Yes. Perhaps an over-generalization, but, yes. See, Coyote Publishing, Inc. v. Miller (9th Cir. Mar. 11, 2010), wherein the Ninth Circuit held that Nevada's restrictions on brothel advertisements are constitutional because they are justified by state's "substantial interest." These headlines sometimes write themselves.
For those following the complicated twists and turns of litigation over California Ballot Proposition 8, which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California, the litigation about that measure continues. Today, the Ninth Circuit, in Perry, et al. v. Arnold Schwarzenegger (9th Cir. January 4, 2009), issued a writ of mandamus directing the trial court to enter a protective order barring access to internal campaign communications of proponents of the Proposition. I'm no constitutional law expert, but high-stakes litigation like this tends to create its own complexity, so I simply note the opinion for the constitutional law scholars, fans and practitioners. I can say that it's not every day that you see discovery limited because it would intrude on the the First Amendment right of freedom to associate. The one-page appendix to the opinion is also available.
In Roby v. McKesson Corporation, the second opinion issued today by the California Supreme Court, the Court held, among other things, that on the facts and circumstances presented, a 1-1 punitive damage to compensatory damage ratio was the constitutional ceiling. Justice Werdegar authored a dissenting opinion (to which Justice Moreno concurred) on the Court's punitive damage holding, concluding that the facts and circumstances of the case supported a 2-1 punitive damage to compensatory damage ratio. The case concerns allegations of wrongful discharge, discrimination and harassment.
Although it's an issue that isn't customarily within my wheelhouse, the Opinion issued by the California Supreme Court this morning is undoubtedly "complex." As one barometer of the complexlity, the introductory comments span some twelve pages. Most opinions get a paragraph or two to set the stage. But after perusing the Opinion out of general curiosity, I decided that a few remarks (and a few long excerpts) are in order to press against the inevitability of mischaracterizations about what the California Supreme Court actually did and did not do in its opinion. In other words, the more obscure the legal analysis, the more likely it is that it won't be summarized correctly.
On May 26, 2009, in Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied Petitions for Original Writs of Mandate. The Petitions challenged the validity of California Proposition 8, which added a new section to article I of the California Constitution. That new section, section 7.5, reads in full: "Only marriage between a man and a woman is valid or recognized in California." (Slip op., at p. 8.) The language of section 7.5 is identical to language previously included in Proposition 22, which proposed the adoption in California of a new statutory provision, Family Code section 308.5. Proposition 22 was approved by voters and later found to be unconstitutional by the California Supreme Court in the consolidated matter entitled In re Marriage Cases (2008) 43 Cal.4th 757.
Today's Opinion in Strauss offers some important clarifications about what the Court could and could not do in the exercise of its constitutional role:
For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples.
In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), we were faced with the question whether public officials of the City and County of San Francisco acted lawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman were unconstitutional. We concluded in Lockyer that the public officials had acted unlawfully in issuing licenses in the absence of such a judicial determination, but emphasized in our opinion that the substantive question of the constitutional validity of the marriage statutes was not before our court in that proceeding.
In In re Marriage Cases (2008) 43 Cal.4th 757 (hereafter the Marriage Cases), we confronted the substantive constitutional question that had not been addressed in Lockyer — namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the protection of the constitutional right to marry embodied in the privacy and due process provisions of the California Constitution, and that by granting access to the designation of "marriage" to opposite-sex couples and denying such access to same-sex couples, the existing California marriage statutes impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.
Proposition 8, an initiative measure approved by a majority of voters at the November 4, 2008 election, added a new section — section 7.5 —to article I of the California Constitution, providing: "Only marriage between a man and a woman is valid or recognized in California." The measure took effect on November 5, 2008. In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and — if it does — we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.
In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government — the executive, the legislative, and the judicial.
In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII, § 1) or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)
(Slip op., at pp. 1-4, origial emphasis.) The Court then explained the scope of its holding, which may prove to be somewhat different than what was sought by any of the parties:
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage" (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.
Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California Constitution, which now include the new section added through the voters’ approval of Proposition 8. Furthermore, the judiciary’s authority in applying the state Constitution always has been limited by the content of the provisions set forth in our Constitution, and that limitation remains unchanged.
(Slip op., at pp. 6-8.) Although it is small consolation to the proponents of gay marriage, my reading of this Opinion is that the California Supreme Court construes the Constitutional amendment effectuated by Proposition 8 as having reserved the word "marriage" for state-recognized unions between men and women, while preserving the Marriage Cases holding that gay couples are entitled to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage." (Marriage Cases, supra, 43 Cal.4th at p. 829). They just can't call it a marriage. In other words, everybody is going to be unhappy with this decision.
While there is likely to be much commentary about what should happen in our society after this Opinion, I think that, in a difficult circumstance, the California Supreme Court correctly discharged its limited role in our government. The Court doesn't deserve to be pilloried here, and I hope that it is not.
In Liceaga v. Debt Recovery Solutions LLC (December 29, 2008) the Court of Apppeal (First Appellate District, Division One) held that the federal Fair Credit Reporting Act completely preemted private rights of action under California's Consumer Credit Reporting Agencies Act. Today, the Supreme Court directed The Reporter of Decisions not to publish the opinion in the official report. This depublication is something of a boon consumers. Until a Court in California holds otherwise, private actions under California’s Consumer Credit Reporting Agencies Act, Civil Code section 1785.1 et seq. (CCRAA), are not preempted by the corresponding federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (FCRA)). For some reason, the Court's weekly conference summary isn't available online, but the docket confirms the depublication Order of April 29, 2009. My original post on Liceaga is here.
More commentary on thus opinion will follow (it will, in fact, be discussed everywhere), but it suffices to say that this was one of the foundational set pieces in the attack on consumer class actions.
Salaries for judges in California are "prescribed" by the legislature via constitutional mandate. In Sturgeon v. County of Los Angeles (October 10, 2008) the Court of Appeal (Fourth Appellate District, Division One) all but declared unlawful a substantial benefits package provided by Los Angeles county to its superior court judges. The Court of Appeal reversed a summary judgment granted to Los Angeles county in a taxpayer suit challenging the payments by Los Angeles county. The Court summarized the conclusion:
“Section 19, article VI of the California Constitution requires that the Legislature "prescribe compensation for judges of courts of record." The duty to prescribe judicial compensation is not delegable. Thus the practice of the County of Los Angeles (the county) of providing Los Angeles County superior court judges with employment benefits, in addition to the compensation prescribed by the Legislature, is not permissible. Accordingly, we must reverse an order granting summary judgment in favor of the county in an action brought by a taxpayer who challenged the validity of the benefits the county provides to its superior court judges.
(Slip op., at pp. 1-2.) The benefits in question are not insubstantial:
“In sum, in addition to the salary, benefits and retirement prescribed by the Legislature, in fiscal year 2007 each superior court judge in Los Angeles was eligible to receive $46,436 in benefits from the county. This amount represented approximately 27 percent of their prescribed salary and cost the county approximately $21 million in fiscal 2007.
(Slip op., at p. 3.) On December 23, 2008, the California Supreme Court declined to review the decision. Based on the analysis in the opinion, it seems unlikely that the result will be anything but a ruling that Los Angeles must terminate the benefits package.
While the outcome may be constitutionally correct, the result is not ideal. It is already difficult enough to entice qualified candidates to leave behind lucrative private practice for the often thankless work of the judiciary. A loss of over $45,000 in benefits won't help. As maxims go, "you get what you pay for" is one of the habitually accurate ones. How many judges on the fence will now hit the eject button for the greener pastures of private mediation and arbitration?
There has been a fair bit of speculation that the weak economy would generate a substantial amount of consumer class action activity in areas of finance, including lending, consumer credit and debt collection. In California, the door to one such area was slammed shut, absent action by the California Supreme Court or the United States Supreme Court. In Liceaga v. Debt Recovery Solutions LLC (December 29, 2008) the Court of Apppeal (First Appellate District, Division One) held that the federal Fair Credit Reporting Act completely preemted private rights of action under California's Consumer Credit Reporting Agencies Act.
“Plaintiff and appellant Rebecca Liceaga, apparently the victim of identity theft, filed a complaint against Debt Recovery Solutions, LLC, a collection agency, for damages that she claims were caused when it furnished to a consumer credit reporting agency information about her which it knew or should have known was inaccurate. The complaint alleged a violation of California’s Consumer Credit Reporting Agencies Act, Civil Code section 1785.1 et seq. (CCRAA). The trial court granted defendant’s motion for judgment upon the pleadings upon the ground that any private right of action provided by the CCRAA is preempted by the corresponding federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (FCRA)).
In this appeal we are called upon to determine whether the FCRA preempts private rights of action as to “furnishers” of wrongful information and whether, if so, Congress has specifically excepted California actions from preemption. We conclude that private actions under the CCRAA are preempted, without exception, by FCRA.
(Slip op., at p. 1.) The opinion that follows is a fairly standard analysis under the Supremacy Clause. It is a loss for consumers, since economic downturns and debt collection misconduct have been known to loiter in each other's company. Actions by California are not preempted, but it is a metaphysical certainty that cash-strapped California won't be keeping up with the prosecution of CCRAA actions at a level consistent with the likely rate of abuse.
In a 5-4 decision, the United States Supreme Court held that neither the Federal Cigarette Labeling and Advertising Act's pre-emption provision nor the Federal Trade Commission's actions in this field pre-empt plaintiffs’ state-law fraud claim related to “light cigarette” advertisements. The plurality, comparing and contrasting with Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), determined that the alleged duty not to deceive was unrelated to the Labeling Act’s regulation of “smoking and health” information. (Slip op., at pp. 5-20.)
One interesting theme, missed by much of the general media coverage, is whether this opinion offers any guidance as to how the Supreme Court will determine the preemption issue in Wyeth. If nothing else, this decision suggests that the current Supreme Court does not have a specific preemption agenda that has yet revealed itself. The law and fact-specific analysis of the Labeling Act makes any comparison with Wyeth somewhat challenging.
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined.
You can review the opinion here:
For those using browsers without flash, the direct link to the file is here.
Martinez, et al. v. Regents of the University of California, et al. (September 15, 2008, Third Appellate District) is starting to generate a fair bit of press/media coverage:
- The Central Valley Business Times authored one of the earlier articles on the decision, In-state tuition for illegal aliens questioned by court, brief though that article was.
- The Reporter (Vacaville) took the opportinity of the decsion to comment on California's budgetary crisis: "California is going bankrupt because of the phantom issue that no one in Sacramento wants address or even recognize exists. That issue is the influx of illegal aliens and the drain on the state." (Catherine Ann Howard, Time to plug the drain on our state resources (September 16, 2008) www.thereporter.com.)
- Metropolitan News-Enterprise provided detailed coverage in Kenneth Ofgang's September 16, 2008 article, Court of Appeal Revives Challenge to Law on Aliens’ Tuition.
- For a sampling of opinions from Californian's take a look at this collection of comments on the ruling, collected by San Diego Channel 6 news.
- The legal blogosphere has been fairly quiet about this decision. However, I did find a post, entitled California Statute Allowing In-State College Tuition for Illegal Aliens Is Preempted by Federal Law, at the Volokh Conspiracy.
This is just a sample of the dialog and reporting that are developing right now; more commentary will surely follow.