Last year in Conservatorship of Eric B. (2022) 12 Cal.5th 1085, the Supreme Court explained, “An equal protection analysis has two steps. ‘ “ ‘The first prerequisite . . . is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] . . . .” ’ If the groups are similarly situated, the next question is whether the disparate treatment can be justified by a constitutionally sufficient state interest. [Citations.]” (Id. at p. 1102.) (See here.) However, the court recently indicated it might change this test.

All seven justices on the Eric B. case — including one pro tem — signed the court’s opinion. But Justice Leondra Kruger, joined by Justices Goodwin Liu and Joshua Groban, filed a separate concurrence calling for elimination of the two-step analysis.

The “threshold inquiry” of whether two groups are similarly situated “doesn’t serve much purpose [and] [w]orse, it risks harm,” Justice Kruger wrote. (12 Cal.5th at p. 1108.) Instead, she contends, courts should go directly to a determination “whether an admitted difference in treatment of two groups is justified under the law.” (Id. at pp. 1116-1117.) The similarly-situated test risks blocking a justification analysis, Justice Kruger argued. “Interposing an unnecessary gatekeeping inquiry always raises the possibility that the gate will sometimes slam shut, when the gate shouldn’t have been there in the first place.” (Id. at p. 1115.)

Since Eric B., the court’s composition has changed. Chief Justice Tani Cantil-Sakauye and the pro tem justice, both of whom didn’t sign Justice Kruger’s concurrence, have been replaced by Chief Justice Patricia Guerrero and Justice Kelli Evans. The differently composed court last month hinted that the new Chief Justice or Justice Evans or both will vote with Justices Kruger, Liu, and Groban to jettison the “similarly situated” step of the equal protection analysis.

In People v. Hardin, the court directed supplemental briefing on “[w]hether the first step of the two-part inquiry used to evaluate equal protection claims, which asks whether two or more groups are similarly situated for the purposes of the law challenged, should be eliminated in cases concerning disparate treatment of classes or groups of persons, such that the only inquiry is whether the challenged classification is adequately justified under the applicable standard of scrutiny.” It’s unlikely the supplemental briefing would have been requested unless the court wants to adopt the reasoning of Justice Kruger’s concurrence. But it’s also possible, although less likely, that the court wants to keep the two-step test and give reasons for maintaining the status quo.

Review was granted in Hardin in January to probably decide whether Penal Code section 3051, subdivision (h), violates federal equal protection principles by excluding young adults sentenced to life without the possibility of parole from youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration. The court today notified counsel that it “has tentatively targeted [the case] for oral argument the week of December 4.”


Different perspectives