The recent U.S. Supreme Court hearing where the justices’ conservative majority appeared prepared to accept the Trump administration’s decision to add a question about citizenship to the 2020 census form has triggered sharp criticism from California Democrats. If the question leads to millions of unauthorized immigrants not filling out forms, as the Census Bureau expects, that would lead to a significantly lower population count in the Golden State, which has the most such immigrants.

This has led to analyses predicting that California could lose one or two of its 53 House seats and, over the long term, billions of dollars in several categories of federal aid. These are divvied up based on census reports of total population. A Legislative Analyst’s Office study released in December detailed how in 1990, California had a census undercount with a similar effect.

But what has received less attention is the potential of the citizenship question to reduce the number of safe Democratic seats and to increase the number of swing seats in the House and state Legislature. Because House, Assembly and Senate seats are apportioned based on total population data from the 2010 census, turnout of voters — who have to be U.S. citizens — is often much smaller in rural agricultural areas which have a higher proportion of unauthorized immigrants, as well as in poor areas of Southern California.

Democrats much more likely to win low-turnout races

According to the official state results from November’s election, excluding races in which both candidates were from the same party, there were 21 House seats that Democrats won with fewer than 150,000 votes and only three such seats where Republicans won. In the 21st House district, Rep. T.J. Cox, D-Fresno, won with only 57,239 votes.

State Senate districts have on average about 25 percent greater total population than House districts. In November’s election, again excluding races in which both candidates were from the same party, of the 20 seats up for grabs, six were won by Democrats with fewer than 180,000 votes versus only one won by a Republican. In the 14th state Senate district, Melissa Hurtado, D-Sanger, won with just 80,942 votes.

State Assembly districts have on average half the population of state Senate districts. In November’s election, again excluding races in which both candidates were from the same party, of the 80 seats up for grabs, 22 were won by Democrats with fewer than 90,000 votes versus six won by Republicans. In the 32nd Assembly district, Rudy Salas, D-Bakersfield, won with just 39,328 votes.

With Democrats having overwhelming numerical advantages in California’s House, Senate and Assembly seats, too much can be read into statistics showing they are far more likely to win low-turnout races. Democratic candidates in affluent communities in the Bay Area, Silicon Valley and Southern California often won high-turnout races.

But the extremely low turnout districts concentrated in the Central Valley and Los Angeles County all elected Democrats. These districts are likely to change considerably after the reapportionment following the 2020 census, if the citizenship question is asked and has the effect of reducing the number of state residents who fill out census forms.

The Supreme Court is expected to release its decision in the census case in late June.

Gun rights groups have turned up the heat on Sacramento’s newest firearms restrictions, mounting an effort to repeal seven fresh laws through the ballot this election year. 

“The group ‘Veto Gunmageddon’ needs to collect 360,000 signatures for each measure by the end of the month to get them before voters in November, KCBS San Francisco reported. An uphill battle awaits. “Lawmakers passed a dozen gun control bills in June, seven of which Brown signed into law, including legislation requiring background checks for ammunition purchases and a ban on possession of magazines that hold more than 10 rounds,” as the San Jose Mercury News observed. Those provisions, the paper added, were identical to proposals Lt. Gov. Gavin Newsom touted independently in his early-bird bid to succeed Gov. Jerry Brown in 2018.

Political powder keg

Although Democratic lawmakers irked by the redundancy have won out, analysts have speculated that Newsom could wind up benefiting most from politicking the Gunmageddon ordeal. “He will be able to say gun restrictions are under attack and that it’s more important than ever to pass my ballot measure,” Loyola Law School’s Jessica Levinson told the Mercury News.

What’s more, Newsom and his allies have already stockpiled a huge amount of cash relative to opponents of the Proposition 63 ballot measure. Prop. 63 “would ban possession of high-capacity ammunition magazines, require background checks for Californians buying bullets, create a process for getting felons to relinquish firearms and mandate reporting of lost or stolen guns,” the Los Angeles Times reported. “Newsom’s Safety for All Committee reported it has raised $3.8 million so far, compared with $467,000 raised by two committees opposing” Prop. 63.

Supreme struggles

The scramble to settle the fate of the state’s gun laws in the court of popular opinion has played out against the backdrop of a very different kind of legal battle — one where the public’s voice could count for nearly nothing. Gun activists succeeded in pursuing a controversial case to the door of the U.S. Supreme Court. Although judges recently shot down their suit against the state of California, which requires a license for concealed carry outside one’s home, the groups vowed to seek a final decision from the nation’s highest court. “The Ninth U.S. Circuit Court of Appeals in San Francisco upheld the law in June, ruling 7-4 that there is no constitutional right to carry concealed weapons in public,” the San Francisco Chronicle recalled. “Opponents sought a rehearing before the entire appeals court, but the court said […] that the request had failed to win a majority among its 28 active judges. No vote total was announced.”

“The century-old state law requires handgun owners to obtain a permit from a local law enforcement agency before they can legally pack their weapons in public. The permits are virtually unavailable to anyone except police and security guards in most metropolitan areas, but are issued in most rural and inland areas to any adult who asserts a need for self-defense and does not have a disqualifying criminal record.”

A rush to bear arms

Californians have been loading up on firearms this year. At their current pace, Golden Staters will cross the million gun threshold by January. “The soaring gun sale totals — which show 554,203 firearms sales through late July — come in the wake of mass shootings in Orlando and Dallas, followed by calls for gun control legislation,” Southern California Public Radio noted, citing new data obtained from the Dealer Record of Sales, a gun tracking system run by the state’s Department of Justice. “The system shows gun sales on track to surpass 2015 nearly everywhere in the state,” the station added, although “the percentage of households in the U.S. with guns in them has been falling for decades.”

“The case was brought by Richard D. Boyer, who has cited the stress of his long wait on death row after being sentenced in 1984 for the murders of an elderly couple” in the California city of Fullerton, the New York Times noted. The California Supreme Court had overturned Boyer’s sentence “because of a police error,” as the Los Angeles Times reported, “but he was tried and convicted again and sentenced to death in 1992.”

Justice Steven Breyer filed a fierce dissent. “More California death row inmates had committed suicide than had been executed by the state,” he wrote, according to the Times. 

“Indeed, only a small, apparently random set of death row inmates had been executed. Put simply, California’s costly ‘administration of the death penalty’ likely embodies ‘three fundamental defects’ about which I have previously written: (1) serious unreliability, (2) arbitrariness in application and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”

Breyer cited a 2008 report issued by the California Commission on the Fair Administration of Justice that condemned the state’s laborious and ineffective capital punishment regime. It found, The Hill reported, “that more than 10 percent of the capital sentences issued in California since 1978 had been reversed. Many prisoners had died of natural causes before their sentences were carried out and more California death row inmates had committed suicide than had been executed by the state.”

A lone dissenter

Breyer, a well-known opponent of the death penalty, rehearsed arguments he fleshed out recently in another dissent. “Last year, Breyer, joined by Justice Ruth Bader Ginsburg, said he believed capital punishment as practiced in America was unconstitutional because the system has proven to be unreliable and random,” the Los Angeles Times added.

But on this occasion, Ginsburg did not join in Breyer’s dissent. And the court disagreed that the dysfunction Breyer invoked rose to the level of an infringement of Boyer’s constitutional rights — leaving prior rulings the final word on the matter for now. In a similar 1999 case, as the Times recalled, Justice Clarence Thomas doubted the existence of “any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

Justice deferred

Ironically, Boyer’s suit arose from the fact that executions in California have been exceedingly rare. “The last execution in California took place in 2006, when the state executed 76-year-old Clarence Ray Allen for three counts of first-degree murder,” according to the Washington Post. “Even before the current decade-long hiatus — prompted by concerns over lethal injection protocols — it was still rare for the state to put someone to death. Since 1976, the year the U.S. Supreme Court reinstated the death penalty, California has executed 13 of its death row inmates; Texas, far and away the country’s most active death-penalty state, executed 13 inmates last year alone.”

But California has amassed a backlog of 743 inmates on what is “by far the nation’s biggest death row,” the Los Angeles Times observed. Although the state’s moratorium on executions was lifted in November, as the San Jose Mercury News noted, controversy has already arisen over one high-profile case in which a death row inmate has sought clemency from Gov. Jerry Brown. The inmate, Kevin Cooper, who was sentenced to die on May 15, 1985 and has spent 31 years on death row at San Quentin Prison, “has maintained his innocence since his arrest on July 30, 1983,” according to the paper. 

“Sidestepping a potentially radical change for public employee unions, a deadlocked U.S. Supreme Court on Tuesday declined to topple the ability of organized labor to continue to collect dues from government workers who oppose being forced to pay fees to cover collective bargaining costs,” the San Jose Mercury News noted. “In a one-line order, the Supreme Court handed down a 4-4 ruling that effectively let stand lower court decisions backing the California Teachers Association in the closely-watched case.”

“At a time when public employee unions are under political attack in states such as Wisconsin and New Jersey, the California clash was considered a crucial showdown for organized labor and its political wallet. California teachers who support their union’s political influence have been clearly worried about the outcome in the Supreme Court, where a number of conservative justices in recent years have expressed doubt about allowing states to require fees from reluctant nonunion members.”

Political shock waves

The result drew sighs of relief from Democrats and howls from Republicans. The two parties have grown increasingly polarized around the issue of public-sector unions, which Republicans have blamed for busting state budgets and funneling cash almost exclusively to Democrats. “The case involves only public-employee unions — not private workers — but those unions are the strongest segment of an organized labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states,” the Washington Post reported.

An uncertain future

The case had become a rallying point for state Republicans in search of a bright spot this election season. “Rebecca Friedrichs, the Orange County teacher who brought Friedrichs v. California Teachers Association, received the county GOP’s Torch of Freedom award at the political group’s Lincoln Reagan Dinner at the Hilton Bayfront on Saturday,” as U-T San Diego reported.

Friedrichs, an Orange County public school teacher, “said she resigned from the California Teachers Association over differences but was still required to pay about $650 a year to cover bargaining costs,” according to Fox News. “In Abood, the court said public workers who choose not to join a union can be required to pay for bargaining costs if the fees don’t go toward political purposes.”

For their part, Democrats have claimed that anti-labor activists want nothing less than to render unions incapable of affording their basic function as collective bargainers. “Organized labor considered it the most vital Supreme Court case of the year, and one of a clutch of politically charged cases that puts the justices in the spotlight as the nation turns its attention to the elections of 2016,” the Post observed.

The split decision left labor law poised on a razor’s edge. Although the court “had raised doubts about the viability of the 1977 precedent, Abood v. Detroit Board of Education,” that authorized the “fair share fee,” “it stopped short of overturning it in two recent cases,” as Fox News noted. Now, court watchers have begun to doubt whether the justices who would alter or scrap the rule will ever be capable of cobbling together the five votes necessary to do so. President Obama, who has settled on a candidate to replace Justice Scalia, hopes to force the hand of Congressional Republicans this year and replace what had been a relatively reliable “conservative vote” on the court with a more liberal one.

The justices decided “they would not hear a long-running lawsuit that contends the state does not do enough to notify the rightful owners before seizing their assets,” the San Francisco Chronicle reported. “Under the state’s law, accounts can be seized if a bank or retirement fund has lost track of the owner for three years. But lawyers who sued called the state’s system a ‘recipe for abuse’ because many people are unaware that their assets or those of a relative are being held by the state.”

The suit put the court’s interpretation of fundamental constitutional rights at stake. “Lead plaintiff Chris Taylor filed the class action at issue back in 2001, taking aim at California’s Unclaimed Property Law, which provides for the conditional transfer to the state of unclaimed property such as savings accounts or shares of stock,” Courthouse News reported. “Taylor accused state controller Betty Yee of violating due-process rights by transferring property to the state without providing the potential owners adequate notice.”

“During the intervening years, the challenge brought several amendments to the law’s notice procedures. Chief among them, California now notifies potential owners before the state transfers the unclaimed property, not after.”

Room for abuse

But the state has not changed its passive stance on money “which they freely admit they owe to someone (or that person’s heirs if they are deceased) but are unable to deliver because they can’t find them,” as HotAir noted. Other states, the site observed, had reason to watch the case closely. As CNN Money has calculated, “States, federal agencies and other organizations collectively hold more than $58 billion in unclaimed cash and benefits. That’s roughly $186 for every U.S. resident. The unclaimed property comes from a variety of sources, including abandoned bank accounts and stock holdings, unclaimed life insurance payouts and forgotten pension benefits.”

Critics have charged that governments take advantage of the perverse incentive to keep people in the dark about what they’re owed. California alone has amassed some $8 billion in unclaimed assets, according to the Los Angeles Times; “from this fund, it takes about $450 million a year to add to the state budget,” the paper reported.

Future hopes

Two justices did offer Taylor and his supporters a small consolation prize. In a concurring opinion, Justices Samuel Alito and Clarence Thomas recommended that the court consider “in a future case” how proactive states should be in similar situations.

“As advances in technology make it easier and easier to identify and locate property owners, many states appear to be doing less and less to meet their constitutional obligation to provide adequate notice” prior to seizure, Alito reasoned. “Cash-strapped states undoubtedly have a real interest in taking advantage of truly abandoned property to shore up state budgets. But they also have an obligation to return property when its owner can be located.” Alito said “the convoluted history” of Taylor’s suit “makes it a poor vehicle for reviewing the important question it presents[.]”

Legislative divisions

More broadly, asset forfeiture laws have become a target for reformers in both political parties, with bills attracting controversy in states across the country. Last year, a divided Legislature in Sacramento saw Senate Bill 443 sail through the Senate but sink in the Assembly. State Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, “would have reformed the state’s asset forfeiture regulations to require that police and prosecutors actually convict citizens of crimes before seizing ownership of their assets to spend on themselves,” as Reason magazine noted. Between the Senate’s vote and the Assembly’s, state police and prosecutors mobilized effectively to prevent the bill from becoming law.

Harris, California’s Democratic attorney general, is leading in polling, fundraising and name ID in the race to replace Sen. Barbara Boxer, who is retiring. But her inclusion on lists in publications like USA Today and the New York Times as a possible replacement to Antonin Scalia — the conservative Supreme Court justice who died over the weekend — is leaving observers in doubt.

“It would surprise me if she were very high up on the list,” said Sherry Bebitch Jeffe, a political scientist at the Sol Price School of Public Policy at the University of Southern California. “I just don’t think it makes sense at this point, particularly since she is the frontrunner for the Senate.”

Why Harris Doesn’t Make Sense

Harris has little incentive to accept a nomination if it were to be offered by President Barack Obama since the nominee is not likely to get confirmed.

The U.S. Senate has the Constitutional responsibility to advise and consent to Supreme Court justices and Majority Leader Mitch McConnell, R-Ky., issued a statement within hours of Scalia’s death saying the Senate won’t confirm a replacement until after the November presidential election, leaving Obama with little leverage.

But Bebitch and others agree that if and when he nominates someone, it would make sense for the nominee to have already been confirmed by the Senate, like a federal judge, so that Democrats could say: “Look, you already voted for this person once.”

U.S. Attorney General Loretta Lynch — who Scotusblog argues is the most likely choice — also already survived a Senate confirmation. But neither Harris nor Lynch have judicial experience, which would likely be seized upon by opponents.

There’s no requirement that justices have judicial experience, but they usually do. With the exception of Supreme Court Justice Elena Kagan, the Senate hasn’t confirmed a nominee without judicial experience since the early 1970s.

“Her lack of judicial experience would give opponents an easy rationale for opposing her,” said John J. Pitney, Jr., a professor of American politics at Claremont McKenna College. “And by choosing a partisan political figure, Obama would enable opponents to accuse him of politicizing the court.”

Senate Race

It would be very difficult for someone to complete the tasks required of a Senate candidate while being subjected to a Senate confirmation process, so Harris would likely be forced to choose one or the other, and again, there’s little benefit to accepting the nomination in this instance. But just being mentioned helps her campaign, said Raphael Sonenshein, the executive director of the Pat Brown Institute for Public Affairs at California State University Los Angeles.

“Getting on a list of 10 is always a plus for a candidate,” said Sonenshein.

But if she were to be nominated, and if she were to accept, it would likely throw the Senate race into turmoil, as Democratic candidates would rush in to challenge Rep. Loretta Sanchez, an Orange County Democrat, and two former CAGOP chairmen.

“There are only a few weeks until the filing deadline, and Democrats would be scrambling to find a better candidate than Loretta Sanchez,” said Pitney.

How This Plays Out In The Senate

Obama and Senate Democrats don’t have too many options if McConnell holds true to his word. Sooner or later, Obama will send a name to the Senate, and the Judiciary Committee will have to decide whether it’ll consider the nominee or refuse to play along.

Meanwhile, Senate Democrats would label McConnell and Republicans as obstructionists — in press conferences, in campaign ads and in floor speeches. With the balance of power in the Senate hanging precariously on the 2016 election, and with an open presidential election, this will be one of the most politicized issues going forward.

Since the Senate operates largely on unanimous consent, Democrats would likely object at most, if not all, turns, thereby “shutting down the Senate,” predicts Jim Manley, a former top advisor to Senate Democratic Leader Harry Reid of Nevada.

“The idea that a president with 11 months to go doesn’t have the right to nominate a replacement for a crucial Supreme Court seat is absolutely outrageous,” said Manley. “So I assume that the caucus will demand retaliation.”

“[Justices will] hear arguments over whether the union can require payment from teachers it represents in contract talks. The justices could support the status quo or issue a ruling that only changes payments to CTA. Union leaders everywhere fear, however, a broader decision that would squeeze their own treasuries and diminish public labor’s political clout at all levels of government.”

A high-profile lawsuit that could have increased consumer protections was shot down by the Supreme Court. “The justices by a 6-3 vote overturned a state ruling and threw out a class-action lawsuit against DirecTV over its termination fees for customers who canceled its service,” the Los Angeles Times reported. “The high court said the Federal Arbitration Act calls for honoring arbitration agreements that are written into company contracts, regardless of whether there are more consumer-friendly protections set by states such as California.”

The case against the El Segundo-based company had been working its way up the judicial ladder for years. “The dispute began in 2008 when a former DirecTV customer sued the satellite TV provider in Los Angeles Superior Court, alleging it had violated several California laws when it charged cancellation fees,” the Los Angeles Business Journal noted.

Unlikely divide

Justices split along highly unorthodox lines, with dissents penned by Clarence Thomas and Ruth Bader Ginsburg (Sonia Sotomayor joining). While Ginsburg and Sotomayor challenged the notion that arbitration agreements such as DirecTV’s could be treated as contractual agreements between equals, Thomas insisted, as he has in the past, that the Federal Arbitration Act does not apply in state disputes.

Remarkably, Justice Steven Breyer — known as one of the court’s most liberal justices — wrote the decision for the majority, drawing swift fire from anti-corporate crusaders. “What SCOTUS essentially said today is whenever ‘arbitration’ is mentioned by a corporation — whether it defies state jurisprudence, fundamental fairness, or what the state’s courts rule — the Federal Arbitration Act will shield them,” wrote Consumer Watchdog president Jamie Court at The Huffington Post.

The majority’s decision reinforced recent rulings. “The action continues the court’s string of rulings that cut back on class-action suits and strengthens the power of companies to insist that consumer complaints must be settled by arbitration, which is generally seen as more advantageous for businesses,” the Washington Post reported.

Legal twists

The fees charged by DirecTV had drawn sharp criticism and scrutiny. In an extraordinary move, the company had slapped consumers with “cancellation fees” of up to $480, often seizing the money by charging it to a credit card or even withdrawing it directly from a bank account, all without the customer’s permission, according to Consumer Watchdog, a plaintiff in the case.

“The ruling surprised the lawyers who brought the litigation because DirecTV’s contract left it to ‘the law of your state; to decide whether the arbitration clause applied, and the California Court of Appeal had ruled in this case that DirecTV’s arbitration clause was illegal and therefore unenforceable under California contract law,” Consumer Watchdog noted in a release.

“Indeed, DirecTV initially acknowledged in the California court that its arbitration clause did not apply to the lawsuit,” Consumer Watchdog added, “but later changed its mind after the U.S. Supreme Court issued a 2011 ruling, Concepcion v. AT&T, that requires American courts to honor virtually all arbitration clauses that corporations insert into the fine print of lengthy contracts most consumers never read.” That case was closely divided, with four justices — including Breyer himself — dissenting.

Notably, DirecTV was recently acquired by AT&T for nearly $50 billion, with the telecom giant planning to phase out the DirecTV brand, according to the Wall Street Journal. DirecTV’s business practices have gotten it into trouble before. Its recent “creepy Rob Lowe” ad campaign “ran afoul of the National Advertising Review Board as being misleading,” the Journal observed. Critics have also noted that DirecTV has hiked rates “on the heels of AT&T raising prices for AT&T U-Verse customers,” as DSL Reports noted.

“Several DirecTV users this week wrote in to say they’ve been receiving emails from DirecTV directing them to this memo and pricing detail sheet posted to the DirecTV website. The website and email note that most base packages, channel bundles, and premium channels will be seeing price hikes ranging from $2 to $8 per month.”

Christian Schnettelker | http://www.manoftaste.de/

At least one closely split Supreme Court decision seems likely to meet widespread acclaim this term. A 5-4 majority, led by Chief Justice John Roberts, sided with a California raisin grower challenging a New Deal law that had enabled government agriculture regulators to lay claim to roughly one-third of his crop.

Perverse incentives

The logic behind the Draconian rule traced back to a Depression-era scheme to prevent growers from creating a run on key commodities by slashing prices. Under the regulation, growers were allowed in effect to collude formally on setting prices, with the government stepping in to remove whatever amount of the product therefore couldn’t be sold. “The raisin board had the support of most growers, and its ‘marketing orders’ had the backing of the U.S. Department of Agriculture,” as the Los Angeles Times reported.

“The USDA defended the board and said these collective actions helped to stabilize the market and prevent sharp swings in prices. The ‘reserve’ portion of the crop is sometimes sold overseas or is given to schools as part of the school lunch program. Government lawyers said growers like Horne benefited in the end because they obtained higher prices for raisins sold on the open market.”

But as Chief Justice Roberts observed, the transfer of “actual raisins” from aggrieved Fresno grower Marvin Horne constituted a “clear physical taking,” necessitating the “just compensation” provided for so-called “takings” by the Fifth Amendment. The justices agreed almost unanimously that takings applied as much to raisins as to real property. But the court’s four more liberal judges refused to agree that they could decide that Horne merited payback during the years he bucked the system. Marvin and Laura Horne, his wife, first put their feet down in 2003; “when the raisin committee voted to set aside 47 percent of the growers’ crop, the Hornes balked, selling 100 percent of their raisins,” NPR recounted. “The federal government fined them the market value of the missing raisins — nearly $500,000 — plus an additional civil penalty of $200,000.” That fine, the court ruled, also had to go.

Big reverberations

Horne’s victory teed up substantial changes in the agriculture industry and beyond. “While part of a long-running challenge to federal regulation of various agricultural markets, the ruling Monday also broadens the government’s responsibilities to private property owners,” McClatchy reported. Marketing orders like the one Horne defied “cover crops from almonds to walnuts,” observed McClatchy, although not all actually “authorize volume control.” Reflecting the arbitrary character of the regulations, other affected crops would include dried prunes, spearmint oil and tart cherries, according to the Wall Street Journal. But the immediate impact could be minimal; dates, for instance, haven’t been subject to seizures like the one affecting Horne since the 1970-71 season, the Journal noted.

The political implications of the ruling, at least, quickly became clear: more jockeying over the federal government’s well-known largesse toward so-called “big ag.” Editorializing in favor of the ruling, the Washington Post framed the stakes starkly. “Today, the Supreme Court deregulated the raisins; it’s up to Congress to liberate sugar, milk, corn, soybeans and all the other commodities still entangled in an outmoded web of regulations and corporate welfare.”

Photo Credit: HUD.gov

Many Golden State developers must now include so-called affordable housing units in their sales plans. The California Supreme Court sided against the builders, who brought a contentious, high-profile suit against municipal policymakers.

“At issue was a 2010 San Jose law that requires some new residential developments to set aside 15 percent of their units for sale at below-market rates,” noted the San Jose Mercury News. “The California Building Industry Association said the city failed to justify the 15 percent requirement and should base any such quota on an assessment of possible negative effects of the market-rate housing.”

But the impact of the ruling went far beyond San Jose city limits. “The League of California Cities and California State Association of Counties estimate more than 170 municipalities have some kind of ordinance on the books,” according to KQED. Officials in Sacramento have also brought attention to the diminishing quantity of less costly urban housing. As the Los Angeles Times observed, the state’s Legislative Analyst reported months ago that California’s housing is among the nation’s most expensive.

Given the court’s protection of the laws, their continued expansion became all but certain in liberal-leaning urban areas. “The decision clears the way for Los Angeles and other cities to require developers to sell a percentage of the units they build at below-market rates as a condition of a building permit. Developers also could be given the option of paying into a fund for low-cost housing,” the Times reported.

In a statement, the Times added, L.A. mayor Eric Garcetti applauded the ruling. “This gives Los Angeles and other local governments another possible tool to use as we tackle our affordable housing crisis,” he said.

A hands-off approach

Describing California’s paucity of cheap housing as a crisis of “epic proportions,” Chief Justice Tani Cantil-Sakauye went well beyond the bounds of San Jose’s set-asides to endorse broad municipal regulatory powers. Cities, she wrote, should “regulate the use of real property to serve the legitimate interests of the general public and the community at large.”

Rather than seeing itself as indulging in judicial activism, however, the court embraced city attorneys’ contentions that its powers simply didn’t extend to pricing rules. “There is no basis for the courts to second-guess the City Council’s considered judgment in adopting an inclusionary housing ordinance as a means to comply with its affordable housing aims,” they argued, according to the Associated Press.

Judicial gymnastics

Behind the hands-off approach, however, the court followed a complex line of legal interpretation. Plaintiffs claimed that San Jose’s “inclusive housing ordinance,” or IHO, amounted to an unconstitutional “taking” of property. Previously, the U.S. Supreme Court had ruled that the possibility of such a taking triggered heightened judicial scrutiny, a stricter standard of interpretation than the city’s attorneys wanted the California Supreme Court to use.

Under heightened scrutiny, a so-called “exaction” imposed by an IHO can only pass constitutional muster if regulators “can establish a reasonable relationship between the amount of a city’s need for affordable housing and the portion of that need attributable to a particular development project,” as the National Law Review noted.

The city admitted that it broke new ground in the aggressiveness of its housing regulations. As KQED noted, “the city side-stepped the usual study showing a relationship between the development of for-sale housing and the city’s need for affordable housing.”

But the court, the Review continued, ruled the set-aside in San Jose’s IHO was not an exaction at all, “because it did not constitute the payment of a monetary fee but rather simply placed a limit on the way a developer may use its property.” Rather than requiring developers to pay money or turn over its property to the public, the IHO placed “a restriction on the property by limiting the price for which the developer may offer certain units for sale.”