The opinion
BIRD, C. J., Concurring and Dissenting.
I concur with the result and much of the reasoning of the court’s opinion. I write separately to address my concerns about two aspects of the decision.
*178 In evaluating the validity of the uniform act in light of petitioners’ assertion that it impermissibly infringes upon rights protected by article I, section 1 of our state Constitution, I would employ the strict scrutiny test. (See Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 289 [ 172 Cal.Rptr. 866 , 625 P.2d 779 ] (conc. opn. of Bird, C. J.).) That test envisions a two-pronged inquiry: (1) does the challenged governmental action serve a compelling state interest and (2) does it infringe upon the protected rights by the least intrusive means?
The uniform act is clearly valid when measured by this standard. As the majority recognizes, the act serves a compelling interest. (Ante, p. 172.) The sine qua non of the act is its provision for reciprocity among the adopting states. (See Pen. Code, §§ 1334.2, 1334.3.) This feature makes possible the testimony of out-of-state witnesses in California courts, thus enabling inhabitants of this state to vindicate their basic rights and claims. Moreover, since the act compels a person in California to attend proceedings in other states only when his or her presence is “material and necessary” and no “undue hardship” will result, the act satisfies the second half of the strict scrutiny test as well. (See id., § 1334.2.)
A majority of this court would seem to prefer the use of a lesser standard, asserting that the uniform act merely has an “incidental” or “temporary” effect on the exercise of protected rights. (Ante, at p. 172.) I do not agree with this conclusion. Since I have previously expressed my reservations about the creation of an artificial distinction between incidental and appreciable infringements on fundamental rights, I need not reiterate them here. (See Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 287 et seq. (conc, opn.).) However, it is necessary to point out the illogic of extending that already flawed analysis to the present situation.
The majority invokes its incidental impact theory on the ground that the act’s interference with article I, section 1 rights is merely “temporary.” But many—if not most—governmental actions coming under article I, section 1 attack can be said to be temporary. Would a statute which authorized the jailing of an individual for a week without probable cause be subject to a less demanding test than strict scrutiny on the basis that the detention was merely temporary? Could the government avoid strict scrutiny of a wholesale electronic surveillance of our *179 populace, if the operation were limited to one week? One month? One year?
Prior to the decision in this case, the court’s use of the “incidental effect” exception to the strict scrutiny test had been limited to cases where governmental actions had what was considered to be a secondary impact upon protected rights. Today’s majority cannot legitimately claim that the uniform act has such an “incidental” effect upon article I, section 1 rights. Instead, the court blithely extends the incidental impact exception to include direct but temporary infringements of basic rights without pausing to consider the full import of what is being done. That expansion strikes me as ill-advised and dangerous. Further, it is not amenable to a principled application. I do not join in that language of this court’s opinion.
The majority properly rejects petitioners’ contention that the government has the duty to affirm or deny the use of electronic surveillance at a rendition hearing held pursuant to the uniform act. Such an affirm- or-deny procedure is not required of California courts by federal law. (Cruz v. Alexander (2d Cir. 1982) 669 F.2d 872 .) Nor are the interests of state law sufficient to compel our courts to apply California’s Invasion of Privacy Act at a rendition hearing. (See Pen. Code, § 630 et seq.) The evidence obtained by electronic surveillance (if any) is to be used in Florida courts exclusively. California’s judicial contacts with those Florida proceedings are too fleeting and ministerial in nature to justify applying our statutes to the gathering of evidence to be used in another state.