No Right Of Access To School Teacher Mailboxes

In San Leandro Teachers' Ass'n v. Governing Board (here), the California Supreme Court unanimously held that a school district may constitutionally exclude from the district's internal mailbox system communications from a teachers union supporting specific candidates in a school board election. The union acknowledged that it had no right of access to the mailboxes under the First Amendment, in light of Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), one of the United States Supreme Court's earliest "nonpublic forum" cases. However. it urged that a different result should follow under the California Constitution's free speech clause, Article I, Section 2.

The Court disagreed. The Court did not make clear whether the three-tiered approach to public forum cases adopted by the United States Supreme Court is part of California law. Nor did it expressly disavow the "basic incompatibility" test adopted in U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory, 154 Cal.App.3d 1157 (1984). Instead, it simply held that "this prohibition on the use of government resources for political campaigning is a means of promoting an important government interest, i.e., maintaining the integrity of the electoral process by neutralizing any advantage that those with special access to government resources might possess."

As this quotation illustrates, the Court was obviously influenced by its prior decisions in Stanson v. Mott, 17 Cal.3d 206 (1976), and Vargas v. City of Salinas, 46 Cal.4th 1 (2009), which at least in part preclude the use of public resources to influence political campaigns. Yet the court also held that the school district's regulation was not statutorily compelled. It will be interesting to see what happens if a school district permits such communications and the union's disfavored candidate goes to court. The Vargas decision is discussed here.)

26-Year Delay In Prosecution Violates Defendant's Right To Speedy Trial

In 1981, Mirenda was charged with attempted murder. In 1982, he was arrested in Pennsylvania. Although he waived extradition, the DA declined to prosecute because he couldn't locate the victim. In 2007, defendant returned to California and notified the authorities. The victim having been located, the DA tried to prosecute. The trial court held that the defendant's speedy trial right had been violated and--not surprisingly--the Court of Appeal affirmed, in People v. Mirenda (here). There was no justification for the delay and the defendant made a reasonable showing of prejudice.

Prop. 218 Claims Not Subject To Validation Statutes

In Bonander v. Town of Tiburon (here), the Supreme Court has held that claims that a utility undergrounding assessment is invalid under Prop. 218 don't need to comply with the strict requirements of the validation statute. The case turns primarily on statutory interpretation, but the result seems absolutely right. The validation statutes are a trap for the unwary and shouldn't be applied unless the governing law is absolutely clear, which it was not in this case.

78 Years To Life Not Cruel Or Unusual

The Eighth Amendment and its California counterpart have gotten lots of judicial attention lately, although most claims have been unsuccessful. In People v. Haller (here), a sentence of 78 years to life was held not to violate the federal or state constitutions. The defendant was found guilty of a number of felonies involving threats to his ex-wife and her current husband and assault with a deadly weapon on the husband, and also had two prior serious felonies. Given the defendant's age, the sentence amounted to life without possibility of parole. Nevertheless, the court upheld the sentence due to the seriousness of the offenses and the defendant's prior record.

The decision contains language that minimizes the interjurisdictional component of the test for determining whether a California sentence is cruel or unusual: "In any event, the fact that defendant’s current offenses might not qualify for recidivist sentencing in other states does not render the California punishment cruel or unusual. “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’” (Martinez, supra, 71 Cal.App.4th at p. 1516; accord, Sullivan, supra, 151 Cal.App.4th at p. 573.)

Thus, the decision contains little that is new, and continues the erosion of federal or state constitutional limits on California's draconian sentencing laws. Haller is no doubt a dangerous felon, but wouldn't 50 years to life be enough? Do we really want a prison system full of elderly and sick inmates?

County Must Pay for Representative's Visits

In a decision that illustrates the poverty (in more senses than one) of our social safety net, the Court of Appeal has held that a trial court has the power to order a county human services agency that places a child in an out-of-county group home to pay for travel expenses for quarterly visits by the child's "educational representative." The San Diego County Health and Human Services Agency placed Samuel G. in a group home in Redding, California. The child's educational representative felt that visiting him quarterly would be beneficial and requested funds from the County to do so. (By this time the parents were out of the picture.) The County refused, saying that the financial responsibility was that of the representative's employer. The court nevertheless ordered the County to pay.

The Court of Appeal affirmed (here). Although a court can't compel an appropriation, it can compel an expenditure if appropriated funds are available. The court also held that the expenditure was not an improper gift of public funds, since it served a public purpose.

This decision breaks no new ground, and is therefore an unlikely candidate for Supreme Court review. Maybe the County will decide not to throw good money after bad and forego the effort.

No Constitutionally Mandated Pay Increase For State Attorneys

Article VII, Section 1(b) enshrines the "merit principle" as the sole criterion for appointment and promotion in the state civil service. While this article has been construed broadly to prohibit "contracting out," it does not enshrine the principle of "like pay for like work." Accordingly, the Court of Appeal in California Attorneys v. Schwarzenegger (here) has dismissed a claim by the union representing lawyers in the Attorney General's office that their low salaries create a constitutional violation. Nor could the Attorney General prove that the low salaries of the lawyers in his office made it impossible for him to fulfill his constitutional duties. In a snarky concurring opinion, Justice Scotland pointed out the irony that the present state statute authorizing collective bargaining over salaries for state employees was promoted by then-Governor Brown, who now as Attorney General finds himself the victim of changes that he loudly championed as Governor.

The Court's ruling was right, and dictated by the result in Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981), where the court rejected the claim that collective bargaining and the merit principle were incompatible. (Jerry Falk and I represented the State Personnel Board in that case.)

Class Claims For Utility Tax Refunds?

n Woosley v. State of California, 3 Cal. 4th 758 (1992), the Supreme Court held that, in view of the strong constitutional policy (expressed in Article XIII, Section 32) against granting injunctive relief to restrain the collection of taxes, a class claim to secure the refund of state taxes is impermissible unless expressly authorized by the Legislature. In Ardon v. City of Los Angeles (here), the Court of Appeal extended Woosley to a suit for refund of a local tax. Although the same court had previously reached the opposite result in County of Los Angeles v. Duperior Court, 159 Cal. App. 4th 353 (2008), this time the majority held that even though Article XIII, Section 32 applies of it own force only to state taxes, the policy it enunciates is broad enough to cover local taxes as well.

This seems like a strong candidate for Supreme Court review. The Courts of Appeal (indeed, even the same court) is split, and the issue is important. Stay tuned.

Some Thoughts On Strauss v. Horton

Here are my thoughts about the California Supreme Court's decision in the Prop. 8 case. Needless to say, I speak only for myself, and not for my partners, past or present clients, or anyone else.

This was not a case about same-sex marriage. Instead, the Court went out of its way to reaffirm that the doctrinal holdings of the Marriage Cases remain intact. Thus, Strauss v. Horton leaves unchanged the rule set forth in that case that discrimination on the basis of sexual orientation must satisfy "strict scrutiny."

Instead, the decision is about how, and under what circumstances, the California Constitution can be changed. Here the plaintiffs were facing an uphill battle. Given prior decisions upholding constitutional amendments that limited rights in a number of respects (e.g., reinstating the death penalty, eliminating the state's version of the exclusionary rule, eliminating affirmative action), it was pretty clear before Strauss v. Horton that the constitution did not prohibit such initiatives. Thus, the Court's reaffirmation of the principle that limits constitutional revisions to changes in the constitutional structure or plan was solidly grounded in existing law. In contrast, there is very little support, other than snippets from a few decisions, for the converse idea: that rights-limiting amendments are impermissible.

There were, moreover, three quite practical reasons for finding the opposing view unappealing. First, it's difficult to see how rights that had only been a part of the California Constitution for less than a year were so fundamental a part of the state constitution that they couldn't be changed by the electorate. Second, a rule that made judicial decisions that expand rights effectively unchangeable by the electorate might make courts much more reluctant to read new rights into the California Constitution. THird, it's difficult to draw principled distinctions among rights to demarcate those rights that can be changed by an amendment and those rights that could only be limited by a revision.

All in all, the majority opinion is careful, scholarly and respectful of the opposing interests and views at stake. The Court has every reason to feel that it has undertaken an important job and done it well.

The end result is to return the issue of same-sex marriage to the political process. This is not a bad thing. Whatever one might think of the initiative process, same-sex marriage is perfectly suited for direct democracy. Unlike many other initiatives, the issue is simple and understandable.

No one who can read the political leaves doubts that same-sex marriage will be legal sooner or later. Its triumph is inevitable. It will be far better in the long run to achieve that victory through the ballot box than through the courts.