the autonomy of the California Constitution

Cal. Constitution Art. I sec. 24

CALIFORNIA CONSTITUTION

ARTICLE 1 Declaration of Right

SEC. 24. Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.

In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this State in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.

This declaration of rights may not be construed to impair or deny others retained by the people.

United States Constitution, Ninth Amendment:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

 

 

Joseph R. Grodin, “The California Supreme Court and State Constitutional Rights: The Early Years”

 

People v. Brisendine (1975), 13 Cal.3d 528

[Pursuant to an arrest for making an illegal campfire, police officers searched Brisendine’s backpack and found marijuana and drugs. The Court held the search illegal under the California Constitution, Art. I, § 13.]

MOSK, J.

Defendant was charged with possession of marijuana and possession of a restricted dangerous drug. His motion to suppress the evidence on the ground of illegal search and seizure was denied. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation, contending that the contraband was obtained by means of an unlawful search and seizure.

We conclude there was substantial evidence to support the trial court’s finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant’s knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers’ subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution.

The People . . . contend that notwithstanding the invalidity of the search under California law, the recent United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218, and Gustafson v. Florida (1973) 414 U.S. 260,should be dispositive of any question regarding the permissible scope of the search herein. We disagree. Whether or not the instant case is distinguishable from Robinson-Gustafson, as defendant claims, we note that those cases were decided under the [United States] Supreme Court’s view of the minimum standards required in order to satisfy the Fourth Amendment’s proscription of unreasonable searches. Our holding today is based exclusively on article I, section 13, of the California Constitution, which requires a more exacting standard for cases arising within this state. The [United States] Supreme Court has taken [facts similar to those in the present case] and reached a contrary result. In choosing between these irreconcilable rules we cannot accept the Robinson implication that “an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.” Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated – a question not presented here – we find it inappropriate in the context of an arrestee who will never be subjected to that process.

There remains for consideration whether we should adhere to our precedential decisions on this point even though they impose a higher standard than is now required by Robinson. Our right to do so cannot be seriously questioned. In Cooper v. California (1967), the [United States] Supreme Court recognized this well-known principle: “Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.” Moreover, “even though a state court’s opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment.” (Jankovich v. Indiana Toll Road Comm’n (1965) 379 U.S. 487, 491-492 )

In short, the Supreme Court has clearly recognized that state courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.

This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion.

The . . . California Constitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism, but also the historic bases of state charters. It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.

The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials. Thus in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism – that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Of course this declaration of constitutional independence did not originate at that recent election; indeed the voters were told the provision was a mere reaffirmation of existing law.

For all the foregoing reasons Robinson is not controlling here. Rather, we reaffirm and follow the decisions . . . which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.

The judgment (order granting probation) is reversed

BURKE, J. [dissenting, joined by Justices McComb and Clark]

Before Robinson and Gustafson this court held in People v. Superior Court (Simon) 7 Cal.3d 186, 208-211that a full body search of a person arrested for an ordinary traffic violation could not be justified as an incident to the officer’s decision to take him into custody for transportation before a magistrate. Robinson and Gustafson are contrary to Simon, as the majority recognizes. The majority seeks to avoid the impact of those United States Supreme Court decisions by now declaring that Simon, which mentions only the Fourth Amendment of the federal Constitution, was in fact based on our state constitutional provision against unreasonable searches and seizures. Even if it be assumed that Simon was so based, it does not follow that we should continue to interpret that state constitutional provision, which is essentially identical in language to the Fourth Amendment, in a manner different from the United States Supreme Court’s interpretation of the Fourth Amendment.

Decisions of the United States Supreme Court as to the meaning of language in a federal constitutional provision are strongly persuasive as to what interpretation should be placed upon similar language in a state Constitution. To have two sets of rules under essentially identical constitutional provisions would create confusion.

The majority notes that our state Constitution declares that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, § 24.) That declaration, however, does not mean that provisions of our state Constitution should be given a different interpretation than that given by the United States Supreme Court to essentially identical provisions of the federal Constitution.

Although in interpreting our state Constitution we may not be bound by Robinson and Gustafson, those decisions are highly indicative that the above stated holding in Simon was not required by the considerations underlying the exclusionary rule. I would follow Robinson and Gustafson and overrule Simon and other California cases in accord with Simon insofar as they are contrary to Robinson and Gustafson.

 

People v. Teresinski (1982), 30 Cal.3d 822

[This case involved the search-and-seizure provisions of the federal and state constitutions. Defendant had been arrested and detained on suspicion of having committed a robbery, but his detention was later determined to be illegal. While he was detained, the victim identified him. In the original appeal, the California Supreme Court held that the victim-identification evidence must be suppressed because it occurred during an illegal detention (People v. Teresinski (1980), 26 Cal.3d 457. The United States Supreme Court reversed and remanded (California v. Teresinski, 449 U.S. 914 [1980]) on the basis of its holding in another case, United States v. Crews, 445 U.S. 463 (1980), which had created a different standard for the admissibility of victim-identification testimony from that employed by the California court. The issue presented in this case was whether United States Supreme Court interpretation of a provision in the federal Constitution should be controlling for California courts’ interpretation of a comparable or identical provision of the state Constitution.]

BROUSSARD, J.

We conclude that Crews is controlling with respect to any contentions based on the federal Constitution, and compels us to reject defendant’s premise that the admission of Cady’s courtroom identification violated the Fourth Amendment. We therefore turn to defendant’s alternative claim based on article I, section 13 of the California Constitution.

In addressing this issue, we begin by reaffirming the now settled principle that the California courts, in interpreting the Constitution of this state, are not bound by federal precedent construing the parallel federal text; the “state courts, in interpreting constitutional guarantees contained in state constitutions, are ‘independently responsible for safeguarding the rights of their citizens.”’ Decisions of the United States Supreme Court, nevertheless, are entitled to respectful consideration and ought to be followed unless persuasive reasons are presented for taking a different course. In the present case, no reasons arise to justify rejecting the teaching of the Supreme Court in Crews.

[Justice Broussard then spelled out what has come to be known as the four-part Teresinski test for determining whether California courts should regard a United States Supreme Court precedent as controlling in construction of a similar state Constitution clause:]

First, nothing in the language or history of the California provision suggests that the issue before us should be resolved differently than under the federal Constitution.

Second, this is not a case in which the high court “hands down a decision which limits rights established by earlier precedent in a manner inconsistent with the spirit of the earlier opinion.” In such a case, we have stated, “Respect for our Constitution as ‘a document of independent force’ forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter.

Third, we have on occasion been influenced not to follow parallel federal decisions by the vigor of the dissenting opinions and the incisive academic criticism of those decisions

Finally, the Supreme Court decision in Crews, if followed by the courts of this state, would not overturn established California doctrine affording greater rights to the defendant. To the contrary, . . . past California precedent is consistent with the principles set out in Crews.

We hold that the superior court . . . erred, however, in suppressing Cady’s testimony identifying defendant at the preliminary hearing. Since that testimony was sufficient to establish probable cause to believe that defendant committed the charged robbery, the court also erred in dismissing the action against defendant.

The judgment (order of dismissal) is reversed, and the matter remanded for further proceedings consistent with this opinion.

 

Raven v. Deukmejian (1990), 53 Cal.3d 336

LUCAS, Chief Justice.

I. Introduction

In this proceeding, we consider challenges to the validity of an initiative measure adopted at the June 5, 1990, Primary Election. This measure, designated on the ballot as Proposition 115, is entitled by its framers as the “Crime Victims Justice Reform Act.” Its stated general purpose is to adopt “comprehensive reforms … needed in order to restore balance and fairness to our criminal justice system.” To achieve that purpose, the measure adopts a variety of changes and additions to our state Constitution and statutes.

Petitioners herein are taxpayers and voters asserting a challenge to the manner in which Proposition 115 was presented to the voters, and objecting to any further expenditure of funds to enforce or implement the measure. Specifically, petitioners (and several amici curiae supporting them) claim the measure violates both (1) the “single subject” rule embodied in our state Constitution (art. II, § 8, subd.(d)), and (2) the rule requiring constitutional “revisions” to be accomplished by more formal procedures than are contemplated for mere constitutional “amendments” (art. XVIII).Respondents are certain public officials and courts charged with the responsibility of implementing, enforcing or applying the new measure. They too are supported by various amici curiae.

II. Summary of Proposition 115

A. Preamble

The measure is entitled the “Crime Victims Justice Reform Act.” The preamble recites that the people of the state “hereby find that the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system.”

The preamble continues by stating that in order to accomplish these goals, “we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions and as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth.”

Finally, the preamble observes that the goals of the measure are “to restore balance to our criminal law system, to create a system in which justice is swift and fair, … in which violent criminals receive just punishment, in which crime victims and witnesses are treated with care and respect, and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools.”

The measure adopts a variety of changes and additions to our state Constitution and statutes. We summarize the primary changes and additions below.

B. Postindictment Preliminary Hearings

The measure adds section 14.1 to article I of the state Constitution, to provide that “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.”

C. Independent Construction of State Constitutional Criminal Rights

The measure amends section 24 of article I of the state Constitution, to provide that certain enumerated criminal law rights shall be construed consistently with the United States Constitution, and shall not be construed to afford greater rights to criminal or juvenile defendants than afforded by the federal Constitution. We discuss this amendment in greater detail in connection with our analysis of the “revision” issue (pt. III.B., below).

D. People Entitled to Due Process and Speedy, Public Trial

The measure adds section 29 to article I of the state Constitution, to provide that “In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.”

F. Hearsay Testimony at Preliminary Hearings

Section 30, subdivision (b), is added to article I of the state Constitution, declaring hearsay evidence admissible at preliminary hearings in criminal cases, as may be provided by la

G. Discovery Procedures

Section 30, subdivision (c), is added to article I of the state Constitution, calling for “reciprocal” discovery in criminal cases, as may be provided by law.

H. Voir Dire Examination

The measure adds section 223 to the Code of Civil Procedureto provide that in criminal cases (1) the court shall conduct voir dire examination of prospective jurors, (2) the parties may conduct further examination on a showing of good cause, (3) voir dire should occur in the presence of the other jurors “where practicable,” (4) voir dire is limited to exploring possible challenges for cause, and (5) errors in discretionary rulings regarding voir dire examination do not require reversal of judgment unless a “miscarriage of justice” has occurred

I. Felony-murder Statute

Penal Code section 189, the felony-murder statute, is amended to add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a charge of first degree murder.

L. Appointment of Counsel

The measure adds section 987.05 to the Penal Code, requiring the appointment of counsel willing and able to proceed with the preliminary examination and trial of felony cases in a timely manner, in accordance with standards specified in the new provision.

N. Severance Clause

The measure contains a severance clause declaring that “If any provision of this measure or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.”

O. Amendment by Legislature

The measure’s statutory provisions “may not be amended by the Legislature except by statute passed in each house by roll call vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”

[Discussion of the single-subject requirement is omitted here.]

B. Constitutional Revision or Amendment

Petitioners next argue that Proposition 115 in effect achieved a constitutional revision rather than a mere amendment. Although “the electors may amend the Constitution by initiative” (Cal.Const., art. XVIII, § 3), a “revision” of the Constitution may be accomplished only by convening a constitutional convention and obtaining popular ratification (id., § 2), or by legislative submission of the measure to the voters (id.,§ 1). Petitioners suggest the revision provision is based on the principle that “comprehensive changes” to the Constitution require more formality, discussion and deliberation than is available through the initiative process.

Petitioners’ arguments focus primarily on a single provision of Proposition 115, namely, the amendment to article I, section 24, of the state Constitution relating to the independent nature of certain rights guaranteed by that Constitution. (The additional constitutional changes effected by Proposition 115, involving such isolated matters as postindictment preliminary hearings, joinder of cases, use of hearsay, reciprocal discovery, and the People’s right to due process and a speedy, public trial, cannot be deemed matters which standing alone, or in the aggregate, substantially change our preexisting governmental framework.) As will appear, petitioners’ arguments are well taken.

Article I, section 24, added in 1974, originally provided in relevant part that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Proposition 115 would add the important proviso that “In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and not to suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.”

In our view the effect of the measure would be so far reaching as to amount to a constitutional revision beyond the scope of the initiative process. We turn to a discussion of the quantitative and qualitative effects of Proposition 115 and particularly its restriction on the independent judicial interpretation of the enumerated state constitutional rights.

[Discussion of quantitative effects of Prop 115 omitted.]

• Qualitative effect—We have stated that. . . “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also…. [A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.”

Proposition 115 contemplates a similar qualitative change. In essence and practical effect, new article I, section 24, would vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court. From a qualitative standpoint, the effect of Proposition 115 is devastating.

Even under respondent Attorney General’s “limited” construction of new article 1, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants’ rights than extended by the federal Constitution, as construed by the United States Supreme Court.

For example, if the high court were to rule that public torture or maiming of persons convicted of minor misdemeanors did not offend the federal due process, equal protection or cruel and unusual punishment clauses, presumably the California courts interpreting similar state constitutional guarantees would be compelled to agree and to uphold state legislation imposing such severe forms of punishment. As a practical matter, ultimate protection of criminal defendants from deprivation of their constitutional rights would be left in the care of the United States Supreme Court. Moreover, the nature and extent of state constitutional guarantees would remain uncertain and undeveloped unless and until the high court had spoken and clarified federal constitutional law.

In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government. In framing the Declaration of Rights in both the 1849 and 1879 California Constitutions, the drafters largely looked to the constitutions of the other states, rather than the federal Constitution, as potential models.

Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution.

The foregoing authorities acknowledge and support a general principle or policy of deference to United States Supreme Court decisions, a policy applicable in the absence of good cause for departure or deviation therefrom. Yet it is one thing voluntarily to defer to high court decisions, but quite another to mandate the state courts’ blind obedience thereto, despite “cogent reasons,” “independent state interests,” or “strong countervailing circumstances” that might lead our courts to construe similar state constitutional language differently from the federal approach.

Despite the general rule of deference, the adoption in 1974 of article I, section 24, confirmed that the California courts had the authority to adopt an independent interpretation of the state Constitution. As the section then read, in pertinent part, “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” This declaration of independence made explicit a preexisting fundamental principle of constitutional jurisprudence.

Proposition 115 imposes such an imperative for the first time in California’s history. It substantially alters the preexisting constitutional scheme or framework heretofore extensively and repeatedly used by courts in interpreting and enforcing state constitutional protections. It directly contradicts the well-established jurisprudential principle that, “The judiciary, from the very nature of its powers and means given it by the Constitution, must possess the right to construe the Constitution in the last resort….”

New article I, section 24, more closely resembles Amador‘ s hypothetical provision vesting all judicial power in the Legislature, a provision we deemed would achieve a constitutional revision. As noted, in practical effect, the new provision vests a critical portion of state judicial power in the United States Supreme Court, certainly a fundamental change in our preexisting governmental plan

For all the foregoing reasons, we conclude that new article I, section 24, represents an invalid revision of the California Constitution. But its invalidity does not affect the remaining provisions of Proposition 115, which are clearly severable from the invalid portion. As previously indicated, Proposition 115 contains a severance clause providing, “If any provision of this measure or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.”

 

Adequate and independent state grounds

Fox Film Corp. v. Muller, 296 U.S. 207 (1935)

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is an action brought in a Minnesota state court of first instance by the Film Corporation against Muller, to recover damages for an alleged breach of two contracts by which Muller was licensed to exhibit certain moving picture films belonging to the corporation. Muller answered, setting up the invalidity of the contracts under the Sherman Anti-Trust Act.

Respondent contends that the question of severability was alone decided and that no federal question was determined by the lower court. This contention petitioner challenges, and asserts that a federal question was involved and decided. We do not attempt to settle the dispute; but, assuming for present purposes only that petitioner’s view is the correct one, the case is controlled by the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment

Whether the provisions of a contract are nonseverable, so that if one be held invalid the others must fall with it, is clearly a question of general [i.e., state] and not of federal law. The invalidity of the arbitration clause which the present contracts embody is conceded. It was held invalid by the federal District Court in the Paramount Case, and its judgment was affirmed here. The question, therefore, was foreclosed; and was not the subject of controversy in the state courts. In that situation, the primary question to be determined by the court below was whether the concededly invalid clause was separable from the other provisions of the contract. The ruling of the state Supreme Court that it was not, is sufficient to conclude the case without regard to the determination, if, in fact, any was made, in respect of the federal question. It follows that the nonfederal ground is adequate to sustain the judgment.

The construction put upon the contracts did not constitute a preliminary step which simply had the effect of bringing forward for determination the federal question, but was a decision which automatically took the federal question out of the case if otherwise it would be there. The nonfederal question in respect of the construction of the contracts and the federal question in respect of their validity under the Anti-Trust Act were clearly independent of one another. The case, in effect, was disposed of before the federal question said to be involved was reached. A decision of that question then became unnecessary; and whether it was decided or not, our want of jurisdiction is clear.

Writ dismissed for want of jurisdiction.

 

Herb v. Pitcairn, 324 U.S. 117 (1945)

Mr. Justice JACKSON delivered the opinion of the Court.

This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. The reason is so obvious that it has rarely upon thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion. If the Illinois court means to hold that the city courts could not adjudge, transfer, or begin these cases and that no case is pending in its courts at the present time, it is manifest that no view we might express of the federal Act would require its courts to proceed to the trial of these actions.

 

Michigan v. Long, 463 U.S. 1032 (1983)

Justice O’CONNOR delivered the opinion of the Court.

Respondent David Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of the automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry [v. Ohio (1968)] and other decisions of this Court. We also examine Long’s argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction.

Before reaching the merits, we must consider Long’s argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the state constitution in its opinion, but otherwise relied exclusively on federal law.3 Long argues that the Michigan courts have provided greater protection from searches and seizures under the state constitution than is afforded under the Fourth Amendment, and the references to the state constitution therefore establish an adequate and independent ground for the decision below.

Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds,4 we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue.This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary.

Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.

This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions.6 It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law.

Justice STEVENS, dissenting.

The jurisprudential questions presented in this case are far more important than the question whether the Michigan police officer’s search of respondent’s car violated the Fourth Amendment. The case raises profoundly significant questions concerning the relationship between two sovereigns—the State of Michigan and the United States of America.

The Supreme Court of the State of Michigan expressly held “that the deputies’ search of the vehicle was proscribed by the Fourth Amendment of the United States Constitution and art. 1, § 11 of the Michigan Constitution.” The state law ground is clearly adequate to support the judgment, but the question whether it is independent of the Michigan Supreme Court’s understanding of federal law is more difficult

Four possible ways of resolving that question present themselves: (1) asking the Michigan Supreme Court directly, (2) attempting to infer from all possible sources of state law what the Michigan Supreme Court meant, (3) presuming that adequate state grounds are independent unless it clearly appears otherwise, or (4) presuming that adequate state grounds are not independent unless it clearly appears otherwise. This Court has, on different occasions, employed each of the first three approaches; never until today has it even hinted at the fourth. In order to “achieve the consistency that is necessary,” the Court today undertakes a reexamination of all the possibilities. It rejects the first approach as inefficient and unduly burdensome for state courts, and rejects the second approach as an inappropriate expenditure of our resources. Although I find both of those decisions defensible in themselves, I cannot accept the Court’s decision to choose the fourth approach over the third—to presume that adequate state grounds are intended to be dependent on federal law unless the record plainly shows otherwise. I must therefore dissent.

Even if I agreed with the Court that we are free to consider as a fresh proposition whether we may take presumptive jurisdiction over the decisions of sovereign states, I could not agree that an expansive attitude makes good sense. It appears to be common ground that any rule we adopt should show “respect for state courts, and [a] desire to avoid advisory opinions.” And I am confident that all members of this Court agree that there is a vital interest in the sound management of scarce federal judicial resources. All of those policies counsel against the exercise of federal jurisdiction. They are fortified by my belief that a policy of judicial restraint—one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene—enables this Court to make its most effective contribution to our federal system of government.

I respectfully dissent.

People v. Brisendine (1975), 13 Cal.3d 528

[Pursuant to an arrest for making an illegal campfire, police officers searched Brisendine’s backpack and found marijuana and drugs. The Court held the search illegal under the California Constitution, Art. I, § 13.]

MOSK, J.

Defendant was charged with possession of marijuana and possession of a restricted dangerous drug. His motion to suppress the evidence on the ground of illegal search and seizure was denied. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation, contending that the contraband was obtained by means of an unlawful search and seizure.

We conclude there was substantial evidence to support the trial court’s finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant’s knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers’ subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution.

The People . . . contend that notwithstanding the invalidity of the search under California law, the recent United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218, and Gustafson v. Florida (1973) 414 U.S. 260,should be dispositive of any question regarding the permissible scope of the search herein. We disagree. Whether or not the instant case is distinguishable from Robinson-Gustafson, as defendant claims, we note that those cases were decided under the [United States] Supreme Court’s view of the minimum standards required in order to satisfy the Fourth Amendment’s proscription of unreasonable searches. Our holding today is based exclusively on article I, section 13, of the California Constitution, which requires a more exacting standard for cases arising within this state. The [United States] Supreme Court has taken [facts similar to those in the present case] and reached a contrary result. In choosing between these irreconcilable rules we cannot accept the Robinson implication that “an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.” Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated – a question not presented here – we find it inappropriate in the context of an arrestee who will never be subjected to that process.

There remains for consideration whether we should adhere to our precedential decisions on this point even though they impose a higher standard than is now required by Robinson. Our right to do so cannot be seriously questioned. In Cooper v. California (1967), the [United States] Supreme Court recognized this well-known principle: “Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.” Moreover, “even though a state court’s opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment.” (Jankovich v. Indiana Toll Road Comm’n (1965) 379 U.S. 487, 491-492 )

In short, the Supreme Court has clearly recognized that state courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.

This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion.

The . . . California Constitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism, but also the historic bases of state charters. It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.

The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials. Thus in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism – that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Of course this declaration of constitutional independence did not originate at that recent election; indeed the voters were told the provision was a mere reaffirmation of existing law.

For all the foregoing reasons Robinson is not controlling here. Rather, we reaffirm and follow the decisions . . . which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.

The judgment (order granting probation) is reversed.

BURKE, J. [dissenting, joined by Justices McComb and Clark]

Before Robinson and Gustafson this court held in People v. Superior Court (Simon) 7 Cal.3d 186, 208-211that a full body search of a person arrested for an ordinary traffic violation could not be justified as an incident to the officer’s decision to take him into custody for transportation before a magistrate. Robinson and Gustafson are contrary to Simon, as the majority recognizes. The majority seeks to avoid the impact of those United States Supreme Court decisions by now declaring that Simon, which mentions only the Fourth Amendment of the federal Constitution, was in fact based on our state constitutional provision against unreasonable searches and seizures. Even if it be assumed that Simon was so based, it does not follow that we should continue to interpret that state constitutional provision, which is essentially identical in language to the Fourth Amendment, in a manner different from the United States Supreme Court’s interpretation of the Fourth Amendment.

Decisions of the United States Supreme Court as to the meaning of language in a federal constitutional provision are strongly persuasive as to what interpretation should be placed upon similar language in a state Constitution. To have two sets of rules under essentially identical constitutional provisions would create confusion.

The majority notes that our state Constitution declares that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, § 24.) That declaration, however, does not mean that provisions of our state Constitution should be given a different interpretation than that given by the United States Supreme Court to essentially identical provisions of the federal Constitution.

Although in interpreting our state Constitution we may not be bound by Robinson and Gustafson, those decisions are highly indicative that the above stated holding in Simon was not required by the considerations underlying the exclusionary rule. I would follow Robinson and Gustafson and overrule Simon and other California cases in accord with Simon insofar as they are contrary to Robinson and Gustafson.

 

Stewart G. Pollock, “Adequate and Independent State Grounds”

Stewart G. Pollock, “Adequate and Independent State Grounds as a Means of Balancing the Relationship between State and Federal Courts,” 63 Tex. L. Rev. 977 (1985)

I. Introduction

A fundamental premise of the relationship between state and federal courts is that the courts in the two judicial systems share the responsibility for the protection of constitutional rights. Although the United States Supreme Court may review a state court judgment based on federal constitutional law, the Court generally will not review a state court judgment based upon an adequate and independent state ground. Respect by the Court for such a judgment is essential to the continuing vitality of the dual judicial system, which contemplates a diversity of results depending on whether a litigant is in state or federal court, or in the courts of one state rather than another.

II. Historical Overview

From its inception, diversity has been the hallmark of this country’s dual system of state and federal courts. After the thirteen original colonies banded together to form a single nation, each state continued to embrace its own individuality.8 State courts may disagree with each other and even, within limits, with the federal courts. In brief, our own special brand of federalism was designed to be untidy, but that lack of uniformity invests the system with a vibrant diversity.9

The rights of litigants therefore may depend on the court system in which they are litigated. Although the outcome of a case may vary depending on the forum in which it is decided, state and federal courts are joined in a partnership for the protection of individual rights. The essence of this partnership is the autonomy of each system to act independently of, but with respect for, the other.

A basic principle of the federalist system underlies the renaissance of state courts. The first ten amendments establish a foundation for the protection of human liberty. A state may not undermine that foundation, but its constitution may build additional protections above the federal floor.13

III. Supreme Court Review of State Decisions

Although the United States Supreme Court may review a state court judgment involving a federal question, since 1875 the High Court traditionally has declined review if the state court based its judgment on an adequate and independent state ground.14 The reason for this restraint is that the Supreme Court decision on the federal question would be merely an advisory opinion, in violation of the jurisdictional requirements of article III.15

Deference by the United States Supreme Court to state court decisions based on state law has become an integral part of federal jurisprudence. This principle is crucial also to the vitality of the partnership between state and federal courts. By respecting such judgments, the High Court honors state courts as partners in the federalist system, especially when the federal constitution would lead to a different result. As tempting as it may be to harmonize results under the state and federal constitutions, federalism contemplates that state courts may grant greater protection to individual rights if they choose.16 Consistent with that premise, the United States Supreme Court has declined to review state court decisions granting such protection when the decisions are based on state law.

IV. Analyzing State Constitutional Claims

A. Three Modes of Analysis

State constitutional law has evolved to the point where different methods of analyzing constitutional claims have emerged. The Vermont and Washington Supreme Courts, for example, tie their decisions to both the state and federal constitutions.31 One problem with this approach is that dual reliance creates a body of unreviewable interpretations of the federal constitution.32 The difficulty, however, is not so serious as may first appear. Diverse declarations of federal law by state courts necessarily must yield to interpretations of that law by the United States Supreme Court.33

The two other methods are the primacy approach and the supplemental or interstitial approach. Under the primacy approach, a court looks first to its state constitution in cases involving such matters as fundamental liberties. Only if the alleged infringement is permissible under state constitutional standards would a court consult the federal constitution. This model avoids entanglement with federal law and also avoids United States Supreme Court review because of the failure to state an adequate and independent state ground.

Under the ‘supplemental’ approach, however, a court looks first to the federal constitution when deciding whether state action is valid. If the government action cannot be upheld as a matter of federal constitutional law, it is struck down and the analysis ends. If, however, the status of the litigant’s rights are questionable under the United States Constitution, or if the asserted violation of rights is found valid under that document, then a court consults the state constitution. Once a court resorts to the state constitution, it must decide what result that charter requires. Compared to the primacy approach, the supplemental approach is more consistent with the roles of state and federal constitutional law as those roles have evolved in this century.

In the final analysis, the differences between the primacy and supplemental approaches lie not so much in the results to which they lead as in the reasoning used to reach those results and the policy considerations behind their rationales. Neither approach necessarily guarantees a more expansive development of fundamental rights

VI. Conclusion

Where does all this leave us as students of constitutional law? The clearest lesson is that we all must study our state constitutions more closely. State court judges must become at least as familiar with their state constitution as they are with the federal constitution. After all, a state supreme court is the court of last resort on the meaning of the state constitution.

Whether a state court looks to the state constitution first or second depends on a policy choice that lies outside the internal logic of the primacy or supplemental approaches. Nonetheless, a state supreme court justice has a unique responsibility to preserve the identity not only of an individual state, but also of the nation.

The most critical question in the near future is how the United States Supreme Court views the adequate and independent state ground requirement. If the Court respects the decisions of state courts that satisfy the plain statement test, then whether a state court follows the primacy or the supplemental approach makes little difference. If, however, the Court strains to find that an adequate ground is not independent, then some state courts may feel less sanguine about the supplemental approach. A court that views its state constitution as a supplemental source of protection today may be forced to make it the primary source tomorrow.

To the extent that state courts depart from federal analysis, it becomes increasingly important for the courts to communicate with each other about significant decisions affecting fundamental rights. Horizontal federalism, a federalism in which states look to each other for guidance, may be the hallmark of the rest of the century.

Critics may disagree with the trend of the United States Supreme Court decisions on criminal procedure, but the fact that the Court is changing direction on its interpretation of the fourth and fifth amendments does not mean that it is dissolving the partnership.

As long as the United States Supreme Court honors a state court’s plain statement of an adequate and independent state ground, the future of federalism should be secure.

 

Robert G. Welsh, “Whose Federalism? — The Burger Court’s Treatment of State Civil Liberties Judgments”

Robert C. Welsh, “Whose Federalism? — The Burger Court’s Treatment of State Civil Liberties Judgments,”

10 Hastings Const. L. Q. 819 (1983)

Introduction

An enduring theme of the Burger Court’s approach to civil liberties has been insulating state judicial and political processes from what a majority of the Justices regard as unwarranted intermeddling by federal courts. In marked contrast to the centralizing tendencies of the civil liberties revolution inaugurated by the Warren Court, the current majority has limited the ability of state civil liberties claimants to gain access to federal tribunals for the vindication of their constitutional rights. Under the banner of “Our Federalism,” federal courts have been barred from interfering with pending state criminal and civil proceeds; door closing techniques such as the requirement of exhausting available state remedies have been strictly applied; and the availability of habeas corpus review has been significantly curtailed.

Ironically, at the same time that the Burger Court has invoked the tenets of federalism and state autonomy to close federal courthouse doors to state civil liberties claimants, it has flung those doors wide open for prosecutors and other state officials complaining that state courts have adopted overly expansive interpretations of Bill of Rights guarantees. Given the tensions between the Supreme Court and state courts during the Warren era, one might have assumed that the willingness of many state courts to actively protect individual rights would finally end the twenty year struggle over the course of civil liberties decisionmaking. Yet the struggle continues. Only the sides have changed. Instead of reversing state judgments because they fall below minimum federal requirements, the Court now regularly upsets state court decisions because too much protection has been afforded individuals in the name of the Bill of Rights. For the first time in modern civil liberties history, the Bill of Rights is being used by the Supreme Court to police the “outer limits” of state court liberties decisionmaking.

The increasing frequency with which expansive state civil liberties judgments are being subject to review and reversal belies the Burger Court’s oft-repeated allegiance to a principled conception of federalism and decentralized decisionmaking. The values of decentralization, state experimentation, and local autonomy are also jeopardized when state court decisions extending more than the absolute “minimum” are overturned. This is especially true during a period when state courts are beginning to develop a separate body of rules and principles protecting individual rights under their state constitutions.

Whether state courts are truly capable of assuming the role of “frontier agent[s] of American reform” remains to be seen. But one thing appears certain: independent state civil liberties decisionmaking in the post-incorporation era must, of necessity, be innovative decisionmaking, and the only way innovation will take place is if state courts are permitted to expand individual rights free from the constraining oversight of federal judicial review. The reticence of many state judges to question restrictive Supreme Court civil liberties rulings means that the impact of federal review and reversal will often be to thwart the process of independent state constitutional decisionmaking. Even when state judges do not feel constrained as a matter of judicial propriety from openly departing from operative Supreme Court rulings, they may find themselves constrained politically. Innovative state courts, such as the California Supreme Court, are already under political attack by conservative groups that oppose expansion of rights for various groups. State courts generally do not enjoy the same degree of institutional independence as their federal counterparts, and hence are particularly vulnerable to such attacks. Wittingly or unwittingly, the Burger Court’s policy of reversing expansive state judgments plays into the hands of those who would impose greater political control on state judges. Given popular perceptions that one’s rights begin and end with the latest Supreme Court pronouncement, a state court decision expanding rights—especially in the face of a High Court reversal on the subject—may appear to be an irresponsible “gesture of defiance.”

• I. The Style and Substance of the Court’s Review of
• Expansive State Court Decisions
• The 1970 Term proved to be a benchmark in the struggle between state courts and the Supreme Court over the direction of civil liberties decisionmaking. For the first time in a criminal case, the Supreme Court reversed a state court decision because it had adopted an excessively expansive interpretation of Bill of Rights protections. In California v. Green, the Court ruled that the California Supreme Court had erred in reading the Sixth Amendment’s Confrontation Clause to prohibit the prosecution’s introduction of a witness’ prior inconsistent statement into evidence against the defendant. Despite the novelty of the Court’s action, neither the majority nor the dissent questioned the propriety of reversing expansive state court judgments. The Justices apparently saw their decision as simply disabusing state judges of the view that the Sixth Amendment “impelled” the exclusion of this testimony from trial. For example, Justice Harlan, writing separately, characterized the state high court’s decision as “an understandable misconception, as I see things, of numerous decisions of this Court . . . that have indiscriminately equated ‘confrontation’ with ‘cross-examination.’”
• When viewed in the context of the Warren Court era, the Green decision signaled a significant shift in perspective—perhaps even more significant than the Green Court Justices themselves realized. During the 1960’s not a single state civil liberties decision was reversed on the ground that federal civil liberties standards were exceeded. Indeed, during this period only four state initiated appeals were accepted for review; in three of these cases, the state court judgment was affirmed and in one, the judgment was vacated to determine whether the decision rested on an independent state ground.
• Whereas the Warren Court only reversed state court decisions for tolerating less than the Bill of Rights was held to require, the Burger Court increasingly turned its attention to defining the outer reaches of federal civil liberties requirements. During the past thirteen Terms, 120 out of a total of 427 state initiated petitions—twenty-eight percent—were either reversed, vacated or granted full review. The Justices’ willingness to review and reverse over one out of four petitions brought by state officials contrasts sharply with the relative lack of success experienced by civil liberties claimants. During the same period, a total of 2,250 paid petitions were filed, of which 120—or five percent—were reversed, vacated or granted full review.
• B. The Intensive Character of Burger Court Review
• In the Green case, the implicit justification offered by the Court for overturning of the California Supreme Court’s decision was the belief that the state court had been misled by recent federal precedents into thinking that the Confrontation Clause required the exclusion of the witness’ previous cross-examined testimony. The Burger Court, however, has not limited its review of expansive state court decisions to instances in which the state court incorrectly believed it was compelled to reach the result it did. Rather, the criterion that has apparently guided the Court in exercising its review authority has been whether five of its members would have reached the same result as did the state court—a criterion which authorizes a far more intensive form of the review than the Green mistake of law standard.
• Rendering civil liberties decisions under the state constitution significantly alters the institutional relationship between state and federal supreme courts. When a state supreme court rests its decision on an interpretation of the federal law, it assumes the character of an intermediate appellate court vis-a-vis the High Bench: the state court is bound to follow operative Supreme Court precedents despite whatever misgivings it may have about the wisdom of the rulings themselves. Where a state supreme court invokes state law, however, the institutional relationship is almost (but not quite) reversed. The state supreme court decisions are no longer binding, but are instead regarded much the same way as any “ultimate court” views the decisions of an “intermediate court”—as persuasive but not authoritative pronouncements.
• The “role reversal” that occurs when state supreme courts ground their decisions in state constitutional provisions is illustrated by the following passage from the California Supreme Court’s decision in People v. Longwill[14 Cal.3d 943, 538 P.2d 753 (1975)]. Responding to the State’s contention that a state court’s authority to engage in independent interpretation is confined to a few “limited circumstances,” the majority correctly replied:
• This argument presupposes that on issues of individual rights we sit as no more than an intermediate appellate tribunal, and that to the presumption of further review there is but a “limited” exception which must be “clearly delineated.” On the contrary, in the area of fundamental civil liberties . . . we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights of Californians have come to expect as their due.
• The decisions of the Supreme Court, the state justices concluded, “are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.”
• There is a lesson here for the United States Supreme Court: just as state courts should not blindly follow every pronouncement from Washington, D.C., so too should the inhabitants of that marble temple be careful not to exercise their jurisdiction so as to interrupt or thwart the process by which state judges flesh out the independent guarantees of their own declaration of rights. Viewed in this light, the adequate state ground doctrine serves not only to guard against the issuance of advisory opinions, but also to guarantee that state courts will be accorded the autonomy and independence necessary to begin to fashion for themselves a separate jurisprudence of civil liberties.
• III. Federalism and the Protection of Civil Liberties
• The Burger Court’s brand of federalism, it would appear, only rewards one kind of state experimentation: experiments conducted in the service of narrowing rights. Although state civil liberties claimants have been told that federalism requires that access to federal courts must be significantly limited, federalism has proven to be almost no barrier at all to the Supreme Court’s review of state judgments protecting rights. To quote Justice Stevens again, the Court’s one sided conception of federalism “has created the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights.”
• This is not the same brand of federalism that Justice Black spoke so eloquently about in Younger v. Harris. Rejecting the extremes of either “blind deference to ‘States Rights’” or “Centralization of control over every important issue in our National Government and its courts,” Black argued instead that federalism entails a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuous of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . . [T]he concept [represents] a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious through it may be to vindicate and protect federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.
• Nor is the Court’s treatment of state civil liberties decisions consistent with Justice Brandeis’ concept of federalism, which considers state court experimentation to be “one of the happy incidents of the federal system. Decentralization, Brandeis contended, fosters an independence of thought and attitude that is crucial if states are to “serve as laborator[ies] and try novel social and economic experiments.”
• According to the Black/Brandeis perspective, vigorous enforcement of civil liberties constitutes one of those “legitimate activit[ies] of the States” that should be protected from federal interference. Both Justices built their judicial careers around the idea that preservation of our federalist structure and protection of civil liberties are compatible goals. To them, the willingness of state courts to expand civil liberties was one of the blessings of federalism and merited the Court’s support and encouragement—not its condemnation.
• Conclusion
• For nearly one-half of a century, the United States Supreme Court has exercised largely unquestioned leadership over the pace and direction of civil liberties development. Having become so accustomed to thinking about Supreme Court review of state court decisions solely in terms of preserving individual rights, little attention has been given to the impact that federal judicial intervention can have in terms of narrowing rights. The Burger Court’s treatment of expansive state civil liberties judgments is a poignant reminder that federal intervention can hinder the protection of rights. The Court’s insensitive approach to the demands of independent constitutional interpretation has resulted in the exercise of federal judicial review in a manner that thwarts the very innovative forces that the Black/Brandeis conception endeavors to protect.

The relationship between the United States Supreme Court and state courts is complex and dynamic. The conventional portrait of state judges as personally unsympathetic toward and institutionally incapable of vindicating individual rights no longer depicts current realities. An increasing number of state judiciaries are in the process of openly questioning whether “the national version of the first amendment, or the fourth, or the fifth, will always be the best the nation could want.” The existence of active state courts willing to expand rights is a reminder that “federalism need not be a mean-spirited doctrine that serves only to limit the scope of human liberty.” It also presents the Court with a rare opportunity to demonstrate that decentralization can serve to foster civil liberties protection—to make the Black/Brandeis ideal a constitutional reality—if only the Justices would refrain from staying the hand of state experimentation.

 

Eric B. Schnurer, “The Inadequate and Dependent Adequate and Independent State Grounds Doctrine”

Eric B. Schnurer, “The Inadequate and Dependent “Adequate and Independent State Grounds” Doctrine,”

18 Hastings Const. L.Q. 371 (1991)

As Professor Terrance Sandalow has written, “The [AISG] rule is usually stated negatively: ‘Where the decision of the state court is deemed to rest upon a nonfederal ground which independently and adequately supports the state court judgment, the Supreme Court will not exercise jurisdiction to review notwithstanding the raising of federal questions upon the state court record or the decision of these questions by the state court.”’1In short, if a state court decision rests on grounds that are not federal, and do not rely upon federal law to resolve the issue, then the United States Supreme Court will not review the ruling. At least, in theory.2

In practice, the . . . “adequate and independent state grounds” test does not stop the Justices from saying “yes” to a case if they so desire.3 This is not because the doctrine is wrong–in fact, it serves valid constitutional and prudential (that is, economic) ends. It is rather that, just as Justice Harlan said “one man’s vulgarity is another man’s lyric,”4 so too one Justice’s adequate state ground is another Justice’s flimsy pretext–and one’s independent state ground is another’s muddling of federal precedent.

I. The Not-So-Independent State Ground

Prior to Michigan v. Long,5 the presumption was that an asserted state ground was independent and that the United States Supreme Court would not review the state court’s determination. Michigan v. Long reversed that presumption, declaring that the Supreme Court would review state court decisions which alluded to federal bases for decision, unless the state court made a “plain statement” that the determination of state law did not actually rest on federal law.6

A. State Court Responses to Long

The Michigan v. Long standard for assessing the “independence” of the state ground is unnecessarily constricted. To see why, let us consider the possible state court responses to such a federal doctrine.

1. Eschewal of Federal Grounds

The first way that state courts could respond to the challenge of Michigan v. Long would be to avoid the problem entirely by refusing to reach federal questions at all.

2. The Tendency of State Courts to Ignore Long

Of course, not all courts are inclined to follow this wisdom, for several reasons. One is that old habits die hard, and most lawyers, including those who are now judges, are not accustomed to addressing state constitutional issues or to ignoring federal ones. A related although less complimentary reason may be that many state court judges are not prepared to address or create an independent body of state reasoning if federal precedents appear to dispose of the issue.24

3. The “Surgeon General’s Warning” Approach

As might be expected, some state courts have taken the Supreme Court at its word and adopted a sort of “Surgeon General’s Warning” to be inserted into any opinion in which both state and federal grounds for a holding are discussed. Thus, Justice Souter’s former court, the New Hampshire Supreme Court, took the logical step, shortly after Michigan v. Long, of publishing in one opinion the following “quit-claim”: “We hereby make clear that when this court cites federal or other State court opinions in construing provisions of the New Hampshire Constitution or statutes, we rely on those precedents merely for guidance and do not consider our results bound by those decisions.” [This is known as the “New Hampshire rule.]” This declaration exposes the absurdity of the Michigan v. Long rule.

Regardless of how conscientious a state court is in attaching a “Surgeon General’s Warning” to all its opinions or how lackadaisical in warming over the reasoning of federal courts in analogous areas, a state ruling should be taken to be “independent” of federal law if it is not, in the state court’s view, compelled by federal precedent.

B. What’s so Wrong with Long?

The major problem with Long goes a bit deeper than this, however. Under Long, the Supreme Court essentially has said that rather than presuming that state judges have come to their own reasoned analysis of their own law, however misguided their reliance on federal caselaw as persuasive authority might be, the Court will instead presume that state court judges are simply too lazy to have really independently interpreted their own laws.33Such a presumption condescends to state judges and denigrates the concept of federalism, particularly with respect to state court competence–generally advocated in the habeas context by precisely those on the Court who supported the Michigan v. Long doctrine in the direct review context.34

The differences between Justice Brennan’s permutations of the “adequate and independent state grounds” doctrine and those of the Michigan v. Long Court spring from the fact that the Long approach extends the reach of the Supreme Court into state court rulings by questioning the “independence” of state court reasoning. The Warren Court, in contrast, extended its reach into state decisions by questioning the “adequacy” of the state court reasoning in such cases as Henry v. Mississippi.4

II. The Not-So-Adequate State Ground

In order to bar Supreme Court review, a state ground must be not only “independent” but also “adequate.” Inadequacy comes in many guises: a lack of fair and substantial support in the facts,54 a new state rule employed for the occasion in order to defeat the federal claim,55 or refusal to consider the merits of a federal claim on the basis of a rule “more properly deemed discretionary than jurisdictional.”56

In short, no matter how carefully crafted a state law opinion may be to avoid dependence upon federal law, a state ground will only be “adequate” when the United States Supreme Court either does not oppose its underlying or resultant policy implications or is unwilling to do something about it. State grounds will never be securely “adequate and independent” when the state and federal systems are ideologically out of line and the United States Supreme Court is activist.76

Does this mean that “adequate and independent state grounds” is a bad doctrine? Certainly not. It means only that it is a doctrine that requires the vigilance of advocates at the bar to ensure that it is not honored only in the breach.

 

Mandatory, not discretionary

Cal. Constitution Art. I, sec. 26

ARTICLE 1: DECLARATION OF RIGHTS

SEC. 26. The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.

State Board of Education v. Levit, (1959), 52 Cal.2d 441

SHENK, J.

This is an original proceeding in mandamus. The petitioner, the State Board of Education, is authorized by the state Constitution to “provide, compile, or cause to be compiled, and adopt, a uniform series of textbooks for use in the day and evening elementary schools throughout the State … [and to] cause such textbooks, when adopted, to be printed and published. …” (Const., art. IX, § 7.) The respondent is the state executive officer in charge of the Department of Finance. This department is charged by law with the duty of executing promptly all orders for printing received from state agencies1 and all orders of the State Board of Education for printing must be approved and supervised by the Department of Finance.

The State Board of Education here seeks to compel the respondent to comply with orders to print “Science for Work and Play” and “Science for Here and Now” two elementary school textbooks and their teachers’ manuals, published and copyrighted by D. C. Heath and Company. The respondent originally refused to comply with these printing orders solely because of the restrictive provision appearing in item 435 which reads: “None of the moneys appropriated by this item shall be expended for publishing, purchasing, shipping, or paying royalties for the books known as ‘Science for Work and Play’ and ‘Science for Here and Now.’

A novel and important constitutional question is presented, namely, whether the restrictive provision in item 435 of the Budget Act of 1958 constitutes a valid exercise of the legislative power or an invalid encroachment upon the textbook powers given to the State Board of Education by section 7 of article IX of the Constitution. In considering the main issue, namely, the validity of the restrictive provision in item 435, this court is requested to define the scope of the textbook powers of the State Board of Education, as conferred on it by the provisions of section 7 of article IX of the Constitution, and to define the powers of the Legislature both with respect to appropriations and general statutes where the purchase and distribution of textbooks is concerned.

Before examining further the provisions of section 7, article IX of the Constitution, it should be noted that the Constitution of 1879 provides in section 22 of article I, as follows: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” As early as January 1881 this court held in Matter of Maguire, 57 Cal. 604, at page 609 as follows: “The Constitution furnishes a rule for its own construction. That rule is that its provisions are ‘mandatory and prohibitory, unless by expressed words they are declared to be otherwise.’ (Art. I, § 22.) We find no such express words in the Constitution. This rule is an admonition placed in this the highest of laws in this State, that its requirements are not meaningless, but that what is said is meant, in brief, ‘we mean what we say.’ Such is the declaration and command of the highest sovereignty among us, the people of this State, in regard to the subject under consideration.” Thereafter, in 1886, in Oakland Paving Co. v. Hilton, 69 Cal. 479 [11 P. 3], this section was referred to and at page 512 it was held: “… Under our constitution no question can be made whether the provision in it for its amendment is mandatory or directory. That question is settled by the constitution itself, which ordains in the most solemn form and manner that each and all of its provisions are mandatory and prohibitory, unless by express words declared to be otherwise. (Art. 1, § 22.) This section, in our judgment, not only commands that its provisions shall be obeyed, but that disobedience of them is prohibited. Under the stress of this rule, it is the duty of this court to give effect to every clause and word of the constitution, and to take care that it shall not be frittered away by subtle or refined or ingenious speculation. The people use plain language in their organic law to express their intent in language which cannot be misunderstood, and we must hold that they meant what they said.”

In 1911 this court took judicial notice of the purpose of the framers of the Constitution of 1879 in enacting section 22 of article I and held in Clark v. Los Angeles, 160 Cal. 30, at page 41 [116 P. 722]: “Section 22, as is well known, was inserted because of certain previous decisions holding that the provisions of the constitution of 1849 regarding the titles of legislative acts were directory and not mandatory.” In People v. City of San Buenaventura (1931), 213 Cal. 637, it was held at pages 639-640 [3 P.2d 3]: “This declaration applies to all sections of the Constitution alike, and is binding upon any department of the state government, legislative, executive or judicial. In People v. Gunn, 85 Cal. 238 [24 P. 718], this court followed its decision in an earlier case, and said: “even in the absence of a clause making its provisions mandatory and prohibitory, the court will not hold the provisions of a constitution to be directory or unessential, but will rather hold that wherever it prescribes a mode, that mode is the measure of power.’ In Santa Clara County v. Superior Court (1949), 33 Cal.2d 552, this court again held in no uncertain terms, at page 554 [203 P.2d 1], as follows: “Unquestionably, it must be recognized that our Constitution (art. I, § 22) makes its provisions ‘mandatory and prohibitory, unless by express words they are declared to be otherwise’; that this declaration applies to all sections of our Constitution alike, and every one subject to its mandate-county authorities as well as departments of the state government-must comply.” The provisions of section 22 of article I are therefore binding upon this court in its construction of the provisions of the Constitution.

[The Court concluded that:] The restriction in item 435, considered in the light of all the circumstances, was not a curtailment of curriculum but was prohibition against the particular books named. It therefore violates the prohibitions of section 7 of article IX of the Constitution and must be held invalid. The peremptory writ is ordered to be issued requiring the respondent to consider the printing orders involved without regard to the ineffective restriction contained in item 435 of the Budget Act of 1958.

 

Amendment versus revision

Cal. Constitution Art. XVIII

ARTICLE 18: AMENDING AND REVISING THE CONSTITUTION

SEC. 1. The Legislature by roll call vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.

SEC. 2. The Legislature by roll call vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

SEC. 3. The electors may amend the Constitution by initiative.

SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

 

Livermore v. Waite (1894), 102 Cal. 113

[Art. 20, § 1 of the 1879 Constitution provided that: “‘The city of Sacramento is hereby declared to be the seat of government of this state, and shall so remain until changed by law; but no law changing the seat of government shall be valid or binding unless the same be approved and ratified by a majority of the qualified electors of the state, voting therefor at a general state election, under such regulations and provisions as the legislature, by a two-thirds vote of each house, may provide, submitting the question of change to the people.” In 1893, the California legislature submitted a referendum to the people providing that the state capital should be San Jose, contingent on the state being given ten acres and $1,000,000. for purposes of the relocation. Plaintiff brought a taxpayer’s suit challenging both the procedural and the substantive validity of the proposed amendment. The Court held it unconstitutional, saying:]

The power of the legislature to initiate any change in the existing organic law is, however, of greatly less extent [than the power of a constitutional convention], and, being a delegated power, is to be strictly construed, under the limitations by which it has been conferred. In submitting propositions for the amendment of the constitution, the legislature is not in the exercise of its legislative power, or of any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power, conferred upon it by the people, and which might with equal propriety have been conferred upon either house, or upon the governor, or upon a special commission, or any other body or tribunal. The extent of this power is limited to the object for which it is given, and is measured by the terms in which it has been conferred, and cannot be extended by the legislature to any other object, or enlarged beyond these terms. The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment, nor can it submit to their votes a proposition which, if adopted, would, by the very terms in which it is framed, be inoperative. The constitution itself has been framed by delegates chosen by the people for that express purpose, and has been afterwards ratified by a vote of the people, at a special election held for that purpose; and the provision in article 18 [providing for amendment of the state Constitution] that it can be revised only in the same manner, and after the people have had an opportunity to express their will in reference thereto, precludes the idea that it was the intention of the people, by the provision for amendments authorized in the first section of this article, to afford the means of effecting the same result which in the next section has been guarded with so much care and precision.

The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. Experience may disclose defects in some of its details, or in the practical application of some of the principles or limitations which it contains. The changed condition of affairs in different parts of the state, or the changes of society or time, may demand an enlargement of some of these limitations, or an extended application of its principles. So, too, some popular wave of sociological reform, like the abolition of the death penalty for crime, or a prohibition against the manufacture or sale of intoxicating liquors, may induce a legislature to submit for enactment, in the permanent form of a constitutional prohibition, a rule which it has the power itself to enact as a law, but which might be of only temporary effect.

[The Court went on to hold that the proposed amendment was void because it was contingent on two requirements that might never be met, thus leaving the state without a capital.]

The legislature was not authorized by the framers of the constitution, nor do the terms of that instrument permit it, to propose any amendment that will not, upon its adoption by the people, become an effective part of the constitution; nor is it authorized to propose an amendment which, if ratified, will take effect only at the will of other persons, or upon the approval by such persons of some specific act or condition. The amendment proposed is neither a declaration by the people of a principle or of a fact, nor is it a limitation or a rule prescribed for the guidance of either of the departments to which the sovereignty of the people has been intrusted. If adopted, it would have merely the effect to present the option to any one so disposed of making a donation of land and money for the purpose of having the seat of government at San Jose. Such a proposition is legislative in character, rather than constitutional, and, being conditional in its terms, would be ineffective in accomplishing a change of the seat of government from that already fixed by the constitution.

We do not mean to say that a legislative provision in a constitution that has been ratified by the people would be nugatory. If placed there, it must be observed by courts and citizens; but, for the purpose of determining the extent of the power conferred upon the legislature to propose amendments to the constitution, we must assume that it is only such amendments as may naturally and reasonably belong to the elements of a constitution. The amendment proposed substitutes for, or rather superadds to, the will of the people another will or judgment, without which its own will can have no effect, and which is therefore made the controlling judgment before the amendment can have any operative existence. As the proposed amendment is therefore only a proposition for the people to submit to some other individuals or body to determine whether there shall be a change of the seat of government, we hold that it is not such an amendment as the legislature has been authorized to submit to their votes. If the people shall at any time desire a removal of the seat of government from Sacramento, this result can be readily effected, either by a law passed in accordance with the existing provisions of the constitution, or by a proposal on the part of the legislature for such an amendment to the constitution as will afford them an opportunity to give immediate effect to their desire by a direct vote upon the question. The judgment and order of the court below are affirmed.

 

Amador Valley Joint Union High School District v. State Board of Equalization (1978), 22 Cal.3d 208

RICHARDSON, Justice.

In these consolidated cases, we consider multiple constitutional challenges to an initiative measure which was adopted by the voters of this state at the June 1978 primary election. This measure, designated on the ballot as Proposition 13 and commonly known as the Jarvis-Gann initiative, added article XIII A to the California Constitution.

It is a fundamental precept of our law that, although the legislative power under our constitutional framework is firmly vested in the Legislature, “the people reserve to themselves the powers of initiative and referendum.” (Cal. Const., art. IV, s 1.) It follows from this that, “the power of initiative must be liberally construed . . . to promote the democratic process.

The petitioners’ primary argument is that article XIII A represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a “revision” of the state Constitution rather than a mere “amendment” thereof. As will appear, although the voters may accomplish an amendment by the initiative process, a constitutional revision may be adopted only after the convening of a constitutional convention and popular ratification or by legislative submission to the people.

Prior to 1962 a constitutional revision could be accomplished only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, s 2). This fact suggests that the term “revision” in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions. Many years ago, we described the fundamental distinction between revision and amendment as follows: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.”

Our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the “substantial entirety” of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.

Petitioners insist, however, that the new article also will have far reaching qualitative effects upon our basic governmental plan, in two principal particulars, namely, (1) the loss of “home rule” and (2) the conversion of our governmental framework from “republican” to “democratic” form. A close analysis of XIII A convinces us that its probable effects are not as fundamentally disruptive as petitioners suggest

[Discussion of the home-rule challenge is omitted.]

b.) Loss of republican form of government. Continuing their thesis that XIII A is a constitutional revision not an amendment. . ., petitioners next maintain that the operation of the article, and particularly section 4 thereof, will result in a change from a “republican” form of government (i. e., lawmaking by elected representatives) to a “democratic” governmental plan (i. e., lawmaking directly by the people).

Contrary to petitioners’ assertion, however, we are convinced that article XIII A is more modest both in concept and effect and does not change our basic governmental plan. Following the adoption of article XIII A both local and state government will continue to function through the traditional system of elected representation. Other than in the limited area of taxation, the authority of local government to enact appropriate laws and regulations remains wholly unimpaired. The requirement of section 4 that any “special taxes” must be approved by a two-thirds vote of the “qualified electors” restricts but does not abolish the power of local governments in the raising of revenue. We decline to hold that such a “super-majority” requirement, the two-thirds vote, standing alone and limited to the subject of taxes, constitutes a substantial constitutional revision which cannot be accomplished through an initiative.

Notwithstanding our continuing representative and republican form of government, the initiative process itself adds an important element of direct, active, democratic contribution by the people. We thus conclude that section 4 of article XIII A, and its requirement of substantial popular support, beyond that of a bare majority for the approval and adoption of “special” local taxes adds nothing novel to the existing governmental framework of this state.

In summary, we believe that it is apparent that article XIII A will result in various substantial changes in the operation of the former system of taxation. Yet the article XIII A changes operate functionally within a relatively narrow range to accomplish a new system of taxation which may provide substantial tax relief for our citizens. We decline to hold that such a limited purpose cannot be achieved directly by the people through the initiative process.

Although we express neither approval nor disapproval of the article from the standpoint of sound fiscal or social policy, we find nothing in the Constitution’s revision and amendment provisions (art. XVIII) which would prevent the people of this state from exercising their will in the manner herein accomplished. Indeed, if the foregoing description of the initiative as a “legislative battering ram” is accurate it would seem anomalous to insist, as petitioners in effect do, that the sovereign people cannot themselves act directly to adopt tax relief measures of this kind, but instead must defer to the Legislature, their own representatives. We conclude that article XIII A fairly may be deemed a constitutional amendment, not a revision.

CONCLUSION

Petitioners and the amici curiae who support them have mounted substantial and serious legal challenges to the provisions of article XIII A. In doing so they have expressed a commendable and sincere concern that the modifications of the California tax system which are mandated by the new article will impose intolerable financial hardships and administrative burdens in different forms and with varying intensity on public entities, programs, and services throughout California. Yet, as we have recently acknowledged, it is our solemn duty “to jealously guard” the initiative power, it being “one of the most precious rights of our democratic process.” Consistent with our own precedent, in our approach to the constitutional analysis of article XIII A if doubts reasonably can be resolved in favor of the use of the initiative, we should so resolve them. This we have done.

Having carefully considered them, we have concluded that article XIII A survives each of the substantial challenges raised by petitioners. The orders to show cause previously issued in these cases are discharged, and the respective petitions are denied.

 

Raven v. Deukmejian (1990), 52 Cal.3d 336

LUCAS, Chief Justice.

I. Introduction

In this proceeding, we consider challenges to the validity of an initiative measure adopted at the June 5, 1990, Primary Election. This measure, designated on the ballot as Proposition 115, is entitled by its framers as the “Crime Victims Justice Reform Act.” Its stated general purpose is to adopt “comprehensive reforms … needed in order to restore balance and fairness to our criminal justice system.” To achieve that purpose, the measure adopts a variety of changes and additions to our state Constitution and statutes.

Petitioners herein are taxpayers and voters asserting a challenge to the manner in which Proposition 115 was presented to the voters, and objecting to any further expenditure of funds to enforce or implement the measure. Specifically, petitioners (and several amici curiae supporting them) claim the measure violates both (1) the “single subject” rule embodied in our state Constitution (art. II, § 8, subd.(d)), and (2) the rule requiring constitutional “revisions” to be accomplished by more formal procedures than are contemplated for mere constitutional “amendments” (art. XVIII). Respondents are certain public officials and courts charged with the responsibility of implementing, enforcing or applying the new measure. They too are supported by various amici curiae.

B. Constitutional Revision or Amendment

Petitioners next argue that Proposition 115 in effect achieved a constitutional revision rather than a mere amendment. Although “the electors may amend the Constitution by initiative” (Cal.Const., art. XVIII, § 3), a “revision” of the Constitution may be accomplished only by convening a constitutional convention and obtaining popular ratification (id., § 2), or by legislative submission of the measure to the voters (id.,§ 1). Petitioners suggest the revision provision is based on the principle that “comprehensive changes” to the Constitution require more formality, discussion and deliberation than is available through the initiative process.

Petitioners’ arguments focus primarily on a single provision of Proposition 115, namely, the amendment to article I, section 24, of the state Constitution relating to the independent nature of certain rights guaranteed by that Constitution. (The additional constitutional changes effected by Proposition 115, involving such isolated matters as postindictment preliminary hearings, joinder of cases, use of hearsay, reciprocal discovery, and the People’s right to due process and a speedy, public trial, cannot be deemed matters which standing alone, or in the aggregate, substantially change our preexisting governmental framework.) As will appear, petitioners’ arguments are well taken.

Article I, section 24, added in 1974, originally provided in relevant part that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Proposition 115 would add the important proviso that “In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and not to suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.”

In our view the effect of the measure would be so far reaching as to amount to a constitutional revision beyond the scope of the initiative process. We turn to a discussion of the quantitative and qualitative effects of Proposition 115 and particularly its restriction on the independent judicial interpretation of the enumerated state constitutional rights.

[Discussion of quantitative effects of Prop 115 omitted.]

2. Qualitative effect—We have stated that. . . “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also…. [A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.”

Proposition 115 contemplates a similar qualitative change. In essence and practical effect, new article I, section 24, would vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court. From a qualitative standpoint, the effect of Proposition 115 is devastating.

Even under respondent Attorney General’s “limited” construction of new article 1, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants’ rights than extended by the federal Constitution, as construed by the United States Supreme Court.

For example, if the high court were to rule that public torture or maiming of persons convicted of minor misdemeanors did not offend the federal due process, equal protection or cruel and unusual punishment clauses, presumably the California courts interpreting similar state constitutional guarantees would be compelled to agree and to uphold state legislation imposing such severe forms of punishment. As a practical matter, ultimate protection of criminal defendants from deprivation of their constitutional rights would be left in the care of the United States Supreme Court. Moreover, the nature and extent of state constitutional guarantees would remain uncertain and undeveloped unless and until the high court had spoken and clarified federal constitutional law.

In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government. In framing the Declaration of Rights in both the 1849 and 1879 California Constitutions, the drafters largely looked to the constitutions of the other states, rather than the federal Constitution, as potential models.

Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution.

The foregoing authorities acknowledge and support a general principle or policy of deference to United States Supreme Court decisions, a policy applicable in the absence of good cause for departure or deviation therefrom. Yet it is one thing voluntarily to defer to high court decisions, but quite another to mandate the state courts’ blind obedience thereto, despite “cogent reasons,” “independent state interests,” or “strong countervailing circumstances” that might lead our courts to construe similar state constitutional language differently from the federal approach.

Despite the general rule of deference, the adoption in 1974 of article I, section 24, confirmed that the California courts had the authority to adopt an independent interpretation of the state Constitution. As the section then read, in pertinent part, “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” This declaration of independence made explicit a preexisting fundamental principle of constitutional jurisprudence.

Proposition 115 imposes such an imperative for the first time in California’s history. It substantially alters the preexisting constitutional scheme or framework heretofore extensively and repeatedly used by courts in interpreting and enforcing state constitutional protections. It directly contradicts the well-established jurisprudential principle that, “The judiciary, from the very nature of its powers and means given it by the Constitution, must possess the right to construe the Constitution in the last resort….”

New article I, section 24, more closely resembles Amador‘ s hypothetical provision vesting all judicial power in the Legislature, a provision we deemed would achieve a constitutional revision. As noted, in practical effect, the new provision vests a critical portion of state judicial power in the United States Supreme Court, certainly a fundamental change in our preexisting governmental plan.

For all the foregoing reasons, we conclude that new article I, section 24, represents an invalid revision of the California Constitution. But its invalidity does not affect the remaining provisions of Proposition 115, which are clearly severable from the invalid portion. As previously indicated, Proposition 115 contains a severance clause providing, “If any provision of this measure or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.”

 

Vikram D. Amar, “California Constitutional Conundrums”

 

Strauss v. Horton (2009), 46 Cal.4th 364

GEORGE, C.J.

In the present case, we address the question whether Proposition 8 [prohibiting same-sex marriage] under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and—if it does—we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases—that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”. Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment—proposed and adopted by a majority of voters through the initiative process—cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. As we shall see, there have been many amendments to the California Constitution, adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect.

Contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was litigated and resolved in the Marriage Cases. The initiative measure does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8. Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

No authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process—as already noted, some state constitutions contain just such explicit limits—the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted—perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states—this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.

In light of the interpretation of the language of Proposition 22 in the Marriage Cases, as well as the history of Proposition 8 itself, there is no question but that article I, section 7.5—the section added by Proposition 8 to the California Constitution—properly must be interpreted to apply both to marriages performed in California and to marriages performed in other jurisdictions.

Second, we consider the effect that Proposition 8 has on the “constitutional right to marry” as that right is discussed and analyzed in the majority opinion in the Marriage Cases. As we have seen, the opinion explained that this right constitutes one aspect of the right of privacy embodied in article I, section 1 of the California Constitution, as well as a component of the liberty protected by the due process clause of article I, section 7 of the California Constitution, and encompasses “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the “constitutional right to marry,” at the same time that opinion explained that this constitutional right is distinct from the right to have one’s family relationship designated by the term “marriage.” Because in common speech the term “right to marry” is most often used and understood to refer to an individual’s right to enter into the official relationship designated “marriage,” and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as “the constitutional right to marry,” hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases—namely, the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).

Although the new constitutional section added by Proposition 8—article I, section 7.5—does not explicitly purport to amend either the privacy or due process provisions of the California Constitution, our past cases make clear that this newly adopted provision must be understood as carving out an exception to the preexisting scope of the privacy and due process clauses with respect to the particular subject matter encompassed by the new provision

By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage ” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored, Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.

Having analyzed and clarified the effect of Proposition 8 on the state constitutional rights of same-sex couples as determined in the Marriage Cases, we now address the multiple challenges under the California Constitution that have been advanced against Proposition 8 in the present proceeding. We begin with the principal contention raised by petitioners in each of the cases before us—namely, that the constitutional change embodied in Proposition 8 constitutes a constitutional revision rather than a constitutional amendment, and, as such, may not be adopted through the initiative process. [Chief Justice George proceeded to an excruciatingly thorough review of some thirty pages of the amendment/revision distinction in California constitutional law.]

As is revealed by the foregoing history of the amendment/revision distinction, and as our past cases demonstrate in applying that distinction, a change in the California Constitution properly is viewed as a constitutional revision only if it embodies a change of such far reaching scope that is fairly comparable to the example set forth in the Amador decision, namely, a change that “vests all judicial power in the Legislature.” It is only a qualitative change of that kind of far reaching scope that the framers of the 1849 and 1879 Constitutions plausibly intended to be proposed only by a new constitutional convention, and not through the ordinary amendment process. As we shall explain, the constitutional change embodied in Proposition 8—although without question of great importance to the affected individuals—by no means makes such a far reaching change in the California Constitution as to amount to a constitutional revision.

In advancing the claim that Proposition 8 should be characterized as a constitutional revision rather than as a constitutional amendment, petitioners also rely heavily upon the circumstance that the measure was proposed directly by the people through the initiative process rather than by the Legislature, implying that under the state Constitution a measure proposed by initiative is more “constitutionally suspect” than would be a comparable measure proposed by the Legislature. Past California cases, however, provide no support for the suggestion that the people’s right to propose amendments to the state Constitution through the initiative process is more limited than the Legislature’s ability to propose such amendments through the legislative process. To the contrary, the governing California case law uniformly emphasizes that “ ‘it is our solemn duty jealously to guard the sovereign people’s initiative power, “it being one of the most precious rights of our democratic process” ’ ” and that “ ‘ we are required to resolve any reasonable doubts in favor of the exercise of this precious right.’ ” The provisions of the California Constitution draw no distinction between the types of constitutional amendments that may be proposed through the initiative process as compared to those that may be proposed by the Legislature, and our past cases indicate that no such distinction exists.

It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, and in light of the history of the relevant California constitutional provisions regarding the amendment/revision distinction and the numerous California precedents interpreting and applying that distinction, we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners. Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney ***681 General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.

 

State action

The Civil Rights Cases, 109 U.S. 3 (1883)

[Justice Joseph Bradley’s opinion in this case is the origin of the state-action doctrine. It held unconstitutional the 1875 Civil Rights Act, a public-accommodations statute, on the grounds that the Fourteenth Amendment did not empower Congress to legislate against the behavior of private individuals, but only against the actions of states. (Section 1 of the Amendment states that “No state shall….) Note that one of the three companion cases involved refusal of seating in a theater in San Francisco.]

BRADLEY, J.

These cases are all founded on the first and second sections of the act of congress known as the ‘Civil Rights Act,’, entitled ‘An act to protect all citizens in their civil and legal rights.’ Two of the cases, those against Stanley and Nichols, are indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, are, one an information, the other an indictment, for denying to individuals the privileges and accommodations of a theater, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire’s theater in San Francisco; and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accommodations of the theater known as the Grand Opera House in New York, ‘said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude.’

Has congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the constitution before the adoption of the last three amendments. The power is sought, first, in the fourteenth amendment, and the views and arguments of distinguished senators, advanced while the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. The first section of the fourteenth amendment,-which is the one relied on,-after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.‘

It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment.

In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress.

 

Porten v. University of San Francisco (1976), 64 Cal.App.3d 825

Marvin L. Porten appeals from a judgment of dismissal rendered after a demurrer to his complaint was sustained without leave to amend. Appellant’s complaint prayed damages against respondent University of San Francisco arising out of the university’s claimed misconduct in disclosing to the State Scholarship and Loan Commission the grades appellant had earned at Columbia University before transferring to the University of San Francisco.

Appellant argues . . . that his complaint states a cause of action under the privacy provision added to the state Constitution in 1972. Section 1 of article I of the California Constitution provides: “Section 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.)”

The elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the privacy right. The election brochure argument states: “The right to privacy is much more than ‘unnecessary wordage.’ It is fundamental to any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions on privacy to insure protection of our basic rights.” (Cal. Ballot Pamp.(1972) p. 28.)1 (Italics added.)

The constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians. Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone.2

In view of the foregoing considerations and the broad language of the California Supreme Court in White to the effect that the new constitutional provision protecting privacy is aimed at curbing “the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party,” the allegations of appellant’s complaint, which for present purposes must be deemed true,6 state a prima facie violation of the state constitutional right of privacy.

The judgment is reversed with directions to overrule the general demurrer. [I.e., the case was remanded to the trial court and Porten was permitted to litigate his claim.]

 

People v. Zielinski (1979), 24 Cal.3d 357

Virginia Zelinski was charged with unlawful possession of a controlled substance, heroin. She entered a plea of guilty and appeals. We reverse.

[Moore (a private security guard employed by a department store) detained defendant Zielinski on suspicion of shoplifting. Moore] testified that he reentered the security office when the search of defendant’s person was completed, opened defendant’s purse to retrieve the blouse taken from Zody’s [the department store], and removed the blouse and a pill vial that lay on top of the blouse.1 Moore examined the vial, removed a balloon from the bottle, examined the fine powdery substance contained in the balloon,2 and set the vial and balloon on the security office desk to await the police who had been called.

Defendant’s appeal involves two questions (1) whether store detectives Moore, O’Connor and Forrest [employees of a private entity] exceeded the permissible scope of search incident to the arrest, and (2) if they did, whether the evidence thus obtained should be excluded as violative of defendant’s rights under federal or state Constitutions. We have concluded that the narcotics evidence was obtained by unlawful search and that the constitutional prohibition against unreasonable search and seizure affords protection against the unlawful intrusive conduct of these private security personnel.

Pursuant to the Penal Code or the civil common law privilege, store personnel Moore and O’Connor had authority to arrest or detain defendant [a suspected shoplifter]. The question remains, however, whether they exceeded their authority in their subsequent search for and seizure of evidence.

In the instant case, however, we need not, and do not, decide whether the constitutional constraints of article 1, section 13, apply to all of the varied activities of private security personnel, for here the store security forces did not act in a purely private capacity but rather were fulfilling a public function in bringing violators of the law to public justice. We conclude that under such circumstances, i. e., when private security personnel conduct an illegal search or seizure while engaged in a statutorily-authorized citizen’s arrest and detention of a person in aid of law enforcement authorities, the constitutional proscriptions of article 1, section 13 are applicable.

Although past cases have not applied the constitutional restrictions to purely private searches, we have recognized that some minimal official participation or encouragement may bring private action within the constitutional constraints on state action. In the instant case, the store employees arrested defendant pursuant to the authorization contained in Penal Code section 837, and the search which yielded the narcotics was conducted incident to that arrest. Their acts, engaged in pursuant to the statute, were not those of a private citizen acting in a purely private capacity. Although the search exceeded lawful authority, it was nevertheless an integral part of the exercise of sovereignty allowed by the state to private citizens. In arresting the offender, the store employees were utilizing the coercive power9 of the state to further a state interest. Had the security guards sought only the vindication of the merchant’s private interests they would have simply exercised self-help and demanded the return of the stolen merchandise. Upon satisfaction of the merchant’s interests, the offender would have been released. By holding defendant for criminal process and searching her, they went beyond their employer’s private interests.

Persons so acting should be subject to the constitutional proscriptions that secure an individual’s right to privacy, for their actions are taken pursuant to statutory authority to promote a state interest in bringing offenders to public accounting.10

Accordingly, we hold that in any case where private security personnel assert the power of the state to make an arrest or to detain another person for transfer to custody of the state, the state involvement is sufficient for the court to enforce the proper exercise of that power by excluding the fruits of illegal abuse thereof. We hold that exclusion of the illegally seized evidence is required by article I, section 13 of the California Constitution.

 

Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979), 24 Cal.3d 458

TOBRINER, Justice.

In June 1975 plaintiffs, four individuals and two associations organized to promote equal rights for homosexual persons, filed the present class action against Pacific Telephone and Telegraph Company (PT&T)1 and the California Fair Employment Practice Commission (FEPC).2 The complaint alleged that PT&T practices discrimination against homosexuals in the hiring, firing and promotion of employees, asserted the illegality of such employment discrimination and sought declaratory and injunctive relief to prevent PT&T from the continuation of such practices. PT&T demurred to the complaint, maintaining that even if it had adopted the alleged policy of employment discrimination against homosexuals, California law did not bar such discrimination.

We have concluded that, contrary to PT&T’s assertions, the equal protection clause of the California Constitution places special obligations on a state-protected public utility, such as PT&T, to refrain from all forms of arbitrary employment discrimination. In addition, we have concluded that PT&T’s alleged employment discrimination also violates the explicit statutory prohibition on public utility discrimination embodied in section 453, subdivision (a) of the Public Utilities Code. We turn initially to the constitutional question.

[The equal protection clause] of the California Constitution bars a public utility from engaging in arbitrary employment discrimination. Moreover, past decisions of this court establish that this general constitutional principle applies to homosexuals as well as to all other members of our polity; under California law, the state may not exclude homosexuals as a class from employment opportunities without a showing that an individual’s homosexuality renders him unfit for the job from which he has been excluded.

Article I, section 7, subdivision (a) of the California Constitution provides simply that: “A person may not be deprived of life, liberty or property without due process of law or denied equal protection of the laws.” Unlike the due process and equal protection clauses of the Fourteenth Amendment, which by their explicit language operate as restrictions on the actions of states,6 the California constitutional provision contains no such explicit “state action” requirement. Accordingly, we conclude that under the equal protection guarantee of the California Constitution a state-protected public utility may not arbitrarily or invidiously discriminate in its employment decisions.

We were careful . . . to avoid any implication that the provision of the state Constitution at issue would in all instances be interpreted identically with the analogous provision of the federal Constitution.8 More recently, in Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 282, 146 Cal.Rptr. 208, 217, 578 P.2d 925, 934, we specifically stated that “in interpreting the scope of the due process clause under the state Constitution, we are not bound by federal decisions analyzing the state action requirement under the Fifth or Fourteenth Amendments . . . .” In like fashion, although our court will carefully consider federal state action decisions with respect to the federal equal protection clause insofar as they are persuasive, we do not consider ourselves bound by such decisions in interpreting the reach of the safeguards or our state equal protection clause. As article 1, section 24 of the California Constitution explicitly declares: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

In the instant case, the question with which we are presented is a narrow but important one: Is the California constitutional equal protection guarantee violated when a privately owned public utility, which enjoys a state-protected monopoly or quasi-monopoly, utilizes its authority arbitrarily to exclude a class of individuals from employment opportunities? We conclude that arbitrary exclusion of qualified individuals from employment opportunities by a state-protected public utility does, indeed, violate the state constitutional rights of the victims of such discrimination.

In California a public utility is in many respects more akin to a governmental entity than to a purely private employer. In this state, the breadth and depth of governmental regulation of a public utility’s business practices inextricably ties the state to a public utility’s conduct, both in the public’s perception and in the utility’s day-to-day activities. (See generally Cal.Const., art. XII, ss 1–9).Moreover, the nature of the California regulatory scheme demonstrates that the state generally expects a public utility to conduct its affairs more like a governmental entity than like a private corporation. Both the prices which a utility charges for its products or services and the standards which govern its facilities and services are established by the state; in addition, the state determines the system and form of the accounts and records which a public utility maintains and it exercises special scrutiny over a utility’s issuance of stocks and bonds. Finally, the state had endowed many public utilities, like PT&T, with considerable powers generally enjoyed only by governmental entities, most notably the power of eminent domain. Under these circumstances, we believe that the state cannot avoid responsibility for a utility’s systematic business practices and that a public utility may not properly claim prerogatives of “private autonomy” that may possibly attach to a purely private business enterprise.

5. Conclusion

If this court were to accede to PT&T’s sought sanction for its alleged arbitrary discriminatory practices, we would approve of a rule that would extend beyond the subject of employment discrimination against homosexuals. We would necessarily empower any public utility to engage in an infinity of arbitrary employment practices. To cite only a few examples, the utility could refuse to employ a person because he read books prohibited by the utility, visited countries disapproved by the utility, or simply exhibited irrelevant characteristics of personal appearance or background disliked by the utility. Such possible arbitrary discrimination, casting upon the community the shadow of totalitarianism, becomes crucial when asserted by an institution that exerts the vast powers of a monopoly sanctioned by government itself. We do not believe a public utility can assert such prerogatives in a free society dedicated to the protection of individual rights.

The judgment in favor of PT&T is reversed.

 

Hill V. NCAA (1994), 7 Cal.4th 1

LUCAS, Chief Justice.

The National Collegiate Athletic Association (NCAA) sponsors and regulates intercollegiate athletic competition throughout the United States. Under the NCAA’s drug testing program, randomly selected college student athletes competing in postseason championships and football bowl games are required to provide samples of their urine under closely monitored conditions. Urine samples are chemically analyzed for proscribed substances. Athletes testing “positive” are subject to disqualification.

Plaintiffs, who were student athletes attending Stanford University at the time of trial, sued the NCAA, contending its drug testing program violated their right to privacy secured by article I, section 1 of the California Constitution.

To resolve the dispute between the parties, we address three questions of first impression in this court: (1) Does the Privacy Initiative govern the conduct of private, nongovernmental entities such as the NCAA; and (2) if it does, what legal standard is to be applied in assessing alleged invasions of privacy; and (3) under that standard, is the NCAA’s drug testing program a violation of the state constitutional privacy right?

In its opening attack on the judgment, the NCAA asserts that its private status is dispositive of this action because the Privacy Initiative does not embody a right of action against nongovernmental entities. We disagree.

Article I, section 1 of the California Constitution is an enumeration of the “inalienable rights” of all Californians. “Privacy” is declared to be among those rights. Typical of broad constitutional declarations of rights, the section does not define “privacy” or explain its relationship to other rights or interests. Nor does it specify how or against whom the right of privacy is to be safeguarded. Although none of our decisions has squarely addressed the question whether our state constitutional right to privacy may be enforced against private parties, the Courts of Appeal have consistently answered in the affirmative.

The NCAA nonetheless urges us to impose a state action prerequisite to suits under the Privacy Initiative because it adds “privacy” to the declaration of rights portion of our state Constitution. What the “drafters” of our Constitution’s due process clause “intended by that enactment” remains the pivotal factor in determining whose activity is subjected to regulation. Similarly, what the voters intended in enacting the Privacy Initiative must determine the propriety of any state action requirement in this case. As we have seen, the ballot arguments contain persuasive evidence of drafter and voter intent to recognize a right of action for invasion of privacy against private as well as government entities.

In summary, the Privacy Initiative in article I, section 1 of the California Constitution creates a right of action against private as well as government entities. The legal concept of “privacy” as embodied in the initiative is susceptible of such an interpretation; the ballot arguments strongly support it. Our holding in this regard is necessarily confined to the Privacy Initiative. We intimate nothing about the existence of rights of action or permissible defendants in legal proceedings that may be brought either under other clauses in article I, section 1 or other parts of our state Constitution.

A student athlete’s already diminished expectation of privacy is outweighed by the NCAA’s legitimate regulatory objectives in conducting testing for proscribed drugs. As a sponsor and regulator of sporting events, the NCAA has self-evident interests in ensuring fair and vigorous competition, as well as protecting the health and safety of student athletes. These interests justify a set of drug testing rules reasonably calculated to achieve drug-free athletic competition. For these reasons . . . the NCAA’s drug testing program does not violate plaintiffs’ state constitutional right to privacy.

 

Scott E. Sundby, “Is Abandoning State Action Asking Too Much of the Constitution?”

Scott E. Sundby, “Is Abandoning State Action Asking Too Much of the Constitution?” 17 Hastings Const. L. Q. 139 (1989)

I will pursue the question of whether state action should be required under the [California] constitution. Specifically, I want to raise the question whether extending the California Constitution to include protection against private actors asks too much of the constitution.

I come to this question as one who wants to be convinced that state action should not be required, but has three general concerns or, in the great California tradition, propositions, that I believe need to be addressed:

Proposition One: The state action doctrine reflects a legitimate distinction between government and private conduct and the dangers each poses to constitutional rights.

The argument against state action takes several different forms. First, some have contended that state action is an illusory distinction because all violations of constitutional rights implicate the government. This argument contends that state action exists even when a private actor violates a constitutional right because the state becomes a party to the deprivation itself – an accessory after the fact – by allowing the private action to go unsanctioned. Consequently, because state action is everywhere, the state action doctrine’s flaw is that it really represents no line at all.

When the government acts or is significantly involved in another’s actions, it sends a message of active approval and choice. Whatever the government’s rationale in undertaking the act that results in the alleged violation, the state’s responsibility for the decision to actively proceed is clear. When the government’s role is one of refraining from entering a private dispute, on the other hand, the choice of nonintervention does not necessarily translate into condonation of the private act. At least where sound reasons exist for not recognizing a claim as actionable is not a statement that either party is right or wrong, but a decision that such disputes are best resolved outside the legal system.

A second way of arguing that state action is an arbitrary line is to adopt the perspective of the individual whose rights are being violated. To the employee who is fired for expressing political beliefs contrary to those of her employer, her freedom of speech has been infringed whether the employer is the government or a private entity. Yet, under the state action doctrine, who can claim constitutional protection is based on the transgressor’s identity rather than the nature of the acts. Thus, the employee’s ability to assert a claim based on a constitutional violation will depend on the apparently fortuitous fact of whether her employer is the government.

First, the government poses a greater danger to the citizenry’s constitutional rights because of the government’s pervasiveness and resources. General Motors may be powerful, but it simply does not have the same potential as the government to stifle the exercise of constitutional rights. Again, it is important to distinguish the danger from individual and societal perspectives. Certainly, General Motors might suppress a particular employee’s free speech right as effectively as the government, but the government poses the greater danger to society as a whole. This argument is not meant to ignore or downplay the political and economic power that corporations possess; yet, absent some conspiratorial cooperation, the breadth of power wielded by corporations simply does not compare to that available to the state. The government not only has the ability to affect more than a limited sector of the populace through its actions, it has both economic power, in the form of taxes, grants, and control over social welfare programs, and physical power, through law enforcement agencies, which are capable of coercion far beyond that of the most powerful private actors. Consequently, if one views state action as an attempt to draw a line based on the greatest power to affect citizens’ lives, state action is not an irrational line.

Second, an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government. When the government acts, often few alternatives are available for recourse.

The foregoing distinctions offer broad rationale for differentiating private and state conduct. Admittedly, the rationale are not perfect and do not work as well once the focus is narrowed to individual settings in which the state and private actors are bureaucrats who appear indistinguishable except that one enterprise is funded by the state and the other is not.

Proposition Two: Extending constitutional protection to private actions not only expands the judiciary’s power to find constitutional violations, it also changes the judiciary’s role within the framework of constitutional decisionmaking.

The problem is best understood by first noting how, standing alone, the judiciary’s common-law and constitutional interpretation powers each are limited in their scope. A court’s common-law power to define a new tort or expand an existing one is checked by the legislature, which can overrule or modify the common-law tort. Likewise, the judiciary’s power of constitutional interpretation is a limited one, because under the state action doctrine the courts can act as a constitutional interpreter only when state conduct is involved. Thus, the California Supreme Court’s power to engage in constitutional interpretation is derived from its role as a check on other state actors.

If the state action requirement is removed, both limitations are lost. Unlike common-law torts which the legislature can overrule, the legislature cannot overrule or modify a constitutional right found by a court, which is why Professor Friesen appropriately calls these rights “super torts.” Consequently, no check by another branch of government exists over the judiciary’s creation of new constitutional torts.

More fundamentally, I would hesitate to advocate using judicial recall and elections as methods of interpreting the constitution because they create the distinct danger of turning the judiciary into a political body more concerned with opinion polls than justice. Such a situation eventually would erode the public’s confidence in the judiciary as an independent and neutral decisionmaker.

Proposition Three: Applying the constitution to private actions changes the constitution’s role from regulator of governmental behavior to moral arbitrator of private disputes.

At the risk of overromanticizing the citizenry’s perception of the constitution, the constitution’s current moral force would be diminished if day-to-day affronteries raised potential constitutional claims. This loss of respect also might extend to the judiciary if the courts become perceived as having assumed the role of regulating the conduct of everyday affairs.

On the other hand, it does not seem far-fetched to suggest that if constitutional protections are extended to private actions as well as government-citizen matters, a court will tend to err on the side of restricting the scope of the right rather than given an expansive reading. This tendency would seem particularly likely given the existing perception that the courts are already overburdened by a litigation explosion. Consequently, although abandoning state action might expand the range of remedies against private actors, ultimately such a move might lead to a watered down version of constitutional rights.

Conclusion

The state action doctrine can be case rather easily in an unfavorable light. In its least attractive form, the doctrine can be seen as saying that a private citizen should have the right to act like a bigot or silence others unreasonably without constitutional restraints. What I have attempted to do is provide a more rational and attractive explanation for why state action may exist as a doctrine in constitutional law. I would prefer to look at the desirability of state action in the more traditional way that constitutional questions are framed when the issue is one of a private liberty interest conflicting with a broader societal interest: Does a sufficient societal interest exist to justify extending constitutional restraints to private activity? I believe that one’s reaction to the three propositions that I have identified will help answer that question. Society may be at a point at which it wants to extend the constitution to all actions that impinge on constitutional values, but such a decision should not be made under the illusion that all that is involved is a slight change in course.

 

constitutional torts

Katzberg v. Regents (2002), 29 Cal.4th 300

GEORGE, C.J.

We granted review in this matter to consider whether an individual may bring an action for money damages on the basis of an alleged violation of a provision of the California Constitution, in the absence of a statutory provision or an established common law tort authorizing such a damage remedy for the constitutional violation. In the present case, plaintiff seeks, among other relief, monetary damages based upon defendant’s alleged violation of his due process “liberty” interest under article I, section 7, subdivision (a), of the California Constitution, by failing to provide him with a timely “name-clearing” hearing after his removal as department chairman at a university medical center. We conclude that an action for damages is not available.

Article I, section 26 of the California Constitution states: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Under this provision, “all branches of government are required to comply with constitutional directives. Accordingly, the question posed in this case is not whether article I, section 7(a) is “self-executing.” It is clear that the due process clause of article I, section 7(a)is self-executing, and that even without any effectuating legislation, all branches of government are required to comply with its terms. Furthermore, it also is clear that, like many other constitutional provisions, this section supports an action, brought by a private plaintiff against a proper defendant, for declaratory relief or for injunction. The question presented here is whether, assuming the complaint states a violation of plaintiff’s due process liberty interest, plaintiff may maintain an action for monetary damages to remedy the asserted violation of his due process liberty interests under article I, section 7(a), on the facts alleged.

More than 30 years ago in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, the United States Supreme Court recognized the right of a party to recover damages for the violation of a constitutional right in an action against federal agents. In Bivens, a citizen’s Fourth Amendment right against unreasonable search and seizure was violated by federal law enforcement officers. The court in Bivens did not approach the issue as posing a question whether the Fourth Amendment was intended to provide an action for damages, or whether such an intent could be inferred from that provision; instead, the court viewed the matter as posing a question whether the court should create a cause of action for damages—in effect, a constitutional tort—to remedy a Fourth Amendment violation, even though Congress had not specifically provided such a remedy and even though the Fourth Amendment does not provide for enforcement by an award of damages. The high court reasoned that as a general proposition “ ‘federal courts may use any available remedy to make good the wrong done.’ ” In support of its conclusion that a damages remedy was warranted, the court emphasized that (i) there existed “no special factors counseling hesitation” to recognize such a right ; (ii) there was no equally effective alternative remedy; and (iii) there was no “explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents”.

Subsequent to Bivens, the United States Supreme Court has considered numerous cases in which plaintiffs have sought money damages under a constitutional cause of action premised upon the asserted violation of various federal constitutional provisions. After twice following the lead of Bivens, and recognizing the availability of a constitutional tort action for damages on the strength of the considerations set out above, the high court for the past two decades repeatedly has refused to recognize a federal constitutional tort action for money damages in cases presenting that issue. In each of these more recent cases, the high court found that the first Bivens consideration mentioned above—“special factors” that “counsel hesitation” by a court in recognizing a constitutional tort damages remedy—militated against recognition of that remedy. And in these recent cases, the court also substantially retreated from, and reformulated, the other Bivens considerations mentioned above. The court has found that the absence of a “complete” alternative remedy will not support an action for damages, so long as a “meaningful” alternative remedy in state or federal law is available.

California decisions have followed a similar trend. Only two decisions, each filed two decades ago, have recognized an action for damages to remedy a violation of the state Constitution. All subsequent decisions addressing the issue have declined to find such an action for damages.

Most subsequent California cases that have addressed the availability of damages—all decided by the Court of Appeal—have taken an approach different from the “constitutional tort” analysis of Bivens and its progeny. Whereas Bivens and many of the federal and state decisions that have applied its principles have focused upon the circumstances in which a court should create or recognize a tort action premised upon violation of a constitutional provision, most California decisions issued during the past two decades, by contrast, have viewed the determinative question as whether an action for damages exists in (or can be inferred from) the constitutional provision at issue. Accordingly, most of the recent California decisions expressly focus their analysis upon whether the provision at issue was intended, either expressly or impliedly, to afford relief in damages.

It is appropriate to employ the following framework for determining the existence of a damages action to remedy an asserted constitutional violation. First, we shall inquire whether there is evidence from which we may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation. In undertaking this inquiry we shall consider the language and history of the constitutional provision at issue, including whether it contains guidelines, mechanisms, or procedures implying a monetary remedy, as well as any pertinent common law history. If we find any such intent, we shall give it effect.

Second, if no affirmative intent either to authorize or to withhold a damages remedy is found, we shall undertake the “constitutional tort” analysis adopted by Bivens and its progeny. Among the relevant factors in this analysis are whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision. If we find that these factors militate against recognizing the constitutional tort, our inquiry ends. If, however, we find that these factors favor recognizing a constitutional tort, we also shall consider the existence of any special factors counseling hesitation in recognizing a damages action, including deference to legislative judgment, avoidance of adverse policy consequences, considerations of government fiscal policy, practical issues of proof, and the competence of courts to assess particular types of damages.

We begin our inquiry by asking whether, when the constitutional provision at issue was adopted, the enactors intended that it include a damages remedy for its violation. Such an intent may be quite clear on the face of a particular provision. But with regard to most constitutional provisions, the words of the provision do not on their own manifest any such intent. The due process clause of article I, section 7(a), falls within this latter category. It states in relevant part: “A person may not be deprived of life, liberty, or property without due process of law….” These words do not explicitly disclose an intent either to authorize or to withhold damages as a remedy for a violation of the provision. Accordingly, we must look further in our attempt to discern whether article I, section 7(a) was intended to include a damages remedy.

In considering evidence of an implied right to seek damages, we shall review the available drafting history of the provision at issue and materials that were before the voters when they adopted the measure. Article I, section 7(a) was added to the state Constitution by the adoption of Proposition 7 on the November 1974 ballot. The ballot pamphlet provided to all voters prior to the general election in 1974 explained that the measure was designed to revise article I, the California Constitution’s declaration of rights, in a number of respects, one of which was to set out some basic rights that were then “presently … contained in the federal Constitution” but not listed in the state charter. Among such rights, the Legislative Analyst explained, was the following right: “(b) A person may not be deprived of life, liberty, or property without due process of the law.” Although the state Constitution long had contained a similarly worded due process provision prior to 1974, the previous incarnations of the state constitutional due process right were contained within broad provisions setting forth the rights of criminal defendants. The 1974 amendment, placing the clause in article I, section 7(a), was designed to make it clear that the due process guarantee applied not only in criminal prosecutions, but afforded a general civil right as well.1

We also have examined the materials that were placed before the voters when the provision last was amended in 1974. We find nothing in the ballot materials to suggest that the voters affirmatively intended to create, within article I, section 7(a), a damages remedy with respect to the due process clause set forth in this constitutional provision. We conclude that the materials that were before the voters when they adopted the current version of article I, section 7(a) in November 1974, provide no basis upon which to infer an intent that the provision itself permit an action for damages to remedy a violation of that clause.

We next consider the extent to which the provision, even if not setting forth an explicit indication of a right to damages, nevertheless contains “guidelines, mechanisms, or procedures from which a damages remedy could be inferred.” The presence of such express or implied guidelines, mechanisms, or procedures may support an inference that the provision was intended to afford such a remedy.

In considering evidence of an implied right to seek damages, we also believe it appropriate to examine common law history from which we might infer, within the provision at issue, an intent to provide an action for damages to remedy a violation of that provision. We conclude that there is no indication in the language of article I, section 7(a), nor any evidence in the history of that section, from which we may find, within that provision, an implied right to seek damages for a violation of the due process liberty interest.

This determination, however, does not end our inquiry. Just as we have not discovered any basis for concluding that a damages remedy was contemplated or reasonably might be inferred within article I, section 7(a) for violation of that provision, we also have not discovered any basis for concluding that a damages remedy was intended to be foreclosed. In such circumstances, we, , like the United States Supreme Court and the courts of numerous other jurisdictions that have faced similar circumstances, shall proceed to consider whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized. [The Court then quoted] section 874A of the Second Restatement of Torts, [which] provides: “When a legislative [or constitutional] provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” We join the jurisdictions that have endorsed, implicitly or explicitly, the view set out in the Restatement, that courts, exercising their authority over the common law, may, in appropriate circumstances, recognize a tort action for damages to remedy a constitutional violation. We proceed to determine whether a tort action for damages is appropriate here.

We first consider the adequacy of existing remedies. We conclude that this consideration does not support recognition of a constitutional tort cause of action for damages to remedy an asserted violation of the due process “liberty” interest under article I, section 7(a). Plaintiff could have sought to remedy the alleged violation of his due process liberty interest and his concomitant right to a “name-clearing hearing” by seeking a writ of mandate under Code of Civil Procedure section 1085, compelling defendants to provide a name-clearing hearing.26Moreover, plaintiff also could have sought to establish a violation of his due process liberty interest by seeking declaratory or injunctive relief. In addition, plaintiff had an adequate remedy for the alleged delay in offering an adequate “name-clearing hearing,” by way of a defamation action. The availability of these adequate alternative remedies militates against judicial creation of a tort cause of action for damages in the circumstances presented.

We next consider the extent to which a constitutional tort action would change established tort law [and] reject plaintiff’s contention that a damages action to remedy an asserted violation of his due process liberty interest is contemplated by tort law as codified by Civil Code sections 1708 and 3333.The availability of meaningful alternative remedies leads us to decline to recognize a constitutional tort to remedy the asserted violation of article I, section 7(a) in the case before us.

Because we conclude that the foregoing factors militate against recognition of a constitutional tort to remedy the asserted violation of due process liberty interests in this case, we need not consider, in addition, whether any special factors would counsel hesitation in recognizing such a damages action. If we had found, however, that the considerations discussed above favored recognition of a constitutional tort, we would, before actually recognizing the tort, also consider the existence of any special factors counseling hesitation in recognizing a damages action, including deference to legislative judgment,31 avoidance of adverse policy consequences,32 considerations of governmental fiscal policy,33 practical issues of proof,34 and competence of courts to assess particular types of damages.35

In sum, we discern no evidence from which to infer within article I, section 7(a), an intent to afford a right to seek damages to remedy the asserted violation of the due process liberty interest alleged in this case. We also find no basis upon which to recognize a constitutional tort action for such damages.

The judgment of the Court of Appeal is affirmed.

Concurring and Dissenting Opinion by BROWN, J.

I concur in the majority’s affirmance of the Court of Appeal’s judgment barring plaintiff from seeking damages for any violation of his state constitutional right to due process. In my view, however, it is not only unnecessary but entirely inappropriate to go beyond the short, clear answer to the question presented or to consider anything other than the constitutional history and drafters’ intent in determining whether a constitutional provision is enforceable by an action in tort. The majority cites no authority and offers no rationale for applying the “constitutional tort” analysis adopted by the United States Supreme Court in Bivens to a provision of the California Constitution.

It is well established that the California Constitution ‘is, and always has been, a document of independent force’, and that the rights embodied in and protected by the state Constitution are not invariably identical to the rights contained in the federal Constitution. California cases long have recognized the independence of the California Constitution and article I, section 24, of the California Constitution expressly confirms that the rights ‘guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.’ Past cases make clear that even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts’ interpretation of the corresponding provision contained in the federal Constitution. When a part of our state Constitution has been adopted by initiative, one of our core interpretive principles is that the courts must measure its scope according to the intentions of the voters. “This is because the Constitution ‘ “owes its whole force and authority to its ratification by the people….”

The majority correctly concludes there is no evidence the voters intended to create a right to monetary damages in adopting the due process clause set forth in article I, section 7, subdivision (a) of our Constitution. Nevertheless, it declines to end its inquiry with that determination because it finds no basis “for concluding that a damages remedy was intended to be foreclosed.” The majority fails to explain this non sequitur, however, and to identify any principle of constitutional interpretation that translates the absence of an express or implied bar to monetary damages into an authorization for a court to determine whether to provide for such a remedy on its own initiative.

By its very nature, a constitution orders the relationships of the government and its citizens and serves as a bulwark against encroachment on their rights. The fact that the judicial branch interprets the constitution does not give license to augment its provisions as any shifting majority of judges sees fit. Until now, this court has jealously guarded its role in effectuating legislative intent, particularly with respect to the initiative process.

Moreover, the majority applies an analytical framework based not on our own jurisprudence but a derivation of United States Supreme Court decisions. The California Constitution is the supreme law of our state—a seminal document of independent force that establishes governmental powers and safeguards individual rights and liberties. As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently.

The majority’s lapse of analytical independence betrays our obligation as final arbiter of state constitutional law in two interrelated ways. First, the majority’s approach compounds and perpetuates the misperception that state constitutions are part of common law and that meaningful analysis can be “borrowed wholesale from federal constitutional discourse, as though the language of federal constitutional law were some sort of lingua franca of constitutional argument generally.” Unlike the common law, however, constitutional interpretation is bound by text as well as by principles of construction and is decidedly not subject—whenever a majority of the court agrees—to judicial extension and innovation in the interest of public policy or national consensus or similar justification. Although in this context “the pull toward a common law of judicial review, toward a vortex of clichés [lifted from United States Supreme Court decisions], is strong”, this court must resist if it is to remain faithful to its role as the final arbiter of the meaning of our state Constitution and to respect the demarcations between the respective branches of government—a concern equally of constitutional dimension.

Second, the majority’s approach creates a lacuna in our constitutional jurisprudence, adopting without meaningful consideration the United States Supreme Court’s interpolation of an unrelated federal constitutional provision in lieu of rigorous substantive analysis of the unique language, purpose and history of our own due process guarantee. Defaulting to the high court fundamentally disserves the independent force and effect of our Constitution. Rather than enrich the texture of our law, this reliance on federal precedent shortchanges future generations.

 

Unconstitutional conditions and conditional spending

Danskin v. San Diego Unified School Dist. (1946), 28 Cal.2d 536

Danskin v. San Diego Unified School Dist. (1946),

28 Cal.2d 536, 171 P.2d 885

RAYNOR, J.

Petitioners are members and officers of the San Diego Civil Liberties Committee affiliated with the American Civil Liberties Union. On January 10, 1946, they filed an application with respondent board for the use of the Roosevelt Junior High School Auditorium for a series of meetings on the general theme of the “Bill of Rights in Postwar America.” In December, 1945, the board had adopted rules and regulations to govern the use of school property for public purposes and as a civic center. In their application, petitioners stated that they would not comply with rules 4, 7, 11, 17 and 20, which they claimed were in violation not only of the Civic Center Act but of their constitutional rights.

[In 1945, the California legislature adopted the following measure:] Section 19432 (as amended by Stats. 1945, ch. 1213): “Any use, by any individual, society, group, or organization which has as its object or as one of its objects, or is affiliated with any group, society, or organization which has as its object or one of its objects the overthrow or the advocacy of the overthrow of the present form of government of the United States or of the State by force, violence, or other unlawful means shall not be granted, permitted, or suffered.

“Any person who is affiliated with any organization, which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, or any organization of persons which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, is hereby declared to be and is characterized, a subversive element.

“Notwithstanding any of the other terms of this chapter, no such governing board shall grant the use of any school property to any person or organization who or which is a subversive element as herein defined

“For the purpose of determination by such governing board whether or not such person or such organization of persons applying for the use of such school-property, is a subversive element as herein defined, such governing board may require the making and delivery to such governing board, by such person or any members of such organization, of affidavits in form prescribed by such governing board, stating facts showing whether or not such person or organization is a subversive element as herein defined.”

Petitioners contend that this section on its face violates freedom of speech and of peaceable assembly as guaranteed by the Constitution of the United States and the Constitution of California.

Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress. They are likewise protected by the Fourteenth Amendment against infringement by state Legislatures. However reprehensible a Legislature may regard certain convictions or affiliations, it cannot forbid them if they present “no clear and present danger that they will bring about the substantive evils” that the Legislature has a right to prevent. “It is a question of proximity and degree.”

When the United States Supreme Court held in Bridges v. California [1941] that the suppression of freedom of speech in the absence of a clear and present danger of substantive evils is a violation of the constitutional guaranty of free speech, it adopted the views of Mr. Justice Holmes and Mr. Justice Brandeis in their minority opinions in Gitlow v. New York, 268 U.S. 652, 672 [45 S.Ct. 625, 69 L.Ed. 1138]; Whitney v. California, 274 U.S. 357, 372 [47 S.Ct. 641, 71 L.Ed. 1095], and other cases. These opinions were based on the reasoning that doctrines advocating the overthrow of the government by force do not of themselves constitute a substantial danger, and that the state is therefore not justified in suppressing the freedom of speech of those who happen to be members of an organization committed to such doctrines.

One must inquire why the measure in question seeks to prohibit “subversive elements“ from holding meetings in a school building, when presumably they can hold them elsewhere without arousing fears of baneful consequences. Is it reasonable to suppose that meetings that would be harmless elsewhere would take on a sinister quality in a school building? When one searches deeper for the reason that motivates the prohibition of such meetings, there is no escaping the conclusion that the Legislature denies access to a forum in a school building to ”subversive elements,“ not because it believes that their public meetings would create a clear and present danger to the community, but because it believes the privilege of free assembly in a school building should be denied to those whose convictions and affiliations it does not tolerate. What it does not tolerate it seeks to censor.

The state is under no duty to make school buildings available for public meetings. If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property. Since the state cannot compel ”subversive elements“ directly to renounce their convictions and affiliations, it cannot make such a renunciation a condition of receiving the privilege of free assembly in a school building.

The convictions or affiliations of one who requests the use of a school building as a forum are of no more concern to the school administrators than to a superintendent of parks or streets if the forum is the green or the market place. The ancient right to free speech in public parks and streets cannot be made conditional upon the permission of a public official, if that permission is used as an ”instrument of arbitrary suppression of free expression.“ It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable. Censorship of those who would use the school building as a forum cannot be rationalized by reference to its setting. School desks and blackboards, like trees or street lights, are but the trappings of the forum; what imports is the meeting of minds and not the meeting place.

The very purpose of a forum is the interchange of ideas, and that purpose cannot be frustrated by a censorship that would label certain convictions and affiliations suspect, denying the privilege of assembly to those who hold them, but granting it to those whose convictions and affiliations happen to be acceptable and in effect amplifying their privilege by making it a special one. In the competitive struggle of ideas for acceptance they would have a great strategic advantage in making themselves known and heard in a forum where the competition had been diminished by censorship, and their very freedom would intensify the suppression of those condemned to silence. It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience; if it could, that freedom which is the life of democratic assembly would be stilled. And the dulling effects of censorship on a community are more to be feared than the quickening influence of a live interchange of ideas.

 

Self-executing provisions

Rice v. Howard (1902), 136 Cal. 432

TEMPLE, J.

This appeal is from a judgment entered upon a demurrer to the complaint. The plaintiff, who was himself a depositor in the Savings Bank of San Diego County, as assignee of himself and of many other depositors, brings this action against the directors of the savings bank for the sum of $127,570.29. The purpose of the action is to enforce the liability of the defendants for money alleged to have been misappropriated by the defendants while they were directors of such savings bank. Twenty-seven different alleged misappropriations are set out in the complaint. All consisted in taking money out of the bank and applying it to unauthorized purposes, in the interest of said directors, or of some of them.

The complaint was demurred to on various grounds, but, by stipulation, only certain grounds of demurrer, out of more than one hundred contained in the demurrer, are in the transcript. It is stipulated that the plaintiff must recover on the provisions of the latter part of section 3, article 12, of the constitution of California, or that he cannot recover at all. It is stipulated that the above grounds of demurrer fully raise the following propositions contended for by defendant, viz.:—

1st. That said constitutional provision is not effectual without legislation.

The constitutional provision referred to reads as follows:— “The directors or trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporation or joint-stock association during the term of office of such director or trustee.”

The parties seem agreed that the following questions are involved in this appeal:

Is the constitutional provision self-executing?

• As to the question whether the provision is self-executing, it is well to note, at the outset, that the presumption is not precisely as it would have been had such a matter been presented for consideration fifty years ago. When the Federal constitution and first state constitutions were formed, the idea of a constitution was, that it merely outlined a government, provided for certain departments and some officers and defined their functions, secured some absolute and inalienable rights to the citizens, but left all matters of administration and policy to the departments which it created. The law-making power was vested wholly in the legislature. Save as to the assurances of individual rights against the government, the direct operation of the constitution was upon the government only. And such assurances were themselves in part but limitations upon governmental powers.

Latterly, however, all this has been changed. Through distrust of the legislatures and the natural love of power, the people have inserted in their constitutions many provisions of a statutory character. These are in fact but laws, made directly by the people instead of by the legislature, and they are to be construed and enforced, in all respects, as though they were statutes. (Winchester v. Mabury, 122 Cal. 522.) It has been held that section 16 of article XII of the constitution is of the nature of code provisions in regard to procedure, and is to be construed as other code provisions are, except that it cannot be amended or repealed by the legislature. In effect, these constitutional provisions are but statutes which the legislature cannot repeal or amend

Under former conditions it was natural that the court should presume that a constitutional provision was addressed to some officer or department of the government, or that it limited the power of the legislature, or empowered, and perhaps directed, certain legislation, to carry into effect a constitutional policy.

Now the presumption is the reverse. Recently adopted state constitutions contain extensive codes of laws, intended to operate directly upon the people as statutes do. To say that these are not self-executing may be to refuse to execute the sovereign will of the people. The different policy requires a different ruling. I should say the rule now is, that such constitutional provisions must be held to be self-executing when they can be given reasonable effect without the aid of legislation, unless it clearly appears that such was not intended.

If the legislature must, or even may, provide for the mode of executing such constitutional laws, it may to a great extent, and in some cases altogether, prevent their having any effect at all. This last effect is precisely what is contended for here. The policies of increasing constitutional legislation and of narrowing legislative power are correlative. The legislature, whose powers and functions the people are thus seeking to limit, would naturally not be afforded the opportunity to remove such limits. The changed mode of constitution-making indicates that the legislature is not to be trusted with such power. In general such constitutional statutes, if I may so speak of them, were intended to prevent the legislature from legislating otherwise upon the subjects covered by such provisions. It has often been remarked that our state constitution of 1879 contains a very extensive code of laws, evidently intended to operate directly upon the people, and which are placed in the constitution for the express purpose of depriving the legislature of the power to change or modify them. We must submit to this policy established in the fundamental law, and therefore every constitutional mandate which can be put in force without legislation must be held to be self-executing, unless a contrary intent is shown.

Judge Cooley says it is self-executing “if it supplies a sufficient rule by which the right given may be enjoyed and protected, or the duty imposed may be enforced.” The clause in question fixes a liability upon the directors of corporations. It clearly declares who are liable, to whom, and for what. The procedure need not be provided by the constitution if the Code of Civil Procedure and other remedial laws supply what is necessary. This court has determined in the case at bar, upon this same liability, between the same parties, that it is to be regarded as a statute, and construed and enforced in the same manner.

The judgment is reversed, and the superior court is directed to overrule the demurrer and allow the defendant reasonable time to answer the complaint.

 

Chesney v. Byram (1940), 15 Cal.2d 460

CARTER, Justice.

This is an appeal from a judgment of the superior court of Los Angeles county granting a writ of mandate against appellant, H. L. Byram, tax collector of the county of Los Angeles, compelling him to receive the sum of $21.84 as the full amount of taxes due on the real property of respondent for the fiscal year 1936–37, in lieu of taxes in the sum $67 levied upon and extended against said property on the assessment roll of said county for said year. Respondent’s property was assessed by the Los Angeles county assessor for the fiscal year 1936–37 at the value of $1,350. He claims an exemption in the amount of $1,000 by reason of his being a veteran within the meaning of section 1 1/4 of article XIII of Constitution of California. He tendered payment to the appellant of taxes based upon the valuation of $350, which tender was refused. Respondent then secured a writ of mandate compelling appellant to accept the amount tendered and to issue a receipt in full for respondent’s taxes.

The provision of the Constitution above referred to reads as follows: ‘The property to the amount of one thousand dollars of every resident of this State who has served in the army, navy, marine corps or revenue marine service of the United States in time of war, and received an honorable discharge therefrom, * * * shall be exempt from taxation; … The appellant, tax collector of the county of Los Angeles, contends that the failure of respondent herein to make the exemption claim required by Political Code section 3612 constituted a waiver of said exemption. The sole question then before this court is whether the waiver provision of section 3612 of the Political Code is an invalid infringement upon a constitutional right, or is a valid legislative provision regulating the exercise or assertion thereof.

Respondent contends that section 1 1/4 of article XIII of the Constitution is self-executing and that section 3612 of the Political Code is an attempt to limit the constitutional right to exemption from taxation granted to veterans under said provision of the Constitution.

It has been held that: ‘A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.’ Cooley’s Constitutional Limitations, 7th ed., p. 121.

We are disposed to hold that the constitutional provision above-mentioned is self-executing; that is, that it required no legislative enactment to put it into effect. If the legislature had failed to make any provision for a veteran to avail himself of the tax exemption provided for in said provision of the Constitution, we are of the opinion that the veteran would nevertheless be entitled to the exemption provided for. How such exemption could be obtained, would be a matter first for the determination of the assessors of the respective political subdivisions, and in case of their failure to recognize the right granted to the veteran, their action would be subject to review by the courts.

However, it does not follow from the determination that the above-mentioned constitutional provision is self-executing, that the legislature did not have the power to enact legislation providing reasonable regulation for the exercise of the right to the exemption granted by the Constitution, and if section 3612 of the Political Code constitutes such reasonable regulation and not an invalid limitation of the right thereby granted, the power of the legislature to enact said section should be upheld.

In the case of First M. E. Church v. Los Angeles County, [204 Cal. 201, 267 P. 704], this court, while declining to pass upon the question of whether or not section 1 1/2 of article XIII of the Constitution of California is self-executing, made this comment with respect to legislation enacted for the purpose of facilitating the operation of a self-executing provision of the Constitution ‘It may be assumed, as argued by respondent, that even though a constitutional provision is self-executing, the Legislature may, and in many instances must, enact legislation to facilitate its operation, and to provide convenient remedies for the protection of the right established, and for the determination thereof and the regulation of claims thereto. Such legislation must be in furtherance of the purposes of the constitutional provisions, but, if so, it is valid and enforceable.”

We are not impressed with the argument advanced by respondent to the effect that the provisions of section 3612 of the Political Code imposes an unreasonable restriction or limitation upon the exercise of the right to the exemption granted by the constitutional provision above mentioned. On the other hand, it appears to us reasonable and proper that some method should be provided by the legislature for the determination of those who may be entitled to the exemption provided for in the Constitution. It is obvious that the burden should be upon the person claiming the exemption to establish his right thereto. The method provided for under section 3612 of the Political Code is a simple one and is available to all who desire to claim the exemption provided for under the above-mentioned provision of the Constitution.

It has been uniformly held that the legislature has the power to enact statutes providing for reasonable regulation and control of rights granted under constitutional provisions. In the case of Bergevin v. Curtz, [127 Cal. 86, 59 P. 312] this court considered the effect of a statute requiring a citizen to register in order to exercise the voting franchise guaranteed by the Constitution. In discussing the power of the legislature to impose conditions on those entitled to exercise the voting franchise under the Constitution, this court said: ‘We do not think the legislature, even if it attempted to do so, could add any essential to the constitutional definition of an elector. It is settled by the great weight of authority that the legislature has the power to enact reasonable provisions for the purpose of requiring persons who are electors, and who desire to vote, to show that they have the necessary qualifications, as by requiring registration or requiring an affidavit or oath as to qualifications, as a condition precedent to the right of such electors to exercise the privilege of voting. Such provisions do not add to the qualifications required of electors, nor abridge the right of voting, but are only reasonable regulations for the purpose of ascertaining who are qualified electors, and to prevent persons who are not such electors from voting. These regulations must be reasonable, and must not conflict with the requirements of the constitution.”

[The Court held that petitioner’s failure to make the claim required by statute constituted a waiver of his right to the property tax exemption.]

 

Separation of powers

Cal. Constitution Art. III sec.3; Art. IV sec. 1; Art. V sec. 1; Art. VI sec 1

CALIFORNIA CONSTITUTION

ARTICLE 3 STATE OF CALIFORNIA

SEC. 3. 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.

ARTICLE 4 LEGISLATIVE

SEC. 1. The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.

ARTICLE 5 EXECUTIVE

SECTION 1. The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.

ARTICLE 6 JUDICIA

SEC. 1. The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.

 

Superior Court v. County of Mendocino (1996), 13 Cal.4th 4

GEORGE, Justice.

Government Code section 681081 authorizes a county, under specified circumstances, to designate “unpaid furlough days” on which the trial courts of the county generally “shall not be in session.” In this case, we are called upon to decide whether this statute is unconstitutional on its face. We conclude that the Court of Appeal erred in finding section 68108 unconstitutional on its face.

Section 68108 provides that when a county has entered into a “memorandum of understanding” with its employees that designates certain days as “unpaid furlough days” for employees assigned to regular positions in the superior, municipal, and justice courts, “the courts shall not be in session” on those designated days, “except as ordered by the presiding judge upon a finding … of a judicial emergency….”Shortly after section 68108 was enacted, the Board of Supervisors of Mendocino County ratified memoranda of understanding with county employees that provided for six specified unpaid furlough days during the 1993–1994 fiscal year. The Superior Court of Mendocino County) immediately notified the Board of Supervisors that, in its judgment, the court’s “particular needs” required it to remain open on the specified furlough days in order to fulfill the court’s constitutional duties.3 The Board of Supervisors, in response, notified the Superior Court that it believed it had the authority under section 68108 to designate and enforce the unpaid furlough days, which called for the closing of all county offices, as well as the justice, municipal, and superior courts, on those days.

Although the language of California Constitution article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions long have recognized that, in reality, the separation of powers doctrine “ ‘does not mean that the three departments of our government are not in many respects mutually dependent’ ”   or that the actions of one branch may not significantly affect those of another branch. Indeed, upon brief reflection, the substantial interrelatedness of the three branches’ actions is apparent and commonplace: the judiciary passes upon the constitutional validity of legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings, and the Governor appoints judges and participates in the legislative process through the veto power. Such interrelationship, of course, lies at the heart of the constitutional theory of “checks and balances” that the separation of powers doctrine is intended to serve.

At the same time, this doctrine unquestionably places limits upon the actions of each branch with respect to the other branches. The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function The executive branch, in expending public funds, may not disregard legislatively prescribed directives and limits pertaining to the use of such funds. And the Legislature may not undertake to readjudicate controversies that have been litigated in the courts and resolved by final judicial judgment

The circumstance that a court has, in this sense, “inherent power” to control the hours and days of its operations does not mean that every legislative regulation in this area is prohibited by the separation of powers doctrine. As we have seen, the cases recognize that the Legislature generally may adopt reasonable regulations affecting a court’s inherent powers or functions, so long as the legislation does not “defeat” or “materially impair” a court’s exercise of its constitutional power or the fulfillment of its constitutional function.

Confining our consideration to the question of the facial constitutionality of section 68108, we believe it is clear that [prior] decisions do not support the Court of Appeal’s determination that the statute is unconstitutional on its face. In our view, it cannot reasonably be suggested that, under any and all circumstances, a county’s designation of one or more unpaid furlough days pursuant to section 68108necessarily will “defeat” or “materially impair” a court’s fulfillment of its constitutional duties. It is possible, for example, that the caseload of a superior or municipal court at a particular time might permit closing the court on one or more furlough days without a serious debilitating effect upon the court’s ability to fulfill its constitutional functions. Under the cases reviewed above, the circumstance that the provisions of section 68108might be implemented in a manner that would defeat or materially impair a court’s ability to perform its functions is not a proper basis for holding the statute unconstitutional on its face

Finally, the Superior Court attempts to bolster its argument by asserting that the legislation in question is invalid under the separation of powers doctrine because it limits the public’s “access to justice,” a subject that the Superior Court suggests lies exclusively within the province of the judicial branch. The judiciary, of course, has a keen and overriding interest in assuring that the public enjoys the broadest possible access to justice through the judicial system. The objective of preserving and promoting the public’s access to justice and the judicial system, however, is by no means solely the concern or province of the judicial branch. The legislative and executive branches are necessarily and centrally involved in the formulation of a great variety of measures that vitally affect the public’s “access to justice” through the judicial system, from determining the number and location of new judgeships and courthouses to establishing which court-related expenses should be financed at the state level and which at the local level. There simply is no constitutional basis for the Superior Court’s claim that because the statute in question affects the public’s access to justice, it improperly impinges upon an exclusive preserve of the judicial branch.12

For the foregoing reasons, we conclude that the Court of Appeal erred in holding that section 68108 is unconstitutional on its face. The judgment of the Court of Appeal is reversed.

 

Carmel Valley Fire Protection Dist. v. State of California (2001), 24 Cal.4th 287

[Headnote:] Fire protection districts filed petition for writ of mandate and a complaint for declaratory relief, requesting determination that state was obligated to reimburse them for funds they had spent to comply with executive orders setting minimum requirements for firefighters’ protective clothing and equipment. The Supreme Court [held] that statutory and budgetary provisions, under which Legislature suspended operation of executive orders requiring employers to provide certain items of protective clothing and equipment to firefighters and provided that no state funds would be provided to reimburse employers for such clothing or equipment, did not violate separation of powers clause of State Constitution

GEORGE, C.J.

In this case we consider whether Government Code section 17581 and certain budget measures that suspend the operation of administrative regulations adopted by the Department of Industrial Relations violate the separation of powers clause of the California Constitution by encroaching on the power of the executive branch of government. We conclude that no separation of powers violation has been demonstrated.

We . . . consider Government Code section 17581 in light of the constitutional provision for separation of powers, and conclude that the statutory and budgetary provisions involved in the present case do not violate the separation of powers clause of the California Constitution. The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch. To serve this purpose, courts “ ‘have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.’

The doctrine, however, recognizes that the three branches of government are interdependent, and it permits actions of one branch that may “significantly affect those of another branch.“

The founders of our republic viewed the legislature as the branch most likely to encroach upon the power of the other branches. The principle of separation of powers limits any such tendency. First, it prohibits the legislative branch from arrogating to itself core functions of the executive or judicial branch. Second, legislative power also is circumscribed by the requirement that legislative acts be bicamerally enacted and presented to the head of the executive branch for approval or veto

The core functions of the legislative branch include passing laws, levying taxes, and making appropriations. Further, it is settled that “‘the power to collect and appropriate the revenue of the State is one peculiarly within the discretion of the Legislature.’ ” Legislative determinations relating to expenditures in other respects are binding upon the executive.

The power of appropriation includes the power to withhold appropriations. Neither an executive administrative agency nor a court has the power to require the Legislature to appropriate money. The decision to relieve districts of the duty to comply with specified executive orders is a policy decision—an act within the authority of the Legislature, although it incidentally affects the legislatively enacted authority of the Department of Industrial Relations to promulgate regulations.

Considering the appropriate function of the Legislature—to define policy and allocate funds—and considering the inability of an administrative agency to which quasi-legislative power has been delegated to adopt rules inconsistent with the agency’s governing statutes, we believe that a legislative enactment that limits the mandate of an administrative agency or withdraws certain of its powers is not necessarily suspect under the doctrine of separation of powers. When the Legislature has not taken over core functions of the executive branch and the Legislature has exercised its authority in accordance with formal procedures set forth in the Constitution, such an enactment normally is consistent with the checks and balances prescribed by our Constitution.

Government Code section 17581 and the related budget items do not so intrude upon the power of the executive branch as to violate our state Constitution’s separation of powers clause.6

 

Marine Forests Society v. California Coastal Commission (2005), 36 Cal.4th 130

GEORGE, C.J.

This case involves a constitutional challenge to the provisions of the California Coastal Act (Coastal Act or Act) governing the appointment and tenure of the members of the California Coastal Commission. Plaintiffs asserted that this statutory structure—by authorizing members of the legislative branch to appoint a majority of the voting members of the Commission and enabling each appointing authority to remove its appointees at will—rendered the Coastal Commission a “legislative body” for purposes of the separation of powers clause of the California Constitution and that such a body was precluded from engaging in executive or judicial functions, such as granting, denying, or conditioning a development permit, or hearing and determining a cease and desist order. We conclude that the current statutory provisions governing the composition of the Coastal Commission do not violate the separation of powers clause of the California Constitution.

Although plaintiffs’ challenge to the current provisions relies heavily on a number of United States Supreme Court decisions holding that, under the separation of powers doctrine embodied in the federal Constitution, Congress has no authority to appoint an executive officer [citing Buckley v. Valeo (1976)] , it is clear both from the history of the California Constitution and from the judicial authorities interpreting the separation of powers clause of our state Constitution, that the California Constitution, unlike the United States Constitution, does not categorically preclude the Legislature from enacting a statutory provision authorizing the Legislature itself to appoint a member or members of an executive commission or board.

At the same time, we conclude that, as in other contexts in which one branch’s actions potentially impinge upon the domain of a coordinate branch, the separation of powers clause of the California Constitution imposes limits upon the legislative appointment of executive officers. We conclude that the California separation of powers clause precludes the adoption of a statutory scheme authorizing the legislative appointment of an executive officer or officers whenever the statutory provisions as a whole, viewed from a realistic and practical perspective, operate to defeat or materially impair the executive branch’s exercise of its constitutional functions. As we shall explain, a statute authorizing the legislative appointment of an executive officer may transgress this constitutional limitation in at least two distinct circumstances. First, such a statute would violate the separation of powers clause if legislative appointment to the particular office in question intrudes upon what might be characterized as the “core zone” of the executive functions of the Governor (or another constitutionally prescribed executive officer), impeding that official from exercising the independent discretion contemplated by the Constitution in the performance of his or her essential executive duties. Second, a statute providing for the legislative appointment of an executive officer also would violate the separation of powers clause if the statutory scheme, taken as a whole, permits the legislative appointing authority to retain undue control over an appointee’s executive actions, compromising the ability of the appointed officer (or of the executive body on which the appointee serves) to perform the officer’s (or the executive body’s) authorized executive functions independently, without legislative coercion or interference.

We now turn to the question of the constitutionality of the current Coastal Act provisions under the California separation of powers clause. Like many other modern administrative agencies established by the Legislature, the Coastal Commission is authorized (by the Coastal Act) to perform a variety of governmental functions, some generally characterized as “executive,” some “quasi-legislative,” and some “quasi-judicial.” As a general matter, the Commission performs an “executive” function insofar as it carries out programs and policies established by the Legislature, and the Commission is included for administrative purposes in the Resources Agency, a part of the executive branch. The Commission performs a “quasi-legislative” function when it engages in rulemaking through the adoption of regulations, and a “quasi-judicial” function when it passes upon applications for coastal development permits, when it reviews the validity of a local government’s coastal program, and when it issues cease and desist orders with regard to unauthorized development. The constitutional propriety of an administrative agency’s performance of such varied functions long has been firmly established under California law.

Although these federal decisions [such as Buckley v. Valeo] establish that the provisions of the Coastal Act here at issue would be of doubtful validity if the Coastal Commission were a federal agency and the statutory provisions were to be judged under the federal separation of powers doctrine, the flaw in Marine Forests’ reliance upon these federal decisions lies in the implicit assumption that the separation of powers doctrine embodied in the federal Constitution is equivalent to the separation of powers clause of the California Constitution.

In the analysis that follows, we begin with a brief overview of several basic differences between the structure of the federal Constitution and that of most state constitutions—differences that explain why, as a general matter, separation of power decisions under the federal Constitution cannot be applied uncritically in resolving separation of powers questions that may arise under a state constitution. We then turn to the specific governmental function at issue in this case—the appointment of executive officers—and explain that although under the federal Constitution Congress is prohibited from appointing any federal executive officers, the California Constitution imposes no similar categorical constraint upon legislative appointment of state executive officers. Thereafter, we proceed to explain that although the Legislature is not precluded by the state Constitution from providing for legislative appointment of executive officers, the state separation of powers clause imposes limits upon the Legislature’s exercise of this authority, restraining the Legislature from overstepping its bounds by defeating or materially impairing the executive function.

In the introduction to a recent scholarly law review article entitled “Interpreting The Separation of Powers in State Constitutions”, Professor G. Alan Tarr observed: “To understand the separation of powers in the American states, one must be willing to explore the nature of state constitutions, their historical development, and their underlying ideas, without preconceptions derived from familiarity with the separation of powers on the national level…. The most cursory examination of state constitutions confirms how distinctive state constitutions and governments are. The Federal Constitution restricts the federal government both by imposing prohibitions on the government and by granting the government only limited powers. Under state constitutions, by contrast, the second restriction is largely missing, and thus the states exercise plenary legislative power…. Put differently, despite the superficial similarities, state governments are not merely miniature versions of the national government.”

Of course, these cautionary admonitions do not mean that federal separation of powers decisions never provide helpful guidance in interpreting the California separation of powers clause. In the past, we have looked to federal decisions for assistance in interpreting our state constitutional separation of powers doctrine in instances in which there were no fundamental differences between the relevant constitutional provisions. The appropriateness of such reliance, however, necessarily depends upon the nature of the particular separation of powers question that is at issue in a given case. The general teaching of the article quoted above is simply that in interpreting and applying a state constitutional separation of powers provision, a court must keep in mind potential structural differences between the state and federal constitutions.

The separation of powers issue presented in this case concerns the authority to appoint a public official who performs an executive function. The Framers of the federal Constitution, in large part in reaction to the failures that occurred under the Articles of Confederation, opted to establish a strong, unitary executive officer—the President—with extensive executive authority. One important feature of the decision to create a strong executive was the adoption of the federal appointments clause—article II, section 2, clause 2 of the United States Constitution10—which grants the President the exclusive appointment authority over high executive officials, and authorizes Congress, by statute, to vest the appointment of “inferior officers” “in the President alone, in the courts of law, or in the heads of departments,” but pointedly does not authorize Congress itself to appoint any executive official. In light of the language and history of the appointments clause, the United States Supreme Court has held that under the federal separation of powers doctrine, neither Congress as a whole, nor congressional leaders, may appoint a federal executive officer.

The United States Supreme Court also has made clear, however, that the separation of powers doctrine embodied in the federal Constitution, which governs the allocation and exercise of governmental authority by the federal legislative, executive, and judicial branches, has no application to the states. Accordingly, the separation of powers issue before us must be decided on the basis of the California Constitution.

Unlike the federal Constitution, the California Constitution—like many state constitutions—embodies a structure of divided executive power, providing for the statewide election of not only the Governor (and the Lieutenant Governor), but also of the Attorney General, the State Treasurer, the Secretary of State, the Controller, and the Superintendent of Public Instruction.11 Furthermore, and perhaps most significantly, unlike the United States Congress, which possesses only those specific powers delegated to it by the federal Constitution, it is well established that the California Legislature possesses plenary legislative authority except as specifically limited by the California Constitution. In contrast to the federal Constitution, there is nothing in the California Constitution that grants the Governor (or any other executive official) the exclusive or paramount authority to appoint all executive officials or that prohibits the Legislature from exercising such authority. Moreover, as we shall see, the history of the California Constitution and past judicial decisions make it abundantly clear that under this state’s Constitution the Legislature possesses authority not only to determine whether to create new executive offices, agencies, or commissions, but also to decide who is to appoint such executive officers and commissioners, including, at least as a general matter, the authority to provide for such appointment by the Legislature itself.

[Chief Justice George then made an extensive review of the historical evolution of California’s constitutional provisions regarding the separation of powers.] As the foregoing discussion reveals, from the inception of the California Constitution in 1849 it has been uniformly recognized that under our state’s Constitution the appointment of executive officers is not an exclusively executive function that may be exercised only by members of the executive branch, and that the Legislature possesses the power to determine through legislative enactment by whom an executive officer should be appointed, including the authority to provide for the appointment of executive officers by the Legislature itself. Unlike the structure prescribed by the federal Constitution, under the California Constitution the general power to appoint executive officers never has been viewed as an inherent or exclusive power of the executive branch.

Consistent with the governing California case law, the appropriate standard by which the statutory provisions in question are to be evaluated for purposes of the state constitutional separation of powers clause is whether these provisions, viewed from a realistic and practical perspective, operate to defeat or materially impair the executive branch’s exercise of its constitutional functions. We also agree that in applying this standard, it is appropriate to consider whether the statutes either (1) improperly intrude upon a core zone of executive authority, impermissibly impeding the Governor (or another constitutionally prescribed executive officer) in the exercise of his or her executive authority or functions, or (2) retain undue legislative control over a legislative appointee’s executive actions, compromising the ability of the legislative appointees to the Coastal Commission (or of the Coastal Commission as a whole) to perform their executive functions independently, without legislative coercion or interference.

For a number of reasons, we believe that it is quite clear that the legislative appointment of executive officers authorized by the statutory scheme under consideration does not impermissibly intrude or infringe upon what might be characterized as the “core zone” of the Governor’s (or any other constitutionally prescribed executive officer’s) executive functions. First, the members of the Coastal Commission are not intimate advisors of the Governor or of any other constitutionally prescribed executive officer but rather are members of a commission of an independent administrative agency. Second, the Coastal Commission is charged with a broad variety of functions, including both quasi-legislative and quasi-judicial functions as well as more traditional executive functions. Third, the subject matter over which the Commission has been granted authority—land use planning within the coastal zone—is not a matter that the California Constitution assigns to the Governor or to any other constitutional executive officer, or even that, prior to the enactment of the Coastal Act, traditionally had been overseen by the state executive branch. Instead, the general subject matter of land use planning is one that traditionally has fallen within the domain of local governmental entities. We also conclude that the current provisions of the Coastal Act do not improperly compromise the ability of the members of the Coastal Commission individually, or the Coastal Commission as a whole, to perform the Commission’s functions independently and without undue or improper control by the legislative branch.

For all of the reasons discussed above, we conclude that the current provisions of the Coastal Act governing the composition and tenure of the voting membership of the Coastal Commission do not violate the separation of powers provision of the California Constitution.

 

David A. Carrillo and Danny Y. Chou, “California Constitutional Law: Separation of Powers”

David A. Carrillo, Danny Y. Chou, “California Constitutional Law: Separation of Powers,” 45 U.S.F. L. Rev. 655 (2011)

Introduction

While there is a wealth of scholarship on the Constitution of the United States, there has been no serious attempt at a comprehensive treatment of California constitutional law since it became the thirty-first state in 1850.1 In particular, the subject of separation of powers in California government has been largely neglected.2 The California Constitution merits development of its own scholarship. This Article contributes to that process by describing the development and current state of the separation of powers doctrine under the California Constitution and by proposing a further development of that doctrine.

California’s government warrants a different separation of powers analysis than does the federal government. This is due not only to differences in language between the Federal and California Constitutions but also to the intrinsic differences between the powers of the state and federal government. The federal government is restrained by the limited powers enumerated in its Constitution, by principles of federalism, and by individual rights protected in the Bill of Rights and elsewhere. State governments, by contrast, have plenary power, limited only by the federal supremacy clause and by individual rights otherwise protected in the state constitution. These fundamental differences– including the greater power of the state government to regulate the lives of its citizens–warrants a different approach from the federal approach to maintaining the always-fluctuating balance of power between California’s three branches of government.

Recognizing this, California courts have developed their own separation of powers jurisprudence based on the unique features of the California Constitution–which has been described as the “core powers” analysis. Under that analysis, a violation of the California separation of powers doctrine occurs only if an act by one branch “materially impairs” the core powers or functions of another branch. Incidental impairments do not constitute a violation, and reasonable regulation is permissible. In developing this core powers analysis, California courts have attempted to forge a middle ground between formalism and functionalism, the two schools of thought that dominate discussions of the federal separation of powers doctrine.

Although the core powers analysis has been evolving and developing since the birth of the state in 1850, California courts have not articulated a standard for determining whether an act by one branch materially impairs the core powers of another branch. This Article takes the first step in filling that void by proposing the following standard: an act by one branch violates the separation of powers doctrine when that branch eliminates or controls–rather than regulates–the other branch’s discretion in exercising its core powers. In other words, a branch may participate in and regulate the exercise of another branch’s core powers but may not prevent the other branch from exercising its discretion.

This proposed standard–which focuses the core powers analysis on the discretionary aspect of the power itself, regardless of its source–has two benefits. First, the standard follows logically from existing California separation of powers decisions and therefore requires no substantive departure from existing case law. Second, the standard gives meaning to the relevant language of the California Constitution without sacrificing the flexibility that the three branches of California government need in order to operate in an efficient and effective manner. It does so by recognizing that that the crux of a branch’s essential power is its ability to exercise its discretion and protects that power and no more.

I. Basic Principles

A. The Separation of Powers Doctrine and Its Purpose

The separation of powers doctrine articulates a basic philosophy of the U.S. constitutional system of government: “it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch.”

The separation of powers doctrine, even more than the Bill of Rights, is the primary protection for personal liberty.6 It secures liberty in the fundamental political sense of the term, by placing structural limits on the ability of any branch of the government to influence basic political decisions.7The framers’ inherent distrust of governmental power, both because of its potential for tyranny and because of its threat to individual liberty, was the driving force behind the constitutional plan that divided powers among three independent branches.9

B. The Conceptions of the Separation of Powers Doctrine: Formalism vs. Functionalism

Two primary theoretical models for resolving conflicts among the three branches of government have arisen in the literature: formalism and functionalism. Formalism assumes that a power’s nature as legislative, executive, or judicial is readily identifiable. In other words, it believes that it is possible to classify every governmental act as legislative, executive, or judicial.15 As one scholar explained: Formalists treat the Constitution’s three “vesting” clauses as effecting a complete division of otherwise unallocated federal governmental authority among the constitutionally specified legislative, executive and judicial institutions. Any exercise of governmental power, and any governmental institution exercising that power, must either fit within one of the three formal categories thus established or find explicit constitutional authorization for such a deviation. The separation of powers principle is violated whenever the categorization of the exercised power and the exercising institution do not match and the Constitution does not specifically permit such a blending.17

By contrast, functionalism simply requires the maintenance of an approximate balance of power between the branches. Instead of relying on clear demarcations of government powers, functionalism prohibits “too much” giving or taking of any power by any one branch.18 Unlike the formalist system of rule creation and application, a functionalist approach resolves separation of powers issues “not in terms of fixed rules but rather in light of an evolving standard designed to advance the ultimate purposes of a system of separation of powers.”19 Thus, functionalism uses a more practical approach to maintain the appropriate balance of power among the three branches.20

III. The Separation of Powers Doctrine under the California Constitution

A. The Differences between the California and Federal Governments

The separation of powers principles the Federal Constitution imposes upon the national government do not apply against the states.64 Nonetheless, California, like many other states, has adopted a tripartite system of government analogous to the federal system. Like the federal government, California has a legislative branch, an executive branch, and a judicial branch. Its constitution also describes the basic roles of the three branches in generally the same way as the Federal Constitution does for the national government: “the legislative power is the power to enact statutes, the executive power is the power to execute or enforce statutes, and the judicial power is the power to interpret statutes and to determine their constitutionality.”65 The California Constitution also recognizes the importance of keeping the branches separate and independent by avoiding “the concentration of power in a single branch of government” and “the overreaching by one branch against the others.”66 And like the United States Supreme Court, the California Supreme Court is the final arbiter of any disputes between the branches.67 As the California Supreme Court explained long ago, “[t]he judiciary, from the very nature of its powers and the means given it by the Constitution, must possess the right to construe the Constitution in the last resort . . . .”68

Although the California Constitution creates a system of governance that is similar to the federal system, California’s government is not a smaller version of the federal government. This is due in part to the intrinsic differences between the federal and state systems. The federal government has only the powers delegated to it by the states through the enumerated powers in the Federal Constitution.69In contrast, “State governments possess all the powers incident to political government, and not delegated to the United States,”71 and exercise plenary legislative power.72 The plenary powers of the state reside primarily in the people, who have delegated those powers to the legislative, executive, and judicial branches, except where the people have expressly or by necessary implication reserved that power for themselves.73

As a result, the California Constitution, unlike the Federal Constitution, does not grant power to the state government; instead, it places limits on the sovereignty of the state government.74 In other words, the California Constitution only defines the outer limits of the otherwise plenary lawmaking power of the legislature.75 This is reflected in the provisions of the California Constitution that define the branches and their powers and establish the separation of powers doctrine in a manner that is different from the Federal Constitution.76

Because of these fundamental differences between the two systems, California courts have often declined to follow federal constitutional jurisprudence and, instead, have developed their own jurisprudence for interpreting the California Constitution.

The California Supreme Court recently made this clear: “The flaw in [relying] upon these federal decisions lies in the implicit assumption that the separation of powers doctrine embodied in the federal Constitution is equivalent to the separation of powers clause of the California Constitution. As we shall see, . . . the federal and California Constitutions are quite distinct, rendering inapposite the federal authorities upon which Marine Forests relies.”79

As the court explained, whereas the Federal Constitution imposes prohibitions and grants only limited powers, the California Constitution concentrates power in the legislature and is not designed to “balance” power among the branches of government.80 The California Legislature possesses plenary lawmaking power except as specifically limited by the California Constitution.81 Consequently, in disputes between different branches of California government, federal separation of powers decisions are merely persuasive authority and should be relied upon only when there are no fundamental differences between the constitutional provisions at issue.82

When deviating from federal separation of powers jurisprudence, California courts typically acknowledge that the interplay among the three branches of California government may differ from their federal counterparts. Specifically, these courts “recognize that the three branches of government are interdependent” and are not wholly independent entities.84 As a result, they “permit actions of one branch that may ‘significantly affect those of another branch”’ but “limit the authority of one of the three branches of government to arrogate to itself the core functions of another branch.”85 In other words, “the separation of powers doctrine is violated only when the actions of a branch of government defeat or materially impair the inherent functions of another branch.”86In adopting this “core powers” or “core functions” analysis, California courts have combined the elements of the formalist and functionalist models embodied in federal separation of powers jurisprudence. The core powers analysis is derived in part from relevant provisions of the California Constitution and partly by borrowing concepts from federal law, and the analysis has gradually evolved over the years to take a middle path between form and function.

Although California courts moved away from a formalist approach, that did not mean that they moved towards the kind of “whatever works best in practice” that characterizes the functional approach. Instead, California courts have attempted to forge a middle ground between formalism and functionalism. Rather than adopt the Platonic ideal of three independent branches of government or describe all of the rods in each bundle of powers, California courts have held that each branch has some exclusive powers that are expressly or impliedly conferred by the California Constitution and some shared powers and areas of responsibility. As the California Supreme Court explained in 1868: “The Constitution only forbids persons charged with the exercise of powers belonging to one department from the exercise of functions pertaining to the other. The powers, thus referred to, must be powers which, in their essential nature, strictly belong to one department, or which are, in express terms, devolved upon one department. For there are many acts that have features at the same time pertaining to more than one department, and which cannot be separated, and each part of the act distributed to its appropriate department. To attempt to do it would be to render the administration of the Government and the laws impracticable.”123

Sixty-eight years later, the court further clarified that simply because one branch performs some act, it does not necessarily mean that another branch cannot do that same act. “The triune powers of the state . . . are thoroughly independent in certain of their essential functions, and at the same time mutually dependent in others.”124 Consequently, separation of powers doctrine does not require that courts “classify . . . incidental governmental duties, and . . . thereafter limit such activity to the particular branch of the government first selected. Such subsidiary duties may properly be performed by a variety of governmental agencies. . . . Nor does the Constitution prohibit the delegation of such incidental and subordinate tasks.”125

What the California Constitution does prohibit is the material impairment of the essential or core powers or functions of one branch by another.126In taking this middle ground, California courts have harmonized the separation of powers clause in article III, section 3 of the California Constitution with the practical realities of government. Article III, section 3 requires some division between the branches.128

Thus, California courts have developed a core functions analysis that parts ways with strict formalism. In developing this analysis, however, California courts have resisted the temptation to create a lodestone definition of the core powers of any of the three branches or a comprehensive list of those powers.131 Instead, courts have largely avoided the formalist/functionalist debate by classifying on a case-by-case basis the particular power presented based on whether it is identified as an express power in the text of the California Constitution or is a necessarily implied power.132

Current Core Powers Analysis

Under the modern view of California’s separation of powers doctrine, “it is well understood that the branches share common boundaries and no sharp line between their operations exists.” Consequently, although the state constitution ostensibly requires a system of three largely separate powers, the state separation of powers doctrine does not create an absolute or rigid division of functions; instead, the California view assumes that there will be some mutual oversight and influence between the branches.139 Ultimately, the purpose of the California separation of powers doctrine is “‘is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government[,]’ as well as to avoid the overreaching by one governmental branch against another.”

Under the core powers analysis, courts first determine whether the acts of one branch implicate the “core zone of authority” or powers of another branch.148 If the allegedly infringed-upon power or function is not assigned by the constitution’s text or by necessary implication to any branch, then control of that function may be shared, and actions by a branch in that area do not intrude on any core zone of another branch.149 For example, the appointment power is not assigned to any branch by the constitution and may therefore be shared by the legislative and executive branches.150 But if a core power is implicated, then courts determine whether that power has been materially impaired. Reasonable regulation or participation does not constitute a material impairment; on the contrary, such interaction is expected.151By accepting that a functioning government requires some interaction and overlap between all departments, the core powers analysis accommodates practical reality, permits flexible government, and remains faithful to the fundamental principle of preventing wholesale invasion of one branch’s essential functions.

Conclusion

California’s current core powers analysis forges a middle ground between formalism and functionalism. It recognizes that each branch has certain essential powers that must be safeguarded from encroachment by the other branches. At the same time, it recognizes that the branches are interdependent and that each branch must be able to affect another branch’s exercise of its essential powers. In doing so, the core powers analysis strives to protect against tyranny without sacrificing the flexibility that the government needs to function, by recognizing that the mere distribution of the functions of government into several hands does not necessarily lead to a balanced government. Each branch needs to exercise self-restraint and respect the constitutional boundaries of the branches.189 But when a branch fails to do so, the core powers analysis, as enforced by the courts, ensures that it will do not do so for long.

 

Single subject

Cal. Constitution Art. II sec. 8(d)

Article 2 Voting, Initiative and Referendum, and Recall

SEC. 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the

case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

[Remainder of section 8 omitted.]

 

Amador Valley Joint Union High School Dist. v. State Board of Equalization (1978), 22 Cal.3d 208

RICHARDSON, J.

In these consolidated cases, we consider multiple constitutional challenges to an initiative measure which was adopted by the voters of this state at the June 1978 primary election. This measure, designated on the ballot as Proposition 13 and commonly known as the Jarvis-Gann initiative, added article XIII A to the California Constitution. The new article changes the previous system of real property taxation and tax procedure by imposing important limitations upon the assessment and taxing powers of state and local governments.

It is a fundamental precept of our law that, although the legislative power under our constitutional framework is firmly vested in the Legislature, ‘the people reserve to themselves the powers of initiative and referendum.‘ (Cal. Const., art. IV, § 1.) It follows from this that, ‘’the power of initiative must be liberally construed … to promote the democratic process.’‘ Bearing in mind the foregoing interpretive aid, we briefly review the basic provisions of article XIII A.

2. The Single-subject Requirement

The single-subject requirement of article II was adopted in 1948, possibly in response to the many-faceted initiative measure which we invalidated in McFadden. Only a year later, in Perry v. Jordan (1949) 34 Cal.2d 87 [207 P.2d 47], we had occasion to construe the new constitutional provision. In Perry, we adopted and applied the ‘reasonably germane‘ test previously developed by earlier decisions construing a similar single-subject restriction applicable to legislation.

An initiative measure will not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are ‘reasonably germane‘ to each other. We note also the existence of a more restrictive test recently proposed in the dissenting opinion of Justice Manuel in Schmitz v. Younger (1978) 21 Cal.3d 90, 100, wherein he suggested that ‘an initiative’s provisions must be functionally related in furtherance of a common underlying purpose.‘ Our analysis of article XIII A convinces us that the several elements of that article satisfy either standard in that they are both reasonably germane to, and functionally related in furtherance of, a common underlying purpose, namely, effective real property tax relief.

A consists of four major elements, a real property tax rate limitation (§ 1), a real property assessment limitation (§ 2), a restriction on state taxes (§ 3), and a restriction on local taxes (§ 4). Although petitioners insist that these four features constitute separate subjects, we find that each of them is reasonably interrelated and interdependent, forming an interlocking ‘package‘ deemed necessary by the initiative’s framers to assure effective real property tax relief. Since the total real property tax is a function of both rate and assessment, sections 1 and 2 unite to assure that both variables in the property tax equation are subject to control. Moreover, since any tax savings resulting from the operation of sections 1 and 2 could be withdrawn or depleted by additional or increased state or local levies of other than property taxes, sections 3 and 4 combine to place restrictions upon the imposition of such taxes. Although sections 3 and 4 do not pertain solely to the matter of property taxation, both sections, in combination with sections 1 and 2, are reasonably germane, and functionally related, to the general subject of property tax relief

Among other purposes, the single-subject requirement was enacted to minimize the risk of voter confusion and deception. We may take judicial notice of the fact that the advance publicity and public discussion of article XIII A and its predicted effects were massive. The measure received as much public attention as any other ballot proposition in recent years. These circumstances would seem to dilute the risk of voter confusion or deception by reason of the inclusion of the four principal features of the article in one ballot proposition. Moreover, the official voters pamphlet mailed to all registered voters contained an elaborate and detailed explanation of the various elements of Proposition 13.

Petitioners contend, however, that adoption of XIII A violated a second important purpose underlying the single-subject requirement, namely, to avoid ‘exploiting‘ the initiative process by combining in a single measure several provisions which might not have commanded majority support if considered separately. The four elements of article XIII A not only pertain to the general subject of taxation, but also are reasonably interdependent and functionally related to each other. More importantly, no apparent ‘logrolling‘ is involved in this case. Each of the four basic elements of article XIII A was designed to interlock with the others to assure an effective tax relief program.

Petitioners assert that each of the four separate elements of article XIII A might not have been approved had each element appeared separately on the ballot. They speculate that various classes of voters may have favored some, but not all, of these elements; petitioners would require a showing that each of the several provisions of an initiative measure is capable of gaining approval by the electorate, independent of the other provisions. We are unable to accept such a contention, concluding that petitioners’ proposed single-subject test is far too strict, and lacks support in the authorities. Aside from the obvious difficulty of ever establishing satisfactorily such ‘independent voter approval,‘ this standard would defeat many legitimate enactments containing isolated, arguably ‘unpopular,‘ provisions reasonably deemed necessary to the integrated functioning of the enactment as a whole.

We avoid an overly strict judicial application of the single-subject requirement, for to do so could well frustrate legitimate efforts by the people to accomplish integrated reform measures. As we have previously observed, the initiative procedure itself was specifically intended to accomplish such kinds of reforms through its function as a ‘legislative battering ram. ‘ We should dull or blunt its force only for reasons that are constitutionally mandated, and accordingly we conclude that article XIII A does not violate the single-subject requirement of article II.

Having carefully considered them, we have concluded that article XIII A survives each of the substantial challenges raised by petitioners. The orders to show cause previously issued in these cases are discharged, and the respective petitions are denied.

 

Brosnahan v. Brown (1982), 32 Cal.3d 236

RICHARDSON, Justice.

We consider multiple constitutional challenges to an initiative measure which was adopted by the voters of this state at the June 1982 Primary Election. Designated on the ballot as Proposition 8 and commonly known as “The Victims’ Bill of Rights,” this initiative incorporated several constitutional and statutory provisions which were directed, in the words of the measure’s preamble, towards “ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights ….” It is uniformly agreed that the issues are of great public importance and should be resolved promptly. Accordingly, under well settled principles, it is appropriate that we exercise our original jurisdiction.

I. SUMMARY OF PROPOSITION 8

The measure denominated “The Victims’ Bill of Rights,” accomplishes several changes in the criminal justice system in this state for the purpose of protecting or promoting the rights of victims of crime. Thus, section 28 is added to article I of the California Constitution, section 12 of article I (relating to the right to bail) is repealed, and certain additions are made to the Penal and Welfare and Institutions Codes. The primary changes or additions are as follows:

a. Preamble; Victims’ Rights and Public Safety

Section 28, subdivision (a), is added to article I of the state Constitution expressing a “grave statewide concern” to enact “safeguards in the criminal justice system” for the protection of victims of crime. The preamble recites generally that the rights of victims include, among others, the right to restitution for financial losses, and the expectation that felons will be “appropriately detained in custody, tried by the courts, and sufficiently punished so that public safety is protected and encouraged ….” In addition, the provision states that “such public safety extends to public … school campuses, where students and staff have the right to be safe and secure in their persons.” The preamble concludes by observing that “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people’s lives.”

b. Restitution

Section 28, subdivision (b), is added to the Constitution to assure generally that persons who “suffer losses as a result of criminal activity shall have the right to restitution” from the persons convicted of those crimes. “Restitution shall be ordered … in every case, … unless compelling and extraordinary reasons exist to the contrary.”

c. Safe Schools

Section 28, subdivision (c), declares the “inalienable right” of public school students and staff “to attend campuses which are safe, secure and peaceful.”

d. Truth-in-evidence

Section 28, subdivision (d), provides that (except as provided by statutes enacted by a two-thirds vote of both houses of the Legislature) “relevant evidence shall not be excluded in any criminal proceeding ….” The provision applies equally to juvenile criminal proceedings, but does not affect “any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, or rights of the press.

e. Bail

Section 28, subdivision (e), relates to bail and requires that “primary consideration” be given to “public safety,” and authorizes the judge or magistrate to consider “the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing” in ruling on bail matters. In addition, the provision forbids release on one’s “own recognizance” of a person charged with any “serious felony”.

f. Prior Convictions

Section 28, subdivision (f), permits the unlimited use in a criminal proceeding of “any prior felony conviction” for impeachment or sentence enhancement, and requires proof thereof “in open court” when the prior conviction is an element of any felony offense.

g. Diminished Capacity; Insanity

The addition of section 25 to the Penal Code abolishes the defense of diminished capacity; places upon the defendant who pleads insanity the burden of proving his or her incapability of “knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense”; and permits consideration of evidence of diminished capacity or mental disorder “only at the time of sentencing or other disposition or commitment”.

h. Habitual Criminals

Section 667 is added to the Penal Code to require that persons convicted of a “serious felony” receive a sentence enhancement of five years for each prior conviction of such a felony “on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”

i. Victim’s Statements

New sections 1191.1 and 3043 in the Penal Code, and section 1767 in the Welfare and Institutions Code, permit the victim of any crime or the next of kin the right to prior notice of, and to attend, all sentencing proceedings, or parole eligibility or parole setting hearings in criminal or Youth Authority proceedings. The victim or next of kin may appear and “express his or her views concerning the crime and the person responsible.” The sentencing or parole authority shall consider these views in making its decision and shall state “whether the person would pose a threat to public safety” if granted probation or released on parole.

j. Plea Bargaining

Section 1192.7 is added to the Penal Code to prohibit plea bargaining if the indictment or information charges “any serious felony” or any offense of driving while intoxicated, “unless there is insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.”

k. Sentencing to Youth Authority

The addition of section 1732.5 to the Welfare and Institutions Code provides that no person convicted of murder, rape or other “serious felony” committed when he or she was 18 years or older shall be committed to Youth Authority.

l. Mentally Disordered Sex Offenders

New section 6331 of the Welfare and Institutions Code renders “inoperative” the article dealing with mentally disordered sex offenders (MDSOs). (As this article was repealed in 1981, the initiative does not appear to accomplish any change in the law.)

m. Severability

Section 10 of the initiative recites that if any section or clause thereof is held invalid, such invalidity shall not affect any remaining provisions which can be given effect without the invalid provision.

n. Amendments

A two-thirds vote of both houses of the Legislature is required to amend most of the statutory provisions adopted by Proposition 8.

Having summarized its principal elements, we examine petitioners’ four challenges to the validity of Proposition 8.

II. THE SINGLE SUBJECT RULE

Our Constitution provides that “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Art. II, § 8, subd. (d).) In determining whether a measure “embraces more than one subject,” we have previously held that “an initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are ‘reasonably germane’ to each other,” and to the general purpose or object of the initiative.

In Amador, for example, we upheld a four-pronged taxation measure which limited real property tax rates and assessments and restricted state and local taxes, on the ground that such restrictions were reasonably germane to the general subject of property tax relief. Even more recently in FPPC, we rejected a single-subject challenge to a lengthy political reform measure which contained the following multiple complex features: (1) establishment of a fair political practices commission; (2) creation of disclosure requirements for candidates’ financial supporters; (3) limitation on campaign spending; (4) regulation of lobbyist activities; (5) enactment of conflict of interest rules; (6) adoption of rules relating to voter pamphlet summaries of arguments; (7) location of the ballot position of candidates; and (8) specification of auditing and penalty procedures to aid in the act’s enforcement. In FPPC, we reemphasized that the single subject rule is to be “construed liberally,” and that “Numerous provisions, having one general object, if fairly indicated in the title, may be united in one act.

On the basis of the foregoing authorities, it is readily apparent that Proposition 8 meets the “reasonably germane” standard. Each of its several facets bears a common concern, “general object” or “general subject,” promoting the rights of actual or potential crime victims. As explained in the initiative’s preamble, the 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system. These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts. Proposition 8 constitutes a reform aimed at certain features of the criminal justice system to protect and enhance the rights of crime victims. This goal is the readily discernible common thread which unites all of the initiative’s provisions in advancing its common purpose.

We are reinforced in our conclusion that Proposition 8 embraces a single subject by observing that the measure appears to reflect public dissatisfaction with several prior judicial decisions in the area of criminal law. While we might disagree with both the accuracy of this premise and the overall wisdom of the initiative measure, nonetheless, it is not our function to pass judgment on the propriety or soundness of Proposition 8. In our democratic society in the absence of some compelling, overriding constitutional imperative, we should not prohibit the sovereign people from either expressing or implementing their own will on matters of such direct and immediate importance to them as their own perceived safety.

Petitioners’ entire argument that, in approving Proposition 8, the voters must have been misled or confused is based upon the improbable assumption that the people did not know what they were doing. It is equally arguable that, faced with startling crime statistics and frustrated by the perceived inability of the criminal justice system to protect them, the people knew exactly what they were doing. In any event, we should not lightly presume that the voters did not know what they were about in approving Proposition 8. Rather, in accordance with our tradition, “we ordinarily should assume that the voters who approved a constitutional amendment ‘… have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered.’ ”

There are those rare occasions similar to that which prompted the people’s adoption of the single-subject initiative rule in 1948 in which our intervention is justified. The proposed initiative may be so all encompassing, so multifaceted as to demand a conclusion of unconstitutionality. We faced such a measure in McFadden v. Jordan (1948) 32 Cal.2d 330, 196 P.2d 787, in which 21,000 words were proposed to be added to 15 of the 25 constitutional articles. This initiative dealt with such widely disparate subjects as gambling, civic centers, mining, fishing, city budgets, liquor control, senate reapportionment, and oleomargarine. We concluded that the measure constituted an improper revision of our constitutional scheme. In McFadden, we likewise could not fairly and reasonably have decided that any single subject was served by such a grab-bag of social, political, economic and administrative enactments. Proposition 8 is manifestly not such a measure.

For all of the foregoing reasons, we conclude that Proposition 8 does not violate the single-subject requirement of article II, section 8, subdivision (d), of the California Constitution. We do not suggest, of course, that initiative proponents are given blank checks to draft measures containing unduly diverse or extensive provisions bearing no reasonable relationship to each other or to the general object which is sought to be promoted. The single-subject rule indeed is a constitutional safeguard adopted to protect against multifaceted measures of undue scope. For example, the rule obviously forbids joining disparate provisions which appear germane only to topics of excessive generality such as “government” or “public welfare.” In the present case, however, we merely respect this court’s liberal interpretative tradition, notably expressed in Evans, Amador, and FPPC, of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.

VI. CONCLUSION

Justice Tobriner, referring to the law creating the initiative and referendum procedures, said: “Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the court to jealously guard this right of the people’, the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process’. ‘It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’

Consistent with our firmly established precedent, we have jealously guarded this precious right, giving the initiative’s terms a liberal construction, and resolving reasonable doubts in favor of the people’s exercise of their reserved power. We conclude that Proposition 8 survives each of the four constitutional challenges raised by petitioners.

BIRD, Chief Justice, dissenting.

I respectfully dissent. Today, a bare majority of this court obliterates one section of the state Constitution by effectively repealing the single-subject rule. It then proceeds to wink at other violations of the Constitution, thereby setting dangerous precedents and giving future draftsmen of initiative measures the message that they may proceed unrestrained by the Constitution.

Article II, section 8, subdivision (d) of the California Constitution mandates that “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”4 This single-subject limitation on initiative measures was adopted by a 2–1 margin at the 1948 general election.5A similar limitation on the Legislature, requiring that statutes embrace but a single subject, has been a feature of our state Constitution since 1849. California is not unique in that regard, for similar provisions are found in the constitutions of most states.

In California, the legislative single-subject rule has long been interpreted as requiring that all the provisions of a legislative enactment be “interdependent” and “‘reasonably germane’ to each other.”

The important concerns underlying the legislative single-subject limitation were noted by this court in 1881. “‘The practice … of comprising in one bill subjects of a diverse and antagonistic nature, in order to combine in its support members who were in favor of particular measures, but neither of which could command the requisite majority on its own merits, was found to be not [only] a corruptive influence in the Legislature itself, but destructive of the best interests of the State.’ ” (People v. Parks (1881) 58 Cal. 624, 640.) The policies underlying the legislative single-subject requirement apply with equal, if not greater, force to initiative measures.

Legislative enactments usually are adopted only after a lengthy process of public hearings, numerous readings and votes by each house of the Legislature. In addition, the Governor has the opportunity to review each enactment. By contrast, initiatives are drafted only by their proponents, so there is usually no independent review by anyone else. There are no public hearings. The draftsmen so monopolize the process that they completely control who is given the opportunity to comment on or criticize the proposal before it appears on the ballot.

This private process can and does have some detrimental consequences. The voters have no opportunity to propose amendments or revisions. Since the only people who have input into the drafting of the measure are its proponents, there is no opportunity for compromise or negotiation. “The result of this inflexibility is that more often than not a proposed initiative represents the most extreme form of law which is considered politically expedient.” Finally, the initiative process renders it difficult for the individual voter to become fully informed about any particular proposal. As a direct result of these concerns, the Legislature placed on the general election ballot in 1948 a constitutional amendment to provide that initiative measures be limited to one subject.

These statements reflect the separate dangers posed by an initiative which contains multiple subjects. First, there is a risk that voters will be unaware of the contents of an initiative’s disparate provisions. Second, there is a danger that an initiative will pass not because a majority of the voters favor any or all of its provisions, but because minorities who advocate some of its parts will aggregate their votes, giving it a false majority. Finally, the combination of numerous subjects in one initiative deprives the voters of their right to vote independently on the merits of each separate proposal. Voters who favor some of a measure’s provisions must choose to vote for all or none.

The single-subject rule, adopted by the electorate in 1948, addresses all of these problems. The requirement that an initiative embrace but one subject narrows the breadth of the issues which a voter must examine and evaluate. It enables the voter to obtain a clear idea of the contents of an initiative from a quick survey of its general provisions. In addition, a voter’s freedom of choice is protected by preventing initiative sponsors from forcing the electorate to vote for undesired provisions in order to enact favored sections.

The single-subject rule does not limit the initiative power of the people, but rather it requires that drafters of initiative measures state their proposals in a way which permits intelligent and informed choices, free from deception and forced compromises. It serves, therefore, to preserve the integrity of the initiative process and not to limit the power of the people.

The single-subject rule would be rendered meaningless if it could be complied with simply by devising some general concept expansive enough to encompass all of an initiative’s provisions. If the requirement of the rule could be so easily met, any initiative could be upheld by finding that all of its provisions fell within some catchall subject such as “the general welfare” or “the citizenry.”

Under a faithful interpretation of the single-subject rule, the remaining provisions of Proposition 8 clearly “embrace more than one subject.” The measure is replete with proposals for important policy changes, many of which are enormously complex. This aggregation into one initiative measure of so many far-reaching, yet unrelated, proposals sharply conflicts with the fundamental concerns underlying the single-subject rule.

By lumping so many fundamental changes into one measure, the initiative effectively deprived the voters of their opportunity to consider and pass on the merits of the individual proposals. Each of these provisions created a different and distinct alteration of our constitutional or statutory framework. As a whole they did not present a coherent, interlocking program. Yet the electorate was forced to vote either “yes” or “no” on a single initiative containing this wide a variety of controversial and complex proposals. In essence, the draftsmen confronted the voters with a Hobson’s choice, an electoral contract of adhesion. Had the separate provisions of the initiative been interdependent, it might have been reasonable to ask the electorate to vote on the entire initiative as a package. Since they were independent, encompassing a wide variety of disparate and conflicting concepts, the voters were deprived of their constitutional right to consider the proposals individually and to evaluate each in a more discriminating fashion.

The single-subject rule does not prevent the submission to the voters of comprehensive programs of reform. Rather, it merely limits the form in which such programs may be presented. If proposed constitutional or statutory changes embrace more than one subject, they must be presented to the voters in more than one initiative. The proposed provisions of an initiative must be “‘reasonably germane’ to each other,” creating a coherent, interdependent scheme. The single-subject requirement thus operates not as a limit on the people’s reserved power to legislate by initiative, but as a limit on the draftsmen of initiative measures. The rule demands that initiative proposals be presented to the voters in a format that ensures the integrity of the cherished initiative process.

Initiatives which embrace more than one subject weaken rather than strengthen a citizen’s right to vote. They threaten to undermine the integrity and strength of the whole initiative process. If the voters are confused or misled, or if they vote for or against a proposal because they favor or oppose one or two of its provisions, the initiative process has not served to implement the will of the people. Rather, it has sanctioned a warped expression of the wishes of some of those people, while thwarting the will of the majority. Only through careful adherence to the objective constitutional regulations governing the initiative process can the true purposes of the right to the initiative be realized. Bending those rules weakens the process, thereby diminishing the people’s control over their government.

 

Standing

Perry v. Brown (2011), 52 Cal.4th 1116

CANTIL–SAKAUYE, C.J.

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. As posed by the Ninth Circuit, the question to be decided is “whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that “only marriage between a man and a woman is valid or recognized in California”, the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent’s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive *1125 offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials’ discretionary governmental decisions while in office. The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.

In the past official proponents of initiative measures in California have uniformly been permitted to participate as parties—either as interveners or as real parties in interest— in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents’ own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests.

As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order “to guard the people’s right to exercise initiative power” or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state’s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people’s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure’s defense. In this manner, the official proponents’ general ability to appear and defend the state’s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process

We have cautioned that in most instances it may well be an abuse of discretion for a court to fail to permit the official proponents of an initiative to intervene in a judicial proceeding to protect the people’s right to exercise their initiative power even when one or more government defendants are defending the initiative’s validity in the proceeding. Thus, in an instance—like that identified in the question submitted by the Ninth Circuit—in which the public officials have totally declined to defend the initiative’s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

II. Relevance of State Law to Standing under Federal Law

Decisions of the United States Supreme Court establish that the determination whether an individual or entity seeking to participate as a party in a federal court proceeding or to appeal from an adverse judgment entered in such a proceeding possesses the requisite standing to satisfy the “case or controversy” provisions of article III of the United States Constitution is ultimately a question of federal law upon which the federal courts have the final say.

As the question posed by the Ninth Circuit indicates, in the present case two potential bases for standing are implicated: (1) The official proponents of a successful initiative measure may have authority to appear in court to assert the state’s interest in defending the validity of a duly enacted state law,9 or (2) the official proponents may have their own personal “particularized ” interest in the initiative’s validity. We briefly discuss the federal decisions that analyze the effect of state law on each of these potential bases for standing in federal court.

Standing to Assert the State’s Interest in an Initiative’s Validity

With respect to the question of who possesses standing to assert the state’s interest in defending the validity of a state constitutional provision or statute when the state measure is challenged in a federal proceeding, we believe . . . that a federal court will look to state law to determine whom the state has authorized to assert the state’s interest in the validity of the challenged measure.

We note in this regard that in its order submitting the present question to this court, the Ninth Circuit stated explicitly that, in its view, if the official proponents of an initiative have authority under California law to assert the state’s interest in the initiative measure’s validity in such a case, then, under federal law, the proponents would have standing in a federal proceeding to assert the state’s interest in defending the challenged initiative and to appeal a judgment invalidating the initiative.

B. Standing Based on “Particularized Interest”

Under the particularized interest standard, federal decisions establish that a federal court considers whether a prospective party is able to demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized, … and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” Although the United States Supreme Court has recognized that a state “has the power to create new interests, the invasion of which may confer standing” under federal law, not every interest that state law recognizes as conferring standing on an individual or entity to institute or to defend a particular kind of lawsuit in state court will be sufficient to establish that the individual or entity has a particularized interest to bring or defend an analogous lawsuit in federal court.

Proponents maintain that because they possess a fundamental right under the California Constitution to propose statutory or constitutional changes through the initiative process, they possess a personal, particularized interest in the validity of an initiative measure that they have proposed and that has been approved by the voters, an interest that would go undefended if they are not permitted to provide such a defense when the public officials who ordinarily defend a challenged state law decline to do so. Proponents argue that their personal, fundamental right guaranteed by the initiative provision would be nullified if a voter-approved measure they have sponsored is improperly and incorrectly invalidated because public officials who are hostile to the measure have failed to mount a defense or to appeal a lower court judgment striking down the initiative.

Plaintiffs, by contrast, assert that although the official proponents of an initiative may possess a personal, particularized interest under the California Constitution and the applicable statutory provisions in having an initiative measure they have proposed submitted to the voters, once an initiative measure has been approved by the voters the official proponents have no greater personal legally protected interest in the measure’s validity than any other member of the public. Accordingly, plaintiffs argue that once an initiative measure has been enacted into law, its official proponents do not possess a distinct, particularized interest in the initiative’s validity.

As we explain, we need not decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters. For the reasons discussed below, we conclude that when public officials decline to defend a voter-approved initiative or assert the state’s interest in the initiative’s validity, under California law the official proponents of an initiative measure are authorized to assert the state’s interest in the validity of the initiative and to appeal a judgment invalidating the measure. Because that conclusion is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity.

III. Analysis of Initiative Proponents’ Standing Under California Law

Basis of Initiative Proponents’ Standing

Article II, section 1 of the California Constitution proclaims: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”

Although California’s original 1849 Constitution declared that “all political power is inherent in the people,” it was not until 60 years later—in 1911—that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power. In Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, we briefly described the history, significance, and consistent judicial interpretation of the constitutionally based initiative power in California: “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900’s. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the courts to jealously guard this right of the people’ …, the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process….’ ‘It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ ”

As a number of our past decisions have explained, the progressive movement in California that introduced the initiative power into our state Constitution grew out of dissatisfaction with the then-governing public officials and a widespread belief that the people had lost control of the political process. In this setting, “the initiative was viewed as one means of restoring the people’s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments.” The primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt. The 1911 ballot pamphlet argument in favor of the measure described the initiative as “that safeguard which the people should retain for themselves, to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact….”

The California constitutional provisions setting forth the initiative power do not explicitly refer to or fully prescribe the authority or responsibilities of the official proponents of an initiative measure,12 but the Legislature, in adopting statutes to formalize and facilitate the initiative process, has enacted a number of provisions that explicitly identify who the official proponents of an initiative measure are and describe their authority and duties.

Neither the state constitutional provisions relating to the initiative power, nor the statutory provisions relating to the official proponents of an initiative measure, expressly address the question whether, or in what circumstances, the official proponents are authorized to appear in court to defend the validity of an initiative measure the proponents have sponsored. Nonetheless, since the adoption of the initiative power a century ago, decisions of both this court and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties—either as interveners or as real parties in interest—in both preelection and postelection litigation challenging the initiative measure they have sponsored.

Furthermore, the participation by official initiative proponents as formal parties in such litigation has routinely been permitted whether or not the Attorney General or other public officials were also defending the challenged initiative measure in the judicial proceeding in question. The decisions in which official initiative proponents (or organizations that have been directly involved in drafting and sponsoring the initiative measure) have been permitted to participate as parties in California proceedings involving challenges to an initiative measure are legion [citing numerous cases].

Once an initiative measure has been approved by the requisite vote of electors in an election, however, the measure becomes a duly enacted constitutional amendment or statute. At that point, in the absence of a showing that the particular initiative in question will differentially affect the official proponents’ own property, liberty or other individually possessed legal right or legally protected interest, it is arguably less clear that the official proponents possess a personal legally protected stake in the initiative’s validity that differs from that of each individual who voted for the measure or, indeed, from that of the people of the state as a whole. Although the matter is subject to reasonable debate, one may question whether the official proponents of a successful initiative measure, any more than legislators who have introduced and successfully shepherded a bill through the legislative process, can properly claim any distinct or personal legally protected stake in the measure once it is enacted into law.

Nonetheless, as we have seen, the decisions of this court and the Courts of Appeal in postelection challenges to voter-approved initiative measures have uniformly permitted the official proponents of an initiative measure to intervene, or to appear as real parties in interest, to defend the validity of the challenged initiative measure. In the postelection setting, the ability of official initiative proponents to intervene or to appear as a real parties in interest has never been contingent upon the proponents’ demonstration that their own personal property, liberty, reputation, or other individually possessed, legally protected interests would be adversely or differentially affected by a judicial decision invalidating the initiative measure. Plaintiffs have not cited, and our research has not disclosed, any decision in which the official proponents of an initiative measure were precluded from intervening or appearing as real parties in interest in a postelection case challenging the measure’s validity, even when they did not have the type of distinct personal, legally protected interest in the subject matter of the initiative measure that would ordinarily support intervention or real party in interest status on a particularized interest basis. Instead, they have been permitted to participate as parties in such litigation simply by virtue of their status as official proponents of the challenged measure.

Accordingly, we conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.

Our determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of the initiative measure when public officials have declined to defend the measure, however, does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question. Rather, the authority the proponents possess in this context is simply the authority to participate as a party in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so.

IV. Conclusion

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

We Concur: Kennard, Baxter, Werdegar, Chin, Corrigan, and Liu, JJ.

 

Limitations on state police power imposed by the federal Constitution

Edwards v. California, 314 U.S. 160 (1941)

[In 1937, in response to migration into California of refugees from the Dust Bowl of the central United States, California enacted a statute variously known as the “Okie Law” or the “Arkie Law” (referring to immigrants from Oklahoma and Arkansas) that made it a misdemeanor to transport an indigent person into the state. Many of these migrants arrived destitute and depended for subsistence on financial aid from the federal Farm Security Administration or the state’s welfare system. Their plight was immortalized in the photography of Dorothea Lange for the Farm Security Administration and by John Steinbeck’s novel The Grapes of Wrath. Appellant was convicted under the statute for bringing his indigent brother-in-law from Texas.]

Mr. Justice BYRNES delivered the opinion of the Court.

The issue presented in this case, therefore, is whether the prohibition embodied in Section 2615 against the ‘bringing’ or transportation of indigent persons into California is within the police power of that State. We think that it is not, and hold that it is an unconstitutional barrier to interstate commerce. The State asserts that the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. We are of the opinion that Section 2615 is not a valid exercise of the police power of California, that it imposes an unconstitutional burden upon interstate commerce, and that the conviction under it cannot be sustained.

Mr. Justice DOUGLAS, concurring.

The right of persons to move freely from State to State occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines. While the opinion of the Court expresses no view on that issue, the right involved is so fundamental that I deem it appropriate to indicate the reach of the constitutional question which is present.

The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. When the Fourteenth Amendment was adopted in 1868 it had been squarely and authoritatively settled that the right to move freely from State to State was a right of national citizenship. As such it was protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Thus it is plain that the right of free ingress and egress rises to a higher constitutional dignity than that afforded by state citizenship.

Mr. Justice JACKSON, concurring.

I concur in the result reached by the Court, and I agree that the grounds of its decision are permissible ones under applicable authorities. But the migrations of a human being, of whom it is charged that he possesses nothing that can be sold and has no wherewithal to buy, do not fit easily into my notions as to what is commerce. To hold that the measure of his rights is the commerce clause is likely to result eventually either in distorting the commercial law or in denaturing human rights. I turn, therefore, away from principles by which commerce is regulated to that clause of the Constitution by virtue of which Duncan is a citizen of the United States and which forbids any state to abridge his privileges or immunities as such.

This clause was adopted to make United States citizenship the dominant and paramount allegiance among us. The return which the l aw had long associated with allegiance was protection. This Court should hold squarely that it is a privilege of citizenship of the United States, protected from state abridgment, to enter any state of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof.

I think California had no right to make the condition of Duncan’s purse, with no evidence of violation by him of any law or social policy which caused it, the basis of excluding him or of punishing one who extended him aid. Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.

 

Saenz v. Roe, 526 U. S. 489 (1999)

Justice STEVENS delivered the opinion of the Court.

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.

California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion.

In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted § 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. [A] new [federal] statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) of the [TANF] program … of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.”

The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California. The second component of the right to travel is expressly protected by the text of the Constitution. The first sentence of Article IV, § 2, provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. ”Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits

What is at issue in this case, then, is this third aspect of the right to travel—the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment. Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughterhouse Cases (1872), it has always been common ground that this Clause protects the third component of the right to travel. That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year.

The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.

Citizens of the United States, whether rich or poor, have the right to choose to be citizens “of the State wherein they reside.” The States, however, do not have any right to select their citizens.

The judgment of the Court of Appeals is affirmed.