Property rights
Cal. Constitution Art. I sec. 19
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHT
SEC. 19. (a) Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.
(b) The State and local governments are prohibited from acquiring by eminent domain an owner-occupied residence for the purpose of conveying it to a private person.
(c) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of protecting public health and safety; preventing serious, repeated criminal activity; responding to an emergency; or remedying environmental contamination that poses a threat to public health and safety.
(d) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.
(e) For the purpose of this section:
1. “Conveyance” means a transfer of real property whether by sale, lease, gift, franchise, or otherwise.
2. “Local government” means any city, including a charter city, county, city and county, school district, special district, authority, regional entity, redevelopment agency, or any other political subdivision within the State.
3. “Owner-occupied residence” means real property that is improved with a single-family residence such as a detached home, condominium, or townhouse and that is the owner or owners’ principal place of residence for at least one year prior to the State or local government’s initial written offer to purchase the property. Owner-occupied residence also includes a residential dwelling unit attached to or detached from such a single-family residence which provides complete independent living facilities for one or more persons.
4. “Person” means any individual or association, or any business entity, including, but not limited to, a partnership, corporation, or limited liability company.
5. “Public work or improvement” means facilities or infrastructure for the delivery of public services such as education, police, fire protection, parks, recreation, emergency medical, public health, libraries, flood protection, streets or highways, public transit, railroad, airports and seaports; utility, common carrier or other similar projects such as energy-related, communication-related, water-related and wastewater-related facilities or infrastructure; projects identified by a State or local government for recovery from natural disasters; and private uses incidental to, or necessary for, the public work or improvement.
6. “State” means the State of California and any of its agencies or departments.
Billings v. Hall (1857), 7 Cal. 1
[The California Supreme Court, by a 2-1 vote, held unconstitutional the “Settlers’ Act” of 1856, which required the owner of land in an action of ejectment to pay a squatter who had made improvements on the land the value of those improvements. The case required the Court to consider the meaning and scope of Art. I § 1.]
MURRAY, C. J.
We come now to inquire whether [the Settlers’ Act] can be upheld under the Constitution of this State. Section first of Article I, of the Constitution of California, declares that “all men are by nature free and independent, and have certain inalienable rights, amongst which are those of enjoying and defending life and liberty, acquiring possession, protecting property, and pursuing and obtaining safety and happiness.” This principle is as old as the Magna Charta. It lies at the foundation of every constitutional government, and is necessary to the existence of civil liberty and free institutions. It was not lightly incorporated into the Constitution of this State as one of those political dogmas designed to tickle the popular ear, and conveying no substantial meaning or idea; but as one of those fundamental principles of enlightened government, without a rigorous observance of which there could be neither liberty nor safety to the citizen.
Having thus established the proposition that, both at law and equity, the lawful owner who has been dispossessed of land is entitled, upon a recovery, both to the profits and the improvements that have been made thereon, and such having been the law of this State, since the adoption of the Constitution down to the passage of the Act of 1856, let us examine how far it trenches upon the principles of natural justice, and the provisions of the Constitution.
That which, before, was mine, is by this Act taken from me, either in whole or in part, for if I refuse to pay for the improvements which were put upon my land by a mere trespasser, and which were mine by the law, before the passage of the statute, I lose not only the improvements, but the land itself, and that which is mine to-day, may be taken from me to-morrow, by any intruder who wishes to enter upon it. Such legislation is repugnant to the plainest principles of morality and justice, and is violative of the spirit and letter of our Constitution. It divests vested rights, attempts to take the property acquired by the honest industry of one man, and confer it upon another, who shows no meritorious claim in himself.
It has been erroneously supposed, by many, that the Legislature of a State might do any Act, except what was expressly prohibited by the Constitution. Whether there is any restriction upon legislative power, irrespective of the Constitution, is a question upon which ethical and political writers have differed. Many of the ancient writers have based this claim of omnipotence upon the doctrine of the absolute and sacred character of sovereignty, assuming that princes bear rule by divine right, and not by virtue of the expressed or tacit consent of the governed. Some contend that the very existence of government depends upon the supreme power being lodged in some branch of the Government, from which there is no appeal, and, if laws are passed which are immoral, or violate the principles of natural justice, the subject is bound to obey them. Others contend that there are boundaries set to the exercise of the supreme sovereign power of the State, that it is limited in its exercise by the great and fundamental principles of the social compact, which is founded in consent, express or implied; that it shall be called into existence for the great ends which that compact was designed to secure, and, hence, it cannot be converted into such an unlimited power, as to defeat the end which mankind had in view, when they entered into the social compact. Whatever doubt may have formerly existed on this subject, the question has been settled, by an overwhelming weight of authority, in this country, that the spirit of free institutions is at war with such a principle.
The policy of most of the States has been to encourage settlement in good faith upon vacant lands as a means of developing agricultural interests, and the wisdom of that policy has manifested itself in the rapid growth of the West and Southwest.
However desirable such a policy may be, and however necessary to the interest of this State, it ought not to be encouraged or maintained when founded in wrong and injustice to her citizens. It is a law as immutable as those of nature, that States and nations, like individuals, are bound to obey the principles of natural justice in all their dealings with their subjects and others, and while a seeming temporary prosperity may follow the infractions of this rule, the day of retribution must come as certainly as effect follows cause.
It has become common in our Courts to denounce titles similar to the one under which the plaintiff claims, and it is useless to disguise the fact, that they are unpopular with the people at large, owing, probably, to the circumstance that many grants have been forged for the purpose of covering improvements made in good faith; but this prejudice should be confined to such fraudulent grants, and ought not to be extended to all alike. The early pioneers of California, who encountered so many dangers and privations in settling this country and developing its wealth and resources; who have laid the foundation of a new empire, and opened to the world a new field of wealth and enterprise, would have cause to complain of injustice, and to denounce the fairness and policy of a government which took from them the honest acquisitions of toil and danger to enrich needy adventurers, upon the shallow pretext of policy, and under the false assumption of legislative omnipotence.
Judgment reversed, and new trial ordered.
BURNETT, J.
I concur with the Chief Justice in the judgment rendered, and in the general views expressed in the opinion delivered. As the subject is one of so much interest and importance, I had intended giving a separate opinion; but the very full examination of my associate, renders this unnecessary. I will, however, submit the following positions, which I take to be true in themselves:
3. That a Constitution is a solemn compact, deliberately and freely entered into by a free people as between themselves, by which they limit the powers of their agents, the powers of majorities, and the powers of themselves; that this compact is made in advance, when men are more free from passion and prejudice– when no one can foresee whether he will fall with the majority or with the minority–when there is no interest to subserve, but equal and exact justice– and when the only object is to lay down those fundamental and eternal principles, under the practical application of which, every man may enjoy the rights and privileges of human nature, and the protection and happiness incidental to society well regulated.
4. That there are certain inherent and inalienable rights of human nature that no government can justly take away–that some of these rights have been enumerated in our State Constitution, and in the language of that instrument, “This enumeration of rights shall not be construed to impair or deny others retained by the people.”
5. That among the inalienable rights declared by our Constitution as belonging to each citizens, is the right of “acquiring, possessing, and protecting property.”
6. That this right of “protecting property” is not the simple right of protection by individual physical force, but the right to protect it by the law of the land, and the force of the body politic
7. That the question as to what constitutes a title to property must depend for its solution upon the laws as they exist at the very time when the right accrues.
8. That the citizen who obeys the laws of to-day, and under their deliberate and solemn sanction acquires a right to property, cannot be deprived of his property, by any retrospective act, passed to-morrow, requiring him to pay for that which, by the existing law, was already declared to be his own.
9. That if the Legislature could, by such retrospective act, divest rights already legally and lawfully vested, there would be no limit, so far as this inalienable right is concerned, but its own discretion.
10. That for the Constitution to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, insufficient to protect the citizen, delusive and visionary, and the practical result of which would be to destroy, not conserve, the rights it vainly presumed to protect.
11. That if the Legislature cannot directly take from the citizen that property which the existing law declares to be his, and give it to another, then the law-making power cannot accomplish the same practical end by indirect means.
20. That the hardships of particular cases, that will and must arise in the progress of human affairs, under any and all systems of government and law, do in fact constitute the true and stern test of the devotion of a free people to fundamental principles; and to sustain these fundamental principles, whereon liberty, protection, and society itself, are based, is the most conclusive proof of the capacity and fitness of a people for self-government
TERRY, J.
With the utmost deference to the majority of the Court, I am compelled, reluctantly, to dissent from their opinion in this case. After the most careful investigation, I am unable to perceive any constitutional objection to [the Settlers’ Act]
It is conceded, that the Act does not conflict with any provision of the Constitution of the United States, or the treaty of Guadalupe Hidalgo. The opinion seems to be predicated on the grounds, that the Act is void, because it is in violation of natural justice, and infringes article first of section first of the Constitution of this State. This article is a mere reiteration of a truism which is as old as constitutional government. A similar declaration is contained in the Constitutions of most of the States of the Union, but, I think, has never been construed as a limitation on the power of the government.
Such a construction might seriously affect the power of government to enact laws for the punishment of crime by the incarceration of the criminal, or to enforce the collection of debts by a seizure and sale of property.
The doctrine, that judges have power to annul a law, because, in their opinion, its provisions are in violation of natural justice, is one of dangerous consequences, tending to destroy that distribution of powers made by the Constitution, by concentrating in the hands of the judiciary, functions which are, by the Constitution, conferred on different departments, and cannot, I think, be maintained on principle or authority.
The question whether a particular law is in violation of natural justice, may be one of difficult solution. Its determination is governed by no fixed rules, and often depends on considerations of policy and public advantage, which are more properly the subjects of legislative than judicial exposition. We cannot declare a legislative act void because it conflicts with our opinion of policy, expediency, or justice. We are not guardians of the rights of the people of the State, unless they are secured by some constitutional provision which comes within our judicial cognizance.
The remedy for unwise and oppressive legislation within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people; if these fail, the people in their sovereign capacity can correct the evil. But Courts cannot assume their rights; there is no paramount and supreme law which defines the laws of nature, or settles those great principles of legislation which are said to control State Legislatures in the exercise of the powers conferred on them by the Constitution.
If it is once admitted that there exists in this Court a power to declare a State law void, which conflicts with no constitutional provision–if we assume the right to annul it for its supposed injustice or oppressive operation, we become the makers, and not the expounders of the Constitution. Our opinions would not be a judgment on what was the pre-existing law of the case; but upon what it is, after we have so amended or modified it, as to meet our ideas of justice, policy, and wise legislation, by a direct usurpation of legislative power and a flagrant violation of the duty enjoined upon us by the Judiciary Act.”
Upon the face of the inducements offered by the Legislature, and the promise of being protected in the possession of their homes, a number of hardy and enterprising citizens settled upon lands which, in most instances, had never been surveyed or occupied, nor in any manner segregated from the public domain. Nor was there any evidence within their reach to show that such lands were claimed by any private citizen. Most of this land was, before their settlement, of little value, paying revenue neither to the owner nor to the State; their present enhanced value is in a great measure owing to the energy and labor of the occupant, the improvements in many cases greatly exceeding the lands in value. There are no doubt instances of wrongful and tortious entries upon lands known to be claimed by individuals, but in a majority of cases, more especially in those portions of the State that were not inhabited before the discovery of gold mines, such entries have been made under the bona fide belief that the land settled upon was a portion of the public domain.
Under these circumstances we may well doubt whether it would be a greater violation of natural justice to deprive hundreds of citizens and their families of the homes erected by the labor of years, without making any compensation for the improvements which constitute a great part of the value of those homes, or to permit them to retain possession of them upon paying to the owner of the soil the full value of all that is really his own. It appears to be settled that the Legislature may enact laws by which private property may be taken for private purposes in cases where the general good would be thereby promoted. The propriety, policy, and expediency of such acts, can be properly determined on by the Legislature.
In determining the validity of an Act of the Legislature the Courts can consider only whether the Act is in conflict with any express provision of the Constitution. Our authority to judge is derived from the Constitution and laws of the State; we can know no power superior to the Constitution, nor acknowledge any higher law than a statute duly enacted pursuant to its provisions.
Agricultural Labor Relations Board v. Superior Court (1976), 16 Cal.3d 392
Agricultural Labor Relations Board v. Superior Court (1976), 16 Cal.3d 392
Opinion by: MOSK, J.:
The state Agricultural Labor Relations Board (ALRB) petitions for an original writ of mandate to compel respondent Superior Courts of Tulare and Fresno Counties to vacate various orders enjoining enforcement of an administrative regulation which permits qualified access to agricultural property by farm labor organizers. We have concluded that the regulation is valid and the board is entitled to the relief requested.
On August 28, 1975, the Agricultural Labor Relations Act (ALRA) went into effect. The preamble to the act recites in part that “In enacting this legislation the people of the State of California seek to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations. Thus new section 1140.2 of the Labor Code states “the policy of the State of California” to be “to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. For this purpose this part is adopted to provide for collective-bargaining rights for agricultural employees.” The board promptly adopted emergency regulations for the operation of the act. Among those provisions is the regulation here in issue, which grants a qualified right of access to growers’ premises by farm labor organizers.
Two groups of growers, real parties in interest herein, filed actions in the Fresno and Tulare Superior Courts attacking the validity of the regulation and seeking to prevent its enforcement. The Fresno Superior Court held a hearing on the matter and on the same day issued a peremptory writ of mandate ordering the board to vacate the regulation, together with a declaratory judgment that the regulation is invalid on both constitutional and statutory grounds. At the same time the Tulare Superior Court issued a temporary restraining order prohibiting the board from enforcing the regulation, and set a hearing on an order to show cause why an injunction to that effect should not be issued. Upon application and appropriate showing by the board, we stayed the effect of the respective superior court rulings pending final determination of this proceeding for writ of mandate.
We begin with the constitutional issues. The real parties in interest contend that the access regulation is unconstitutional because it assertedly deprives them of property rights without due process of law and constitutes a taking of those rights without just compensation. The real parties principally rely on Lloyd Corp. v. Tanner (1972) , and Diamond v. Bland (1974), but the decisions are not in point. In each a divided court held that the constitutional guarantee of free speech was not violated by the refusal of a shopping center to permit its property to be used for distribution of antiwar handbills (Lloyd) or solicitation of signatures on an initiative petition (Diamond). The matter at bar, by contrast, is not primarily a First Amendment case. At issue here is not an exercise of freedom of speech on a topic of general concern in a convenient public forum; rather, the interest asserted is the right of workers employed on the premises in question to have effective access to information assisting them to organize into representative units pursuant to a specific governmental policy of encouraging collective bargaining.
It should scarcely be necessary, as we enter the last quarter of the 20th century, to reaffirm the principle that all private property is held subject to the power of the government to regulate its use for the public welfare. We do not minimize the importance of the constitutional guarantees attaching to private ownership of property; but as long as 50 years ago it was already “‘thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. Although one owns property, he may not do with it as he pleases any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so, also, does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being.
Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. . . . [Incidental] damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare are not considered a taking of the property for which compensation must be made.'” This is living law today. “The history of the law of private ownership has witnessed simultaneously a playing-down of absolute rights and a playing-up of social concern as to the use of property. . . . Property rights have been redefined in response to a swelling demand that ownership be responsible and responsive to the needs of the social whole. Property rights cannot be used as a shibboleth to cloak conduct which adversely affects the health, the safety, the morals, or the welfare of others.”
We conclude that the decision of the ALRB to regulate the question of access by a rule of general application transgresses no constitutional command.
Let a peremptory writ of mandate issue as prayed.
CLARK, J. I dissent.
The regulation constitutes an unwarranted infringement on constitutionally protected property rights.
The majority concludes that the access regulation is constitutional and does not impinge upon private property rights because a rational relationship exists between the access regulation and the purposes of the act. The majority finds that the rational relationship test is the proper standard for constitutional review by analogizing the issue here presented to the issues raised when the validity of a zoning ordinance is challenged. The majority, however, has erred in its analogy, applied an improper standard of constitutional review, and thereby sanctioned an impermissible invasion on constitutionally protected property rights.
The United States Supreme Court balanced the competing interests in Babcock and Central Hardware, and because, as pointed out above, the board’s regulation violates the rule of those cases, the access regulation violates the constitutional provisions protecting private property. The board’s regulation does not even attempt to balance or accommodate the competing interests. It allows access when alternative means of communication do in fact exist. And it permits blanket entry onto private property during working hours. The regulation as presently promulgated is unconstitutional.
Positive rights; happiness and safety
Cal. Constitution Art. XVI sec. 11
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
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.
Joseph R. Grodin, “Rediscovering the State Constitutional Right to Happiness and Safety”
Joseph R. Grodin, “Rediscovering the State Constitutional Right to Happiness and Safety,” 25 Hastings Const. L.Q. 1 (1997)
Fully two thirds of the state constitutions contain provisions which either declare the right of persons to pursue happiness or (along with safety) to actually “obtain” it.
Scholars, as well as lawyers, have tended to ignore these state constitutional provisions, apparently regarding them as little more than pious echoes of the Declaration. These provisions had their origin in constitutional documents which preceded the Declaration and deserve consideration as independent sources of constitutional rights. This article explores the background and potential contemporary meaning of this long neglected constitutional language.
Should [these constitutional provisions] be regarded (a) as an interesting relic of a natural rights/social contract philosophy which has no contemporary relevance; (b) as a statement about the objectives of government which may be viewed as a directive to the legislative and administrative branches of government, but not susceptible of application by the judicial branch; and/or (c) as a statement of rights capable of being enforced, in some situations, by the courts? If the latter, should courts view the language as describing rights against government, rights to affirmative governmental action, rights which trigger heightened “equal protection” scrutiny, or even rights capable of being asserted against non-governmental actors? Viewed either negatively or affirmatively as a statement of judicially enforceable rights, how should the rights be defined?
A. Hortatory or Subject to Judicial Application?
Courts in a few states have taken the position that the early provisions referring to inalienable rights were advisory or hortatory only. However, some state constitutions which contain happiness and safety language also declare that “the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” [Cal. Const., art. I, § 26] Such a declaration would appear to preclude adoption of the “hortatory” approach. Also, in a number of state constitutions, the original language of the statement of inalienable or inherent rights has been amended to add other rights which quite clearly were intended to be, and in most cases have been, the subject of judicial cognizance. California, for example, amended article 1, section 1 of its constitution in 1972 to provide for the right to pursue and obtain “happiness, safety, and privacy,”112 and the privacy clause has been the frequent subject of litigation.
In fact, most courts have assumed that the inalienable rights clauses have some judicially enforceable content. One of the earliest decisions is that of the California Supreme Court in Billings v. Hall,122 [7 Cal. 1 (1857)] which held the Settler’s Act of 1856 invalid under article I, section 1 of the state constitution because it deprived owners of settled property expectations. The case produced three opinions, with Justice Terry arguing that the section represented a mere “truism,” and could not be viewed as a limitation upon the power of government.123 The other two justices, writing separately, disagreed.124 Chief Justice Murray declared that the section was not lightly incorporated into the Constitution of this state as one of those political dogmas designed to tickle the popular ear, and conveying no substantive meaning or idea; but as one of those fundamental principles of enlightened government, without a rigorous observance of which there could be neither liberty nor safety to the citizen.125
And Justice Burnett, concurring, reasoned that
For the Constitution to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, insufficient to protect the citizen, delusive and visionary, and the practical result of which would be to destroy, not conserve, the rights it vainly presumed to protect.126
If the happiness and safety clauses are to have any independent significance as restraints upon governmental action, we will need to view them as denoting a more limited area of human activity, interference with which will trigger a level of scrutiny more stringent than mere rationality review. Here, the classical view of human happiness, derived from Aristotle and reflected in the writings of philosophers like Burlamaqui, might prove a useful point of departure. The right to pursue happiness, or the right to pursue and obtain happiness and safety, might be viewed as protecting individuals, absent adequate justification, from interference with those decisions and activities that may be deemed basic, or essential, to their identity and well being.159 Viewed in this way, such clauses could provide an appropriate state constitutional basis, independent of federal constitutional semantics (and surely more suitable than the term “privacy”) for protecting such interests in personhood as the right to choose an abortion, or to pursue one’s sexual orientation, or to end one’s life at a time and in a manner that one might choose.160 Whereas “privacy” connotes bounded individual autonomy, “happiness,” or “happiness and safety” points more in the direction of an individual’s relationship to others. A negative right to pursue and obtain “safety,” if the word is to have a meaning independent from “happiness,” could of course be interpreted to mean physical safety, and point toward a right of self-defense, or to bear arms, but, as I have suggested, the idea of wholeness might provide a more appropriate guidepost.
It might be asked what advantage such a jurisprudence would have over the jurisprudence which has been constructed through the Due Process Clause of the Federal Constitution. And while the puristic answer would be that the question is irrelevant (since state constitutions are independent and primary), more pragmatic responses are available. The happiness and safety language would provide a textual basis for decisions arguably more principled, or as I have argued at least more satisfying, than the implied right of privacy upon which federal jurisprudence has been constructed. It would allow for the development of a state law jurisprudence untethered from the constraints imposed by the sometimes wandering and sometimes not compelling reasoning of the United States Supreme Court. For state courts willing to assume responsibility for an independent state constitutional jurisprudence, these are formidable advantages.
C. Rights Clauses as a Basis for Objecting to Private Conduct
There are several cases in which courts have relied upon happiness and safety language as grounds for sustaining a complaint against a private party, in the absence of any governmental action. An example is Melvin v. Reid,161 in which the California Court of Appeal held that article 1, section 1 of the state constitution provided a basis for the plaintiff’s complaint that defendant had, without justification, exposed her lurid past as a prostitute, and turned friends, who were unaware of that past, against her by making a movie of her life in which she could be identified.162 The courts in such cases did not come to grips with the state action issue. The potential for application of the clauses to non-governmental action persists, but in light of other developments (including, for example, expansion of the tort of invasion of privacy) the significance of such a reading is probably not great.
Either as an alternative or as an additional meaning, the happiness and safety clauses could be viewed as a declaration, and even a judicially enforceable one, that government has an affirmative obligation to provide at least the minimum conditions necessary for human happiness and safety. This would entail, arguably, the assurance of such things as minimal requirements for food, shelter, and medical care, and so far as possible, a nondangerous environment.
While such a construction runs counter to the accepted view of rights under the Federal Constitution, a number of arguments can be advanced in its favor.163 First, state constitutions, unlike the Federal Constitution, often contain provisions which impose affirmative obligations.164 The most common of these is a requirement for free public education, but also extant are numerous directives, variously phrased, that the legislature make provision for the poor, the aged, or the infirm.165 Thus, a reading of the happiness and safety clauses as imposing affirmative obligations along the lines I have suggested would not be at all anomalous. In fact, it would be in accord with the views of numerous scholars who have argued for a right of minimal subsistence.166
E. Rights Clauses as a Basis for Heightened Scrutiny Under the Equality Principle
For a while it appeared that the United States Supreme Court was on the verge of finding poverty to be a “suspect class” for purposes of equal protection analysis, so as to trigger heightened scrutiny of classifications that adversely impacted the poor,188 but the Court withdrew from that enterprise.189 For those states whose state constitutional equality principle depends, for its applicable level of judicial scrutiny, upon a characterization of a statutory classification as implicating something like “fundamental rights” or “suspect classes,” the happiness and safety clauses might yield such a characterization, and thus provide a basis for something more than deferential “rational basis” review in those situations—such as welfare legislation—where the government has taken some action with particular impact upon the poor.190
Conclusion
The initial reaction of people to the idea of a constitutional right to happiness (or safety) is, typically, laughter,191 followed (if at all) by dismissal of the constitutional language as the relic of an age of flowery rhetoric, unsupported by precedent except along lines now rejected by most courts and scholars. Fair enough. If the test of viability of a constitutional theory is the response it would have invoked from those responsible for the relevant constitutional language, plus the response it has in the past received from the courts, then we can probably write off any arguments based upon the happiness/safety language as both likely and deserving of failure.
If, however, we start with the premise that constitutions are living documents properly subject to change and growth in response to their environment, and if we add to that the proposition that all language contained in constitutions deserves to be taken seriously, then the matter appears in a different light. To the extent that the language reflects religiously based views of natural rights which are no longer widely held, we may find it uncomfortable. But to the extent that it reflects a view of the relationship between citizen and community that rests upon mutual respect and a view of government as an extension of man’s nature, with an obligation (as individuals have) to serve the needs of the community, it speaks to us in terms exceedingly relevant to the problems of today. It does in any event present a challenge to courts, lawyers, and legal scholars which they cannot with reason lightly dismiss.
Burt Neuborne, “State Constitutions and the Evolution of Positive Rights”
Burt Neuborne, “State Constitutions and the Evolution of Positive Rights,” 20 Rutgers L. J. 881 (1989)
Unlike [earlier periods in American history], in which increased democratic participation was generally associated with change, the modern era reverses the pattern and equates democratic participation with reinforcement of existing political, productive and distributional patterns because, probably for the first time in our history, the bulk of population believes, rightly or wrongly, that it has real reason to be satisfied with the status quo.
The magnitude of such a stunning societal achievement creates a significant moral – and practical – dilemma for our society. In the bad old days of oligarchy, scarcity and blatant distributional unfairness, democracy and the judicial enforcement of a constitutionally-based negative rights structure aimed at reinforcing democratic values could be counted upon to fuel the movement toward political fairness, greater productivity and fairer distributional patterns. Put bluntly, when most people are being treated unfairly, the weakest segments of the society can generally count on the dynamic of democracy to advance their interests along with everyone else’s. With the coming of the millennium of formal democracy, vast wealth and tolerably fair distribution, though, democracy and a constitutionally-based negative rights structure can no longer be counted upon deal effectively with the social and distributional break-downs that have left as much as twenty-five percent of our population in abject poverty and out of the American dream. When, as now, the bulk of the population appears satisfied by the status quo, democracy and negative rights may no longer be effective vehicles for dealing with the structural needs of a chronically weak and permanently outvoted underclass.
If, as I believe, the combination of fear, altruism and economic self-interest is not likely to provoke a significant democratic response to the problems of the chronically poor, two results are possible.
One result would be to rely on existing institutional structures to do the best they can with the social and economic strains that a permanently outvoted minority underclass entails. Individual miracles would continue to be wrought by a dedicated teacher or an innovative social worker. Heroic acts of individual achievement and survival would continue to be performed by large numbers of the poor. Isolated acts of charity would continue to ameliorate the lives of a few. Subsistence governmental programs would prevent starvation – if not malnutrition – and prevent homelessness from evolving from the commonplace to the norm. Infant mortality in the ghetto would continue to be higher than in man third-world countries. Demagogues of all colors would continue to grow fat on fear, hatred and prejudice. In short, not much would change. We would limp into the 21st century a wounded society, dragging our social failure behind us like a moral shroud, but lacking an institutional mechanism to deal with a permanently outvoted economic and racial minority.
The other possible path is to invoke the political abstraction we have invented to deal with those settings where we suspect that democracy is not likely to operate with tolerable fairness. We call that abstraction a “constitutional right” and use it to trump unacceptable democratic outcomes in a small number of significant settings. The concept of using a foundational document to authorize judicially enforceable antidotes to unacceptable democratic outcomes is unquestionably our most significant contribution to the art of government. It is also the way out of the democratic dead end created by our own political and material success.
It if were possible to derive a set of judicially enforceable rights in the areas of education, health, nutrition and shelter that could co-exist with democratic political theory, we might be able to use those enforceable floors to break the political log-jam, threatening to saddle us with a permanently outvoted economic underclass.
Not surprisingly, as the persistence of a permanently outvoted economic underclass in the midst of plenty became manifest during the 1960’s and 1970’s, lawyers for the poor sought to derive a set of positive floors in areas of education, health, nutrition and shelter directly from the United States Constitution. The effort failed. With the significant exception of appointed counsel in criminal proceedings, virtually every attempt at generating a set of federal constitutional rights that would have compelled the expenditure of funds to meet the needs of the poor was rebuffed by the Supreme Court as inconsistent with democratic political theory and a conception of negative constitutional rights. While the Court was prepared to expand the concept of judicially enforceable negative rights against the State, it was impossible to persuade the Court to acknowledge a positive conception of federal constitutional rights that entailed affirmative behavior on the part of the State, except when necessary to redress proven past violations of a negative right.
Given the lack of textual support for substantive federal constitutional rights in the areas of education, health, nutrition and housing, all areas of traditional state responsibility, lawyers seeking to use the federal Constitution to protect the poor attempted to use the Equal Protection and Due process Clauses to bootstrap judges into a position to trump government refusals to spend money on critical services desperately needed by the poor.
Unsuccessful Equal Protection arguments included attempts to have poverty recognized as a suspect classification, attempts to establish a racial disparate impact test in equal protection contexts, attempts to challenge differential treatment of similar categories of welfare recipients, attempts to challenge gross disparities in educational funding and spending, and attempts to challenge economically irrational restrictions on publicly funded health care and access to justice. In each instance, the argument foundered on the Court’s insistence upon using a permissive version of the rational basis test as the standard of review. In the absence of an independent textual basis for the right, the Court refused to permit the Equal Protection Clause to be used as a de facto mechanism to impose substantive floors.
[Because] federal Constitution’s current capacity to generate positive rights in areas of education, health, nutrition and shelter is [thus] quite limited, the critical question is whether the constitutions or common law structures of the fifty States can yield more promising results.
A skeptic is entitled to respond: “If a generation of intense effort to mine positive rights for poor people from the federal Constitution ended in failure, why should state constitutions be any more likely to yield better results? After all, hasn’t it been an article of your faith that federal courts are preferable fora for the enforcement of constitutional rights?”
My answer is that the four principal reasons why the attempt to evolve positive rights from the federal Constitution failed are not present at the State level. The federal effort foundered on: (1) lack of a textual basis; (2) lack of a positive rights tradition; (3) lack of a capacity for flexibility and local tailoring; and (4) lack of a democratic imprimatur. The prognosis in State court on each of those four factors is far more favorable.
A.Textual Support
Unlike the textual wasteland that confronted lawyers attempting to derive poor people’s rights from the federal Constitution, many State constitutions contain substantive provisions dealing explicitly with poverty, education, housing, shelter and nutrition. Among the representative textual possibilities are New York’s requirement that the legislature “provide for aid, care and support of the needy”, North Carolina’s recognition of a “duty . . . to provide for the poor” Alabama’s requirement of “adequate maintenance of the poor, . . . [and] California’s authorization of aid to “abandoned children,” aged persons in indigent circumstances,” “needy blind persons,” needy physically handicapped persons,” “minor orphans” and “children of a father who is incapacitated for work”. Not surprisingly, state constitutions also contain numerous and often highly detailed references to education, zoning, housing and public health.
B. A generative ethos
Given the powerful tradition of viewing the federal Constitution as a negative rights document and the almost total lack of textual support for positive rights for poor people, advocates for the poor raising constitutional, as opposed to statutory, arguments were swimming against a difficult institutional tide.
Unlike their federal counterparts, [though], state courts continue to play an avowedly generative role in the growth of American law. As the energy of state courts in forging new common law rules in areas as diverse as products liability and corporate take-overs attests, state courts are imbued with the power and creative ethos of the common law tradition. If, as I believe, the task of forging judicially enforceable floors to protect the chronically weak is analogous to the enunciation of a societal duty of care or a collective “good samaritan” doctrine, state courts should be at home with the process. Although the process may be couched as a construction of a provision of the state constitution, as the enunciation of an aspect of constitutional common law, or as the garden variety application of established tort principles to protect chronically weak groups, state judges should recognize the process as the placing of old wine in new bottles.
Moreover, while conscientious federal judges were confronted with a federal Constitution that was avowedly laissez faire and fixated on placing restraints on government, state constitutions are general cut from different cloth. Most state constitutions are enabling documents designed to authorize, not restrain, the government. Most state constitutions are acutely aware that it is the responsibility of the states to deal with education and to deal with breakdowns in the availability of food, shelter and health care. Indeed, if the federal Constitution can be confidently described as a laissez faire document, many – indeed most – state constitutions can fairly be described as communitarian; even populist.
The combination of plausible state textual arguments with an institution that is comfortable with the avowed generation of new rules in the matrix of populist foundational document promises a greater chance of success for the poor than the doomed federal effort.
C. Flexibility and local tailoring
State courts are able to tailor their approach to the very difficult problem of evolving judicially enforceable rights in areas of education, housing, nutrition and health to the vagaries of local conditions. Indeed, the laboratory model of horizontal federalism could not be better suited to the task of trial and error that such an undertaking must entail. The process by which the common law grows is the gradual emergence of principles from the numerous acts of many decision-makers. We do not have a common law of the poor, or even a well-conceived conception of how poverty should be treated by the law – constitutional or otherwise. Our best chance to evolve a workable set of common understandings that will help us develop an effective legal response to the challenge of a permanent economic underclass is the experimental freedom that the federal system affords
D.The Democratic Imprimatur
The principal institutional attribute of the federal courts is insulation from popular pressure. Life tenure and a tradition of merit appointments has translated into a forum of intellectual excellence and political independence. The insulation of federal judges from political influence has had two effects. First, it has enabled federal judges to be fearless enforcers of unpopular constitutional norms. Second, it has imbued conscientious federal judges with an awareness that a tension exists between vigorous enforcement of constitutional doctrine and democratic political theory.
State judges enjoy a much firmer democratic pedigree. Indeed, during two of the periods of highest tension between state and federal courts – the period leading to the Civil War and the period leading to the New Deal – state courts, sensitive to popular political sentiment, sought to evolve a legal structure that was protective of fugitive slaves and tolerant of economic regulation designed to protect the weak; while federal courts, insulated from popular will, enforced the Compromise of 1850 and gutted much protective social legislation.
State courts draw their enhanced democratic pedigree from four sources. First, unlike the federal judiciary, many state constitutions explicitly provide for judicial review. While federal judges must justify the existence of judicial review by invoking John Marshall’s controversial reasoning in Marbury v. Madison, state judges often can point to an explicit grant of power. Second, well over half of the nation’s state judges are elected, either in garden-variety partisan elections, or a variant of retention election. Third, the constitutions that state judges are called upon to interpret are capable of relatively easy amendment, rendering their decisions subject to a form of majoritarian ratification. Fourth, state judges, unlike their federal brethren, are empowered to act as common law judges capable of generating first-cut rules that can be modified or overruled by a simple legislative majority.
Thus, whatever anti-democratic concerns may have inhibited federal judges from enunciating positive poor people’s rights, state judges should not feel sheepish about functioning as modified democratic instruments in seeking to evolve principled rules governing floors for poor people. That the enunciation of such floors, either as a matter of tort law or of state constitutional law, will have inevitable distributional consequences is compatible with democratic political theory precisely because state judges enjoy such a strong democratic imprimatur.
Federal courts will continue to play a critical role as the enforcers of choice in the areas of traditional negative rights against the State. But it is state courts, with their decided institutional advantages, that provide us with the opportunity to develop a parallel positive jurisprudence of human decency and caring.
Melvin v. Reid, 297 P. 91 (Cal. App. 1931)
Melvin v. Reid (1931), 112 Cal.App. 285, 297 P. 91,
MARKS, J.
Appellant filed her complaint in the court below seeking judgment against defendants for money. The complaint contains four causes of action separately stated. The first is based upon the violation of what has become known as the “right of privacy.” It is alleged that appellant’s maiden name was Gabrielle Darley; that a number of years ago she was a prostitute and was tried for murder, the trial resulting in her acquittal; that during the year 1918, and after her acquittal, she abandoned her life of shame and became entirely rehabilitated; that during the year 1919 she married Bernard Melvin and commenced the duties of caring for their home, and thereafter at all times lived an exemplary, virtuous, honorable, and righteous life; that she assumed a place in respectable society, and made many friends who were not aware of the incidents of her earlier life; that during the month of July, 1925, the defendants, without her permission, knowledge, or consent, made, photographed, produced, and released a moving picture film entitled “The Red Kimono,” and thereafter exhibited it in moving picture houses in California, Arizona, and throughout many other states; that this moving picture was based upon the true story of the past life of appellant, and that her maiden name, Gabrielle Darley, was used therein; that defendants featured and advertised that the plot of the film was the true story of the unsavory incidents in the life of appellant. [As a result,] friends of appellant learned for the first time of the unsavory incidents of her early life. This caused them to scorn and abandon her, and exposed her to obloquy, contempt, and ridicule, causing her grievous mental and physical suffering to her damage in the sum of $50,000.
[After discussing the then-novel idea of a right of privacy, Justice Marks went on:] In the absence of any provision of law, we would be loath to conclude that the right of privacy as the foundation for an action in tort, in the form known and recognized in other jurisdictions, exists in California. We find, however, that the fundamental law of our state contains provisions which, we believe, permit us to recognize the right to pursue and obtain safety and happiness without improper infringements thereon by others
Section 1 of article 1 of the Constitution of California provides as follows: “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.
The right to pursue and obtain happiness is guaranteed to all by the fundamental law of our state. This right by its very nature includes the right to live free from the unwarranted attack of others upon one’s liberty, property, and reputation. Any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing, or reputation
We believe that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us, and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Whether we call this a right of privacy or give it any other name is immaterial, because it is a right guaranteed by our Constitution that must not be ruthlessly and needlessly invaded by others. We are of the opinion that the first cause of action of appellant’s complaint states facts sufficient to constitute a cause of action against respondents.
Privacy
Background
Virginia Declaration of Rights, Art. 1 (1776)
THE VIRGINIA DECLARATION OF RIGHTS
[On May 15, 1776, the Virginia Convention “resolved unanimously that the delegates appointed to represent this colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent states . . . [and] that a committee be appointed to prepare a DECLARATION OF RIGHTS and . . . plan of government.” R. H. Lee’s resolution of June 7, 1776, implemented the first of these resolutions and precipitated the appointment of the committee to draw up the Declaration of Independence; the second proposal was carried out by the framing of Virginia’s first state constitution, of which this declaration was an integral part.
As passed, the Virginia Declaration was largely the work of George Mason; the committee and the Convention made some verbal changes and added Sections 10 and 14. This declaration served as a model for bills of rights in several other state constitutions. The reference to “property” in Section I may be compared with the use of the word by John Locke, its omission by Thomas Jefferson from the second paragraph of the Declaration of Independence, and its use in the [federal] Constitution, Amendments V and XIV.]
A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government
SECTION I. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Cal. Constitution Art. I sec. 1
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
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.
Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J. dissenting)
Olmstead v. United States, 277 U.S. 438 (1928)
[This case upheld the use of evidence obtained by warrantless wiretapping to affirm a conviction for violation of the Prohibition Act. In a timeless dissent, Justice Louis D. Brandeis wrote that:
The protection guaranteed by the [Fourth through Sixth] amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
[Here Justice Brandeis reaffirmedd a point that he had made a generation earlier in one of the most influential law review articles ever published: Edward Warren and Louis D. Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890).]
Griswold v. Connecticut, 381 U.S. 479 (1965)
[A Connecticut statute criminalized the use of any “drug” or “instrument” for contraception. Appellants were convicted under an aiding-and-abetting statute for dispensing birth control information. The US Supreme Court found the statue unconstitutional as violative of a newly-minted right of privacy. The relevant passages from Justice William O. Douglas’s majority opinion follow.]
Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions ‘of the sanctity of a man’s home and the privacies of life. We recently referred in Mapp v. Ohio to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right carefully and particularly reserved to the people.’
We have had many controversies over these penumbral rights of ‘privacy and repose.’ These cases bear witness that the right of privacy which presses for recognition here is a legitimate one. The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Reversed.
Aspects of privacy: confidentiality of personal information
Porten v. University of San Francisco (1976), 64 Cal.App.3d 825
Porten v. University of San Francisco (1976), 64 Cal.App.3d 825, 134 Cal.Rptr. 839
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.]
Luck v. Southern Pacific Transp. Co. (1990), 218 Cal.App.3d 1267
Luck v. Southern Pacific Transp. Co. (1990), 218 Cal.App.3d 1267 Cal.Rptr. 618 (
CHANNELL, J.
Appellant Barbara A. Luck, a computer programmer employed by appellant Southern Pacific Transportation Company, was fired when she refused to submit a urine sample as part of an unannounced drug test by her employer. At trial, the jury awarded Luck $485,042 on her claims of wrongful termination, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Southern Pacific appeals, contending that (1) the federal Railway Labor Act preempts Luck’s claims; (2) the state constitutional right to privacy does not prohibit it from requiring its employees to submit to drug urinalysis; (3) there was no breach of the implied covenant of good faith and fair dealing nor wrongful termination in violation of public policy; (4) punitive damages were not merited; and (5) Luck failed to mitigate damages. Although we find that several of Luck’s theories of liability are without legal support, the jury’s verdict can be upheld on proper grounds. Therefore, we affirm the judgment. [This excerpt includes only those passages addressing the right-to-privacy claim.]
a. Privacy Interests
Article I, section 1 of the California Constitution provides: “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.” By this provision, California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property. The validity of the jury’s finding of bad faith turns on whether Luck had a constitutional right to privacy allowing her to refuse to submit to urinalysis.
Division Three of this District has recently held that the collection and testing of urine intrudes upon reasonable expectations of privacy. (Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1048 [264 Cal.Rptr. 194].) This finding is consistent with that of the United States Supreme Court, which held that both the collection of a urine sample and its testing involve privacy interests and therefore constitute searches within the meaning of the Fourth Amendment. The “chemical analysis of urine … can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated: ‘There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.’ [I]t is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable ….” (Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 617, italics added). The California Supreme Court has also held that the taking of a urine sample invokes “privacy and dignitary interests protected by the due process and search and seizure clauses.” (People v. Melton (1988) 44 Cal.3d 713, 739, fn. 7 [244 Cal.Rptr. 867, 750 P.2d 741], cert. den. 488 U.S. 934 [102 L.Ed.2d 346, 109 S.Ct. 329].) Therefore, we are satisfied that urinalysis intrudes upon reasonable expectations of privacy.
Nevertheless, Southern Pacific contends that the state constitutional right to privacy (Cal. Const., art. I, § 1) does not apply to urinalysis. The constitutional amendment adopted in 1972 made explicit the right to privacy. The “principal ‘mischiefs”’ at which the constitutional amendment was directed were the uncontrolled collection and use of personal information by government and business. Southern Pacific contends that the informational protection described in White is the only protection that article I, section 1 provides.9 “However, the right to privacy has been held to protect a diverse range of personal freedoms.” [citing Robbins v. Superior Court]. The “constitutional right of privacy guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity.” (Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 195 [209 Cal.Rptr. 220] [right to refuse medical treatment].)
Before 1972, California courts had found a state and federal constitutional right to privacy even though such a right was not enumerated in either constitution, and had consistently given a broad reading to the right to privacy. The elevation of the right of privacy to constitutional stature was intended to expand, not contract, privacy rights. The Supreme Court has held that polygraph examinations inherently intrude on an employee’s right to privacy under article I, section 1. (Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 943-948 [227 Cal.Rptr. 90, 719 P.2d 660].) As freedom from polygraph examination is a protected privacy interest, it seems reasonable to infer that our Supreme Court, like the United States Supreme Court in the Fourth Amendment context, would find both the collection and testing of urine to be privacy interests protected by article I, section 1.
Aspects of privacy: individual autonomy
White v. Davis (1975), 13 Cal.3d 775
TOBRINER, J.
Do the state and federal Constitutions permit police officers, posing as students, to enroll in a major university and engage in the covert practice of recording class discussions, compiling police dossiers and filing “intelligence” reports, so that the police have “records” on the professors and students? Is this “intelligence gathering” by the police covering discussions in university classes and in public and private meetings of university-sponsored organizations, constitutionally valid when such reports “pertain to no illegal activity or acts”? The complaint in the present action challenges this practice of police surveillance as violative of the federal and state constitutional guarantees of freedom of speech, assembly, privacy and due process of law. To this complaint the superior court sustained a demurrer without leave to amend, and thereafter entered judgment in favor of defendant.
We have determined that the superior court erred in sustaining the demurrer; we conclude that the allegations of the complaint state a prima facie violation of freedom of speech and of assembly as well as of the state constitutional right of privacy. As we shall explain, a host of decisions of both the United States Supreme Court and of this court firmly establish the constitutionally enshrined status of freedom of speech and freedom of association in our nation’s universities and colleges. Although the covert surveillance at issue here does not directly prohibit the exercise of protected rights in this realm, it is by now black letter First Amendment law that government activity which even indirectly inhibits the exercise of protected activity may run afoul of the First Amendment proscriptions. Given the delicate nature of academic freedom, we visualize a substantial probability that this alleged covert police surveillance will chill the exercise of First Amendment rights.
In light of this potentially grave threat to freedom of expression, constitutional authorities establish that the government bears the responsibility of demonstrating a compelling state interest which justifies such impingement and of showing that its purposes cannot be achieved by less restrictive means. At this stage of the proceedings, however, defendant has demonstrated no such justification; indeed, because the case arises upon the sustaining of a demurrer, defendant has yet even to file an answer in this litigation. Accordingly, we think that the demurrer should not have been sustained.
Moreover, the surveillance alleged in the complaint also constitutes a prima facie violation of the explicit “right of privacy” recently added to our state Constitution. As we point out, a principal aim of the constitutional provision is to limit the infringement upon personal privacy arising from the government’s increasing collection and retention of data relating to all facets of an individual’s life. The alleged accumulation in “police dossiers” of information gleaned from classroom discussions or organization meetings presents one clear example of activity which the constitutional amendment envisions as a threat to personal privacy and security. Though the amendment does not purport to invalidate all such information gathering, it does require that the government establish a compelling justification for such conduct. Once again, because the case arises after the sustaining of a demurrer, the government has not yet proffered any justification for the alleged covert information network and police dossiers. Consequently, the demurrer should have been overruled on this basis as well.
Accordingly, we reverse the judgment and remand for a trial on the merits.
4. The alleged police surveillance and data gathering activities constitute a prima facie violation of the recently enacted state constitutional right of privacy.
The complaint in the instant case asserts that in addition to infringing the constitutional freedoms of speech and association, the conduct challenged here abridges students’ and teachers’ constitutional “right of privacy.” Shortly after the court sustained the demurrer to the complaint, the people of California amended the state Constitution to provide explicit protection to every individual’s interest in “privacy.” Although the full contours of the new constitutional provision have as yet not even tentatively been sketched, we have concluded that the surveillance and data gathering activities challenged in this case do fall within the aegis of that provision.8
In November 1972, the voters of California specifically amended article I, section 1 of our state Constitution to include among the various “inalienable” rights of “all people” the right of “privacy.”9 Although the general concept of privacy relates, of course, to an enormously broad and diverse field of personal action and belief,10 the moving force behind the new constitutional provision was a more focussed privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision’s primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.
The principal objectives of the newly adopted provision are set out in a statement drafted by the proponents of the provision and included in the state’s election brochure. The statement begins: “The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create “cradle-to-grave“ profiles of every American. At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian.” (Italics in original.)
The argument in favor of the amendment then continues: “The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us.
“Fundamental to our privacy is the ability to control circulation of personal information. [Italics in original.] This is essential to social relationships and personal freedom. The proliferation of government and business records over which we have no control limits our ability to control our personal lives. Often we do not know that these records even exist and we are certainly unable to determine who has access to them.
The argument concludes: “The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need. …
Several important points emerge from this election brochure “argument,” a statement which represents, in essence, the only “legislative history” of the constitutional amendment available to us.11 First, the statement identifies the principal “mischiefs” at which the amendment is directed: (1) “government snooping” and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) 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; and (4) the lack of a reasonable check on the accuracy of existing records. Second, the statement makes clear that the amendment does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest. Third, the statement indicates that the amendment is intended to be self-executing, i.e., that the constitutional provision, in itself, “creates a legal and enforceable right of privacy for every Californian.”
In several respects, the police surveillance operation challenged in the instant complaint epitomizes the kind of governmental conduct which the new constitutional amendment condemns. In the first place, the routine stationing of covert, undercover police agents in university classrooms and association meetings, both public and private, constitutes “government snooping” in the extreme. Second, as noted above, the instant complaint alleges that the information gathered by the undercover agents from class discussion and organization meetings “pertains to no illegal activity or acts”; if this allegation is true, and we must assume it is at this stage of the proceedings, a strong suspicion is raised that the gathered material, preserved in “police dossiers, “may be largely unnecessary for any legitimate, let alone “compelling,” governmental interest.
In view of these considerations, we believe that the allegations of the present complaint state a prima facie violation of the state constitutional right of privacy. At trial, of course, defendant will be free to contest any of the allegations of the complaint as well as to designate the compelling governmental interests upon which they rely for their intrusive conduct. We intimate no opinion as to the resolution of the ultimate constitutional question after trial. We hold only that the demurrer to the complaint was improperly sustained.
5. Conclusion.
As far as we are aware, the extensive, routine, covert police surveillance of university classes and organization meetings alleged by the instant complaint are unprecedented in our nation’s history. The dangers implicit in such police operations, however, have long been understood.
The motto of one of our great universities – Stanford University – is “The wind of freedom blows,” but the air of its classrooms would be befouled indeed by the presence of secret police. In the course of classroom debate some thoughts will be hazarded only as the trial balloons of new theories. Yet such propositions, that are tentative only, will nevertheless be recorded by police officers, filtered through the minds of the listening informers, often incorrectly misstated to their superiors and sometimes maliciously distended. Only a brave soul would dare to express anything other than orthodoxy under such circumstances. But the classroom of the university should be a forum of free expression; its very function would largely be destroyed by the practices described in the complaint before us.
The judgment is reversed.
City of Santa Barbara v. Adamson (1980), 27 Cal.3d 123
City of Santa Barbara v. Adamson (1980), 27 Cal.3d 123, 610 P.2d 436
NEWMAN, Justice.
“All people . . . have inalienable rights”, proclaims the California Constitution in the first sentence of article I. The second sentence reads: “Among these (inalienable rights) are enjoying life and liberty, . . . possessing . . . property, and pursuing and obtaining . . . happiness, and privacy.” Appellants argue that Santa Barbara and the trial court have violated those rights because the court, on request of the city, ordered appellants to comply with a city ordinance which requires, in the zone where appellants and other individuals live together, that all occupants of houses like that in which they reside be members of a family
The trial court concluded that appellants may not reside in such zones because they and individuals with whom they wish to live are not within the ordinance’s definition of “family”: ““28.04.230 Family.
1. An individual, or two (2) or more persons related by blood, marriage or legal adoption living together as a single housekeeping unit in a dwelling unit. . . .
2. A group of not to exceed five (5) persons, excluding servants, living together as a single housekeeping unit in a dwelling unit.“
Appellants are three residents of a house in a single-family zone where the minimum lot-size is one acre. They and other individuals form a group of 12 adults who live in a 24-room, 10-bedroom, 6-bathroom house owned by appellant Adamson. The occupants are in their late 20’s or early 30’s and include a business woman, a graduate biochemistry student, a tractor-business operator, a real estate woman, a lawyer, and others. They are not related by blood, marriage, or adoption.
Appellants say that they regard their group as “a family” and that they seek to share several values of conventionally composed families. A living arrangement like theirs concededly does achieve many of the personal and practical needs served by traditional family living. It could be termed an alternate family. It meets half of Santa Barbara’s definition because it is “a single housekeeping unit in a dwelling unit”. It fails to meet the part of the definition that requires residents, if they are more than five and are not servants, to be related by blood, marriage, or adoption.
THE ORDINANCE’S RESTRICTIONS
Valid laws can, of course, be written to help promote and protect values that family life enhances. The question in this case is whether that kind of law may deny to individuals who are not family members certain benefits that family members enjoy
The over-all intent of the ordinance, according to section 28.01.001, is “to serve the public health, safety, comfort, convenience and general welfare and to provide the economic and social advantages resulting from an orderly planned use of land resources, and to encourage, guide and provide a definite plan for future growth and development of said City.” By themselves those words hardly justify the restrictions that appellants contest here
Does the ordinance’s rule-of-five truly and substantially help effect those goals? Looking first at the final two words in section 28.15.005, is a “residential environment” in fact dependent on a blood, marriage, or adoption relationship among the residents of a house? Is transiency, for example, determined by lack of any biological or marriage relation among the residents? We are not persuaded by facts presented here. Is another assumption behind the rule, perhaps, that groups of unrelated persons hazard an immoral environment for families with children? That implied goal would not be legitimate.
Finally, could not each of the city’s stated goals be enhanced by means that are less restrictive of freedom than is the rule-of-five? To illustrate, “residential character” can be and is preserved by restrictions on transient and institutional uses (hotels, motels, boarding houses, clubs, etc.). Population density can be regulated by reference to floor space and facilities. Noise and morality can be dealt with by enforcement of police power ordinances and criminal statutes. Traffic and parking can be handled by limitations on the number of cars (applied evenly to all households) and by off-street parking requirements. In general, zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users.
We do not here address the question, How many people should be allowed to live in one house? We merely hold invalid the distinction effected by the ordinance between (1) an individual or two or more persons related by blood, marriage, or adoption, and (2) groups of more than five other persons.
MANUEL, Justice, dissenting.
I dissent.
The majority opinion, casting the City of Santa Barbara and presumably the at least 37 other cities which have similar zoning ordinances in the sinister role of antagonist to the “alternate family,” radically distorts the meaning, purpose, and intention of the provisions we here consider. The Santa Barbara ordinances, it must be emphasized, do not preclude or impede the establishment of communal living arrangements in the single-family zones of the city. On the contrary they expressly permit such arrangements, simply imposing a numerical limitation thereon. Thus, the ordinances provide, a “family” for zoning purposes is either a traditional family (i. e., one composed of persons related by blood, marriage, or legal adoption), or what the majority terms an “alternate” family one which, in the language of the ordinance, comprises “(a) group of not to exceed five (5) persons, excluding servants, living together as a single housekeeping unit in a dwelling unit.”
I find no evidence of any kind that the voters, when they added the privacy provision found in article I, section 1, intended to establish a “right to live with whomever one wishes or, at least, to live in an alternative family with persons not related by blood, marriage, or adoption”, such right to be preserved from all infringement except in those cases where a city can shoulder the unenviable burden of demonstrating some “compelling state interest” which justifies doing so. Accordingly, I conclude that the majority, in conferring “fundamental” constitutional status to the right it so describes, is in error. If the courts, in interpreting the privacy provision of our state Constitution, are to take upon themselves the function of determining when the wishes and desires of a particular group of people are to be accorded “fundamental” status and thus invoke strict judicial scrutiny of legislation affecting such rights the constitutional balance of our government will be radically dislocated. I do not believe that such a dislocation was intended by the voters of this state when they, out of a manifest concern for the excesses of governmental surveillance, adopted article I, section 1.
Robbins v. Superior Court (1985), 38 Cal.3d 199
Robbins v. Superior Court (1985), 38 Cal.3d 199, 211 Cal.Rptr. 398
BIRD, C. J.
Does a county violate Welfare and Institutions Code section 17000 et seq. or the California Constitution when it requires its residents who are single, employable and eligible for general assistance benefits to live in a county facility in lieu of cash benefits?
[Discussion of the procedural and statutory issues in the case is omitted.]
Plaintiffs also contend that defendants’ “in-kind” benefits program violates their constitutional right to privacy [under] Article I, section 1 of the California Constitution. The right to privacy was added to the California Constitution by the voters in 1972. The ballot pamphlet, which was distributed to the voters prior to the election, stated that the constitutional right to privacy encompassed a variety of rights involving private choice in personal affairs. “The right to privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.”
This court has recognized that the “principal ‘mischiefs”’ at which the constitutional amendment was directed were the uncontrolled collection and use of personal information gathered by government and business interests. However, the right to privacy has been held to protect a diverse range of personal freedoms [including the] right of procreative choice [and the] right of unmarried person to cohabit
Plaintiffs argue persuasively that the County’s “in-kind” benefits policy infringes upon their constitutional right to privacy. Residence at the Bannon Street facility compels the individual to give up his home and the ability to choose his associates. He is forced to live in a particular location without the freedom to choose his own living companions. Further, an acute loss of personal privacy is inevitable where residents sleep in dormitories, eat in a cafeteria, use the same bathrooms, and live according to institutionally prescribed rules of conduct.
When receipt of a public benefit is conditioned upon the waiver of a constitutional right, the “government bears a heavy burden of demonstrating the practical necessity for the limitation.” [The Court then rejected all four justifications offered by the County for its policy.] For all of these reasons, it would appear that plaintiffs are likely to succeed on the merits of their constitutional challenge. Therefore, the trial court should have granted the request for a preliminary injunction.
Committee to Defend Reproductive Rights (1981), 29 Cal.3d 252
TOBRINER, J.
Plaintiffs, representing indigent women throughout the state, challenge the constitutionality under the California Constitution of provisions in the 1978, 1979, and 1980 California Budget Acts that limit Medi-Cal funding for abortions. Although the acts differ in minor respects, all afford full funding of medical expenses incurred by indigent women who decide to bear a child, but, except in a few limited circumstances, deny funding to those indigent women who choose to have an abortion. Plaintiffs contend that this selective or discriminatory public funding scheme violates a number of distinct constitutional guarantees, in particular the women’s rights of privacy, due process, and equal protection of the laws.
At the outset, to dispel certain misconceptions that have appeared in this case, we must clarify the precise, narrow legal issue before this court. First, this case does not turn on the morality or immorality of abortion, and most decidedly does not concern the personal views of the individual justices as to the wisdom of the legislation itself or the ethical considerations involved in a woman’s individual decision whether or not to bear a child. Rather, we face the much narrower question of whether the state, having enacted a general program to provide medical services to the poor, may selectively withhold such benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional right of procreative choice in a manner which the state does not favor and does not wish to support.
2. Our court bears an independent obligation to resolve plaintiffs’ claims under the California Constitution on the basis of the governing state constitutional principles
In these actions, plaintiffs contend that the statutes violate a number of provisions of both the California and United States Constitutions. As already noted, in defending the challenged budget restrictions the Attorney General relies most heavily on the United States Supreme Court’s recent decision in Harris v. McRae (1980) 448 U.S. 297 in which a five-justice majority concluded that similar funding restrictions in the federal Medicaid program did not violate the provisions of the federal Constitution. McRae, of course, did not resolve or even address the question of the validity of such a statutory scheme under the California Constitution.
Under these circumstances, we think it important to reiterate the basic principles of federalism which illuminate our responsibilities in construing our state Constitution. In emphasizing, in People v. Brisendine (1975) 13 Cal.3d 528, “the incontrovertible conclusion that the California Constitution is, and always has been, a document of independent force,” our court explained that “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.” Accordingly, we affirmed in Brisendine that state courts, in interpreting constitutional guarantees contained in state constitutions, are “independently responsible for safeguarding the rights of their citizens.”
3. Although the state has no constitutional obligation to provide medical care to the poor, a long line of California decisions establishes that once the state has decided to make such benefits available, it bears a heavy burden of justification in defending any provision which withholds such benefits from otherwise qualified individuals solely because they choose to exercise a constitutional right
In analyzing the constitutionality of the challenged statutory scheme, we start from the premise, not challenged by the Attorney General, that under article I, section 1 of the California Constitution all women in this state – rich and poor alike – possess a fundamental constitutional right to choose whether or not to bear a child. Our court first recognized the existence of this constitutional right of procreative choice in People v. Belous (1969) 71 Cal.2d 954, four years before the United States Supreme Court in Roe v. Wade (1973) acknowledged the existence of a comparable constitutional right under the federal Constitution
In 1972, moreover, the people of this state specifically added the right of “privacy” to the other inalienable rights of individuals enumerated in article I, section 1 of the state Constitution.6 The federal constitutional right of privacy, by contrast, enjoys no such explicit constitutional status
The Attorney General concedes that under article I, section 1 the state has no authority directly to prohibit rich or poor women from exercising their right of procreative choice as they see fit. He argues, however, that the state violates no constitutional precept when it does not directly prohibit the protected activity but simply declines to extend a public benefit — in this case publicly funded medical care — to those who choose to exercise their constitutional right in a manner the state does not approve and does not wish to subsidize.
This court faced a nearly identical legal contention in a different factual context over 30 years ago in Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536. In Danskin, Justice Traynor — writing for the court — rejected the state’s argument in no uncertain terms: “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 use of state property.”
In more than three decades that have passed since the Danskin decision, both this court and the California Courts of Appeal have applied the legal principles underlying Danskin in a wide variety of factual settings, involving a host of different “public benefit” programs which conditioned the receipt of benefits on the waiver or forfeiture of a broad range of constitutional rights. As these numerous decisions teach, the Danskin principles apply whether the public benefit program at issue is access to a public forum,7 public employment,8 welfare benefits,9 public housing,10 unemployment benefits11 or the use of public property12 and whether the constitutional right singled out for discriminatory treatment is the right of free speech,13 or, as in this case, the right of privacy.14 In these varying contexts, California courts have repeatedly rejected the argument that because the state is not obligated to provide a general benefit, it may confer such a benefit on a selective basis which excludes certain recipients solely because they seek to exercise a constitutional right.15
In reaching our conclusion in [Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499] we drew upon the cited prior holdings involving conditional benefit programs and on scholarly legal commentaries16 to construct a framework for judicial analysis of restrictions, like those here at issue, which exclude from government benefit programs potential recipients solely on the basis of their exercise of constitutional rights. Stressing that the “government bears a heavy burden of demonstrating the practical necessity” for such unequal treatment , our court in Bagley established a three-part standard that the state must satisfy to justify such a scheme.
First, we held that “the state must establish that the imposed conditions relate to the purpose of the legislation which confers the benefit or privilege.” Second, we declared that “not only must the conditions annexed to the enjoyment of a publicly conferred benefit reasonably tend to further the purpose sought by conferment of that benefit, but also the utility of imposing the conditions must manifestly outweigh any resulting impairment of constitutional rights.”) Third, and finally, we established that “in imposing conditions upon the enjoyment of publicly conferred benefits, as in the restriction of constitutional rights by more direct means, the state must establish the unavailability of less offensive alternatives and demonstrate that the conditions are drawn with narrow specificity, restricting the exercise of constitutional rights only to the extent necessary to maintain the integrity of the program which confers the benefits.” For at least the past decade the federal decisions in this area have not been a reliable barometer of the governing California constitutional principles.
The Danskin-Bagley line of cases is not concerned with a person’s liberty to reject an offered public benefit in favor of a private counterpart — the issue in the private school cases. Instead, Danskin and Bagley hold that when the state implements a general public benefit program, the California Constitution imposes definite limitations on the state’s ability to offer such a benefit in a fashion which discriminates against the exercise of constitutional rights. The statutory program at issue here does afford medical care on just such a selective or discriminatory basis.19
Accordingly, in evaluating the constitutionality of the challenged statutory provisions under the California Constitution, we employ the test established by the California unconstitutional condition cases.
4. Under the constitutional standard established in Bagley, the statutory provisions which discriminatorily deny generally available medical benefits to poor women solely because they choose to have an abortion are unconstitutional.
(a) The restrictions imposed on poor women’s right of procreative choice do not relate to the purposes of the Medi-Cal program.
(b) In light of the fundamental and intimate nature of the constitutional right of procreative choice and the severe impairment of that right that will in practice result from the statutory restrictions at issue, the utility of imposing such restrictions does not “manifestly outweigh [the] resulting impairment of constitutional rights.”
(c) The statutory scheme does not serve the state interest in providing medical care for indigents in a manner least offensive to the woman’s right of procreative choice.
5. Conclusion.
By virtue of the explicit protection afforded an individual’s inalienable right of privacy by article I, section 1 of the California Constitution, however, the decision whether to bear a child or to have an abortion is so private and so intimate that each woman in this state — rich or poor — is guaranteed the constitutional right to make that decision as an individual, uncoerced by governmental intrusion. Because a woman’s right to choose whether or not to bear a child is explicitly afforded this constitutional protection, in California the question of whether an individual woman should or should not terminate her pregnancy is not a matter that may be put to a vote of the Legislature.
If the state cannot directly prohibit a woman’s right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?
There is no greater power than the power of the purse. If the government can use it to nullify constitutional rights, by conditioning benefits only upon the sacrifice of such rights, the Bill of Rights could eventually become a yellowing scrap of paper. Once the state furnishes medical care to poor women in general, it cannot withdraw part of that care solely because a woman exercises her constitutional right to choose to have an abortion.31
Indeed, the statutory scheme before us is all the more invidious because its practical effect is to deny to poor women the right of choice guaranteed to the rich.32 An affluent woman who desires to terminate her pregnancy enjoys the full right to obtain a medical abortion, regardless of the opposition of any legislative majority. By contrast, when the state finances the costs of childbirth, but will not finance the termination of pregnancy, it realistically forces an indigent pregnant woman to choose childbirth even though she has the constitutional right to refuse to do so. Thus, we conclude that the restrictions in question are invalid under the California Constitution.
BIRD, C. J., Concurring.
If a citizen’s freedom to choose how to deal with procreation — contraception, abortion, or childbirth — is a fundamental constitutional right protected by the right to privacy, may the state constitutionally limit that choice for poor women when their choice is not one of the methods favored by the state? I agree with the lead opinion that the answer to this question is “no.” However, I would reach that conclusion by a somewhat different route.
I agree with the result reached in the lead opinion of this court. However, I would evaluate these restrictions under the strict judicial scrutiny test used to assess any governmental action which burdens the exercise of a fundamental right. In this case, the state must show a compelling interest to justify a curtailment of the right of privacy, a right expressly protected by the California Constitution in its Declaration of Rights. This compelling interest must be proven by the state whether it directly or indirectly interferes with the exercise of a fundamental right. The facts of this case illustrate how direct or indirect governmental infringement can, with equal force, stifle the assertion of a constitutionally protected right.3 Consequently, the funding restrictions by the Legislature must be judged by the same standard applicable to any direct burden placed by the state on the right of privacy.
Atkisson v. Kern County (1976), 59 Cal.App.3d 89
Atkisson v. Kern County Housing Authority (1976), 59 Cal.App.3d 89, 130 Cal.Rptr. 37
ZEFF, J.
This action was brought by the appellant on behalf of herself and all others similarly situated for declaratory and injunctive relief against the respondents. On May 4, 1973, appellant filed a complaint for declaratory and injunctive relief challenging the validity of respondents’ policy of excluding from its housing projects families whose heads of household are not related by blood, marriage or adoption. This case was tried on a stipulation of facts which we summarize in part.
Appellant is a 33-year-old divorcee who, since November 9, 1971, has resided with her six children in a low income public housing unit in Bakersfield operated by the respondents. Under the terms of section 2 of the lease agreement, the lease is ”subject to the … eligibility requirements … and the regulations of the Authority in the exercise of its lawfully constituted powers and duties. …“
In section 3 the lease provides: ”Use and occupancy of the dwelling is restricted to the specific persons listed on the application for the dwelling.“
Since July 1972, an adult male, unrelated to appellant by blood, marriage or adoption, has resided with appellant in a state of cohabitation as if husband and wife.
The respondent Housing Authority, in its statement of policies, section X.A forbids any and all low income public housing tenants from living with anyone of the opposite sex to whom the tenant is not related by blood, marriage, or adoption. This policy is based upon respondents’ view that (a) such cohabitation is immoral; (b) that such cohabitation results in a continuous turnover of cohabitants which results in management problems such as computation of rents; (c) respondents’ view that its 31 years of experience makes clear that (1) a cohabitant tenant is or becomes less responsible to respondents, and (2) is a poor influence on the cohabitant tenants as families; and (d) respondents’ view that unless cohabitation is prohibited, there will be (1) a demoralizing effect on tenancy relations, and (2) the number of cohabitants could not be controlled.
In July of 1972 respondents were notified by appellant’s former husband that she was cohabiting with an unrelated adult male. The respondents then initiated efforts to evict appellant on the sole basis that she was violating respondents’ policy in section X.A against cohabitation.
[The Court sustained appellant’s Fourteenth Amendment due process challenge thus:] The section X.A policy regulation with which we are concerned automatically presumes immorality, irresponsibility and the demoralization of tenant relations from the fact of unmarried cohabitation. Such presumptions are not necessarily universally true in fact. As such the policy creates an unconstitutional irrebutable presumption and must be held to be invalid as a denial of due process.]
In a consideration of appellant’s equal protection attack upon the X.A policy regulation the issue is whether there is a rational basis for an inflexible policy treating differently “family” groups with a member unrelated by blood or marriage, and family groups with all members related by blood or marriage. Support for the proposition that the classification in issue (cohabiting unrelated adults) cannot be rationally justified under the applicable statutory purposes is found in a number of cases including U.S. Dept. of Agriculture v. Moreno (1973) 413 U.S. 528 [and others]. Each of these cases involved an inflexible policy based upon a classification with no rational connection between the undesirable conduct associated with a group, and the actions of an individual. The policy regulation under consideration here clearly contains an inflexible policy which places plaintiff in a definable class of unmarried adults living together. Such a classification improperly assumes a connection with undesirable conduct associated with the class (e.g., demoralizing tenancy relations) and the conduct of the individual. The classification thus lacks the required rational basis, possesses the fatal flaw of “inflexibility,” and must be held to be in violation of equal protection.
The leading case on the right of privacy is Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678] in which the court considered the validity of a Connecticut statute banning the use or providing of contraceptive devices or material. The court found the statute in violation of a constitutional right of privacy basing its decision on the First, Fourth, Fifth and Ninth Amendments and concluding that the statute was an unwarranted intrusion upon the privacy of the marital relationship.
It is true that all of the above cases are factually distinguishable from the case at hand in that they involved the procreation or upbringing of children. In this case, none of the children living in the dwelling unit are the children of the adult male. However that does not appear to be a crucial distinction. The ban against unmarried cohabiting adults is total. It would apply not only to appellant, but also to an unmarried couple with children of their own. As such, it would effectively prevent one of the parents from living with and raising in a close and intimate relationship his or her own children. Such a ban contravenes the principles laid down in the above cases and is an invalid infringement of the right of privacy.
The judgment is reversed and remanded to the trial court with a direction to enter a decree in declaratory relief finding respondents’ X.A policy regulation unconstitutional and unenforceable on the sole ground of “living with anyone of the opposite sex to whom the tenant is not related by blood, marriage or adoption” and enjoining respondents from initiating eviction proceedings on that same basis in this or any other action similarly premised.
Bouvia v. Superior Court (1986), 179 Cal.App.3d 1127
Bouvia v. Superior Court (1986), 179 Cal.App.3d 1127, 225 Cal.Rptr. 297
BEACH, J.
Petitioner, Elizabeth Bouvia, a patient in a public hospital, seeks the removal from her body of a nasogastric tube inserted and maintained against her will and without her consent by physicians who so placed it for the purpose of keeping her alive through involuntary forced feeding. Petitioner has here filed a petition for writ of mandamus and other extraordinary relief after the trial court denied her a preliminary injunction requiring that the tube be removed and that the hospital and doctors be prohibited from using any other similar procedures. . . . now order issuance of a peremptory writ, granting petitioner, Elizabeth Bouvia, the relief for which she prayed.
A person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.” It follows that such a patient has the right to refuse any medical treatment, even that which may save or prolong her life. In our view the foregoing authorities are dispositive of the case at bench. Nonetheless, the county and its medical staff contend that for reasons unique to this case Elizabeth Bouvia may not exercise the right available to others. Accordingly, we again briefly discuss the rule in the light of real parties’ contentions.
The right to refuse medical treatment is basic and fundamental. It is recognized as a part of the right of privacy protected by both the state and federal constitutions. (Cal. Const., art. I, § 1; Griswold v. Connecticut (1965). Its exercise requires no one’s approval. It is not merely one vote subject to being overridden by medical opinion
Here Elizabeth Bouvia’s decision to forego medical treatment or life-support through a mechanical means belongs to her. It is not a medical decision for her physicians to make. Neither is it a legal question whose soundness is to be resolved by lawyers or judges. It is not a conditional right subject to approval by ethics committees or courts of law. It is a moral and philosophical decision that, being a competent adult, is hers alone.
We do not believe it is the policy of this state that all and every life must be preserved against the will of the sufferer. It is incongruous, if not monstrous, for medical practitioners to assert their right to preserve a life that someone else must live, or, more accurately, endure, for 15 to 20 years. We cannot conceive it to be the policy of this state to inflict such an ordeal upon anyone.
It is, therefore, immaterial that the removal of the nasogastric tube will hasten or cause Bouvia’s eventual death. Being competent she has the right to live out the remainder of her natural life in dignity and peace. It is precisely the aim and purpose of the many decisions upholding the withdrawal of life-support systems to accord and provide as large a measure of dignity, respect and comfort as possible to every patient for the remainder of his days, whatever be their number. This goal is not to hasten death, though its earlier arrival may be an expected and understood likelihood.
As a consequence of her changed condition, it is clear she has now merely resigned herself to accept an earlier death, if necessary, rather than live by feedings forced upon her by means of a nasogastric tube. Her decision to allow nature to take its course is not equivalent to an election to commit suicide with real parties aiding and abetting therein.
Moreover, the trial court seriously erred by basing its decision on the “motives” behind Elizabeth Bouvia’s decision to exercise her rights. If a right exists, it matters not what “motivates” its exercise. We find nothing in the law to suggest the right to refuse medical treatment may be exercised only if the patient’s motives meet someone else’s approval. It certainly is not illegal or immoral to prefer a natural, albeit sooner, death than a drugged life attached to a mechanical device
COMPTON, Associate Justice, concurring opinion.
Although I have concurred in the very well-reasoned and superbly-crafted opinion of my colleague Justice Beach, I feel compelled to write separately and reflect on what I consider to be one of the real tragedies of this case which is that Elizabeth Bouvia has had to go to such ends to obtain relief from her suffering.
Fate has dealt this young woman a terrible hand. Can anyone blame her if she wants to fold her cards and say “I am out”? Yet medical personnel who have had charge of her case have attempted to force Elizabeth to continue in the game. In their efforts they have been abetted by two different trial courts.
This is not to say that those members of the medical profession and those courts were not well motivated. In each instance the persons involved have expressed a concern for the sanctity of life and a desire to avoid any conduct that could be characterized as aiding in a suicide.
In my opinion, as I shall point out, the application of that statute to circumstances such as are present here is archaic and inhumane.
I have no doubt that Elizabeth Bouvia wants to die; and if she had the full use of even one hand, could probably find a way to end her life—in a word—commit suicide. In order to seek the assistance which she needs in ending her life by the only means she sees available—starvation—she has had to stultify her position before this court by disavowing her desire to end her life in such a fashion and proclaiming that she will eat all that she can physically tolerate. Even the majority opinion here must necessarily “dance” around the issue
Elizabeth apparently has made a conscious and informed choice that she prefers death to continued existence in her helpless and, to her, intolerable condition. I believe she has an absolute right to effectuate that decision. This state and the medical profession instead of frustrating her desire, should be attempting to relieve her suffering by permitting and in fact assisting her to die with ease and dignity. The fact that she is forced to suffer the ordeal of self-starvation to achieve her objective is in itself inhumane.
The right to die is an integral part of our right to control our own destinies so long as the rights of others are not affected. That right should, in my opinion, include the ability to enlist assistance from others, including the medical profession, in making death as painless and quick as possible. That ability should not be hampered by the state’s threat to impose penal sanctions on those who might be disposed to lend assistance.
Whatever choice Elizabeth Bouvia may ultimately make, I can only hope that her courage, persistence and example will cause our society to deal realistically with the plight of those unfortunate individuals to whom death beckons as a welcome respite from suffering.
If there is ever a time when we ought to be able to get the “government off our backs” it is when we face death—either by choice or otherwise.
Stephen M. Kennedy, “Emasculating a State’s Constitutional Right to Privacy”
Stephen M. Kennedy, “Emasculating a State’s Constitutional Right to Privacy: The California Supreme Court’s Decision in Hill v. NCAA,” 68 Temp. L. Rev. 1497 (1995)
Introduction
Privacy is a nebulous concept with uncertain legal boundaries.1 Although privacy defies simple definition, many commentators suggest that underlying the idea of privacy is the desire of the individual for autonomy and control over others’ perceptions of the self.2 Since Louis Brandeis and Samuel Warren advocated the recognition of a common law right to privacy in 1890,3 privacy jurisprudence in the United States has flourished.4
Privacy, as a right, springs from several sources.5
[FN. 5: There are five species of privacy: (1) tort privacy; (2) Fourth Amendment privacy; (3) First Amendment privacy; (4) fundamental-decision privacy stemming from the Fourteenth Amendment; and (5) state constitutional privacy).]
This Note focuses on California’s express constitutional privacy provision,7 and the California Supreme Court’s interpretation of that provision in Hill v. NCAA.8 At issue in Hill were the following important questions: (1) against whom can the privacy right be asserted; (2) what are the objects about which a person can legitimately claim a right to privacy; (3) what is the appropriate standard of review of privacy claims; and (4) is the protection afforded by the state privacy right greater and more comprehensive than privacy protections afforded by the United States Constitution.10
III. Background
Prior to 1972, the California Constitution listed as inalienable rights the right to enjoy and defend life and liberty, the right to acquire property, and the right to pursue and obtain safety and happiness.19 On November 7, 1972, California voters adopted an amendment to the state’s constitution that added another inalienable right, the right to privacy.20 The California courts have interpreted the meaning of that phrase.21
White v. Davis : The California Supreme Court’s First Reckoning with the Privacy Amendment
In White v. Davis . . . the court made three determinations regarding the right to privacy.28 First, the court concluded that the right to privacy was directed at four principal “mischiefs”: (1) “government snooping” and the covert gathering of personal information; (2) the unwarranted collection and holding of personal information by government and business interests; (3) the unauthorized use of information properly obtained for a specific purpose; and (4) lack of reasonable checks on the accuracy of existing records.29 Second, the court concluded that the right was not intended to prohibit all incursions into individual privacy, but was meant to require that a compelling interest justify such intrusions.30 Lastly, the court stated that the privacy right created an enforceable right for every citizen.
At a minimum, therefore, White appeared to stand for the proposition that a compelling interest is needed to overcome an individual’s privacy interest in personal information.32 Left unclear, however, were important questions such as whether state action was required to trigger the right to privacy and whether the compelling interest test was always to be the standard of review.
B. The Privacy Right Evolves: The Compelling-Interest Test
1. Governmental Action
Following White, many of the privacy cases that the California Supreme Court decided involved state action. In City of Santa Barbara v. Adamson,33 the court held invalid a Santa Barbara ordinance that restricted the number of unrelated persons who could live together.34 The court, following White‘s extensive use of the Ballot Arguments, concluded that the voters intended to extend the right to privacy to the home, not merely the family.35 Furthermore, the court held that the right to privacy encompassed “the right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption.”36 The court ruled that the state could not intrude upon that right without a compelling public need.37
Following Adamson, the supreme court, in Committee to Defend Reproductive Rights v. Myers,38 further defined California’s right to privacy when it ruled that the Privacy Amendment encompassed a woman’s right to decide whether to bear a child.39 The Myers court specifically held that the state could not deny an indigent woman public funds for an abortion if the state had chosen to subsidize childbirth for similarly situated women.40 The court stated that only the most compelling of state interests could justify the statutory restrictions that severely impaired or totally denied the exercise of this fundamental constitutional choice.41
In Long Beach City Employees Ass’n v. City of Long Beach,42 the supreme court held that a statutory scheme that directed certain public employees to undergo polygraph examinations intruded upon the employees “fundamental right to privacy” and, therefore, could only be justified by a compelling state interest.43
These cases established that a government actor needs a compelling interest to override an individual’s right to privacy when conducting activities similar to those challenged. Broadly construed, these cases stand for the proposition that the California right to privacy is fundamental in all circumstances and abridgment of that right may only be justified by a compelling state interest.
C. The Parameters of the Privacy Right
California courts have generally recognized that the state right to privacy is not absolute.51 Those decisions applying the compelling interest test examine whether the intruding party has such an interest to justify abridgement of the privacy right.52 In addition, some courts have not simply examined the Ballot Arguments to define the right to privacy, but also have considered whether the individual has a reasonable expectation of privacy.53 California courts have also employed, in discovery cases, a balancing test that does not mention the compelling-interest test.54 In some instances, courts have found that the privacy right was not implicated at all.55
IV. Hill v. NCAA
A. The Majority Opinion
In Hill v. NCAA,119 the Supreme Court of California ruled that the NCAA drug testing program did not violate student athletes’ state constitutional right to privacy.120 In arriving at its decision, the court answered what it characterized as three questions of first impression: (1) whether the privacy right was meant to cover the conduct of private actors; (2) if so, what standard of review should be applied to private actors; and (3) under that standard was the NCAA drug-testing program a violation of the state constitutional right to privacy.121 In the process of answering these questions the court formulated a new standard of review applicable in all privacy cases.122
The court rejected the proposition that White established a blanket compelling-interest test for all state constitutional right-to-privacy cases.152 According to the Hill court, the compelling-interest test applied in White related to those privacy interests intertwined with First Amendment expression and association rights.153 The court declined to hold that every assertion of a privacy interest under the state constitution must be overcome by a compelling interest.154 Rather, the court stated that the decisions regarding the privacy right indicated that the privacy asserted, the nature of the invasion, and the countervailing interests were the central considerations when a court decided a privacy case.155 in lieu of the compelling-interest test, the court articulated a three-element cause of action for an invasion of privacy: (1) a specific, legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of a privacy interest.159
Conclusion
The Hill court expanded the right of privacy in California by affirming the lower courts’ application of the right to private as well as to governmental entities. However, it fashioned a new standard for reviewing privacy claims in general which will ultimately result in less privacy protection. The Hill court jettisoned the prevailing compelling-interest test and substituted in its place a balancing test where the nature of the privacy interest, the intrusion, and the intruding entity are all considered.247 Under this new test, an individual’s privacy will be vindicated only if (1) the challenged conduct violates a legally protected privacy right, (2) the challenged conduct is “seriously” intrusive, and (3) the intruding entity has no legitimate justification for its actions.248 Most disturbingly, the court did not hold that this new balancing test will be limited to privacy cases involving non-governmental entities. The court has established constitutional grounds that allow it to ratchet back the protections previously established under the privacy right by declaring that the compelling interest standard was mistakenly used where a lesser standard should have been employed.
Critique
J. Clark Kelso, “California’s Constitutional Right to Privacy”
J. Clark Kelso, “California’s Constitutional Right to Privacy,” 19 Pepp. L. Rev. 327 (1992)
Article I, Section 1 and Its Legislative History
- Restating the Problem
Despite the protection of privacy already afforded by the common law, the civil code, and both the state and federal constitutions (an implied right in both), [in 1972] the legislature proposed, and the voters adopted, an explicit guarantee of privacy in article 1, section 1. Privacy was added to a list of “inalienable rights” that includes “enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, [and] happiness.”
The word “privacy” is so ill-defined as to be virtually useless for deciding concrete cases. It conceivably knows no useful limit since it may plausibly be asserted that any exercise of private rights involves an exercise of a right of privacy. For example, it may be asserted that requiring one to give one’s name to the government is an invasion of the right to control personal information.470 When government taxes income, it invades privacy by denying citizens the opportunity to spend their money in the way they choose. The invasion is particularly pernicious since the government requires withholding by employers, thereby denying the citizens the right of civil disobedience—disobedience that fundamentally expresses a private autonomy and independence from government.
Common law courts solved the definitional problem by placing strict limits on the causes of action for invasion of privacy. There is not so much a cause of action for invasion of privacy as four separate causes of action dealing with different subjects.471 Moreover, common law courts balanced the asserted private interest against the interests of society generally,472 usually employing what could be described as “rational basis” scrutiny.
Decisions under both the federal and state constitutions presented a slightly more difficult problem. Ultimately, however, the penumbral theory provided one concrete limit to privacy rights. In particular, the general contours of the Bill of Rights limit the extent to which new privacy rights may be declared.473 Although some complain that these “penumbral” rights do not deserve protection because they are not explicitly enumerated in the Constitution, at the very least, the penumbral rights bear some nexus to rights that are explicitly stated in the Constitution. Because this nexus is a prerequisite to recognition of a penumbral right, there is a limit on how far the Court can go in creating new privacy rights. A more generalized right to privacy appeared to exist in the early cases where the court’s reasoning was based upon the Ninth and Fourteenth Amendments. However, Bowers [v. Hardwick] would appear to have largely shut that door by imposing a high threshold for recognition of a privacy interest.474
By giving “privacy” explicit status in the California Constitution, “privacy” under our constitution, unlike privacy under the federal constitution, is set free from the constraints of other constitutional protections. Indeed, traditional canons of construction would lead a court to conclude that it must give privacy a definition different from other protections simply to give the word some effect. The risk then is that “privacy” may become completely untethered from any moorings whatsoever, and a reference to “privacy” in article 1, section 1 may become a convenient substitute for analysis.
V. Cases (Mis-) Applying Article I, Section 1
As Johnny Carson often says, if you buy the premise, you’ll buy the bit. The courts and commentators have bought two premises about article I, section 1: first, that the ballot argument is an important part of the legislative history of legislative initiatives; second, that the ballot argument is the only piece of significant legislative history for article I, section 1. The first premise is bad law, albeit law that is supported by a long line of supreme court decisions. Ballot arguments are a poor indication of legislative intent, and should be so treated.
But even if the first premise were accepted, the second premise, which has been critical to the courts’ interpretation of article I, section 1, fails. The second premise, is simply wrong as a matter of fact—there is more to the legislative history than the ballot arguments. Courts should now consider these portions of the legislative history, portions which suggest that the privacy right in article I, section 1 is a limited right against the government.
In order to appreciate the magnitude of the error created by these two misguided premises, this section reviews the leading cases decided under article I, section 1. Almost everything that the lower courts have said about article I, section 1 is wrong, and the Supreme Court of California has done better only because it has heard few cases on the subject.
- Cases in the Supreme Court of California
The Supreme Court of California first faced the privacy clause in White v. Davis. The analysis and discussion in White set the tone for virtually all of the subsequent opinions involving the privacy clause. Virtually all of the discussion in White was built upon the two premises identified above. Following “long recognized” precedents, the court held that the contents of the ballot argument were “an aid in construing legislative measures and constitutional amendments adopted pursuant to a vote of the people.”552 The court then adopted the second premise by describing the ballot argument as “a statement which represents, in essence, the only ‘legislative history’ of the constitutional amendment available to us.”553
The court needed the ballot argument to give some context to the privacy clause. As the court noted, the word “privacy” by itself evoked a potentially wide ranging set of interests. Implicitly recognizing the dangers of too broad an interpretation of “privacy,” the court suggested a narrower scope for the privacy clause, “relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society.”554 This narrower scope was drawn entirely out of the ballot argument, which the court quoted at length.
In light of these principles, the court easily held that covert police surveillance and data collection constituted “‘government snooping’ in the extreme,” and that the complaint correctly alleged the absence of any legitimate state interest in gathering or retaining the information because the information collected did not relate to any specific illegal activity.5
The first truly significant extension of the privacy clause beyond what the legislative history could plausibly have supported came in City of Santa Barbara v. Adamson,578 the court’s next privacy clause case.579 As a result of Village of Belle Terre v. Boraas581 and its progeny, it was clear that the city zoning law was constitutional under the federal constitution. Before the Supreme Court of California, the appellants challenged the ordinance only under the privacy clause, asserting that the zoning laws violated the privacy clause’s broader protections
It should be recalled that in White v. Davis, the court had identified the “moving force behind” the privacy clause as “a more focused privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society.”582 It would require an extraordinary feat of linguistic legerdemain to read this “focused privacy concern” as encompassing the interest in living in a house with more than four other unrelated persons.583 With little fanfare, the court in Adamson simply ignored this language from White.
The court in Adamson did not abandon the ballot argument, however. It found support for a “right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption” in the following language contained in the ballot argument:584“The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose.”585
According to the court, the highlighted passages “evidenced the voters’ intent in 1972 to ensure a right of privacy not only in one’s family but also in one’s home.”586 From this premise, the court jumped to its conclusion that the right to live with whomever you choose was a right guaranteed by the privacy clause.
To describe the court’s discussion as an analysis is overly charitable. The ballot argument identifies the home, the family, and the right of association as general areas which the right to privacy may protect. However, the ballot argument fails to suggest the extent to which the right to privacy protects these areas. There is no indication that all aspects of home life, all aspects of family, and all rights of association are protected by privacy interests. The ballot argument, therefore, does not answer whether the particular right being asserted—“the right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption”—is protected by the privacy clause.
The court skips this step in its analysis, a skip criticized strongly by the three-justice dissent.587 Having quickly determined that the right to live with whomever you choose is a right protected by the privacy clause, the court then proceeds to a “strict scrutiny” analysis using the “compelling interest” test.588 The court predictably strikes the statute down under this test focusing upon the arbitrary line (i.e., no more than five unrelated persons living together) drawn by the statute.589 One of the important lessons which the court learned in Adamson was that the privacy clause provides freedom to go far beyond the constitutional boundaries set by the Supreme Court of the United States. In Adamson, the court reached a result under the privacy clause contrary to the decision in Village of Belle Terre v. Boraas.590
In the court’s next privacy clause case, Committee to Defend Reproductive Rights v. Myers,591 involving state limitations on the funding of abortion, the court reached a result contrary to the decision in Harris v. McRae,592 which involved federal limitations on funding abortions. It would stretch the truth to claim that the court heavily relied upon the privacy clause in Myers. In fact, the California Supreme Court had declared in People v. Belous, before the privacy clause existed, that the abortion decision was constitutionally protected under both the federal and state Constitutions.593 In theory, then, the court could have decided Myers without citing the privacy clause. Yet the temptation to rely upon the privacy clause was too great for the court, hence it relied upon the “explicit constitutional status” of privacy in the California Constitution to support its holding.594
The court in Myers . . . engaged in a facile but misleading syllogism: the right to bear children is a privacy right; the privacy clause protects the right of privacy; therefore, the privacy clause protects the right to bear children. The fallacy in this argument is that it sweeps within the scope of the privacy clause all common law and statutory causes of action that in one way or another protect an interest which may properly be characterized as a privacy interest. For example, the right to be free from unwanted bodily contact is a privacy right; the privacy clause protects the right of privacy; therefore, the privacy clause protects the right to be free from unwanted bodily contact. Voilá! The law of battery now has an independent constitutional basis.595
Or consider this: The right to be left alone is a privacy right; when government taxes me, it invades my right to be left alone; the privacy clause protects the right of privacy; therefore, the privacy clause protects me from unwanted government taxes.596
As can be seen, the type of analysis engaged in by the court can lead to the creation of a dizzying variety of privacy interests and doubtful constitutional protections. Of course, this result is no surprise. Common law courts long have recognized that the word “privacy” has such amorphous contours, that any common law cause of action for so-called invasions of privacy must in truth be grounded in other interests. The definitional problem is no simpler in the context of a constitutional right of privacy; indeed, the problem is, if anything, magnified in the constitutional context because of the judicial branch’s supremacy in matters of constitutional law. Nor is the problem made any simpler by explicitly including the word “privacy” within the text of the constitution. The problem is not one of implicit versus explicit status; the problem is simply one of definition.
In White v. Davis, the Supreme Court of California clearly recognized these definitional dangers, noting that “the general concept of privacy relates, of course, to an enormously broad and diverse field of personal action and belief.”597 That is what led the court in White to focus its attention upon the legislative history in search of “a more focused privacy concern.”598 Finding nothing explicit in the legislative history that was then available, the court in Myers simply assumed that a privacy interest was implicated.599 White and Myers thus represent two vastly different approaches to the interpretation of the privacy clause. Myers is the last significant case from the California Supreme Court interpreting the privacy clause.
- Applying the Privacy Clause to Purely Private Conduct and Actors
Even if the decisions above are contrary to the intent of the privacy clause, the damage done is slight. The cases all involve the relationship of government to the people. Although a few of the decisions have far reaching social implications, such as the decisions involving the right to procreative choice,609 the bulk of the decisions relate to less controversial subjects.
Much more significant than any of these decisions, however, is the holding by several courts of appeals that the privacy clause regulates private actors as well as the state. Extending the privacy clause to purely private conduct was accomplished in Porten v. University of San Francisco. With these holdings, the scope of the privacy clause is dramatically widened to potentially encompass the full range of civil disputes among private persons. To date, the Supreme Court of California has addressed this issue only by noting decisions by the lower courts with neither approval nor disapproval.61
Extending the privacy clause to purely private conduct would not be controversial if the results reached in the cases were essentially consistent with the results reached pursuant to a statute or the common law. It appears clear, however, that the courts of appeal in California are using the privacy clause to reach results that are contrary to the results which would be reached under a statutory or common law analysis. The courts are thus engaging in precisely the sort of illegitimate decision-making identified above.
It should come as no surprise that the results being reached under a privacy clause analysis go far beyond what is known to the common law or what is required by statute. Having found that the privacy clause applies and that the defendant’s conduct burdens the plaintiff’s interest in privacy, these courts mechanically apply language found in the ballot argument to the effect that only a “compelling interest” can justify burdening the right to privacy. The “compelling interest” test, which usually goes hand-in-hand with strict scrutiny, is virtually impossible even for the government to satisfy when defending a public statute enacted by the legislature.611 Needless to say, a private person will have extraordinary difficulty in establishing a “compelling interest” in anything the person does.612 The “compelling interest” test loads the scales heavily in favor of the plaintiff, dramatically altering the balance achieved by the common law and statutes in adjusting the competing rights of private parties.613
VI. Conclusion
The significant body of authorities that now support the proposition that the privacy clause applies to purely private conduct are teetering perilously upon a single slim reed: that the ballot argument, supposedly the only piece of legislative history available, mentions “business” and refers to credit card and life insurance policies. When this reed is cut down to size by an analysis of the complete legislative history, the entire set of case authorities and commentary comes crashing down. The Supreme Court of California should use Hill to accomplish this demolition.
In subsequent cases involving state action, the courts should pay greater attention to the legislative history for the privacy clause and should heed the warning in White v. Davis that, in the absence of some significant limitations, “privacy relates . . . to an enormously broad and diverse field of personal action and belief.”685 The legislature was aware that by adding the privacy clause to the constitution, the interest in privacy was being given an independent footing. This suggests that the privacy clause is properly interpreted as protecting something more than, or at least different from, the federal constitutional right to privacy.
The challenge is one of finding an appropriate limitation. Two possibilities stand out for future development. First, the legislative history—including the ballot arguments—suggests a primary concern with the improper collection and distribution of personal information.686 The privacy clause could be limited to that type of privacy interest, to the exclusion of other asserted privacy interests, such as the interest in living with whomever one chooses.687 Second, the California Supreme Court could attempt to define “privacy” narrowly (e.g., as involving only “fundamental privacy interests”). This would be something like what the U.S. Supreme Court has attempted to do in its interpretation of the federal right to privacy.688 The Supreme Court was of course interpreting the Fourteenth Amendment’s protection of “liberty” by drawing upon cases defining “liberty.” The California Supreme Court does not have this luxury and must instead formulate a free-standing definition of “privacy.” This will not be an easy challenge to meet, and the fact that the court has so far failed to offer such a definition in its privacy clause cases suggests that the court is wary of making the attempt.
Margaret Crosby, “New Frontiers: Individual Rights under the California Constitution”
Margaret Crosby, “New Frontiers: Individual Rights under the California Constitution,” 17 Hastings Const. L. Q. 81 (1989)
Summary of Privacy
While the federal right to privacy seems destined to be confined to a limited number of choices, California’s right to privacy has kept pace with developments that have threatened individual privacy, in the areas of both informational privacy and autonomy. Privacy is an area of constitutional law in which it is easy to see how much would be lost if Californians did not have a State constitutional right and their only constitutional protection were derived from the implicit federal right of privacy. Article I, section1 has limited the compilation of data banks and intrusive interrogation during litigation. It has also protected unconventional choices in a pluralistic society.
Returning to the debate among the Justices in Hardwick about the institutional competence of the judiciary to define the scope of privacy, it seems clear that California courts, while expanding the contours of privacy protection beyond a nucleus of family-related choices, have created a principled body of law in defining article I, section 1. There are limits to the State constitution’s protection for unconventional choices. It does not, for example, render the State powerless to criminalize drug use or commercial sex. Within a broad zone, however, the State right of privacy guarantees far more liberty in intimate spheres than the federal right.
Article I, section 1 also has fulfilled its function of protecting privacy in a technological age. Although computers constitute the specific threat perceived in the 1972 privacy initiative, the courts have invoked article I, section 1 to delineate the limits of other technology that intrudes into personal privacy: life-sustaining treatment, lie detectors, drug testing, and AIDS testing. Future developments in science-technology that Californians in 1989 cannot even imagine-will undoubtedly pose challenges. The State right to privacy guarantees at least serious debate over the need for these developments, and that they will not be casually implemented without judicial oversight to ensure that the privacy sacrificed by scientific advances is justified by only the most significant public concerns.
Conclusion
The State constitutional law movement has been led by judges and by law faculty. In California, it has resulted in an outstanding body of state constitutional law protecting individual rights. It is time to spread this revolution beyond the courts and law schools: to the press, to the public, and to decision makers. Many legislators and executive officials do not understand their duty to obey both federal and state constitutions. It is important to teach state constitutional principles not only in law schools, but also in civics classes.
The day should come when Californians speak of “article I, section 2 rights” instead of “first amendment rights,” recognizing what is becoming reality: that the State constitution is the primary protection for their individual freedom.