Nick Scheuerman writes on SCOCAblog, the online publication of the California Constitution Center at Berkeley Law and of the UC Law Journal, that “the California Supreme Court generally does not interpret the California constitution independently [of the federal constitution]. Instead, the state high court generally follows the U.S. Supreme Court’s interpretation of analogous constitutional provisions unless there are ‘cogent reasons’ not to do so.”

He’s critical of that approach “because it violates the will of the California voters to have the California constitution serve as an independent guarantee of rights, and it offends the California’s independent sovereignty from the United States.” Instead, Scheuerman argues, California courts should “actively ignor[e] the federal constitution and federal case law when interpreting California’s constitution.”

The essay might not be giving the California Supreme Court enough credit when it says the court generally doesn’t interpret the State Constitution independently. A pair of 2019 decisions are good examples of the court ruling without regard to what the U.S. Supreme Court has said or might say.

In Gardner v. Appellate Division (2019) 6 Cal.5th 998, the court unanimously found a state constitutional right to appointed counsel for a misdemeanor defendant who is the respondent in a prosecution appeal of an order suppressing evidence. (See here.) Significantly, after the parties had focused their briefing on the federal Constitution, the court specifically requested briefing on the California Constitution’s relevant provision and then based its decision on that alone, finding it “unnecessary . . . to decide whether the same result would obtain under the federal Constitution.” (Id. at p. 1004.) “[I]n California courts, the federal Constitution is not the sole source of a criminal defendant’s right to representation,” the court said. (Id. at p. 1003.)

People v. Aranda (2019) 6 Cal.5th 1077 saw the California Constitution expressly diverge from the U.S. Constitution. (See here.) The court held California Constitution’s double-jeopardy clause requires trial courts to accept a jury’s acquittal verdict on a charge even though the jury has hung on uncharged lesser included offenses, a partial verdict that protects the defendant from being retried on the acquitted charge. Seven years earlier, the U.S. Supreme Court interpreted the federal Constitution as having no such requirement.

Quoting from an opinion it issued in 1996, the Aranda court said, “ ‘[T]he California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants’ rights than that extended by the federal Constitution, as construed by the United States Supreme Court.’ ” (6 Cal.5th at p. 1087.) It was the lone dissenter who contended “ ‘there must be cogent reasons for a departure from a construction placed on a similar constitutional provision by the United States Supreme Court.’ ” (Id. at p. 1101.)


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50 years since Loving; 69 years since Perez

[April 16 update: Another related post is California’s independent constitution.]