Hawkins v. Superior Court

BIRD, C. J.

I concur in the holding by the majority that traditional equal protection principles require that an individual accused by indictment of a public offense be afforded a post-indictment preliminary examination. I also agree with most of the discussion of my colleague, Justice Mosk, in part II of his concurring opinion. However, I am compelled to comment on those portions of Justice Mosk’s concurrence in which he advocates the creation of an “intermediate level” of equal protection analysis under the California Constitution. (Conc. opn. of Mosk, J., ante, at p. 601.) I have grave doubts whether such an analytical device is sound as a general policy or necessary in view of this court’s prior decisions.

An intermediate level of equal protection review raises some fundamental questions of constitutional theory and practicality. In the large majority of situations where it is invoked, the equal protection clause focuses judicial attention upon legislative and administrative classifications. “[Statutes characteristically classify; that is, they do not apply universally.” (Tribe, American Constitutional Law (1978) p. 994, fn. 21.) Accordingly, nearly every statute or policy promulgated by the legislative and executive branches of government is subject to judicial approval under the mandate of our Constitution’s equal protection clause.

It is generally recognized that the legislative and executive branches should make most of these substantive classification decisions. The role of the judiciary is to carry out those decisions, not to substitute its judgment on such matters for that of either of the co-equal branches. 1 The equal protection clause contains the potential to overwhelm this basic principle since it can be invoked to review all classification schemes, i.e., nearly all governmental laws and policies. This potential has not materialized because courts have traditionally applied a “ ‘restrained equal protection *608 standard of review” to most classifications. (Cooper v. Bray (1978) 21 Cal.3d 841, 847 [ 148 Cal.Rptr. 148 , 582 P.2d 604 ], italics added.)

I see no principled way to prevent the new intermediate level test, as set forth, in Justice Mosk’s concurrence, from undermining this restraint and replacing it with a test that invites extensive judicial intervention into matters that have been the primary responsibility of the other branches of government. Under Justice Mosk’s formulation, the intermediate level of review is appropriate “when rights important—but not ‘fundamental’ —are denied, or when a classification sensitive—but not ‘suspect’—is made.” (Conc. opn. of Mosk, J., ante, at p. 601.) Scarcely any legislative enactment can fail to give rise, at the veiy least, to this level of scrutiny. Rarely can it be said that the Legislature has passed a law which deals in “unimportant” rights and nonsensitive classifications. Indeed, the fact that a law is enacted strongly suggests the Legislature considers it to be “important.”

Once the preconditions of the intermediate level test are satisfied, the judiciary becomes entitled—indeed, is required—to exercise an enormous power; to determine whether the state interests involved are “important” and, if so, whether the legislation “significantly” advances those interests. (Conc. opn. of Mosk, J., ante, at p. 601.) Since the key terms of the proposed test are inherently subjective and vague, 2 the judiciary is empowered under the equal protection clause to exercise a veto power over almost any legislation. This, despite the fact the court may be ill equipped to make the types of political decisions which many legislative classification schemes entail. Essentially, Justice Mosk would reinstate the “excessive judicial intervention” of the “substantive due process” years, which he elsewhere purports to condemn. (Conc. opn. of Mosk, J., ante, at p. 596.)

A concomitant effect of this “sliding scale” approach is the weakening of the truly fundamental principles now encompassed in the “strict *609 scrutiny” test of equal protection analysis. 3 As one scholar has noted, a sliding scale “could only produce more slide than scale.” (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 394.) “There may well be situations ... in which the appropriate level of scrutiny is indeed strict rather than intermediate, and in which the availability of the ‘middle tier’ serves to divert pressure that might otherwise develop for strict review.” (Tribe, supra, at p. 1089.) The present case provides an excellent example of the perceptiveness of these commentators. Although the rights involved here are fundamental, under Justice Mosk’s concurrence this issue would be decided using a less stringent method of analysis. I seriously question whether any of these rights could ever escape the amorphous classification in which he would “temporarily” place them.

The concurrence does not address the fundamental issues underlying this new approach, and the justifications advanced are unpersuasive. A new tier is created under the authority of our state Constitution, but no need for it is shown under state law. Rather, the concurrence demonstrates, at most, an alleged “analytical lacuna” in the federal constitutional approach. (Conc. opn. of Mosk, J., ante, at p. 598.) However, our state equal protection clause is “possessed of an independent vitality” from the Fourteenth Amendment. (Serrano v. Priest (1976) 18 Cal.3d 728, 764 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ].) As the concurrence admits, this court has “exercised independence in our application of the state equal protection clause, finding rights to be fundamental [citation] and classifications to be suspect [citations] where the United States Supreme Court has declined to do so.” (Conc. opn. of Mosk, J., ante, at p. 600.) The “glacial rigidity” which the concurrence finds in the federal scheme (id., at p. 602) can scarcely be a criticism applicable to this court’s rulings. 4 It is *610 a nonsequitur to conclude that our state Constitution needs an intermediate level of scrutiny simply because the federal Constitution does. 5

At this point, I am not convinced of the need for or the wisdom of a middle level of equal protection analysis under the California Constitution. I am convinced that this present case would afford a wholly inappropriate vehicle to set forth that new judicial policy. Since the result reached in this case is correct for the reasons expressed in the majority opinion, I join with my colleagues who have signed the majority opinion.

The judiciary occasionally plays a more active role as, for example, when it is called upon to determine whether a legislative (or administrative) scheme complies with the state or federal Constitution. However, this active role cannot justify the use of the equal protection clause proposed by Justice Mosk since a consistently active application of that constitutional provision will lead to the exception of judicial intervention swallowing the rule of judicial restraint.

The “strict scrutiny” level of review under the current two-tier equal protection scheme involves “fundamental" rights, “suspect" classifications, and “compelling” state interests, i.e., terms which, in the abstract, may be only slightly more informative than “important," “sensitive," or “significant."

The strict scrutiny test, however, evolved from more concrete notions from which its application in a particular case could be derived. Those notions involved “more searching judicial inquiry" where legislation dealt with “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" or where the legislation affected “discrete and insular minorities." (U.S. v. Carotene Products Co. (1938) 304 U.S. 144 , 152-153, fn. 4 [ 82 L.Ed. 1234, 1241-1242 , 58 S.Ct. 778 ].) There is no analogous underlying concept set forth in Justice Mosk’s opinion which might reasonably limit the new test.

I accept Justice Mosk’s premise that he is creating a new, distinct “tier” of equal protection review. However, within the middle tier, he creates a “sliding scale” approach under which all “important” rights and “sensitive” classifications are accorded different weights according to their “character” and “relative importance.” (Conc. opn. of Mosk, J., ante, at p. 601.) Were it not for the stated premise, the new approach would more logically be seen as a replacement of the traditional tiered equal protection analysis with a complete sliding scale approach rather than a refinement of the existing analysis. However, a three-tiered format can itself be considered a limited sliding scale approach.

See, e.g.. Cooper v. Bray, supra, 21 Cal.3d 841, 847-848 (automobile guest statute applied to owner-passenger); Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [ 139 Cal.Rptr. 620 , 566 P.2d 254 ] (discrimination against rehabilitated misdemeanant sex offenders); In re Kapperman (1974) 11 Cal.3d 542, 545 [ 114 Cal.Rptr. 97 , 522 P.2d 657 ] (preconviction jailtime credit); D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19, 24 [ 112 Cal.Rptr. 786 , 520 P.2d 10 ] (osteopathic license law); Brown v. Merlo (1973) 8 Cal.3d 855 , 861-862 and fn. 2 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ] (automobile guest statute); Hayes v. Superior Court (1971) 6 Cal.3d 216, 223 [ 98 Cal.Rptr. 449 , 490 P.2d 1137 ] (discrimination against out-of-state prisoners regarding speedy *610 disposition of pending criminal charges); In re Gary W. (1971) 5 Cal.3d 296, 303-304 [ 96 Cal.Rptr. 1 , 486 P.2d 1201 ] (involuntary commitment of juvenile court wards).

In his concurrence. Justice Mosk points out that the federal intermediate level analysis is supported primarily by the Supreme Court’s rulings in gender-based discrimination cases, for that court has not seen fit to subject sexual discrimination to strict scrutiny. Professor Tribe, on whose writings Justice Mosk relies heavily, suggests the Supreme Court may have erred in this respect and underclassified gender-based discrimination. (Tribe, supra, at p. 1089.) This court has agreed with Tribe’s reasoning as applied to the California Constitution. (See Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ]; see also Hardy v. Stumpf (1978) 21 Cal.3d 1, 7 [ 145 Cal.Rptr. 176 , 576 P.2d 1342 ].) Thus, the need for an intermediate level analysis under the California Constitution at this time is virtually nonexistent.