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The California state constitution PDF

418 Pages·2011·1.83 MB·English
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■ The California State Constitution Th e Oxford Commentaries on the State Constitutions of the United States G. Alan Tarr, Series Editor Professor G. Alan Tarr, Director of the Center on State Constitutional Studies at Rutgers University, serves as General Editor for this important new series which in its entirety will cover each of the 50 states. Each volume of Th e Oxford Commentaries on the State Constitutions of the United States contains a historical overview of the state’s constitutional development, plus a section-by-section analysis of the state’s current constitution. Other features included in the volumes are the text of the state’s constitution, a bibliographic essay, table of cases, and index. Th is series provides essential reference tools for those investigating state constitutional development and constitutional law. The California State Constitution Joseph R. Grodin , Calvin R. Massey , and Richard B. Cunningham Foreword by Malcolm M. Lucas the oxford commentaries on the state constitutions of the united states G. Alan Tarr, Series Editor 1 1 Oxford University Press, Inc., publishes works that further O xford U niversity ’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2011 by Joseph R. Grodin, Calvin R. Massey, and Richard B. Cunningham Previously published in 1993 by Greenwood Press Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ______________________________________________ Library of Congress Cataloging-in-Publication Data The California state constitution / Joseph R. Grodin ... [et al.]. p. cm. — (The Oxford commentaries on the state constitutions of the United States) Includes bibliographical references and index. ISBN 978-0-19-977895-9 ((hardback) : alk. paper) 1. Constitutions—California. 2. Constitutional history—California. I. Grodin, Joseph R. II. Title. III. Series. KFC6801879.A6 C35 2011 342.79402’3—dc22 2011001717 ______________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers Th is publication is designed to provide accurate and authoritative information in regard to the subject matt er covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was writt en. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committ ee of the American Bar Association and a Committ ee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com To the memory of Justice Mathew O. Tobriner: eminent jurist, scholar, and humanitarian; one of the pathfi nders in the development of California constitutional law; dear friend —J.R.G. In memory of my parents, Field William Massey and Alice Eliza Bell, and in honor of my ancestor, Nicholas Gibbs, who in 1849 died somewhere on the plains en route to the California gold fi elds —C.R.M. For Th omas James Cunningham, for whom the law was the most honorable profession —R.B.C. This page intentionally left blank ■ C O N T E N T S Acknowledgments xix Series foreword by G. Alan Tarr xxi Foreword by Chief Justice Malcolm M. Lucas xxiii P ART ONE ■ The History of California Constitution Th e American Acquisition of California: “Cry Aloud for Independence!” 3 Th e 1849 Constitution and California Statehood: “Born in diff erent climes, . . . assembled . . . as Californians” 7 Th e 1879 Constitution: “A sort of mixture of constitution, code, stump speech, and mandamus” 13 Th e Progressive Movement: “Give us a square deal for Christ’s sake” 23 Constitutional Change aft er the Progressive Movement: “Constant amendment has produced an instrument bad in form” 25 Th e Rise and Th reatened Decline of an Independent California Constitution: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution” 29 PART TWO ■ The California Constitution and Commentary Preamble 4 1 Article I. Declaration of Rights 43 Section 1. Inalienable Rights 45 Section 2. Liberty of Speech and of the Press; Newspersons’ Refusal to Disclose Information Sources Not Adjudged in Contempt 47 Section 3. Right to Assemble and to Petition 49 Section 4. Liberty of Conscience 50 Section 5. Th e Military 52 Section 6. Slavery Prohibited 52 Section 7. Due Process of Law; Use of Pupil Assignment or Pupil Transportation; Privileges and Immunities 52 Section 8. Sex, Race, etc., Not a Disqualifi cation for Business 56 Section 9. Bill of Att ainder; Ex Post Facto Law; Obligation of Contract 57 vii viii ■ contents Section 10. Detention of Witnesses; No Imprisonment for Debt 57 Section 11. Suspension of Habeas Corpus 58 Section 12. Bail; Release on Own Recognizance 58 Section 13. Unreasonable Search and Seizure; Warrant 59 Section 14. Felony Defendant before Magistrate; Prosecutions 60 Section 14.1. Felony; Prosecution by Indictment 61 Section 15. Criminal Prosecutions; Rights of Defendants; Due Process of Law; Jeopardy; Depositions; Assistance of Counsel 61 Section 16. Trial by Jury 62 Section 17. Unusual Punishment and Excessive Fines 63 Section 18. Treason 64 Section 19. Eminent Domain 64 Section 20. Rights of Noncitizens 65 Section 21. Separate Property of Husband and Wife 65 Section 22. N o Property Qualifi cation for Voting or Holding Public Offi ce 66 Section 23. Grand Juries 66 Section 24. Independence of the California Constitution; Limits on Independence in Criminal Cases; Rights Retained by the People 67 Section 25. Right to Fish 67 Section 26. Constitution Mandatory and Prohibitory 68 Section 27. Death Penalty 68 Section 28. “Th e Victims’ Bill of Rights” 68 Section 29. D ue Process of Law in Criminal Cases; Speedy and Public Trial 71 Section 30. C riminal Cases: Joinder, Hearsay Evidence, and Discovery 72 Article II. Voting, Initiative, Referendum, and Recall 73 Section 1. Purpose of Government 73 Section 2. Right to Vote 74 Section 3. Residence; Registration; Free Elections 74 Section 4. Improper Practices Aff ecting Elections; Disqualifi cation of Voters 74 Section 5. Primary Elections for Partisan Offi ces; Open Presidential Primary 75 Section 6. Nonpartisan Offi ces 76 Section 7. Secret Voting 76 Section 8. Initiative 77 Section 9. Referendum 79 contents ■ ix Section 10. Initiative and Referendum Measures: Eff ective Date, Confl icting Measures, Legislative Repeal or Amendment, Titles 80 Section 11. Initiative and Referendum Measures: Cities and Counties 81 Section 12. Initiative and Referendum Measures: Prohibition upon Naming Persons to Offi ce or Corporations to Duties 81 Section 13. Recall Defi ned 82 Section 14. Recall Petitions 82 Section 15. Recall Elections 82 Section 16. Legislature to Provide for Recall Petitions and Elections 83 Section 17. Recall of Governor or Secretary of State 83 Section 18. Reimbursement of Recall Election Expenses 83 Section 19. Recall of local Offi cers 83 Section 20. Commencement of Terms of Elective Offi ce 84 Article III. State of California 85 Section 1. Supremacy of United States Constitution 85 Section 2. State Boundaries; Sacramento the Capital 86 Section 3. Separation of Powers 86 Section 3.5. Limits on Powers of Administrative Agencies to Declare Statutes Invalid or Unenforceable 86 Section 4. Salaries of Elected State Offi cers and Judges 87 Section 5. Suits against the State 88 Section 6. Offi cial State Language 88 Section 7. Retirement Benefi ts for Elected Constitutional Offi cers 89 Section 8. California Citizens Compensation Commission 90 Article IV. Legislative 93 Section 1. Legislative Power 94 Section 1.5. Legislative Term Limits; Restriction of Retirement Benefi ts; Limits on Legislative Staff and Support 94 Section 2. S enate and Assembly: Membership, Elections, Number of Terms, Qualifi cations, Vacancies 95 Section 3. Legislative Sessions 96 Section 4. Legislators: Confl icts of Interest, Prohibited Compensation, Earned Income, Travel and Living Expenses, Retirement 96 Section 4.5. Legislators’ Retirement 98 Section 5. Legislators: Qualifi cations and Expulsion, Honoraria, Gift s, Confl icts of Interest, Prohibited Compensation or Activities, Lobbying 98

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