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Legal Services for Prisoners With Children v. Bowen (Cal. Ct. App. - Jan. 22, 2009)

By Shaun Martin

I could write at length about this case, which raises a fascinating (and wonderful) issue regarding whether the disenfrancisement of felons under the Fourteenth Amendment for committing a "felony" is limited only to the commission of a felony at common law. For example, I have a great deal of thoughts about whether the Court of Appeal could preferably have taken an entirely different (and arguably superior) approach to the one that's articulated by Justice Richman, and instead of holding that the "exception" of Section 2 negated the underlying equal protection claim, the Court of Appeal might alternatively have held that even if the exception does not apply, the equal protection claim nonetheless fails on the merits because it is permissible to subject this non-suspect class to the relevant penalty. Remember -- and this is often overlooked in this context -- that the part of the Fourteenth Amendment we're talking about only relates to diminution of electoral power. It's plausible to argue (and I'm confident this is actually right) that States are permitted to disenfranchise certain sections of the population -- including, perhaps, "new" types of felonies -- without violating the Fourteenth Amendment but still have the consequence of reduced electoral votes.

But that thought, for whatever it's worth, requires far too long to articulate. Plus, even on the merits of the "exception" point, in truth, I agree with Justice Richman. The Constitution says "crimes". That word likely means all crimes, or at least (at a minimum) all felonies. New or old.

So instead of saying anything interesting, which would require far too much time and virtual ink, I'll instead just briefly make the following (very minor) point. On page 11 of the opinion, to support the argument that the interpretation of words in the Constitution should be given a uniform meaning -- a proposition with which I generally agree -- Justice Richman first cites and relies upon the Supreme Court's opinion in Tidewater (which held that the District of Columbia was not a "State" for Article III diversity purposes). My instant reaction was that there are much, much better cases with which to lead on that point than Tidewater. Not only is that case roundly criticized in the academic community, but the part of the opinion on which Justice Richman relies was in any event only joined by Justices Jackson, Black and Burton, and the only way the "majority" became the majority was due to the concurrence of Justices Rutledge and Murphy, who submitted in their concurrence a relentless attack on the part of the opinion relied upon by Justice Richman.

In short, I might have left the Supreme Court's 3-2-2-2 opinion out of this one. And definitely wouldn't have led with it.

Still, notwithstanding my critique, I think that Justice Richman writes a very thoughtful decision here. This is no knee-jerk opinion. It's a thoughtful take on the subject. That I might have done something a little different is hardly a fatal critique. Indeed, in some courts, it might even be taken as a compliment.

Anyway: Great case.

Full post as published by California Appellate Report on January 23, 2009 (boomark / email).