This November, California voters will vote on

But advocates of legal recreational marijuana use in the Golden State and everywhere in the United States got a sharp reminder last week that the federal government reserves the right to have the final say on whether legal pot is OK at the state level. The U.S. Drug Enforcement Administration brushed aside years of lobbying and ruled that marijuana would remain illegal — still considered a Schedule 1 substance under the Controlled Substances Act and formally classified as having no medical use.

Though the federal government continues to pursue charges against some individuals and some high-profile dispensaries — such as Oakland’s Harborside Medical Center — the Obama administration has said it will not attempt to overturn state marijuana laws. But any future administration could take punitive actions against states with laws allowing recreational or medicinal use, suing in federal court, withholding federal grants or more.

However, a new federal court ruling offers some reassurance that no federal authority can pull the plug on state-approved medicinal pot use, at least.

In a case involving 10 pending prosecutions in California and Washington state, the San Francisco-based 9th U.S. Circuit Court of Appeals issued a ruling Tuesday that said the U.S. Justice Department cannot target marijuana growers, suppliers or users in cases where the drug is being used for medical purposes.

Reagan appointee knocks Justice Department argument

The decision — written by a conservative Reagan appointee, Diarmuid O’Scannlain — cited language included by Congress in budget resolutions that bans federal interference with state medicinal marijuana laws. The language was first inserted into budget measures in 2014. So long as Congress continues to renew the ban on federal action — which has bipartisan support — medical users are protected.

The Obama administration had argued that using federal laws to target medical marijuana users or suppliers wasn’t an intrusion on state law. O’Scannlain disagreed: “If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law.”

A U.S. Justice Department official said no decision had been made yet on whether to appeal the ruling, which mirrored the finding in a previous case decided last year by U.S. District Judge Charles Breyer of San Francisco.

California became the first state to legalize medicinal use of marijuana with Proposition 215 in 1996.

Kennedy was born in Sacramento, California, on July 23, 1936. He married Mary Davis and has three children. He received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard Law School.

 

He was in private practice in San Francisco, California from 1961-1963, as well as in Sacramento, California from 1963-1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific. He [was] a member of the California Army National Guard in 1961 …

 

He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.

Father was a well-known Sacramento lawyer

Kennedy was the last U.S. Supreme Court nominee without any Senate opposition.

Kennedy’s father was a Sacramento lawyer who had frequent dealings with the California Legislature; he was friendly with Gov. Earl Warren, who would go on to be chief justice. This is from a Washington Post profile of Anthony Kennedy in December 1987 after his high court nomination:

Kennedy [was] the second child of parents by then deeply imbedded in the civic life of the modestly proportioned city that serves as California’s state capital.

Kennedy’s father, Anthony J. (Bud) Kennedy, was a lawyer and lobbyist locally famous for his charm and caginess amidst old-line California politics; the senior Kennedy was reputed to have helped finance his law school years as a poker player, a tale he apparently made no effort to discourage, and that image stayed with him throughout much of his working life. …

“Kind of a shrewd, cardplayer’s view of life,” said Dozier, who remembers vividly the big white house with the train set and the ping-pong table and the closet perpetually stocked with sports equipment. …

“A lot of business was done over the breakfast room table or the back patio,” said Dana Smith, a petroleum and chemical executive who was married to the younger Anthony Kennedy’s late sister Nancy. “You might find anybody in there, from the Portuguese immigrant Delta farmer … . You could find the grocer stopping off and having a drink after he’d closed his store. You could find the priest in there.”

His heart just wasn’t in lobbying state lawmakers

Kennedy returned to his home state after thriving at Harvard, the Post account notes:

Kennedy graduated cum laude from law school, was taken into a prestigious San Francisco firm, and within a year was back in Sacramento to cope with his father’s estate. The senior Kennedy had died of a heart attack while on a business trip in Los Angeles, and despite his relative inexperience, Tony Kennedy took over his father’s Sacramento law practice, lobbying clients and all.

The men who watched Kennedy work, lobbyists and legislators alike, saw a businesslike young man who evidently had little interest in courting legislators with the cocktail party and enthusiastic handshake. His clients included the Schenley distillery company and an opticians’ organization, and men then in the California legislature describe him as having been invariably well-prepared, brisk, and low-key as he argued his client’s position on a pending bill.

“He was a bashful lobbyist, as compared to the public image of a backslapping, cigar-smoking, let’s-go-have-a-drink good old boy,” said San Francisco attorney Bill Bagley, who served in the California state assembly for 14 years. “He didn’t want to accost people, and say, ‘Hey, man, give me a vote.’ It’s not his style.” …

“He acted like it was something he really wasn’t enjoying,” said former state senator Paul Lunardi, who left politics in 1966 and became a lobbyist for the Wine Institute. “I think he wanted to be a lawyer more than a lobbyist.”

Justice Breyer also a California native

Justice Stephen Breyer is the other high court member from California. He was born in San Francisco in 1938; he debated Jerry Brown in high school competitions. Breyer’s father was for years the lead counsel for the San Francisco school board. His brother, Charles, is a sitting judge on the San Francisco-based 9th U.S. Circuit Court of Appeals.

All nine Supreme Court justices were born in four states — four in New York (Roberts, Ginsburg, Sotomayor, Kagan) , two in New Jersey (Scalia and Alito), two in California and one in Georgia (Thomas).

A Sacramento Bee editorial picks up on part but not all of the significance of Brown’s moves.

With his nomination of rising legal star Leondra R. Kruger to the California Supreme Court on Monday, Gov. Jerry Brown has made his boldest move yet to infuse the court with new blood and high-powered diversity.

Kruger, 38, is not just an African American woman, but will be one of the youngest high court appointees in modern state history if her confirmation goes as expected. Her tender age already has raised a few eyebrows. A “mind-blower,” Santa Clara University law professor Gerald Uelmen termed the governor’s choice.

Brown is right in his effort to invigorate the Supreme Court with a new generation of jurisprudence. The seven-member bench has long been older and more conservative-leaning than the state as a whole.

The court had one Latino and three Asian justices and a 50-50 mix of men and women before Kruger was tapped to fill the seat of retired Associate Justice Joyce Kennard. But before Brown began reshaping it with the appointment of 44-year-old Justice Goodwin Liu in 2011, the average age on the bench was a venerable 69.

With Kruger and Justice Mariano-Florentino Cuéllar, 42, Brown’s other new and distinguished appointment, the high court will have an average age of 56 and a trio of Gen-Xers. That’s not a bad kind of diversity to have in a state this demographically young.

Courts don’t just interpret laws

The diversity angle is notable. But it’s not nearly as important in the long term as the fact that Kruger, Liu and Cuéllar are all very much classic liberal activists — legal thinkers who believe the Constitution is a living document and who see the courts as having a responsibility not just to interpret the law but to fight for social justice.

In other words, the California Supreme Court is on the brink of being the state version of the 9th U.S. Circuit Court of Appeals.

In his piece earlier this week for Cal Watchdog, John Hrabe detailed how Kruger’s advocacy of lesser rights for religious institutions triggered disbelief from traditionalist conservatives at one U.S. Supreme Court hearing.

Legal analyst Emily Green depicts Cuéllar as the sort of legal theorist who is eager to legislate from the bench.

Green points out that Cuellar’s writings endorse legal realism, which, in her words, “champions the idea that courts can and should consider the law in a broader social and political context when making their decisions.” Green notes that Cuellar wrote in his 2001 doctoral thesis that “ ‘[a]s far as the law is concerned, political responses are actually fair game for interpreters [i.e., judges] to consider when crafting their decisions.’ ” The central idea of Cuellar’s thesis, Green adds, is that, in the complex relationship between courts and elected officials, judicial decisions are not the last word on an issue but simply a starting point, “ ‘the tip of the iceberg.’ ”

“Empathy” as a legal theory

As for Liu, this is from a Washington Post story in 2011 about a U.S. Senate filibuster killing his nomination to be a federal judge.

Republicans, however, excoriated Liu’s writings while serving as a law professor at the University of California at Berkeley, saying he adopted a legal standard of “empathy” that encouraged judges to try to view cases through the perspective of the people appearing before them, rather than through a strict reading of the law.

“What do Mr. Liu’s writings reveal? Put simply, they reveal a left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power,” Minority Leader Mitch McConnell (R-Ky.) said. …

Underlying the debate was Liu’s testimony at the 2006 Supreme Court confirmation hearings for Samuel A. Alito Jr. “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse . . . where a black man may be sentenced to death by an all-white jury for killing a white man,” Liu wrote.

This tipped the balance for Alexander, Sen. Lindsey O. Graham (R-S.C.) and several other Republicans who cast their first votes ever to support a filibuster of a judicial nominee.

“He went after the man. He went after the man saying, ‘This man represents a bad side of America because of his philosophy.’ I’m not going to tolerate that,” Graham told reporters after the vote. “You don’t have to accept conservative legal thought. I don’t accept liberal legal thought, but I don’t have disdain for the people who embrace it.”

In Lindsey Graham lived in California, he probably would have to “accept liberal legal thought.”

It’s going to be interesting to see where Kruger, Liu and Cuéllar take California jurisprudence. Depending on your politics, you’d almost certainly use a different word than “interesting.”

But while many millions of voters are increasingly comfortable with the equating of anti-black discrimination and anti-gay discrimination, they don’t necessarily slip into the same stance when it comes to immigration — specifically the idea that racial animus drives those who question amnesty or amnesty-lite policies that trivialize federal laws.

Consider the fallout from a court ruling last week of the 9th U.S. Circuit Court of Appeals. This is from the L.A. Times’ account:

“SAN FRANCISCO — An attorney is vowing to appeal a federal court ruling that a Northern California high school that asked students to remove American flag shirts on Cinco de Mayo acted reasonably to avoid igniting ethnic tensions.

“The ruling stemmed from a 2010 incident that provoked angry commentary across the country and a lawsuit by students claiming their constitutional rights had been violated.

“An attorney for three students who sued said he would ask a larger panel of the 9th Circuit to overturn the ruling.

“‘I am pretty astonished that in this country you can’t express your patriotic freedom without offending people of other national origins,’ said William Becker Jr., who represented the students on behalf of FreedomX, a nonprofit he heads to advocate free-speech cases for conservatives and Christians.

“If the school feared a disturbance, it should have canceled the Cinco de Mayo celebration, ‘not deprived students of their 1st Amendment rights to patriotic expression,’ he said.

“In siding with the Morgan Hill Unified School District, a three-judge panel of the U.S. 9th Circuit Court of Appeals said administrators at Live Oak School had reason to fear the flag attire might spark a potentially violent race-related disturbance during the school-sanctioned celebration of the Mexican holiday.”

Recipe for blowback

Since this ruling came down, I have seen lots of reaction that says the decision makes sense, given school administrators’ responsibility to keep students safe.

But I have not seen a single white Californian — in print, in emails, on Twitter, anywhere — who thinks the white students did something wrong or who is comfortable with how this mess played out then and now. One Dem I know said he would have filibustered school board meetings for the rest of his life before allowing his daughter to go to a school in a district that sent kids home for wearing U.S. flags in a proud way.

My point here is going to be muddled no matter what because of my ambivalence on this issue. If I lived in Mexico and wanted my family to have a better life, I wouldn’t think twice about breaking U.S. law to come here. I also think that America needs a big influx of people to pay for the Baby Boomers going on the dole.

But I also think there is massive intellectual dishonesty on the part of many of those who support illegal immigration or who report on the issue. If you add millions of unskilled laborers to the U.S. work force, of-bleeping-course the unskilled laborers who are already in the U.S. work force will suffer. That group includes mostly minorities. How come this is never mentioned?

Oh, well. Expecting rationalism or honesty in politics or political journalism is stupid, so I’ll just shut up now.

By Chris Reed

In 2004, in a case involving union pickets on the property of a California grocery state, the U.S. Circuit Court of Appeals for the District of Columbia explicitly ruled that they had no special protections:

“This petition for judicial review of an order of the National Labor Relations Board, and the Board’s cross-petition for enforcement, turn on whether California law gives labor organizers a right to hand out leaflets in the privately-owned parking lot of a stand-alone grocery store. Because it was not clear where the Supreme Court of California stood on the subject, we certified two questions to it. The California court refused to decide the questions. It has therefore fallen upon this court to determine the meaning of California law, in light of the First Amendment to the Constitution. We hold that under California law, union organizers have no right to distribute literature on a stand-alone grocery store’s private property.”

That’s the very first paragraph. The D.C. appeals court is widely considered the second-most powerful court in the land because of its responsibility for “directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government,” such as the NLRB.

But on Thursday, overturning a state appeals court ruling, the California Supreme Court found that state laws granting picket rights to union protesters in fact do give union protesters the right to rally on the property of California grocery stores. In her majority decision, Justice Joyce Kennard held the federal appeals court just didn’t understand that this wasn’t a First Amendment matter when it overturned the NLRB.

“In making that ruling, the [NLRB] had concluded that under California law the supermarket owner did not have a right to exclude union representatives from its property. (Waremart/N.L.R.B., at p. 872.) The board‘s conclusion was based in part on our state‘s Moscone Act, as construed by this court in Sears, supra, 25 Cal.3d 317. The federal appellate court disagreed with the board, holding that ―the union organizers had no right under California law to engage in handbilling on the privately-owned parking lot of WinCo‘s grocery store.‖ (Waremart/N.L.R.B., at p. 876.) Regarding the Moscone Act, the federal appellate court concluded, citing the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and in Carey, supra, 447 U.S. 455, that the act ―violates the First Amendment to the Constitution‖ insofar as it extends greater protection to speech regarding a labor dispute than to speech on other subjects. (Waremart/N.L.R.B., at pp. 874-875.)

“The analysis of the federal appellate decision in Waremart/N.L.R.B., supra, 354 F.3d 870, failed to recognize, however, that, as we explained earlier, neither the Moscone Act nor section 1138.1 of our state law restricts speech. Waremart/N.L.R.B.‘s analysis also failed to recognize that the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and Carey, supra, 447 U.S. 455, both involved laws restricting speech in a public forum, as opposed to the situation here, involving laws that do not restrict speech and are being applied on privately owned property that is not a public forum under the First Amendment. For these reasons, we do not consider Waremart/N.L.R.B. persuasive on the issues we address here.”

I am not a lawyer. And I understand that the California Supreme Court, while not considered hard left, has a long history of an expansive interpretation of union picket rights. But I bet plenty of people who read the passage above feel like this smacks of the 9th U.S. Circuit Court of Appeals, which has many judges who simply don’t care what the Constitution says, they know what they’re going to do.

Lawyer-blogger Glen Valenza of the Shaw Valenza law firm, which has offices in Sacramento and San Francisco, specializes in employment law, and has some high-profile clients, also struggles with Kennard’s opinion:

“The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property – a parking lot and entrance to a Ralphs store.  The picketing would be allowed even if non-labor picketing would constitute a trespass.  The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases. 

“That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.”

And the First Amendment, which is generally considered the most important part of the Bill of Rights, sure as hell trumps an odd interpretation of California’s collective-bargaining laws. This passage from the appellate ruling that the California Supreme Court overturned makes that point better than I ever could:

“Laws which prohibit speech based on its content — or, in this case, based on the failure of the speech to address a ‘labor dispute’ — are presumptively invalid. (Simon & Shuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116.) Such laws are permitted only if they serve a compelling state interest and are narrowly drawn to accomplish that interest. (Mosley, supra, 408 U.S. 92, 95.) The desire to provide the broadest forum for expression in labor disputes is not a compelling state interest. (Carey v. Brown, supra, 447 U.S. 455, 466.) 

“We conclude the state may not act to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest.”

So now even the California Supreme Court is firmly in labor’s camp. Great. Just great.

Things like this make me feel like buying Lotto tickets.