Court Commissioner Can Summarily Deny Habeas Petition

Article VI, Section 22 of the Constitution authorizes the Legislature to authorize superior courts to appoint commissioners to perform "subordinate judicial duties." Does this extend to summarily denying petitions for habeas corpus filed by state prisoners? The Court of Appeal for the Third Appellate District has said "yes," in Gomez v. Superior Court (here). The rationale is that the constitutional provision was intended to give the Legislature power to authorize commissioners to perform the duties they had prior to 1966, when this portion of the constitution was revised, and these duties included summarily denying petitions for habeas corpus. The court also relied on cases holding that mandate proceedings do not result in a "cause" that requires oral argument until an alternative writ or order to show cause issues.

This case may be right on logic, but it's a horrible result. Indeed, even the Attorney General sided with the petitioners on this one. The opinion seems driven more by concern for small counties with few judges but large prisons than the right of a prisoner to have his claims reviewed by a "real" judge. Indeed, the opinion starts out with the observation that "State prison inmates are a litigious bunch when it comes to filing writ petitions challenging conditions of confinement or raising a multitude of other grievances." It's downhill from there. The California Supreme Court should grant review and revisit its prior decision in Rooney v. Vermont Investment Corp., 10 Cal. 3d 351 (1973), the principal basis for the Court of Appeal's holding.

Is California Forward Targeting Sinclair Paint?

In 1997, the Supreme Court decided, in a case called Sinclair Paint v. Board of Equalization, that the Legislature can raise fees without the two-third vote required for raising taxes. A proposed initiative constitutional amendment sponsored by California Forward seeks to circumscribe that authority, at least where the Legislature is seeking to replace lost tax revenue. Does this circumscribe Sinclair? Calbuzz reported last week that it did; here is California Forward's response.

AG Rejects Legislature's Effort re Pay Cut

The Los Angeles Times reports here and here. The end result: lawmakers will have their salaries cut by $20,917 annually while California's 12 top state officials will see reductions of at least $28,644 apiece. And here is the article from the Sacramento Bee.

California Constitution Does Not Offer Broader Protection For Public Employee Speech

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no broader protection under the Free Speech Clauses of the California Constitution. The court held that neither the language nor the history of the California Constitution supports a broader interpretation, nor did the U.S. Supreme Court's decision in Garcetti diminish previously-granted rights or engender a firestorm of judicial and academic criticism. Moreover, the California courts have routinely followed federal decisions when it comes to public employee speech rights.

This decision raises an important issue that the California Supreme Court might well review. However, one issue is that Kaye is representing himself, which could make the Court reluctant to intervene. And it doesn't look like there were any amici in the Court of Appeal. Where are the ACLU and the public employee unions?

Legislature's Attempt To Amend Prop. 36 Held Invalid

Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure: I helped draft Prop. 36.) In Gardner v. Schwarzenegger (here), the Court of Appeal held that SB 1137 was an invalid amendment to Prop. 36. As the court explained, the provisions of the bill "permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion." The court had no difficulty finding this irreconcilable with the pro-treatment, anti-incarceration purposes of the initiative.

One interesting provision of SB 1137 is that it provided that the entire bill would be submitted to the electorate if any of its provisions were held invalid. (The Legislative Counsel had opined that the bill was an improper amendment to Proposition 36.) The court held this provision unconstitutional, too, as an invalid referendum of an already-enacted statute. Nor could this provision be upheld under the constitutional provision permitting the Legislature to put amendments to initiatives on the ballot, because the statute had already taken effect (although it was immediately enjoined).

This decision seems clearly right. I see no reason why it should be reviewed by the California Supreme Court.

The Claremont Institute On The Con-Con

Patrick Collins of the Claremont Institute has written this interesting op-ed on the con-con. His message: the con-con is unlikely to paper over deep divisions over the reasons for California's ongoing budget problems and the proposed solutions. Hard to disagree with that. And a new poll, reported here, finds voters skeptical over the usual liberal solutions to the budget mess.

Who Has Authority Over Legislative Pay And Perks?

The Los Angeles Times reports here on an impending controversy between the Citizens Compensation Commission and the Legislature. The Attorney General has been asked to weigh in. Here is an article on the same subject from the Sacramento Bee.