California and the Court

Earlier today, Professor Leslie Gielow Jacobs – Director of the Capital Center for Law & Policy at McGeorge School of Law – offered her reaction to Justice Kennedy’s announcement that he will be retiring from the Supreme Court of the United States, effective July 31, 2018. She gave her thoughts on the Capital Public Radio program Insight with Beth Ruyak. You can find some excerpts from her conversation with Beth below, and you can find the entirety of their conversation here.

On the space Justice Kennedy occupied on the Court:

“I have a fond place in my heart for what we call ‘swing justices.’ That is, if you’re the person in the middle, you’re certainly looking very, very carefully at the facts of each case the circumstances. That might cause you to go one way or another and you’re not as strict, maybe, ideologically one way or the other.”

On which cases will be Justice Kennedy’s legacy:

“Gay marriage is the biggest change. He was the one who came on to the Court and began writing these opinions and he was always assigned the majority opinion in that area of interpreting the Constitution, and the Equal Protection Clause, and gay rights. His influence there is profound. … If I had to choose a legacy, it’d be the gay rights cases.”

On things to look for in the next nominee for the Supreme Court:

“I would predict the next Justice would be late forties, early fifties.”

 

 

 

The Role of the Judicial Branch in the Legislative Process (transcript)

Today’s podcast is on the role of the judicial branch in the lawmaking process here in California. Members of the state and federal judiciary branches play a role in California lawmaking in the actual legislative process, as part of our state government system of checks and balances. When California statutes or regulations are legally challenged, for example, then the state or federal court that makes a determination establishes a public policy for the state.

Of course, California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state lawmaking process. In addition to these legal challenges, both federal and state courts may be called upon to interpret California statutes or regulations.

Statutory interpretation is a primary role of the judicial branch of government in the state lawmaking process. In fact, courts are regularly called upon to interpret state statutes and regulations, sometimes to the dismay of elected officials in the executive or legislative branches of government.
This third branch of government does play a crucial role in the lawmaking process when the courts determine what the legislative intent was of a statute, or whether a regulation comports with the Administrative Procedure Act, or whether a statute or regulation is constitutional. This, of course, is the most critical role of the judicial branch in the state lawmaking process.

Occasionally, the California Legislature passes a law that does not comport with the state or federal constitutions. Despite claims by judges that they leave lawmaking to the elected branches of government, when judges modify statutes or issue a determination of how a statute or regulation is to be interpreted and applied, then judges do, to some degree, become a critical part of the state policy making process.

Hence, from my perspective, all three branches of state government do, in fact, play a role in the development of state public policy.

 

 

 

It’s been three months since U.S. Attorney General Jeff Sessions came to Sacramento to announce his lawsuit against the State of California challenging various provisions of the new sanctuary state law.  I posted about my initial evaluation of the claims when Sessions announced the lawsuit.  Tomorrow is a big hearing in federal district court, so it’s time to check in again.

What’s been going on during the last three months?  Lots of papers have been filed.  California tried to move the case to San Francisco, but the judge said no so it will remain in Sacramento.  The United States and California have filed papers, and lots of groups and individuals have filed their own amicus curae briefs supporting one or the other side.

What’s going on to tomorrow?  Judge Mendez will hear oral argument on two motions.  The U.S. seeks a court order to block California’s sanctuary state laws and California is asking the judge to dismiss all of the United States’ claims.  The motions are flip sides of each other, each taking extreme positions about how good their claims are.  The U.S. argues that its claims are so good that the judge should grant a court order (preliminary injunction) before trial happens.  California argues that the claims are so weak that the judge should dismiss them all without having a trial at all.

California has a tough row to hoe on the motion to dismiss.  It has to prove that no set of facts could allow the U.S. to state claims.  It’s unlikely that Judge Mendez will dismiss any of the claims at this early stage.

So, the focus tomorrow will be on the U.S. motion for a preliminary injunction.  Unlike a trial, where the party just has to win, the U.S. has to show more to convince a judge to act early, and enter an order against the other side, before the judge has been able to hear all the arguments and see the evidence that would be presented at a trial.

Judge Mendez will come into the hearing very prepared.  He will have looked carefully at all the writings, researched the arguments, and will likely have pin-pointed questions to flesh out particular parts of the claims.  He likely knows how he is inclined to rule on each claim.   What?  Isn’t that pre-judging the case?  Yes, but that’s ok.  In fact, it is responsible judging.

This is not like a trial, where the jury is supposed to keep an open mind before it hears the evidence.  There may be some testimony tomorrow, and the judge should keep an open mind on that.  But most of tomorrow’s claims depend upon reading U.S. law and California law and deciding how they inter-relate.  These are complex legal questions and it is entirely appropriate that the judge would study them, think hard about them, and form initial opinions before oral argument.

The lawyers will be very prepared as well.  They wrote the pleadings and, during the last week, have undoubtedly been doing “moot court” preparations where they argue and take questions, trying to anticipate what the other side and the judge will say.

What is the standard of proof?

The U.S. needs to show (1) that it is likely to win at trial; (2) that it will suffer extraordinary harm if it must wait until trial for a court order; (3) that it will suffer more harm than California if it must wait until trial; and (4) that the public interest is on its side.

Both the U.S. and California have strong claims that they will suffer “irreparable” harm that cannot be repaired later if the court rules against them.  So, the focus of the case will be on whether the U.S. can meet its burden of showing a “likelihood of success” at trial on its claims.

What are the claims?

The basis for all three of the U.S. claims is that the California sanctuary state provisions violate the Supremacy Clause of Article VI of the Constitution.  The U.S. also claims that each provision violates what is called “inter-governmental immunities.”  This is a more difficult claim for the U.S., and so I’ll focus on the Supremacy Clause (preemption) claims as they relate to each California law.

The Supremacy Clause says that when state law conflicts with valid federal law, the federal law prevails.  No one disputes that this part of the Constitution exists, or what it says.  So what’s the big question with all three claims?  Is there a conflict or is this just another of many situations where the two different governments may regulate the same activities, but for different reasons?

California’s “Immigrant Worker Protection Act” (IWPA).  This law prohibits private employers from voluntarily complying with federal immigration enforcement requests for information. This means that the federal agents need to get a court order to obtain the information.  There is nothing explicit in the federal law that says California cannot do this. So, the question is whether the state law “frustrates the purpose” or “stands as an obstacle to enforcement” of federal law.  Maybe … or even, quite likely it does.  California has very good reasons for its law, but that is not the right question when the federal government claims preemption.  The focus is on what the federal government validly wants to achieve and whether the state law makes it systematically more difficult no matter the state’s strong interests.  Private California employers are citizens of the state and of the United States.  Expect to see the U.S. make the point that it should be able to seek voluntary compliance from its citizens on the same terms as the state, and the state effort to shift that balance unconstitutionally obstructs its lawful exercise of its powers.

California Assembly Bill (AB) 103.  This law allows California Attorney General Xavier Becerra to inspect immigration detention facilities to make sure they are being operated lawfully.  California has the power to do this and has a strong interest in making sure confinement conditions and other aspects of detention meet state and federal standards.  The U.S. claim that California is targeting it specifically is not particularly strong.  California can reasonably claim that its interest is in immigration facilities and what occurs in them, which pose particular issues that make them different from other types of facilities, and so it is targeting the type of facility not the federal government that operates them.  California does not obstruct federal law enforcement if it only imposes reasonable ministerial requirements that are similar to what it imposes on other entities that rent and operate other types of facilities.  It is not clear from the papers how the inspections work in practice.  Expect to see questions that go to the burden of the inspections on immigration enforcement officials, and that compare these burdens with inspection burdens imposed on other types of facilities.

California Senate Bill (SB) 54.  This law limits state and local law enforcements’ abilities to give certain types of information about current and former state prisoners to immigration enforcement officials.  The U.S. preemption claim is the weakest here, because, unlike with private employers, California has the superior power to direct the activities of state and local law enforcement.  The U.S. cannot constitutionally require state and local officials to assist with its immigration enforcement efforts.  Expect questions to the U.S. about what valid law entitles it to the information it seeks.  If the judge were to dismiss a claim tomorrow (which, as I said is unlikely), this would be it.

What happens after the hearing?

The judge can grant an order stopping enforcement of all, or single parts of the sanctuary law.  That is, the judge can accept all, some, or none of the U.S.’s claims.  Also, the judge can rule from the bench, meaning a court order goes into effect right away.  Or, more likely, the judge can take the claims “under submission,” and issue a ruling, along with a written opinion explaining his reasoning, later, in a few days or weeks.

After a ruling, we can expect the losing side to file an appeal.  The losing side will likely seek another court order, this time from the Ninth Circuit Court of Appeals, either granting an order stopping the California laws or stopping an order by the judge stopping California laws, whichever way the ruling goes.  A three-judge panel of the court of appeals will schedule argument.  We have already waited three months for this oral argument, so it is unlikely that the court of appeals would hear the appeal as an emergency.  More likely, argument would be within a few months.  After that, the losing party will likely try to convince the U.S. Supreme Court to accept the case and issue a ruling.  If the Court agrees, that ruling would likely not be issued until June 2019, at the earliest.

For more details, see Dean Vik Amar’s analysis in Verdict.

By: John Sims

Previous posts have described the decades-long efforts by California to deal with the challenge of air pollution.  Automobile-generated air pollution in the Los Angeles area forced California to start developing responses before Congress was ready to take action, and therefore when the Clean Air Act was passed by Congress in 1970 the legislation contemplated that California would continue to set a higher standard for itself than that mandated for the rest of the country.

Although the more demanding standards adopted for vehicles sold in California require sign-off by the Environmental Protection Agency, that has generally not prevented California from taking the lead in fighting air pollution.  Even when a given administration was not willing to take aggressive action itself to protect the air, it did not stop California from doing so.  A California vs. US dispute did arise over greenhouse gases during the administration of George W. Bush, but was quickly resolved once President Obama took office.

A highly informative recent article by Dale Kasler in The Sacramento Bee  gives a detailed history of the Clean Air Act as implemented in California, and calls attention to current tensions that may soon explode into open warfare.  EPA Administrator Scott Pruitt is enthusiastically giving effect to President Trump’s hostility toward regulatory efforts to reduce greenhouse gases.  Therefore, as described in detail in the article, there is now a serious risk that the EPA will deny California the certification it needs to fight Global Warming aggressively.

Kasler reports that Pruitt’s decision is expected by April 1.  Any action by the “Environmental Protection Agency” to prevent California from protecting the state’s environment would certainly fit well within the spirit of April Fool’s Day.

In a related development, on March 7 the United States Court of Appeals for the Ninth Circuit rejected a creative effort by the U.S. Department of Justice to obtain “mandamus” (essentially an emergency court order) to prevent the federal district court in Oregon from moving ahead with its planned trial in the Juliana case.  Young plaintiffs are challenging various federal policies that contribute to Global Warming and threaten their future.  The district judge concluded that the plaintiffs’ case is substantial enough to go to trial, and it is expected that the proceeding will involve extensive expert scientific testimony.

The federal government is desperate to prevent the trial because it will inevitably attract further attention to the issues surrounding Global Warming, but at least so far it has been unable to find a procedural mechanism to derail the lawsuit.  The mandamus request was denied.

 

 

 

 

 

I appeared earlier this week on KCRA with Mike Luery to talk about the lawsuit that Attorney General Jeff Sessions has against California over three “sanctuary jurisdiction” laws that were passed by the California Legislature last year.

The three laws in question are SB 54, AB 450, and AB 103.

The lawsuit asks a federal district court to define the line between federal and state power under the U.S. Constitution.  Some things are undisputed.  These are:  (1) The federal government has exclusive authority to make and enforce immigration laws. (2) Federal government agents, like ICE agents, have the constitutional authority to enter states and enforce immigration laws against people within the state’s jurisdiction.  And, (3) valid federal law is supreme over state laws that conflict with it.  At the same time, (4) the federal government does not have the constitutional authority to require state agents to enforce federal law.  It may offer inducements, like money or other favors, but it cannot command state officials to do its bidding. And, (5) states, like California, have their own sovereign power to make laws for purposes other than immigration enforcement, specifically to protect the health, safety and welfare of all of their residents.

Here, California’s listed purposes for the three laws in question are to promote health, safety and welfare, not to regulate immigration, although a purpose is quite clearly not to assist with federal government immigration enforcement.  The question for courts will be whether the effects of these laws go beyond regulating the behavior of state and local officials, entities, and individuals lawfully subject to the state’s control into the unconstitutional arena of affirmatively impeding federal immigration enforcement.

As to SB 54, this law prohibits state and local officials from providing some types assistance to ICE enforcement agents, which they are not, by law, required to provide.  States, not the federal government, have the power to direct the behavior of state and local officials.  To the extent that the State of California is only saying don’t help beyond what the law requires, that direction should be okay.

AB 450 deals with Immigration and Customs Enforcement (ICE) going into workplaces in California to identify undocumented immigrants. The requirements in AB 450 make ICE do what the law requires it do. That is, have an appropriate warrant and give appropriate notice before ICE comes in to a workplace.  California employers are validly subject to California laws designed to protect the privacy of workers and ensure safe and efficient workplaces.  It’s not clear that ICE has a right superior to California’s policy judgment to get the voluntary cooperation of employers with immigration enforcement.  The constitutionality of this provision will depend upon how courts view the California provision – as part of a valid state effort not to assist federal enforcement or as an affirmative obstacle.

AB 103 might be on the shakiest grounds, I think. It requires California’s Attorney General, or his or her designee, to inspect federal detention centers, including records.  California’s argument that it is protecting the integrity of leased detention facilities of all types within the state is substantial.  Nevertheless, if I had to choose the most vulnerable provision, it would probably be this one to the extent that California officials are going into federal facilities and overseeing how the federal government does things.

Of course, there are a plethora of other opinions about this new lawsuit. There were two opinions featured on this blog a few days ago. Neither of those opinions matches mine perfectly. Maura Dolan of the Los Angeles Times talked to half a dozen law professors from all over California, all of whom have varying opinions about which aspects of the three laws may or may not be constitutional. The San Francisco Chronicle also spoke to law professors for their takes on the lawsuit.

While the range of opinions on which aspects of the three “sanctuary” laws vary widely, there does seem to be a consensus of opinion on one aspect the lawsuit, that this will be settled by the U.S. Supreme Court.

Live from Classroom A McGeorge School of Law, Prof. Josh Blackman discussing the new sanctuary jurisdiction lawsuit against California.

Posted by McGeorge Capital Center for Law & Policy on Wednesday, March 7, 2018

Last night, news broke that U.S. Attorney General Jeff Sessions and the U.S. Department of Justice are suing the state of California, Governor Jerry Brown, and California Attorney General Xavier Becerra over California’s sanctuary jurisdiction policies.

Prior to the development, the Federalist Society had lined up Professor Josh Blackman from Southern Texas College of Law to speak at McGeorge School of Law on the topic of President Trump’s travel ban. The new lawsuit derailed those plans, and he instead spoke about the lawsuit.

There are three California bills that are at play in the case: SB 54, AB 450, and AB 103. The common theme in the lawsuit with these three pieces of California legislation is the issue of preemption and whether or not these pieces of legislation interfere with federal law in ways that would create preemption issues.

That is where today’s two speaker, Prof. Blackman and McGeorge’s own Professor Clark Kelso differed. Enjoy the video of their conversation and the questions that are asked of them afterwards!

 

 

 

California Attorney General Xavier Becerra has filed a total of 22 lawsuits in 17 different subject areas against the Trump administration.

The Sacramento Bee compiled a list of all the pending cases, along with quick summaries of each, and arranged them by subject matter. You can find links to the many complaints filed by California Attorney General Xavier Becerra below.

For more of my takes on these issues, you can refer back to my previous post on the Attorney General’s lawsuit over birth control exemptions.

 

 

 

It looks like Justice Anthony Kennedy will provide the key vote again, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued today in the U.S. Supreme Court.  The case pits a cake baker’s free speech claim against the state’s efforts to provide equal access to goods and services regardless of the customer’s sexual orientation.  Listen as two McGeorge School of Law professors, Larry Levine and John Sims, talk about Justice Anthony Kennedy, and his LGBT civil rights legacy on the Supreme Court.

 

 

 

In December, the Court will hear argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  A cake baker claims that a Colorado civil rights law, which requires him, as a merchant serving the public, to provide his product on a nondiscriminatory basis to gay people for their weddings, unconstitutionally compels him to speak.  A decision in favor of the cake baker would restrict the ability of California and California cities to enforce similar nondiscrimination laws.

President Trump’s appointee, Justice Gorsuch, likely provided the fourth vote to grant review in the case. The Trump Administration has filed an amicus brief arguing that the Court should interpret the Constitution in the way the baker suggests.

Recently, in the Take Care blog, Yale Law School Professor Robert Post reviews the Department of Justice’s brief in light of free speech doctrine.  The DOJ’s key claim is that creating a cake should be constitutionally protected at the same level as core political speech. So, because the Constitution forbids the government to compel a child to engage in the expressive action of saluting the flag, the Court should interpret it to forbid the state to compel a custom cake baker to make a cake to be used at an “expressive” event, such as a gay wedding.  Dean Post responds:

If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings—furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.

Any such conclusion would … rip the guts out of any effort to establish equality in the commercial marketplace.”

You can read Professor Post’s full commentary on Take Care.

 

 

 

 

Certiorari

California is one of seven states that bans assault weapons, which are semi-automatic, military-style weapons with features that make them easy to conceal, and easy to fire multiple rounds of ammunition continuously. The National Rifle Association (NRA) is in the process of filing a series of lawsuits challenging the most recent assault weapon restrictions passed by the California Legislature in 2016 (AB 1135 and SB 880).  A petition for review currently pending in the U.S. Supreme Court is of high interest to Californians because it asks the Court to accept the same arguments made by the NRA in its constitutional challenge to California’s new assault weapons restrictions.

The petition currently pending at the U.S. Supreme Court requests that it accept review of the Fourth Circuit Court of Appeals’ en banc decision upholding Maryland’s assault weapons ban – Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). Gun owners and dealers argue that because certain types of prohibited assault weapons, specifically the AR-15 and AK-47, are “popular” choices for self-defense, the Constitution’s Second Amendment prohibits states from banning them.

 

AR-15 Assault rifle

 

AK-47 Assault Rifle

 

 

 

 

 

The challengers ask the Court to interpret the Constitution to mean that “[t]he individual – and not the government – retains the right to choose from among common arms those that they believe will best protect their person, family, and home.”  Pet. For Writ of Cert. at 3.  This interpretation of the Constitution, if adopted by the Court, could dramatically restrict the power of California’s citizens, and the citizens of other states, through their legislatures, to limit the availability of weapons they determine to pose particular dangers of misuse.  These weapons include guns or accessories with rapid-fire or other assault features that have been commonly used in mass shootings, including the most recent Las Vegas tragedy.

The Court has discretion to accept or refuse review of lower court decisions. Since its two  decisions in 2008 and 2010 interpreting the Second Amendment to protect an individual’s right to possess a gun in the home for self-defense, the Court has not agreed to review challenges to gun restrictions. Only Justices Thomas and Gorsuch seem inclined to review and strike down gun restrictions in the short term, complaining in a dissent last term about the Court’s “treatment of the Second Amendment as a disfavored right.” Peruta v. California, 582 U.S. (2017).

The challengers in the pending case, Kolbe v. Hogan, filed their petition for review on July 21, 2017. West Virginia, joined by twenty other states, filed an amicus brief supporting the request for review. The State’s response is due on October 10, 2017. Once all the briefs are in, the Court will discuss the petition at a Friday conference and decide whether to grant review.

For more information on:

Assault weapon laws, federal and state: Law Center to Prevent Gun Violence – Assault Weapons

Gun laws generally, state by state: Reuters Gun laws in the US, state by state – interactive

A history of the AR-15 and AK-47: New York Times “Tools of Modern Terror” by C.J. Chivers

Want more information?  Check out our In Briefs.