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California Supreme Court - Staking out new ground

By J. CLARK KELSO

Clark Kelso
Kelso

ANALYSIS

In last year’s review of the California Supreme Court, I described the 2003-04 term as a “relatively tame year” for the court. Not so this year, where we saw major decisions dealing with initiatives, sexual harassment, rights of domestic partners, right to jury and arbitration, punitive damages and separation of powers. Quite a healthy list of topics for one year.

There is so much to write about this year that space limitations require splitting this report into two parts. Here is the first installment. Look for the conclusion in next month’s issue.

Pre-election initiative review

Because of the special election, election lawyers have been very busy during what usually is an off year for their business. Two pre-election challenges reached the Supreme Court, the first involving Proposition 80 (electricity regulation) and the second involving Proposition 77 (redistricting reform). In both cases, the court reversed lower court decisions to strike the initiative from the ballot.

In Independent Energy Producers Association v. McPherson, No. C050115 (3d DCA July 22, 2005) (review granted July 27, 2005, S135819), the Third District Court of Appeal held that Proposition 80 was so clearly unconstitutional in its reallocation of regulatory authority over electricity that the proposition should not appear on the ballot (in particular, the court concluded that the initiative usurped the Legislature’s power to confer upon the PUC additional authority and jurisdiction over electricity markets).

Five days later, on July 27, the Supreme Court reversed unanimously, vacating the Third District’s injunction against placing Proposition 80 on the ballot. The court reminded the Third District that “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity. . . . At this point we cannot say that it is clear. . . . the California Constitution precludes the enactment of Proposition 80 as an initiative measure.”

Only 13 days later, in Costa v. Superior Court (Lockyer), No. C050297 (3d DCA Aug. 9, 2005) (review granted Aug. 12, 2005, S136294), the Third District Court of Appeal, in a 2-1 decision, held that Proposition 77 did not properly qualify for the ballot because the version submitted to the Attorney General, which was used to prepare the ballot title and summary, was different in several respects from the version submitted to voters and to the Secretary of State’s office. There was no evidence that the differences in the drafts would have changed in any way the title or summary prepared by the Attorney General, and there was no evidence that persons who had signed petitions would have been misled by any of the differences.

The parties and appellate court focused their attention on whether the court should engage in pre-election review, whether the “substantial compliance” test applied to such review, and, if so, whether the proponents of Proposition 77 had substantially complied with the statutory requirements. The Third District majority held that pre-election review was appropriate because, in its view, the issues raised by the Attorney General were procedural and jurisdictional in nature, and those issues would become moot if the initiative were placed on the ballot. The majority also held that substantial compliance in this case essentially meant the filing of identical texts with the Attorney General and Secretary of State. Any other rule would draw the court into the politically challenging exercise of analyzing whether changes in text were substantively meaningful. Since the texts submitted to the Attorney General and the Secretary of State were different in a number of respects, the court held the initiative should not appear on the ballot.

Three days later, the Supreme Court reversed, again on the ground that pre-election review was inappropriate. According to the court, absent evidence that the “discrepancies” between the two versions “were likely to have misled the persons who signed the initiative petition, we conclude that it would not be appropriate to deny the electorate the opportunity to vote on Proposition 77.” The court ended its order by reserving jurisdiction until after the election, at which time the court will decide whether to dismiss or resolve the issues raised in the petition with a written opinion.

The Supreme Court’s brief docket orders in these two cases send an unmistakable message that pre-election judicial review of initiatives is strongly disfavored, almost to the point of being unavailable. Although some critics have raised questions about whether the court’s pre-election review cases have been consistent over the years — with questions raised particularly about how the court could have removed the redistricting measure from the ballot in 1999 on single-subject grounds yet restored Proposition 77 to the ballot notwithstanding its problems — the court has actually been quite consistent in its approach.

The 1999 redistricting case, Senate v. Jones (1999) 21 Cal.4th 1142, dealt with a single-subject challenge to an initiative. The California Constitution specifically provides that “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect” (Cal. Const., Art. II, Section 8(d)). In light of this special provision, Jones must be treated as a special case for pre-election review.

Putting Jones to one side, the court’s pre-election review cases and cases involving post-election interpretation of initiatives have always focused on the voters’ likely intentions and reasonable expectations. Moreover, every effort has been made to give voters the opportunity to exercise the franchise. It is hard to argue with this preference when California’s Constitution expressly provides that “all political power is inherent in the people” (Cal. Const., Art. II, Section 1).

Workplace sexual favoritism

Largely adopting EEOC guidelines promulgated in 1990 regarding sexual favoritism in the workplace, the court in Miller v. Department of Corrections (2005) 36 Cal.4th 446 held that an employee could establish a claim for sexual harassment under the California Fair Employment and Housing Act when evidence of workplace favoritism, resulting from consensual sexual relationships between a manager and other workers, was severe or pervasive enough to alter working conditions and create a hostile work environment.

Under this theory, a claim can be maintained even though the sexual relationships between a manager and co-workers were entirely consensual and even though the plaintiffs had never had any objectionable conduct directed at them. The atmosphere of favoritism based on sexual relations may be enough to establish a hostile-work-environment claim for FEHA purposes.

Factually and procedurally, Miller was a relatively easy case in which to adopt this interpretation of the FEHA. The lower courts had granted summary judgment to the defendant notwithstanding evidence establishing the following: Over a multi-year period, the male supervisor had engaged in concurrent sexual affairs with three subordinate employees. There was evidence that the supervisor had promised and granted unusual employment benefits to his partners, including, in one case, intervening in a hiring process to ensure a promotion for one of his sexual partners.

Overall, the evidence indicated that the supervisor viewed female employees as “sexual playthings” and that this message was widely communicated throughout the workplace.

On this record, it was no great leap to find a hostile work environment. The challenge for lower courts will be to apply Miller to cases not involving multiple and, at times, concurrent sexual affairs lasting over a multi-year period where the supervisor so publicly doles out favors to his sexual partners. What do we do about one-time, workplace affairs?

Rights of domestic partners

Gay rights cases dominated the term. In every case but one, the court ruled in favor of expanding and recognizing gay and lesbian rights and obligations.

The rights of domestic partners under the Unruh Civil Rights Act were recognized in Koebke v. Bernardo Heights Country Club (2005) 2005 Westlaw 1797982, where a lesbian couple who had registered as domestic partners successfully brought an action under the Unruh Act against a country club which had refused to extend to the couple certain benefits it extended to married couples. According to club policies, membership benefits were extended to a member’s “legal spouse and unmarried sons and daughters under the age of 22 residing with them.” The policy did not extend benefits, such as playing golf at the club without paying additional fees, to domestic partners.

In an enormously important victory for the gay rights community — important because of the breadth and importance of the Unruh Act in securing equal rights and treatment in California — the court held that the Unruh Act now prohibits discrimination and unequal treatment between married persons and persons registered under the Domestic Partner Act. The newly recognized claim for “marital status discrimination” should go a long way toward securing the promise of the Domestic Partner Rights and Responsibilities Act which became effective Jan. 1.

The case is significant in part because of the type of analysis undertaken by the court to reach the result. The Domestic Partner Rights and Responsibilities Act did not itself amend the Unruh Act. Nevertheless, the court found that the purposes of that act and its extension to domestic partners of all “the same rights, protections and benefits” conferred upon married persons so transformed the analysis and interpretation of the Unruh Act that a claim of marital status discrimination was now actionable under that act. The court has thus signaled its willingness to give the Domestic Partner Rights and Responsibilities Act a broad interpretation, using the act to re-interpret other statutory civil rights provisions.

The victory for gay rights in Koebke — where the court used traditional tools of statutory interpretation to move the law forward in response to legislative direction — stands in stark contrast to the striking defeat in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, where the court flatly rejected the governmental civil disobedience that gripped the City and County of San Francisco when Mayor Gavin Newsom triggered changes in the marriage license issued by the county clerk to make those licenses gender-neutral and, therefore, available to same-sex couples.

The court’s reaction in Lockyer was utterly predictable. State law clearly provided that “marriage is a personal relation arising out of a civil contract between a man and a woman” (Family Code Section 300). Other statutes require issuance of a license before persons enter into a marriage and set forth in detail the contents of that license. The duties of local officials under these statutes are ministerial. The only justification offered by the city for ignoring these statutory requirements was their contention that these statutes are unconstitutional and that the county clerk had the authority to make that determination and alter the license application form to make them constitutional.

For the court, the issue in this case was not the constitutionality of the statutes. That issue is being litigated separately. Instead, the issue was whether a local official who has been charged with performing a ministerial duty pursuant to a state statute may disregard that duty because the official believes the provision is unconstitutional notwithstanding the absence of a judicial determination that the statute is unconstitutional. In short, can the county clerk declare a statute to be unconstitutional and act upon that declaration?

In a lengthy and comprehensive opinion, with clear connections to separation of powers doctrines, the court essentially held that county clerks have not been granted the judicial power to pass upon the constitutionality of statutes that impose upon the county clerk ministerial duties. If the county clerk thought the statute was unconstitutional, the county clerk should have brought the issue to court in the ordinary course of business. Governmental civil disobedience is not to be countenanced.

By far, however, the most significant decisions came just recently where the court recognized and established the parental obligations of lesbian partners to their children. These decisions show just how far California law has now progressed toward recognition of gay and lesbian rights and obligations.

In Elisa B. v. Superior Court (El Dorado County) (Aug. 22, 2005) 2005 Westlaw 2000864, the county filed an action seeking an order compelling a former lesbian partner to pay child support to her former partner, who was receiving public assistance. The partners’ relationship began in 1993. They lived together for four years during which they held themselves out to friends as partners, exchanged rings, opened a joint bank account and believed they were in a committed relationship. They both became pregnant through artificial insemination, using semen from the same donor so that any resulting children would “be biological brothers and sisters.” Elisa, the defendant, gave birth to one child, and her partner, Emily, gave birth to twins. Both lived with all three children and held all three out as their children. Eighteen months later, the partners separated. For two years after that, Elisa made substantial monthly payments to support Emily and the twins, but the payments ultimately stopped coming.

The court of appeal held that Elisa could not be a parent of the twins born to Elisa’s lesbian partner because of language in Johnson v. Calvert (1993) 5 Cal.4th 84, 92 to the effect that “for any child California law recognizes only one natural mother.” Under the Uniform Parentage Act (“UPA”), Emily clearly had a parent and child relationship with each of the twins because she gave birth to them, and the court of appeal held that Emily was, therefore, the one and only mother of the twins.

The Supreme Court reversed. Johnson was distinguished on the ground that it involved a husband and wife who had turned to a surrogate to carry the fetus resulting from the in vitro fertilization of the wife’s ovum by her husband’s sperm. In Johnson, the court noted that the UPA gave both the biological and surrogate mothers some claim to be the child’s legal mother.

The court refused to recognize a three-parent, two-mother family, and it instead enforced the intentions of the parties as reflected in a surrogacy agreement pursuant to which the biological wife was the intended mother (i.e., the person who intended to bring about the birth of a child who she intended to raise as her own).

According to the court in Elisa B., Johnson involved the issue of whether a child could have three parents, one father and two mothers. It was in the context of that fact pattern where the court in Johnson indicated that a child could have only one mother. By contrast, Elisa B. dealt with a different issue: whether a child could have two parents, both of whom are women.

Framing the issue in this way, the answer was clear. The court had previously recognized the legality of adoptions where both parents were women. And most important, as of this year, the domestic partnership statutes now plainly indicate that two women can serve as parents. The relevant statute now provides that “the rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”

Since Elisa had received the twins into her home and had openly held out the twins as her natural children, the court concluded that Elisa had become a parent of the twins and had taken upon herself the legal obligations of support incident to that parental status.

The Supreme Court went even further in K.M. v. E.G. (Aug. 22, 2005) 2005 Westlaw 2000860, where it held that both lesbian partners were legally parents of twins even though one of the partners had supplied an ovum to the other pursuant to a Consent Form for Ovum Donor which expressly waived any parental rights and the trial court had concluded that the intentions of the parties at the time were that only the birth mother would be the legal parent.

According to the Supreme Court, those intentions were irrelevant. It was sufficient that one partner in a lesbian relationship, where the partners were living together in a joint home, had supplied her ova to impregnate the other in order to produce children who would be raised in their joint home. Those facts established the parental relationship irrespective of any agreement between the partners. K.M. will come as quite a surprise to those lesbian ovum donors who, for over a decade in reliance upon Johnson, have executed consent and waiver forms.

The civil rights of gays and lesbians have come a long way during this term of the California Supreme Court.

J. Clark Kelso is a professor of law and director of the Capital Center for Government Law & Policy at the University of the Pacific, McGeorge School of Law. He also serves as the state’s chief information officer. All views experessed are the views of the author and do not represent the views of the Schwarzenegger administration.

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