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.