INSIDE Constitiutional
Focus by Inga Miller, Guest Editor
July is the month when the hectic pace of lawyering slows down a bit and we have an opportunity to take a breath for reflection. It is also the month in which we celebrate the anniversary of our nation’s birth. For those reasons, the Editorial Board picked July as the month to present a series of articles on both the United Stated Constitution and our California State Constitution. As shown by our authors, each require interpretation and adaption to a constantly changing world. None of the amendments of either constitution garner more fierce debate or apply to circumstances so different today than those confronted at ratification than the Second Amendment, which likely was controversial even among those who signed the Bill of Rights as alluded to by author Professor Tim Hyden. On this flashpoint of our constitution, author Professor Joerg Knipprath takes a deeper dive to answering the question of what constitutes lawful gun control under the Supreme Court’s test. Both the California and the United States constitutions meanwhile face questions raised by the case of Kenneth Humphrey, the indigent San Francisco defendant whose bail hearing led a State Appellate Court to decide that principals of due process and equal protection entitle defendants to bail set in light 4
JULY 2018
of their ability to pay. After the San Francisco District Attorney’s office declined to appeal the decision, the Supreme Court in late May decided to review the case on its own motion. Defense council and litigators Daniel Horowitz and Thomas Kensok explore the often disparate results of bail hearings based on a defendant’s ability to pay and the unintended result on plea agreements. In a companion article, Prosecutor Chris Sansoe focuses on two other questions on review by the Supreme Court in Humphrey centering on whether bail hearings can take into consideration victim safety and other rights and protections for victims and their families enacted by voters as an amendment to the California Constitution in 2008. That California constitutional right of voters to enact laws by initiative and reject them by referendum is the subject of Jay Chafetz’s article (which offers MCLE self-study credit). Chafetz traces the evolution of initiative case law starting in Contra Costa County in the 1920s along a chain of decisions interpreting an ever-broader right of voters over the succeeding decades and culminating in a decision last year broadening the right of voters to consider a tax on cannabis. No series of articles on the Constitution could be complete without one on the First Amendment.
Co-editor Suzanne Boucher writes about tensions between liberals and conservatives on college campuses and urges readers to question whether colleges and university policies constitute the First Amendment’s protection against viewpoint discrimination. Finally, Justice James Marchiano shares a new short story from his series “Stories from the Bray Building” in which protagonist Judge Raymond Carlton confronts a difficult case. We thank our authors who contributed great effort and work to this month’s issue. Longer versions of almost all of the articles and more thorough citations can be found online at www.contracostalawyer. org. We hope you will find the articles meaningful in your reflection of the values and principles of our California and United States constitutions. Inga M. Miller is a real estate and business attorney and is Vice-Mayor of Orinda. She serves as co-editor of Contra Costa Lawyer. Contact Inga Miller at (925) 402-2192 or inga@ millerpropertylaw.com or visit www. millerpropertylaw.com. On the Cover: George Washington, Robert
Morris and Haym Salomon commemorate the spirit of cooperation between civilians and soldiers during the Revolutionary War in this memorial statue in Chicago, Illinois