Thursday, January 29, 2009

New Poll On The Budget Crisis

Today's San Francisco Chronicle describes a poll conducted by the Public Policy Institute of California on potential solutions to the State's budget crisis. The news article is here while here is a link to the poll results themselves.

Tuesday, January 27, 2009

Does Applying The Vexatious Litigant Statute To Appeals Violate The California Constitution?

In In re R.H. (here), the Court of Appeal has decided that applying the vexatious litigant statute to appeals does not violate the California Constitution. In this decision, a litigant who had filed thirteen appeals or writ proceedings without winning one was declared a vexatious litigant who had to get a "prefiling order" from the Presiding Justice before initiating a new appellate proceeding. He contended that this requirement violated Article VI, section 3, which states in part that the "[c]oncurrence of 2 judges present at the argument is necessary for a judgment.” He also cited Article VI, section 14 of the California Constitution, which provides that "[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” However, the court rejected these claims, holding that the Presiding Justice's prefiling order decision was not a determination of the merits of an appeal, but only a decision as to whether an appeal had sufficient merit to proceed. "Thus, by [Code of Civil Procedure] section 391.7’s own terms, the presiding justice in determining whether to permit the appeal to proceed does not pass on its merits. The presiding justice merely determines if there is an issue to review on appeal." Seems right to me.

Monday, January 26, 2009

Court Defines Felons Ineligible To Vote

Article II, Section 4 requires the Legislature to “provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.” Elections Code Section 2101 implements that requirement, and provides that “[a] person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election.”

But what is a "felony" for purposes of this provision? In Legal Services for Prisoners with Children v. Bowen (here), the Court of Appeal rejected the petitioners' contention that disenfranchising felonies were limited to felonies at common law. Interestingly, though, the court did not discuss the history of the California Constitution or Elections Code Section 2101. Instead it focused on Section 2 of the Fourteenth Amendment, which exempts from the Equal Protection Clause found in Section 1 disenfranchisement for "participation in . . . crime." And it also explained why the limitation urged by Petitioners would be bad public policy: "If Petitioners’ argument were accepted, it would mean that someone convicted of larceny, a felony at common law, would not be allowed to vote, however modest the take. But the defendants in People v. Schoenfeld (1980) 111 Cal.App.3d 671, serving life sentences for kidnapping 27 children and burying them in a school bus for 28 hours, would. As would the serial child molester. And the drug kingpin. If that manifests a worthy public policy, it comes in a novel guise."

Bob Egelko On The Amicus Briefs

Here is an article by Bob Egelko, of the San Francisco Chronicle, summarizing the amicus briefs in the Prop. 8 cases.

Friday, January 23, 2009

Answers To Amicus Briefs Filed In Proposition 8 Case

Answers to the amicus briefs have been filed in the Proposition 8 cases. Here is the one filed on behalf of San Francisco and its co-parties (which Howard Rice assisted in drafting); here is the one filed by the Strauss plaintiffs; here is the one filed by the Attorney General; and here is the one filed by the Intervenors.

Is Jerry Brown Helping Or Hurting The Case Against Proposition 8?

Peter Scheer poses the question in this article from the Sacramento Bee.

Thursday, January 22, 2009

HJTA Files Petition for Review in State Budget Case

The Howard Jarvis Taxpayers Association has filed a petition for review in the lawsuit challenging the Legislature's approval by majority vote of n0w-vetoed budget legislation. The text of the Court of Appeal's denial of HJTA's petition for writ of mandate is here. The petition for review is here.

Constitutional Convention Redux

Dan Weintraub of the Sacramento Bee offers a cautious endorsement (here) of the Bay Area Council's effort to consider a constitutional convention. Under this scenario the convention would be limited to "election laws and the fiscal system."

ps. Here is an article from the Ventura Star on the same topic.

pps. (Jan. 25, 2009): Here's a column by Dan Walters covering much the same ground.

Can The Governor Compel State Workers To Take A Furlough?

Governor Schwarzenegger has tried to require state workers to contribute to solving the state's budget crisis by taking two unpaid leave days per month. Does this violate the Legislature's right to set the salaries of state employees? The unions and the Controller think so. The Los Angeles Times reports here.

Wednesday, January 14, 2009

Proposition 8 Amicus Briefs

The amicus briefs in the Proposition 8 cases are starting to come in. Here is the first, from the Beverly Hills Bar Association. Here is one from six Professors of Law in support of Prop. 8; here is one from various labor organizations against the measure; here is one on the same side from a group of Sacramento lawyers; and here is a brief filed by Equal Rights Advocates. None of these briefs are currently available on the California Supreme Court's web-site.

ps. Here are three more: one from the Family Research Council; one from the "Issues4Life Foundation"; and one (this one supporting Petitioners) from Archbishop Mark Steven Shirilau. And three more: one from the League of Women Voters and one from Jewish Family Services of Los Angeles, both supporting Petitioners, and one from the Eagle Forum, supporting Prop. 8.

pps. They keep coming in. Here's one from Catholic Answers, one from Professors of Family Law, one from California Legislators and one from the Anti-Defamation League, all supporting Petitioners. The brief filed by NOW is here; the brief filed by the California Council of Churches is here; and the brief filed by the California Labor Federation is here; the brief filed by the San Francisco Chamber of Commerce and a number of businesses, including Google, is here. All of these support petitioners, too. Here is the brief filed by the Church of the Messiah; here is the brief filed by the Campaign for California Families; and here is the brief filed by the American Center for Law and Justice, which support Prop. 8.

Finally, here is an article from the San Francisco Chronicle about the flood of amicus briefs.

The End of Ballot-Box Budgeting?

Dan Weintraub in the Sacramento Bee would like to see it (here). But he accurately notes that such initiatives have been authored by both the Governor and the President Pro Tem of the Senate.

Which Proposition 98 Formula Is Right?

The San Francisco Chronicle has an article (here) about one of the more obscure but important budgetary issues facing the State: which formula in Proposition 98 should be used to calculate the State's required expenditure level for education funding? It's an issue worth $7 billion in future spending. Stay tuned.

Tuesday, January 13, 2009

The Sacramento Bee On Proposition 98

Here is an editorial from the Sacramento Bee on Proposition 98, education spending and a new initiative that would create a new 1% sales tax devoted to educational expenses.

Wednesday, January 7, 2009

Court of Appeal Denies HJTA Petition

The Court of Appeal has denied the petition for writ of mandate filed by the Howard Jarvis Taxpayers Association and the Republican Members of the Legislature. As discussed in a previous post (here), the idea that the Legislature would adjudicate the constitutionality of vetoed legislation was, to put it politely, novel. Here's the Court's order: "BY THE COURT: Petitioners, Howard Jarvis Taxpayers Association et al., ask this court to issue a peremptory writ of mandate directing, among other things, "Respondents [Legislature of the State of California et al.] to set aside the Legislative action on AB 2 and SB 11 until such time as those measures receive a two-thirds vote of both houses of the Legislature, and [c]ommanding [the] Legislature to refrain from deeming as 'passed' . . . any other measures in the future that increase state taxes unless such measure has been approved by the requisite two-thirds vote in each house of the Legislature." We decline petitioners' invitation to intercede in the ongoing legislative process. Such judicial action is barred by the separation of powers doctrine enunciated in article III, section 3, of the California Constitution ["The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution"].) Hence, "the courts may not order the Legislature or its members to enact or not to enact, or the Governor to sign or not to sign, specific legislation . . . ." (Serrano v. Priest (1976) 18 Cal.3d 728, 751 [footnotes omitted]; see also, Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 445.) Absent the Legislature's passage and the Governor's signing of such legislation, adjudications of its constitutionality and the other matters raised by the petition are not yet ripe for judicial review. The petition for writ of mandate is denied.

ps. Here is today's Sacramento Bee story on the decision.

California Supreme Court Hears Oral Argument in '49er Search Case

Here is the article from the San Francisco Chronicle describing yesterday's oral argument in the football stadium pat-down search case. The Court sounds split on the issue, but if Chief Justice George is sympathetic to the Plaintiffs, that sounds like a good sign.

Howard Jarvis Association Tilts At Windmills

Yesterday the Howard Jarvis Taxpayers Association, vowing never to be second in the race to the courthouse, filed a lawsuit challenging the constitutionality of the budget proposal passed by the Legislature last month. But the legislation was never enacted into law because the Governor (as promised) vetoed it. How does the HJTA (and the Insurance Commissioner, one of the other plaintiffs) think they have standing to challenge legislation before it's enacted? Do they really think that the Third Appellate District will give the Legislature an advisory opinion about whether never-enacted legislation is constitutional? Here is the relevant article from the San Francisco Chronicle; here is the latest from the Los Angeles Times; and here and here are articles from the Sacramento Bee. Finally, here is a link to the pleading filed by HJTA. (Thanks, Tim Bittle, for pointing me to its web site.)

A quick skim of the lawsuit indicates that its plaintiffs include Republican members of the Senate and the Assembly who claim that their voting rights are being diluted because of the majority's alleged violation of Proposition 13's two-thirds vote requirement. To my mind, at least, that makes this case look more like an internal affair of the Legislature, and hence non-justiciable in its present form (until legislation is actually enacted). We'll see if the courts agree. Here is a link to the Court of Appeal's docket for the case.

City Files Reply In Proposition 8 Case

Here is the reply filed by San Francisco. other public entities and numerous couples married between the California Supreme Court's decision last May in the Marriage Cases and the election, and here are the exhibits filed by the City, et al, in support of their reply. (Note: These documents are partially mislabeled on the California Supreme Court's web-site as having been filed by the Intervenors.) Howard, Rice assisted the City in preparing these pleadings. Finally, here is a copy of the reply filed by petitioners in the Strauss case, which is also partially mislabeled on the court's website.

Tuesday, January 6, 2009

Are Redevelopment Bonds The Answer?

Are redevelopment bonds the answer to the State's budget crisis? Dan Walters reports here in the Sacramento Bee. And here is a link to our earlier post about the lawsuit filed by California redevelopment agencies against last summer's state budget raid.

Do Pat-Down Searches At Professional Football Games Violate The California Constitution?

The issue is before the California Supreme Court, with arguments this morning. Here's a recap of the case from yesterday's San Francisco Chronicle. You would think that the invasion of privacy was a lot worse in NCAA v. Hill (in which I presented oral argument for Stanford in support of the Plaintiffs), but it's a different and perhaps more privacy-sensitive Court.

Differing Views On Legislature's Tax Plan

The Sacramento Bee has canvassed law professors and received differing opinions as to the legality of adopting the Democratic plan for solving the budget crisis without a two-thirds vote. Interestingly, they didn't talk to any practitioners, other than Jon Coupal of the Howard Jarvis Taxpayers Association, who wants to be first in line at the courthouse. The article is here. Jesse Choper, in true law professor fashion, answered the reporter's question with his own (rhetorical) question ("What is a tax?"), and then said the answer, like most answers in the law, was complicated.

Prop. 8 Proponents Respond to AG

Here's the San Francisco Chronicle's account of the proponents' response to Jerry Brown's brief in the Prop. 8 cases. Here is the corresponding article from the Sacramento Bee and here is the account from the Los Angeles Times. Here is the brief itself (the one filed in the Strauss case).

Saturday, January 3, 2009

Sacramento Bee Applauds Jerry Brown's Prop. 8 Position

The Sacramento Bee has penned this editorial, praising Jerry Brown's brief urging the California Supreme Court to invalidate Proposition 8. The basis: an analogy to Reitman v. Mulkey, the litigation invalidating Proposition14 (passed in 1964). There, too, the Attorney General refused to defend a discriminatory initiative that was invalidated by the California Supreme Court (and the the U.S. Supreme Court).

Friday, January 2, 2009

What's The Lesson of Pete Wilson's Tax Hikes?

This column by Los Angeles Times columnist George Skelton ponders the historical lessons of Pete Wilson's tax increases. Hint: it's not what the Legislature's Republicans think.