Archive for the ‘California Constitution’ Category

Early Cases – “Privileges and Immunities”

Thursday, May 15th, 2008

State equal protection jurisprudence will differ from federal when the states take into account the difference in text.  The state charters, when originally adopted, did not contain an express “equal protection” clause (note – the California Constitution was amended to add such a clause).  Instead, the state constitutions prohibited “special laws” or, more commonly, prohibited the enactment of legislation granting “privileges or immunities” not available to all citizens equally.

Examples of state court decisions involving a privileges or immunities clause on the gay marriage issue include:

Morrison v. Sadler, 821 N.E. 2d 15 (2005) — Indiana Court of Appeals decision upholding state’s Defense of Marriage Act against a “equal privileges or immunities challenge.”  Standard of review grants substantial deference to legislative classification and does not apply differing levels of scrutiny.

Standhardt v. Superior Court, 77 P.3d 451 (2004) — Arizona Court of Appeals decision upholding state statute against “privileges or immunities” challenge.  The court treated the privileges or immunities clause in the state constitution as merely a state counterpart to the Equal Protection Clause of the 14th Amendment.

Andersen v. King County, 138 P.3d 963 (2006) — Fractured decision of Washington Supreme Court upholding state’s Defense of Marriage Act against a privileges or immunities challenge.  The court notes a two-tiered analysis — a higher scrutiny if the “law is a grant of positive favoritism to a minority class.”  In all other cases, the court applies a standard federal equal protection analysis.

Early Cases Massachusetts

Thursday, May 15th, 2008

In Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), the Supreme Judicial Court of Massachusetts ruled that the ban on same-sex marriages did not survive rational relationship review under the state constitution’s equal protection guarantee.

Unlike the Vermont decision, there is no historical analysis of the constitution — instead, the court relies on a common law approach of building on prior decisions that tested legislation against the equal protection guaranty.  The Massachusetts equal protection guaranty was adopted as an “equal rights amendment” and is very specific, identifying the protected classes: 

Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

The majority opinion, however, did not rely explicitly on this clause.  Instead, it ruled:

The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from”unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good.

Gay Marriage Cases in State Courts — Earlier Decisions

Wednesday, May 14th, 2008

For those wanting to compare the analysis in the forthcoming California Supreme Court decision with the approach taken by other state high courts, the following are some of the decisions from those courts on this issue:

Baker v. Nelson, 191 NW 2d 185 (1971) — The Minnesota Supreme Court rejected a federal constitutional challenge to the state law that did not authorize marriage between same-sex couples.

Baehr v. Lewin, 852 P.2d 44 (1993) — The Hawai’i Supreme Court that although same-sex marriage was not a “fundamental right” under the Hawai’i Constitution, a statute that precluded same-sex marriage was a classification based on sex that warranted strict scrutiny.

Dean v. District of Columbia, 653 A.2d 307 (1995) — The District of Columbia Court of Appeals rejected a federal constitutional challenge to statute prohibiting the issuance of marriage licenses to same-sex couples.

Decision in Gay Marriage Cases Due Thursday at 10:00am

Wednesday, May 14th, 2008

The California Supreme Court has announced that it will issue its decision in In re Marriage Casesat 10:00 am on Thursday, May 15, 2008.  Whatever the ultimate result in the case, this should prove to be a significant addition to the state’s jurisprudence on that Equal Protection guaranty in the California Constitution.

As soon as the decision is announced, I will post comments on the decision with an eye toward what it might mean for future Equal Protection challenges in different contexts (I will leave the social commentary to others).  In the meantime, I will post information on how other states have ruled on the same issue. 

No damage award for violations of Right to Privacy

Monday, December 10th, 2007

The California Constitution includes a right to privacy that protects against both government and private snooping.  Prior cases have noted that individuals can win injunctive relief to enforce this right and prevent snooping in the future.  What relief is available, however, if all of the spy work has been completed?  According to the Court of Appeal in Richardson-Tunnell v. School Insurance Program for Employees, there is no claim for damages against the government.

Richardson-Tunnell was a school employee and suffered a back injury which required disc replacement surgery.  The school district wanted to know just how injured she was, so it hired Eye-Con Investigators to crash her wedding and video tape the ceremony and the reception and, for good measure, to use telephoto lenses to snap pictures of her and her husband sun-bathing while on their honeymoon.  Richardson-Tunnell sued for damages, claiming a violation of her constitutional right to privacy.

The Court of Appeal upheld the trial court’s dismissal of the action.  Public employees are immune, pursuant to Government Code §821.6, for liability resulting from investigations that could lead to administrative proceedings.  Even though the school district failed to raise this claim in its answer, this immunity is jurisdictional and cannot be waived.

Because of the statutory immunity, the court did not reach the question of whether the California constitutional right to privacy provides a cause of action for damages.  For now, the only available relief is to prevent future spying with an injunction.

Police must return medical marijuana

Thursday, November 29th, 2007

Stating that the case was one “more a matter of analytical accouchement than precedential accretion” the court of appeal has ruled that police can be compelled to return medical marijuana seized during a traffic stop.

The case is City of Garden Grove v. Superior Court (Kha), and the court ruled that local governments have no option but to run items that state law considers “lawfully possessed” even if possession is a crime under federal law.

Supreme Court to review “pat down” searches at NFL games

Thursday, October 11th, 2007

How Appealing notes that Bob Egelko is reporting the California Supreme Court has accepted review in Sheehan v. The San Francisco 49ers.  I blogged about the appellate decision earlier this year (“Do you have the right to privacy if you know your privacy will be invaded?“).

Under the California Constitution, you a have right to privacy that is enforceable against both the government and other private parties.  In this case, the question is whether the Sheehans had a reasonable expectation of privacy since they had learned of the searches before they purchased their season tickets.  In other words, can a private company avoid the strictures of the constitutional right to privacy merely by giving notice that your privacy will be breached.

This will be an important case that will have implications for all of the new security screening that we have seen implemented since 9/11 — and may tell us something about the limits of private video surveillance that has becoming prevalent in both public and private spaces.

Court upholds property tax rule for domestic partners

Wednesday, October 3rd, 2007

Does the State Board of Equalization have authority to extend to domestic partners the same property tax relief enjoyed by married couples?  The Third District Court of Appeal upheld the constitutionality of the Board’s action in Strong v. State Board of Equalization.

At issue in the case is the provision of Proposition 13 that prohibits counties from reassessing property to full value until a change of ownership occurs.  After Proposition 13 was adopted, the Legislature defined “change of ownership” to exclude transfers between spouses.  This was later ratified by voters in another constitutional amendment.

In this ruling, the Court of Appeal upheld a decision by the Board of Equalization to grant the same benefit to transfers between domestic partners.  The exclusion was later adopted by the Legislature as an amendment to the Revenue and Tax Code.  This allows property to pass by will from one domestic partner to the other without incurring an increase in property taxes.

This ruling may have the effect of weakening the case of those now arguing before the California Supreme Court that restricting marriage to one man and one woman violates state equal protection guarantees.  (In re Marriage Cases, Cal. Supreme Court No. S147999.)  The California Legislature has worked to equalize benefits of domestic partners with those granted to married couples.  This undercut the arguments of those arguing that state equal protection guarantees require the state to extend the right to marriage to gay and lesbian couples.

Greg May is also commenting on this case over at the California Blog of Appeal.

California Supreme Court Strikes Down Local Forfeiture Law

Friday, July 27th, 2007

Finding implied preemption, the California Supreme Court struck down the City of Stockton’s ordinance providing for forfeiture of cars used in solicitation of prostitution or purchase of illegal drugs.


Preemption is different under state law differs significantly from the federal preemption doctrines you may have studied in law school.  State constitutions often vest local governments with some portion of the “police power.”  Under the California Constitution, local governments not only have the power to legislate on items not covered by state law, they also have the power to displace conflicting state pronouncements on matters of “local concern” (a term that the courts have yet to successfully define).


With that background in mind, understand that preemption in California law comes in four flavors:  the state law expressly preempts local regulation, the state law fully occupies the field and thus preempts local measures by implication, the local law duplicates the state law, or the local measure contradicts state law.  In any circumstance, however, since the local government has a constitutional grant of the police power, a crucial step in the analysis is whether the matter at issue is a matter of local or statewide concern.


In the case of the local forfeiture law, there were state laws that provided for forfeiture of vehicles used in certain drug transactions.  There was no express provision of the state law displacing local regulation.  However, the court ruled that the state law’s comprehensive scheme of regulation and punishment for purchasing, selling, and possessing illegal drugs preempted local efforts at regulation by implication.

Do You Have a Right to Privacy if You Know Your Privacy Will Be Invaded?

Wednesday, July 18th, 2007

The California Constitution protects the right to privacy against both government and private intrusion.  To state a cause of action under the constitution, you must demonstrate the existence of a legally protected informational or personal autonomy privacy interest and show that you have a “reasonable expectation of privacy.” 

In Sheehan v. The San Francisco 49ers, Ltd., the panel majority agreed that conducting pat down searches of everyone entering the football stadium did implicate a legally protected interest in personal autonomy.  However, since the Sheehans knew of the pat down policy, the Court ruled they had no reasonable expectation of privacy and that the complaint could be dismissed at the pleading stage.


The interesting twist in this case is that the original complaint alleged violations of privacy rights for searches conducted during the 2005 season.  In order to maintain a live controversy, the parties agreed to amend the complaint to state the same claim for the 2006 season.  The Court ruled that since the Sheehans learned of the searches in 2005, before they purchased the 2006 season tickets, they no longer had a reasonable expectation of privacy that would support a claim under the constitution.  Since the complaint sought only declaratory and injunctive relief, the only relevance of the 2005 searches was to destroy the expectation of privacy for the 2006 season.  This allowed the court to dismiss the Sheehans’ complaint at the pleading stage.