The California state constitution

418 Pages·2011·1.83 MB·English

by  Cunningham, Richard B., Massey, Calvin R., Grodin, Joseph R

■ 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

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Copyright © 2011 by Joseph R. Grodin, Calvin R. Massey, and Richard B. Cunningham
Previously published in 1993 by Greenwood Press
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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
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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.
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■
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