Governor Celebrates Victory of Proposition 11

This article, from today's San Francisco Chronicle, reports that the battle for Proposition 11 is finally over, with the redistricting reform initiative passing. The Governor is happy and the Democrats are unhappy.

The First Amendment and the Anti-SLAPP Statute

In Schaffer v. City and County of San Francisco (here), the court clarified the scope of speech protected by the anti-SLAPP statute. The plaintiff contended that certain statements made by the defendant police officers were not protected by the anti-SLAPP statute because, as speech made by police officers in the course of their employment, the statements were not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), which had held that a district attorney had no First Amendment protection against disciplinary action based on statements made in the course of his employment, even though the statements involved a matter of public concern.)

Code of Civil Procedure Section 425.16(b)(1), the anti-SLAPP statute, provides in relevant part that "[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. " Section 425.16(e) in turn defines "any act . . . in furtherance of the person's right of petition or free speech under the United States or the California Constitution in connection with a public issue’" as including "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Consequently, as the Schaffer court held, whether speech is protected for purposes of the anti-SLAPP statute turns on this definitional statute, not on whether the speech is protected in the abstract under the federal or state constitutions. In this case, the speech was protected despite Garcetti, because it was "made in connection with an issue under consideration or review by a legislative, executive, or judicial body," and thus satisfied Section 425.16(e)(2).

Proposition 13 and the Budget Crisis

Daniel Weintraub of the Sacramento Bee has an interesting article, available here, on the impact of property tax reassessments on local finance. If you bought at the height of the housing bubble and the value of your house is now less than what you paid, you can get your property reassessed for property tax purposes. Similarly, foreclosure on a house will usually result in a sale price that is below the last purchase price, thus triggering reassessment at a lower value. All this translates into less money for local governments. And since the state is already in a giant financial hole itself, it won't come to the aid of cash-strapped local governments. It's hard to be a government that doesn't have a printing press.

Petition For Review Filed In Judicial Salary Case

Here is the petition for review filed by Los Angeles County in Sturgeon v. County of Los Angeles, the judicial salary case. Many amicus letters have been filed in support of the petition, but none that I have seen adds much to the legal arguments made by the petition.

Besides contending that the decision below will lead to calamitous results for the administration of justice, the petition makes two legal arguments about how the decision below erred. First, as discussed in previous posts (here and here), the petition contends that the Court of Appeal wrongly held that the doctrine requiring deference to legislative interpretations of the Constitution applies only when the constitutional provision and the relevant legislation were contemporaneous. There are numerous counter-examples, including the decision in Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981), in which I represented the State Personnel Board. Second, the petition argues that the Court of Appeal misconstrued the nondelegation doctrine in disallowing the Legislature's attempt to give the counties total discretion to supplement the "base" judicial salary.

The plaintiffs did not file an answer to the County's petition for rehearing in the Court of Appeal, because the court did not request one. It will be interesting to see what they say in response to the petition. At that point, we'll evaluate the arguments and make a prediction about the grant of review.

Answer and Reply Filed In Judicial Reference Case

Here is the Answer to the Petition for Review and here is the reply to the answer filed in Treo@Kettner Homeowners Ass'n v. Superior Court, the judicial reference case. And here is a link to my earlier post about the petition for review.

The strength of the petition turns on whether the decision below conflicts with Villa Milano v. Il Davorge, 84 Cal. App. 4th 819 (2004). The decision below refused to apply a clause in CC&Rs authorizing judicial reference in a construction defect case between a developer and a homeowners association. Villa Milano held that an arbitration clause in CC&Rs created a written agreement to arbitrate, but held the provision procedurally and substantive unconscionable as applied to construction defect claims against the developer that devised the CC&Rs in the first instance.

The petitioner, of course, relies on the portion of Villa Milano holding that the arbitration clause in the CC&Rs constituted a written agreement to arbitrate. The respondent relies on the Villa Milano court's ultimate refusal to enforce the arbitration clause.

Although non-signatories are bound by arbitration clauses in a variety of contexts--for example, an employee signing a health insurance contract can agree to arbitrate medical malpractice disputes on hehalf of non-signatory family members--the situation here is different. Here, the CC&Rs are not the result of any sort of adversarial bargaining--instead, they are promulgated by a developer and signed by a homeowners association that the developer has created and before the association has any members. So I think the result reached by the Court of Appeal is right--though the Supreme Court may be persuaded by the importance of the issue or the conflict claim to grant review.

Los Angeles Times Ponders Justice Kennard's Vote

Here is an article from yesterday's Los Angeles Times about the potential significance of Justice Kennard's vote to deny the petitions without prejudice to the filing of an appropriate action to determine the retroactivity issue.

Vik Amar And Claire Cooper On The Proposition 8 Cases

Here is the first installment of a series of articles by Vik Amar on the Proposition 8 cases. In this introductory column he sets the stage and does a little prognosticating, based on the Supreme Court's orders from last week. More to come, apparently. And here is an article on the cases by the Sacramento Bee's veteran legal affairs reporter Claire Cooper.

Supreme Court Defers Ruling on Last Three Prop. 8 Cases

The California Supreme Court has issued the following order in the latter three of the six Proposition 8 cases--i.e., those filed by civil rights groups, women's groups and churches: "In light of the order issued by this court in cases number S168047, S168066, and S168078 on November 19, 2008, further action in this matter is deferred pending further order of this court. The parties to this action are invited to file an an application to file an amicus curiae brief, accompanied by the proposed brief, in the referenced cases within the time period set forth in the November 19, 2008, order."

Grodin Writes Article On State Constitutional History

Professor (and former Justice) Joe Grodin has written an article for the newsletter of the California Supreme Court Historical Society entitled "The California Supreme Court and State Constitutional Rights: The Early Years." A link to the article is here. It's quite interesting, focusing on the constitutional decisions rendered by the California Supreme Court in the first dozen years of its existence. There were several cases dealing with slavery, particularly the then-divisive question of whether a slave brought with his or her master into a free state like California was entitled to his freedom. The court's record was mixed, to say the least, but at least there is nothing as egregious at Dred Scott. There were also cases dealing with the constitutionality of sunday closing laws and the uniformity requirement of the state constitution. Thanks to Jon Steiner for calling the article to my attention.

Court Issues Order in Proposition 8 Case

The Supreme Court has issued the following order in the Prop. 8 cases. As predicted the court has denied the request for a stay and set a briefing schedule. The issues to be briefed include retroactivity--i.e., the effect of Prop. 8 (if valid) on marriages performed before its effective date. Here's the text of the order:

The motion for judicial notice filed in S168047 by petitioners on November 5, 2008, is GRANTED. The requests for a stay of Proposition 8 filed by petitioners in S168047 and in S168066 are DENIED. Respondent Secretary of State Bowen's request to be dismissed as a respondent in S168066 is GRANTED. (Kevelin v. Jordan (1964) 62 Cal.2d 82.) The motions to intervene in S168047, S168066, and S168078, filed on November 17, 2008, by Proposition 8 Official Proponents et al. are GRANTED. The motions to intervene in S168047, S168066, and S168078, filed on November 10, 2008, by Campaign for California Families, are DENIED.
The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health are ORDERED TO SHOW CAUSE before this court, when the above entitled matters are called on calendar, why the relief sought by petitioners should not be granted.
The issues to be briefed and argued in these matters are as follows:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The return is to be filed by respondents, and a brief may be filed by intervenors, in the San Francisco Office of the Supreme Court on or before Friday, December 19, 2008. A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Monday, January 5, 2009.

Any application to file an amicus curiae brief, accompanied by the proposed brief,
may be filed in the San Francisco Office of the Supreme Court on or before Thursday, January 15, 2009. Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Wednesday, January 21, 2009.

Moreno, J. joins this order except that he would grant the requests to stay the operation of Proposition 8 pending this court's resolution of these matters.

Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption.

Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

Prop. 8 Panel on December 10

There will be a panel on Proposition 8 the morning of Wednesday, December 10. The panel will discuss the constitutional issues raised by the pending litigation as well as what to do in the interim. The panel will be led by Jim Brosnahan, and the panelists includes my partner Bobbie Wilson, one of the Howard Rice lawyers who represented the City in the Marriage Cases. Here's the form to register if you want to attend.

Will Prop. 8 Decision Spawn a Recall?

This article from the Los Angeles Times discusses the possibility of a recall should the California Supreme Court invalidate Proposition 8. It quotes Justice Kaus' famous remark about the pendency of judicial elections being a "crocodile in the bathtub." For those too young to recall, Justice Kaus was referring to the Court's decision in Brosnahan v. Eu, 31 Cal. 3d 1 (1982), where the Court refused to remove another Proposition 8 (that dealt with criminal justice) from the ballot on single-subject grounds. (The measure passed and the Court upheld it against a single-subject and other challenges in Brosnahan v. Brown, 32 Cal. 3d 236 (1982).)

Rick Hasen has also linked to this article on his election law blog (here). His thought that the Court was likely to summarily deny the petitions seems wrong--there's too much of a tradition in California of immediate post-election review by the California Supreme Court for that to happen. Rightly or wrongly, a summary denial would be seen as either a punt to the Legislature or a clear indication that the Court finds the case meritless. A summary denial is even less likely to happen now that the AG has weighed against it (as have some of the Prop. 8 supporters).

We'll probably know more this afternoon, after the Court holds its weekly conference. My prediction is that the Court will deny a stay and set a briefing schedule.

Is Proposition 8 Vulnerable Under Romer?

This article, by Hastings Professor Brian Gray, argues that it is. But none of the petitioners are making this argument in the California Supreme Court. Presumably no one wants to open the door for possible review by the United States Supreme Court.

ps. Equal Rights Advocates and the California Women's Law Center have filed the fifth petition (here) challenging the measure. And here is a sixth petition, filed by the California Council of Churches.

New Filings In Proposition 8 Cases

The Attorney General has filed preliminary oppositions in the Proposition 8 cases. (The one in Strauss is here.) Interestingly, the AG does not take a position on the merits, but simply urges the Court to (a) hear the case and (b) deny a stay. Proposed intervenors have also filed a preliminary opposition; here's the one in Strauss. I would expect the Court to rule on the stay and issue a briefing schedule pretty soon, perhaps after this Wednesday's conference.

Would Extending the Sales Tax To Services Violate Proposition 218?

As part of his plan to solve California's fiscal crisis, the Governor is proposing to extend the sales tax to services. In an article (here), the Howard Jarvis Taxpayers Association contends that this would violate Prop. 218. Here's their rationale: extending the reach of the sales tax would also increase that portion of the tax (the Bradley-Burns tax) that goes to local entities. That can't be done under Proposition 218 without a vote of each local governing body and each local electorate.
Here's the contrary argument: Prop. 218 focused exclusively on tax measures approved at the local level. But Article XIII A, Section 3--part of Proposition 13--permits the Legislature to approve tax increases--whether state or local--by a two thirds vote. If that requirement is met, the constitution is satisfied. Indeed, the central vice of HJTA's argument is that it proves too much--under it, the Legislature could never expand the list of items subject to the sales tax. That can't be right.

Here's the comeback: By its terms, Article XIII A, Section 3 covers only "changes in state taxes enacted for the purpose of increasing revenues collected pursuant thereto." The local sales tax is not a "state tax" for purposes of this provision, since the revenue goes to local governments. Indeed, according to HJTA, the Governor's sales tax proposal expressly refers to "all current applicable state and local taxes." Since even the Governor recognizes that the sales tax includes both state and local taxes, you can't use Prop. 13 to get around Prop. 218.

In response, the State would have to argue that the entire sales tax is a "state tax" for purposes of Article XIII A, Section 3, regardless of whether the money winds up going to the state or local governments. That's a better argument than you might think, because for about half a century the sales tax has been almost entirely a creature of state law. For example, in 2004 the state enacted something colloquially known as the "triple flip," by which the local sales tax was reduced by .25 percent, the state sales tax was correspondingly increased (to pay for deficit reduction bonds), and local government's loss of revenue was backfilled through the property tax. Moreover, the sales tax is administered by a state agency pursuant to uniform statewide rules. And, most importantly for this issue, the universe of transactions subject to the tax is fixed by state law (and probably has been for the last half-century, well before the passage of both Proposition 13 and Proposition 218). So the sales tax is a "state tax" for purposes of Article XIII A, Section 3 regardless of where the money goes, at least insofar as state law determines which commercial transactions are subject to the tax and which are not.

If and when the sales tax is extended (perhaps a doubtful proposition in itself), it will be interesting to see how this plays out.

Was The Marriage Decision A Revision of the Constitution?

At a conference on the California Supreme Court on Friday, Santa Clara Law School professor and California Supreme Court scholar Gerry Uelmen asked the following question: "If Proposition 8 is a revision of the California Constitution, does that mean that the Court's original decision in the Marriage Cases was also a revision"? Here's a link to the Los Angeles Times story about the conference.

The Constitution and Post-Judgment Interest

Article XV, Section 1, subdivision 2 provides that "The rate of interest upon a judgment rendered in any court of this State shall be set by the Legislature at not more than 10 percent per annum." And, indeed, the Legislature has set the rate at 10%. However, under the statutory scheme for renewing a judgment, a renewed judgment earns interest at 10% on both the unpaid amount of the underlying judgment and post-judgment interest accrued before the judgment was renewed. In other words, the judgment creditor, in effect, gets compound interest--i.e., interest on the accrued post-judment interest. Does this statutory scheme violate Article XV, Section1? The Court of Appeal has said no, in a decision entitled OCM Principal Opportunities Fund v. CIBC World Markets Corp. (here).

One of the most interesting things about the decision is the deference that the court gave to the Legislature's interpretation of the relevant constitutional provision. This deference stands in sharp contrast to the lack of deference exhibited in the Court of Appeal's decision in Sturgeon, the judicial salaries case. I would be surprised if this decision didn't figure prominently in the petition for review that will undoubtedly be filed in that case, which is due on Nov. 19.

New Lawsuit Filed Challenging Prop., 8

Several civil rights groups, including the Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund, the Equal Justice Society, the California NAACP and the NAACP Legal Defense and Educational Fund, Inc., have filed another challenge to Proposition 8. Here's a link to their petition. The brief argues that in order to protect the fundamental rights of all Californians, a higher standard is required to overturn the right to marry. The brief was filed by Raymond C. Marshall of Bingham McCutchen and Prof. Tobias Barrington Wolff of University of Pennsylvania Law School.

Court of Appeal Clarifies Duties to Prisoners

In Giraldo v. CDCR (here), the Court of Appeal has decided several important issues relating to tort claims brought by prisoners. First, the court held that prison officials owe a "special duty of care" to protect prisoners from assaults by third parties (i.e., fellow prisoners) that can be breached by negligent conduct on the part of the officials. While there was no California case on point, the court analogized the relationship between prisoner and jailer to other "special relationships" where, because of the plaintiff's vulnerability, a duty to protect against foreseeable harm caused by third parties exists. The conclusion reached by the court is also supported by the Restatement and several decisions from courts in other states.

Second, the court held that there is no private right of action for damages for a violation of the "cruel or unusual punishment" clause of the California Constitution, Article I, Section 17. Relying heavily on Katzberg v. Regents, 29 Cal. 4th 300 (2002), where the Supreme Court had held that there was no cause of action for damages for a violation of the State Constitution's due process clause, the court in this case held that there was no evidence of any intent to create such a right and there were alternate remedies available, including the tort remedy recognized by the court and a federal claim for violation of the Eighth Amendment. There is a cause of action for declaratory and injunctive relief for violation of Article I, Section 17, but no such relief was available in this case because the prisoner had been released from custody.

While the state may file a petition for review on the tort issue, and the prisoner on the constitutional issue, it's hard to see why the California Supreme Court should take this case. The tort result is hardly radical; as noted above, it's supported by the Restatement of Torts. And the constitutional ruling closely follows Katzberg. All in all, a thoughtful opinion by Judge Richman.

How To Reform the Initiative Process

Bob Stern and Tracy Westen have written an interesting op-ed piece for the Los Angeles Times on how to reform the initiative process. It's available here. Now all it takes is legislative action or a billionaire or two to put it on the ballot.

Court Requests Opposition in Prop. 8 Cases

The Supreme Court has requested that the Attorney General file an opposition in the Prop. 8 cases. Here's the text of the letter sent to the AG:

"The court has directed that I request preliminary oppositions to the above referenced matters. The oppositions are to be served upon counsel for petitioners, by facsimile and filed in this court on or before November 17, 2008, by 12:00 p.m. The oppositions may be filed by facsimile at (415) 865-7183 with original and 13 hard copies to follow by mail."

There has been no ruling yet on the motions to intervene.

Supreme Court Has New Site for Prop. 8 Filings

The California Supreme Court now has a dedicated page with links to all the filings in the Prop. 8 cases. Here's the link.

Motions to Intervene Filed in Proposition 8 Cases

The Campaign for California's Families has filed a motion to intervene in the three cases pending in the California Supreme Court challenging Prop. 8. One of the motions is available here. And here is a letter filed in support of the petition in Strauss by Gibson, Dunn on behalf of numerous members of the California Legislature.

More Articles on Proposition 8

Here's an article by Boalt Dean and Professor Goodwin Liu on the legal issues raised by the Prop. 8 challenge. And here's the latest post by Jeffrey Rosen on whether the California Supreme Court was wise to recognize same-sex marriage, in light of the election results.

Update on Proposition 11

While the opponents of Proposition 8 have conceded, the fate of Proposition 11 is still uncertain. At the moment, according to the Secretary of State's web-page (here), it's leading by a little less than 140,000 votes. That sounds like a lot, but according to the SOS's "unprocessed ballot report" (here), there are 2.7 million ballots still to be counted. That seems like an incredible number four days after the election. This could take a while.

A Right To Fish?

Did you know you have a right to fish under the California Constitution? Article I, Section 25 states that "[t]he people shall have the right to fish upon and from the public lands of the State and in the waters thereof . . . ." So San Francisco attorney Karl Olson, no stranger to constitutional litigation, has filed a lawsuit against the owner, operator and pilot of the Cosco Busan, the tanker that one year ago today sideswiped a support tower for the Bay Bridge. The lawsuit was filed as a class action contending that the oil spill eliminated the plaintiffs' right to fish in part of the San Framcisco Bay. Here's a link to the article in the Chronicle describing the case, and here (thanks to Karl Olson) is a copy of the complaint. But does Article I, Section 25 contain a "state action" requirement? Stay tuned.

More on the Proposition 8 Litigation

The California Supreme Court has posted the pleadings from all three Proposition 8 cases on the court's website (here). And Jeffrey Rosen has written an interesting article on the relationship between the California Supreme Court's prior decision in the Marriage Cases and Proposition 8's success (here). And here is a news article quoting California Supreme Court scholar Gerry Uelmen, who is pessimistic about the petitioners' "revision" argument.

Court of Appeal Modifies Sturgeon Opinion

The Court of Appeal has issued an order (here) changing some of the language in the Sturgeon opinion, but not the result or the essential details of the court's reasoning. Some changes correct typos, while others are (slightly) more substantive. The most significant change is the addition of a new paragraph to the conclusion, which reads like an attempt to minimize the significance of the decision (and presumably decrease the likelihood of Supreme Court review): "As we have noted, there are valid reasons the county provides its judges with generous employment benefits beyond the employment benefits provided by the state. However, the defect we have found in the method by which those benefits have been provided is itself substantial and important. Under our constitutional scheme, judicial compensation is a matter of statewide concern and the Legislature must set policy with respect to all aspects of judicial compensation. As the cases we have discussed demonstrate, the Legislature's obligation to 'prescribe judicial compensation' requires that it set forth standards or safeguards which assure that fundamental policy is implemented. The fact that the Legislature provided counties a credit for judicial benefits when it enacted Lockyer-Isenberg or that it assured the counties that judicial benefits would not be decreased as a result of trial court funding does not meet these requirements. The obligation is not onerous, but does require that the Legislature consider the specific issue and, at a minimum, establish or reference identifiable standards."

Other Election News

Proposition 8 was not the only initiative that passed yesterday amending the California Constitution. Propositions 9 and 11 also passed. (The links are to the Attorney's General's title and summary, from which you can navigate to the analysis, the ballot arguments and the text of the two measures.) So now crime victims have more rights and reapportionment of the Legislature and State Board of Equalization (but not the House of Representatives) is in the hands of a citizens' commission.

First The Election, Then The Litigation

A day after the election, and the day that Proposition 8 becomes effective, the opponents of Proposition 8 have filed a petition for writ of mandate challenging its legality in the California Supreme Court. The petition is available here and a link to the Supreme Court's docket is here. And here is a link to the docket in the similar case filed by San Francisco, the City of Los Angeles and the County of Santa Clara (and here is their petition).

Reforming the Referendum and Initiative Process

Here's an interesting article from the Sacramento Bee (here), which proposes making referenda easier and initiatives harder. Interesting comparison between California's experience with direct democracy and that of Switzerland.