California

  • February 8, 2012

    by Jeremy Leaming

    As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.

    The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.

    Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”

    But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.

    Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”

  • December 12, 2011

    by Jeremy Leaming

    Advocates for repealing the death penalty say there are hopeful signs that 2012 will see great progress toward their goal, Politico reports.

    Efforts are underway in California, Kansas, Ohio, Maryland and Connecticut to dump the use of the death penalty. Politico notes, “Advocates say the coming year could be their best opportunity yet to replace the death penalty with life without the possibility of parole in these states, pointing to shifts in public opinion, rising concern over execution costs, Oregon Gov. John Kitzhaber’s recent decision to place a moratorium on capital punishment, and Troy Davis’s high-profile execution galvanizing opposition to the death penalty.”

    Diann Rust-Tierney, head of the National Coalition to Abolish the Death Penalty, told Politico that Davis’s case helped spark greater attention to how states employ capital punishment. “That was a sad but stark example to folks of how broken the system is,” Rust-Tierney said.

    Richard Dieter, executive director of the Death Penalty Information Center, said, “Any of those [state efforts] could succeed, but they’re all teed up for this coming year."

    As Politico notes, the SAFE California Campaign, which is working to place an initiative before voters next year to abolish the death penalty, has cited the enormous costs – in the billions – of carrying out the death penalty in a state burdened with significant budgetary woes .  

    In a Dec. 2 guest post for ACSblog, Andrew Love, a death penalty lawyer in California, noted, “A study released by U.S. Court of Appeals Judge Arthur L. Alarcon found that California’s death penalty system is currently costing the state about $184 million per year. Further, ‘since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions.'"

  • March 8, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center
    Headlines are filled with reports of states repudiating the federal approach to hot button issues such as health reform and immigration. Clashes between federal and state law often culminate in a trip to the court house, because under the United States Constitution, state laws that conflict with federal statutes are preempted and thus invalid. Preemption law suits are as American as apple pie, and have been widely utilized for well over a hundred years by businesses and individuals on all sides of the political spectrum to enforce numerous federal laws.

    Yet, a case recently accepted by the Supreme Court has the potential to restrict drastically the availability of preemption and thereby vastly increase state powers at the expense of the national government. Maxwell-Jolly v. Independent Living Center ("ILC") and consolidated cases address the preemption of a California law by the federal Medicaid statute. California is asking the Court to rule in ILC that Medicaid providers and beneficiaries do not have a cause of action for their claim that the slashing of reimbursement rates for prescription medications and other services was preempted. The Court's decision in this case could be targeted to barring court access to uphold safety-net statutes which protect the neediest and most vulnerable individuals. Nevertheless, the Court's decision could have wide-ranging implications for laws involving the environment, employment, immigration, civil rights, food and drug safety, elections and much more.

    One argument advanced by California is that preemption challenges should not be permitted for statutes enacted under the Constitution's Spending Clause. These laws give states millions or even billions of dollars of federal funds in exchange for the states participating in federal programs or complying with federal rules. Medicaid is not the only Spending Clause statute. Indeed, in the seminal Spending Clause case of South Dakota v. Dole, the Court upheld the constitutionality of conditioning federal highway funds on states' adoption of the minimum drinking age of 21. Other major Spending Clause statutes include education laws, housing laws, food stamps, and civil rights laws prohibiting discrimination on the basis of race, national origin, sex, and disability.

  • November 3, 2010
    The California ballot measure aimed at legalizing the use of marijuana for adults 21 and older went down to defeat, but proponents are not giving up the fight, or showing overwhelming dejection.

    Stephen Gutwillig, director of the Drug Policy Alliance that spearheaded the Proposition 19 movement, told the Los Angeles Times, "This has been a watershed moment. Even in defeat, Proposition 19 has moved marijuana legalization into the mainstream of American politics." He continued that supporters of legalization would push ballot measures in 2012 in "Washington, Oregon, Colorado and very likely California."

    The newspaper also noted, "More than four decades after the war on drugs was declared, the country is almost evenly divided on whether to legalize marijuana. (Although Gil Kerlikowske, head of the White House Office of National Drug Control Policy has said that it is time for the nation to move beyond the so-called "War on Drugs," he did oppose Proposition 19.)

    Josh Harkinson, blogging for Mother Jones on yesterday's vote, wrote:

    As 4:20 faded into the late afternoon, it became clear that Prop 19 was headed for defeat. Even so, pot activists still had reason enough to party. Their campaign has taken legalization debate mainstream, and they'll all probably try again in 2012. They gathered in a parking lot outside Oaksterdam University, the cannabis cultivation school owned by Richard Lee, Prop 19's biggest financial backer. Pot smoke occasionally wafted through the air, and there wasn't a cop in sight who gave a damn.

    The Atlantic's Andrew Sullivan has more reaction to the outcome over the ballot measure here.

  • April 30, 2010
    Guest Post

    By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.

    Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.

    The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.

    In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.