Thursday, February 26, 2009

The Ballot Arguments For Proposition 1A

The Sacramento Bee has this report on the ballot arguments for Proposition 1A, which would impose a state spending cap.

Sunday, February 22, 2009

Targeting The Two-Thirds Requirements

The San Francisco Chronicle reports here on efforts to amend the two-thirds requirements for passing a budget and increasing taxes. Too bad these measures won't be on the May ballot--they would probably pass in a heartbeat.

The New York Times On The Open Primary Bill

Yesterday's New York Times carried this article on the "open primary" measure that will be put on the June, 2010 ballot, thanks to Senator Maldonado. For those interested in following this issue in more detail, there is lots of info on Rick Hasen's Election Law blog, which is referenced in the links portion of this web site.

Saturday, February 21, 2009

Can The Governor Cut The Lieutenant Governor's Budget by Two-Thirds?

Accoprding to news accounts (here), the Governor in signing the budget has cut the budget of the Lieutenant Governor's office by approximately 65%. Can he do this? Cases such as Scott v. Common Council, 44 Cal. App. 4th 684 (1996), suggest that budgetary authority can't be used to interfere with the ability of a constitutional officer to perform his or her duties. And 65% seems like a pretty major cut.

Thursday, February 19, 2009

Reports On The Budget Deal

Today the Legislature finally passed a budget, with the minimum necessary two-thirds vote. The New York Times (here) suggests that California will be a harbinger for other states (although only two have a two-thirds requirement to enact a budget); the story from the Sacramento Bee is here; the Los Angeles Times (here) canvasses proposals for reform (noting that two initiatives to change the two-thirds requirement to approve a budget and raise taxes are already circulating); and the San Francisco Chronicle (here) focuses on the "open primary" amendment championed by Governor Schwarzenegger and apparently exacted by Senate Maldonado as part of the price for his approval of the budget. (One of the initiatives that would eliminate the two-thirds requirements was discussed here some time ago.)

ps. Here is an interesting column from the Los Angeles Times by Steven Hill on the "open primary" championed by Senator Maldonado. Hill is director of the Political Reform Program at the New America Foundation and the author of "10 Steps to Repair American Democracy."

Court of Appeal Holds Probation Condition Violates Right To Privacy

In People v. Murillo (here), the Court of Appeal held that a probation condition requiring the defendant to take "any and medication prescribed by her doctor" violated the probationer's right to privacy under the California Constitution. The defendant pleaded no contest to unlawful sexual intercourse with a minor. Defendant had an extensive history of substance abuse and was an alcoholic as well. The court found the medication requirement unconstitutionally vague, because it wasn't clear from the context whether it applied literally to all medication or just those related to her offense and/or medical history. It also found the requirement overbroad. Here's the heart of that ruling:

"Because it requires that defendant take “any and all” prescribed medication, [the medication requirement] compels her to waive her constitutional right to decline unwanted medication even if she has serious qualms due to its side-effects or differing medical opinions concerning its propriety. On its face, the medication requirement compels her to take medication prescribed for any purpose and is not narrowly tailored to an identifiable medical problem related to her offense or rehabilitation for which medication might be appropriate and necessary. Indeed, the court did not find that defendant suffers from a particular medical disorder, condition, or problem requiring medication, and the record contains no professional medical evidence to support such a finding. Moreover, although defendant reported a prior diagnosis of ADHD or bi-polar disorder, there is no midical evidence confirming that diagnosis; indicating that defendant continues to suffer from such disorders; or suggesting that because such disorders could interfere with her rehabilitation, she needs to take medication to control them.

Not only is the medication requirement not narrowly tailored, but also the record does not support a finding that the broad infringement of defendant’s constitutional right is reasonably necessary to achieve some medical purpose related to defendant’s offense or rehabilitative needs. There is no evidence that some medical disorder, condition, or problem caused or substantially contributed to defendant’s offense or that she would not have committed it had she been on medication. There is no evidence that defendant currently poses a risk of harm to herself or others or is at risk of some grave illness if she does not take medication. There is no evidence that defendant’s rehabilitation could be impaired or complicated unless she takes medication for some condition, disorder, or problem. And there is no evidence that defendant has ever resisted, declined, or forgotten to take medication.

In short, without any medically-informed basis for doing so, the court ordered defendant, under the threat of incarceration, to take any and all medication that her doctor might prescribe for any purpose whatsoever. That command unreasonably and unnecessarily infringes on defendant’s constitutional right of privacy and is therefore patently overbroad and unconstitutional."

Well done.

Pending Interest Arbitration Case

In 2000, the Legislature passed a statute, known as SB 402, which required local governments to engage in "interest arbitration" after bargaining with local public safety unions to impasse over wages, hours and other terms and conditions of employment. ("Interest arbitration," as opposed to "grievance arbitration," is a process where an arbitrator actually determines the substance of a contract between an employer and an employee organization.) Local governments felt that this statute unconstitutionally impaired their power to set employee salaries. Eventually, after a good bit of litigation, the California Supreme Court declared SB 402 unconstitutional under two provisions of the California Constitution: Article XI, Section 1 (which gives county boards of supervisors power to set county employee salaries) and Article XI, Section 7 (which forbids the delegation of "municipal functions"). County of Riverside v. Superior Court, 30 Cal. 4th 278 (2003). (I represented the County in the case.)

In response to County of Riverside, the Legislature passed a new statute ("SB 440"). SB 440 retains interest arbitration, but it provides that the arbitrator's decision can be overturned by a unanimous vote of the local governing body. Does this modification change the result in County of Roverside? The issue is now before the Court of Appeal, First Appellate District, Division Five, in a writ petition brought by Sonoma County, and the case will be argued next week.

HJTA Files Reply In Support Of Petition In Budget Case

The Howard Jarvis Taxpayers Association has filed its reply (here) in support of the Petition for Review it filed in the Prop. 13 budget case. To recapitulate, the underlying issue is whether the Legislature violated the two-thirds vote requirement for new taxes imposed by Prop. 13 when it passed a budget in December by a majority vote. That budget never became effective because it was vetoed by the Governor. (Full disclosure: I represent the Legislature in this case.) The Court of Appeal's ruling in the case is referenced here.

Wednesday, February 18, 2009

Legislature Passes Bill To Solve Sturgeon Problem

The Metropolitan News reports (here) that the Legislature has passed SB2X 11, which solves the problem created by last year's decision in Sturgeon v. County of Los Angeles, which had invalidated Los Angeles County's practice of supplementing judicial salaries. The new bill (here) grandfathers existing judicial benefits and immunizes public employees who paid them. Earlier links to Sturgeon can be found here and here.

Monday, February 16, 2009

Peace Officers Bill Of Rights Not A Reimbursable State Mandate

In Department of Finance v. Commission on State Mandates (here), the Third District has held that the Peace Officers Bill of Rights does not impose a reimbursable state mandate on school districts that are not legally compelled to hire peace officers. The court stated: "[T]he districts in issue are authorized, but not required, to provide their own peace officers and do not have provision of police protection as an essential and basic function. It is not essential unless there is a showing that, as a practical matter, exercising the authority to hire peace officers is the only reasonable means to carry out their core mandatory functions. As there is no such showing in the record, the Commission erred in finding that POBRA constitutes a state-mandated program for school districts and the special districts identified in Government Code section 3301."

Wednesday, February 11, 2009

News Articles On The Budget Deal

Here is the report from the Los Angeles Times. The deal includes proposed constitutional changes, which, among other things, would determine the duration of new taxes that are also part of the deal. Here is the article from the Sacramento Bee and here is the article from the San Francisco Chronicle.

Legislature Files Answer In Budget Case

The Legislature has filed its Answer to Petition for Review in the Proposition 13 case brought by the Howard Jarvis Taxpayers Association. A copy is available here. The HJTA has ten days from last Monday to file a reply. The answer was prepared by yours truly and the Office of the Legislative Counsel.

Friday, February 6, 2009

What Does Proposition 59 Mean?

Proposition 59 created a "right of access to information" in the Constitution. One of its provisions, Article I, Section 3(b)(2), provides that a "statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest." However, another part of the same measure, codified at Article I, Section 3(b)(5), provides that: "[t]his subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records." So what does it all mean? One portion of the measure provides that existing exemptions to the Public Records Act shall be narrowly construed, while another provides that the measure does not repeal or nullify any existing Public Records Act exemption. The Janus-faced quality of the measure has just been amplified in two recent Court of Appeal decisions, decided one day apart. The first, Dixon v. Superior Court (here). cites Section 3(b)(5) to justify applying a Public Records Act exemption, while the second, County of Santa Clara v. Superior Court (here), cites Section 3(b)(2) in favor of disclosure. Neither really comes to grips with the measure as a whole or explains how the two sections interact.

Senator Leno Explains The Budget Crisis

State Senator Mark Leno, of Sonoma, San Francisco and Marin counties, explains some of the reasons for the state's budget crisis in this article from the San Francisco Chronicle. The article focuses almost exclusively on the expenditure side, without looking at the revenue side, which is natural enough in an article entitled "Who Increased State Spending in California"? The somewhat surprising answer? You did.

New Journal On California Politics and Policy

There's a new on-line journal of California politics and policy, with a symposium on redistricting reform after Prop. 11. The link is here. Welcome to the blogosphere! Hopefully it will fill the niche, and more, left by the late, lamented California Journal.

Wednesday, February 4, 2009

Vik Amar's Articles on Proposition 8

Vik Amar and Alan Brownstein, who both teach at UC Davis Law School, have written a four-part article on the Prop. 8 cases. The pieces, available on FindLaw, appear here, here, here and here. They are fairly skeptical about the petitioners' revision arguments, but use the Attorney General's brief (in Part IV) as a springboard for some interesting observations about the role of state constitutions.

Is It Too Easy To Amend The California Constitution?

An op-ed piece in the Los Angeles Times, written by two political scientists and a law professor, suggests that it is. The article is here.

Tuesday, February 3, 2009

Did You Know That The California Supreme Court Has Nine Justices?

Neither did I. But I think someone forgot to tell the Sacramento Bee (here) that the California Supreme Court and the United States Supreme Court are two different courts, with a different number of Justices.

Prop. 8 Argument Scheduled For March 5,

The California Supreme Court has scheduled argument in the Prop. 8 cases for March 5, from 9:00 am to noon. Here is an article by Bob Egelko. The date is not yet on the Court's website.

Monday, February 2, 2009

Who Gave For And Against Prop. 8?

The San Francisco Chronicle reports here, complete with a link to a database of contribution info.

Sunday, February 1, 2009

The Latest on the Budget Crisis

Today's San Francisco Chronicle details how the budget crisis is starting to hit (here), while Dan Walters of the Sacramento Bee offers his thoughts on a spending cap as part of a potential budget deal (here). And here is the Chronicle's latest report on the drive for a constitutional convention. According to the article, the Bay Area Council (the originator of the drive for a convention), along with the League of Women Voters, is co-sponsoring a daylong California Constitutional Convention Summit in Sacramento on Tuesday, Feb. 24. Speakers will address how a convention would be put together and what it would discuss. For more information, go to