Overview Article I, section 24 of the California constitution states that “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”[1] Nevertheless, the California Supreme Court generally does not interpret the California constitution independently. Instead, the state high court generally follows the U.S. Supreme Court’s interpretation of analogous constitutional provisions unless there are “cogent reasons” not to do so.[2] That is the wrong approach because it violates the will of the California voters to have the California constituti ..read more

Overview The Chino Valley Unified School District Board of Education recently adopted a policy requiring school officials to notify parents if a student requests to use a different name or pronoun than is on their birth certificate — drawing California into the national battle over transgender rights in education.[1] California Attorney General Rob Bonta sued the district, arguing that the policy violates California’s constitutional right to privacy.[2] He’s right. Transgender students meet the threshold requirements of a California constitutional privacy claim because they hold specific and l ..read more

The California Supreme Court Historical Society presents: Looking Back: A Review of Significant Decisions of The California Supreme Court in 2023 Thursday, February 15, 2024 – Webinar12:00 PM to 1:00 PM Click here to register! Introduction by California Supreme Court Justice Joshua GrobanPresentation by David A. Carrillo, Berkeley Law There is no charge for this program. 1 hour MCLE Credit is available to California Supreme Court Historical Society members at no charge. Non-members may purchase MCLE credit for $25.00 This program is co-sponsored by: Alameda County Bar AssociationThe Bar Associ ..read more

Overview Our word to describe the California Supreme Court in 2023 is coalescence. It makes no difference how long a justice has served, who appointed the justice, what political party they vote for, or what kind of toast they like — the metrics we track for this court all show collapsing trends with few divergences. The three-way split between the appointing governor blocs remains: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger (Corrigan). But those looking for polarized voting blocs or even a lone dissenter will be disappointed: this cour ..read more

Overview Experienced California appellate practitioners sometimes rely on two rules of thumb. One posits that when the California Supreme Court grants a petition for review, the court reverses about 60% of the time and affirms the other 40% of reviewed cases; call this the “60–40 rule.” The other bit of conventional wisdom (call it the “rule of thirds”) holds that the court’s docket is divided roughly into thirds: about one-third each of automatic capital appeals, general criminal, and general civil cases. In this article we evaluate these hypotheses. We found that the rule of thirds is inaccu ..read more

Overview In this conclusion to our series on the California Supreme Court’s recent performance we argue that the valid concerns some have raised about the court’s opinion output do not constitute a crisis. Annual decision tallies are just one performance metric that decreases in significance when considered with other factors. Comparing the decades 2000–10 with 2010–21, in the later period there were fewer petitions for review, more vacancies, more new justices without prior judicial service, a new grant-and-hold policy, and changes in individual justice performance. Considered together those ..read more

Overview Children born with intersex traits are often subjected at birth to unnecessary sex-defining surgeries without their consent. This article argues that the California constitution’s privacy protection for bodily autonomy extends to an intersex child’s interest in making intimate decisions that will shape the course of their life. Cosmetic surgeries fail to further any compelling interest justifying the invasion of this fundamental privacy right. Consequently, intersex children who are subjected to nonconsensual sex-defining surgeries have viable constitutional privacy claims against the ..read more

Overview The California Supreme Court is taking longer to issue fewer opinions compared with its past performance. In the 2022 review we showed that over the past 24 years the court’s unanimity rate steadily increased, while its opinion output steadily declined. In today’s study of the same period we examine how long the court takes to produce an opinion, measured by the time from the last reply brief being filed to the case being ordered on calendar for argument. The results show that this value has increased over time. Combined, the three data points suggest that over the past 24 ..read more

Overview The fact that most California criminal cases end in plea bargains presents an unconstitutional conditions problem.[1] Plea bargains involve prosecutors exchanging charging leniency for a waiver of constitutional rights.[2] Yet California’s unconstitutional conditions doctrine limits the government’s “authority to condition . . . a privilege or benefit” on waiving constitutional rights.[3] Whether plea bargains satisfy California’s unconstitutional conditions doctrine depends on whether the doctrine itself remains viable. It also depends on a local jurisdiction’s idiosyncrasies, compli ..read more

Overview The California Supreme Court should overrule its decision in Michel v. Smith, which granted police supervisors immunity for their officers’ misconduct.[1] Michel was wrong in 1922 and has become more wrong since. Worse, courts have interpreted Michel so that its exceptions — which were necessary to its holding — no longer exist. Overruling Michel would give plaintiffs remedies when police violate their constitutional rights and increase pressure on police supervisors to end inhumane and unconstitutional practices. Analysis It is nearly impossible to pursue police misconduct claims und ..read more