July 28, 2011

BREAKING: California Supreme Court sets Sept 6 2011 Oral Argument in Perry v. Brown

Late Thursday, the California Supreme Court announced it would hear oral arguments in Perry v. Brown on the question certified to it by the Ninth Circuit Court of Appeals–namely, whether the backers of PropHate have legal standing to defend the inititative since the State of California is refusing to do so–at 10 a.m. on September 6, 2011 in San Francisco. . This is huge for two reasons: 1) If the California Supremes hold that the private backers of Prop Hate lack standing, then the appeal against the District Court ruling holding the measure unconstitutional collapses and 2) under the California Constitution, the California Supremes must render an opinion within 90 days of oral argument or forefeit their pay until they do.

Thus, we may see the back of Prop 8 before the end of the year, depending on how the Court rules. Stay tuned!

–CAD

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June 27, 2011

U.S. Supremes Strike Down CA Ban On Violent Videogame Sales to Minors

In a 7-2 decision on Monday in Brown v. Entertainment Merchants Assn, the U.S. Supreme Court struck down a measure authored by State Senator (and present candidate for SF Mayor) Leland Yee which banned the marketing of “violent” video games to minors.

“Like the protected books, plays, and moviesthat preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection” wrote Associate Justice Antonin Scalia for the majority. “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct’ “.

In some of the most erudite language I’ve heard from Justice Scalia in a while, he noted “No doubt a State possesses legitimate power to protect children from harm, [internal citations ommitted] but that does not include a free-floating power to restrict the ideas to which children may be exposed. “ (emphasis mine).

Well said, paisan. It’s nice to see the First Amendment win a trophy and the nanny state get p0wned at your hands :)

–CAD

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June 20, 2011

CA Supremes Curtail 4th Amd Protections For Hunters and Fishers

In a unanimous decision Monday, the California Supreme Court held that California game wardens did not need to have a “reasonable suspicion” that a violation of the fish and game laws had taken place before they stopped and searched a vehicle.
Writing for the Court in People v. Maikhio, Chief Justice Cantil-Sakauye held “we conclude that (1) the state’s interest in protecting and preserving the wildlife of this state for the benefit of current and future generations of California residents and visitors constitutes a special and important state interest and need that is distinct from the state‟s ordinary interest in crime control, (2) the administrative regulations that are required to serve this interest — involving, for example, limits on the number, size, and species of fish or game that may be taken at different times and in different locations — are of such a nature that they would be impossible to adequately enforce if a game warden could stop, and could demand to be shown all fish or game that have been caught by, only those anglers and hunters who the warden reasonably suspected had violated the fish and game laws”.

In the Court’s view, hunters and fishers surrender their expectation of privacy since they “have voluntarily chosen to engage in the heavily regulated activity of fishing or hunting” and because the stops are “directly” related to fishing or hunting.

The case arose after a game warden spotted Mr. Maikhio using a hand-line to fish off of a pier and then putting a fish in a black bag.  Because the game warden believed this was a technique used by lobster poachers, he stopped Mr. Maikhio’s vehicle, searched the bag and discovered a contraband lobster.

Of course, this ruling raises the interesting prospect of “what happens when Joe the fisherman gets searched by a game warden, who finds no fish but a bunch of meth instead?”  Presumably, the court would find that Joe had surrendered the right he would otherwise enjoy to privacy for having the termerity to go fishing and admit the evidence.

Accordingly, if you fish or hunt, don’t poach or carry contraband. :)

–CAD

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June 10, 2011

1st DCA May Allow Access To State Bar Records

In a unanimous decision Friday, the 1st District Court of Appeal held that the San Francisco Superior Court erred when it denied researchers access to demographic data held by the State Bar of California.  In Sander v. State Bar of California, the Court rejected the State Bar’s contention that it was subject to the tigher rules of disclosure governing courts and held ” The common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents. ”

The case arose after a law professor at UCLA who was researching the gap in bar passage rates among certain ethnic and racial groups requested demographic data from the State Bar of California.  The  State Bar rejected his request (and several revised requests made by Prof. Sander and others) and litigation followed.

For those of us with longer memories than we’d like to admit, some dicta in the case brings back bad memories of the bitter battles between former Gov. Pete Wilson and the State Bar Board of Governors in the late 1990s regarding the State Bar’s proper role in California constitutional government, which led to the State Bar being defunded for a period of several months and several key functions, like attorney discipline, going by the wayside.

Here’s hoping the case leads to an interesting study by Prof. Sander, rather than a recurrence of the late 1990s drama.

–CAD

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June 6, 2011

CA Supremes Deny Jury Trial In Tax Refund Cases

In a unanimous decision on Monday June 6, 2011, the California Supreme Court held that taxpayers seeking a refund do not have a constitutional right to a jury trial on their claims. Writing for the Court in Franchise Tax Board v. Superior Court of San Francisco, Associate Justice Carol Corrigan held that modern tax refund claims were different in character from ancient personal rights of action against individual tax collectors. “[S]tatutory actions for tax refunds from the government have generally not been placed in the same class as the common law right of action against individual tax collectors. Most courts have viewed actions for a refund from the government as new and distinct proceedings, subject to such conditions as the legislative branch sees fit to impose.” Since “At common law, sovereign immunity barred actions against the government, by way of jury trial or otherwise …[and] [t]he right to a jury trial provided by the Seventh Amendment to the United States Constitution does not apply in statutory actions against the federal government”, and that this principle has been applied to federal tax refund actions, therefore there was no independent statutory or state constitutional basis for a right to jury trial in state tax refund actions.

This is likely to ruin the day of tax protestors and believers in jury nullification, so the long term impact should be interesting.

–CAD

 

 

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