invalid.

After Petitioners filed a reply memo (here), the Court summarily denied the petition. (Howard Rice represented the Real Party in Interest, Proposition 5's proponent.)

Separation of Powers--Proposition 59

On August 19, 2008, the Court of Appeal decided Zumbrun Law Firm v. California Legislature, which can be found here. Among other things, the plaintiff in that case (the former head of the Pacific Legal Foundation) claimed that a contract for construction of security improvements at the State Capitol violated the separation of power mandated by Article III, Section 3. The court held that the separation of powers had not been violated because Article IV, Section 7 gives the Legislature ancillary power to protect its lawmaking function, including the power to protect its own safety and security. Indeed, Article IV, Section 7(c)(1)(B) expressly provides that closed sessions of the Legislature may be held "[t]o consider matters affecting the safety and security of Members of the Legislature or its employees or the safety and security of any buildings and grounds used by the Legislature." The court held that the Legislature's power to consider such matters in closed session necessarily included the power to act on them. The court also held that the Legislature had properly delegated the power to contract for these improvements to the Joint Rules Committee. These holdings seem unexceptionable and is an unlikely candidate for Supreme Court review.

The Court of Appeal also held that the exceptions to disclosure contained in the Legislative Open Records Act had not been repealed by Proposition 59. Proposition 59 specifically grandfathered existing law relating to disclosure and open meetings, by enacting Article I, Section 3(b)(5) and (6), and the court, not surprisingly, interpreted these provisions literally. This holding, too, is unlikely to warrant review by the California Supreme Court.