Thirty Years of Proposition 8 (1982), and Judge Kozinski Asks to, and Gets to, Move West (1984-1985)

No, not that Proposition 8. The Proposition 8 that I’m referring to is the initiative found at page 32 of this California ballot pamphlet. This Proposition 8, as approved by the electorate on June 8, 1982, made several important changes to California criminal law, and to state procedures for trying criminal cases.

One of the key provisions of Proposition 8 is its “Truth-in-Evidence” provision. All of you who practice criminal law in California will recognize this measure. It provides as follows:

Right to Truth-in-Evidence.  Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and postconviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.

Proposition 8 thus severely limited the ability of California state law, on its own, to provide grounds for the exclusion of evidence in criminal cases. As a result of Proposition 8, a substantial cohort of California appellate opinions from the 1950s through the early 1980s (especially the 1970s) no longer remain good law, insofar as each of these decisions interpreted a violation of a California statute (or a provision of the California constitution), by itself, as warranting suppression. Proposition 8 also cast doubt upon the continuing vitality of many provisions of the California Evidence Code, insofar as each of these statutes purports to exclude relevant evidence in criminal cases. On this latter point, however, even thirty years after Proposition 8 there exists very little caselaw describing the interplay between some of these statutes and the initiative.

The arguments for and against Proposition 8 have been volleyed back and forth elsewhere, and I’m not going to repeat them here. This isn’t that type of blog. You know, the serious, useful type. Instead, now that I’ve dutifully noted the anniversary, I’ll just post a few other documents from roughly the same era, and then get the heck out of here so I can finally go and watch The Avengers. Yes, I know I am the last person in North America to see that movie. But I was terribly disappointed when I learned that Diana Rigg and Patrick Macnee (Season Five opening credits here) weren’t going to be in it.

Specifically, here is a July 1984 letter from then-Court of Claims Judge Alex Kozinski, seeking an appointment to the Ninth Circuit Court of Appeals. In it, the future Chief Judge of the Ninth Circuit comments upon that circuit’s woeful record before the United States Supreme Court, and observes that said circuit “is badly in need of judges with a conservative judicial philosophy.” [Readers: Please insert snarky some-things-never-change punchline here. If you need help, you might observe that in July 1984, (a) New Coke and Burger King's "Herb" ad campaign were both one year in the future; (b) Ruth Gordon, Marc Chagall, Smokey Joe Wood, and Walter Mondale's Presidential ambitions were all still alive; and (c) Apple introduced the Macintosh computer.]

(As a digression, I wonder whether these days Kozinski can be described accurately as a “conservative,” or even a “conservative with libertarian leanings,” as some publications and commentators are wont to label him. I did a back-of-the-envelope exercise for my own benefit a little while ago, to map the recent voting patterns of Ninth Circuit judges. Kozinski’s votes positioned him as a centrist, albeit one whose status as such represented the product of swings to the right and left that more or less cancelled each other out. Basically, I would say that Judge Kozinski doesn’t have an ideology so much as a Dungeons & Dragons alignment: Chaotic Neutral.)

This story has a happy ending, of course, for Judge Kozinski. The next year, President Ronald Reagan would nominate him to the Ninth Circuit. When and if he called Kozinski to tell him the good news, Reagan most likely consulted this little cheat sheet, which provided the Gipper with some basic information regarding Kozinski, and the nomination. (And NO, the phone numbers that were provided to Reagan are no longer Judge Kozinski’s, so please don’t try to call him there.)


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