Individual Rights Under the California Constitution

The most extensive provisions of the California Constitution, and the Article that has by far the most reported appellate court decisions, are found in the first article. Article I, dealing with declaration of rights, was adopted in 1879. This article contains the following thirty-two sections:

Section 1 states that all people are by nature free and independent and have inalienable rights and among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Section 2 provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Also, a law may not restrain or abridge liberty of speech or press.

Section 3 specifies that the people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. This section provides that the people have the right of access to information concerning the conduct of the people’s business and, therefore, the meetings of public bodies and the writings of public officials and agencies must be open to public scrutiny.

In addition, this section has numerous provisions related to privacy protections and specifically protects certain information, but also requires public access to the meetings of public bodies and the writings of public officials and agencies.

Section 4 provides that the free exercise and enjoyment of religion without discrimination or preference are guaranteed and that the Legislature must not make any law respecting an establishment of religion.

Section 5 requires that the military be subordinate to civil power. In addition, a standing army may not be maintained in peacetime and soldiers may not be quartered in any house in wartime, except as prescribed by law, or in peacetime without the owner’s consent.

Section 6 specifies that slavery is prohibited and involuntary servitude is prohibited, except to punish crime.

Section 7 provides that a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. There are numerous provisions in this section dealing with school transportation and integration plans. In addition, a citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.

Section 7.5 provides that only marriage between a man and a woman is valid or recognized in California. [This section was declared unconstitutional in 2010 by the federal courts.]

Section 8 prohibits a person from being disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.

Section 9 provides that a bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

Section 10 specifies that witnesses may not be unreasonably detained. In addition, a person may not be imprisoned in a civil action for debt or tort, or in peacetime for a militia fine.

Section 11 provides that habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion.

Section 12 provides that a person must be released on bail by sufficient sureties, except for: (a) Capital crimes when the facts are evident or the presumption great; (b) Felony offenses involving acts of violence on another person; or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. In addition, excessive bail may not be required.

Section 13 provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

Section 14 requires that felonies be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.

Section 14.1 specifies that, if a felony is prosecuted by indictment, there cannot be a post indictment preliminary hearing.

Section 15 provides that the defendant in a criminal case has the right to a speedy public trial, to compel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant.

In addition, this section provides that persons may not twice be put in jeopardy for the same offense, be compelled in a criminal case to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.

Section 16 states that trial by jury is an inviolate right and must be secured to all, but in a civil case three-fourths of the jury may render a verdict. A jury may be waived in a criminal case by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil case, a jury may be waived by the consent of the parties as prescribed by statute.

In addition, this section provides that, in civil cases, the jury must consist of 12 persons or a lesser number agreed on by the parties in open court. In civil cases, other than cases within the appellate jurisdiction of the court of appeal, the Legislature may provide that the jury consist of eight persons or a lesser number agreed on by the parties in open court.

Finally, in criminal actions in which a felony is charged, the jury must consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury must consist of 12 persons or a lesser number agreed on by the parties in open court.

Section 17 states that cruel or unusual punishment may not be inflicted or excessive fines imposed.

Section 18 provides that treason against the State consists only in levying war against it, adhering to its enemies, or giving them aid and comfort. A person may not be convicted of treason except on the evidence of two witnesses to the same overt act or by confession in open court.

Section 19 provides that private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. In addition, the State and local governments are prohibited from acquiring by eminent domain an owner-occupied residence for the purpose of conveying it to a private person. This section also provides definitions for “conveyance,” “local government,” “owner-occupied residence,” “person,” “public work or improvement,” and ‘state.”

Section 20 provides that non-citizens have the same property rights as citizens.

Section 21 specifies that property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property.

Section 22 prohibits the right to vote or hold office from being conditioned by a property qualification.

Section 23 specifies that one or more grand juries must be drawn and summoned at least once a year in each county.

Section 24 states that rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.

Section 25 provides that the people have the right to fish upon and from the public lands of the State and in the waters thereof, with certain exceptions.

Section 26 states that the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.

Section 27 states that all statutes of this State in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum.

In addition, the death penalty provided for under those statutes must not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor must punishment for these offenses be deemed to contravene any other provision of this Constitution.

Section 28 makes numerous findings and declarations by the People of the State related to criminal activities, victims of crime, and the rights of those victims. In addition, this section specifies that victims of crime have additional rights that are shared with all of the People in the state, such as the right to safe schools, right to truth-in-evidence, public safety bail, use of prior convictions, truth in sentencing, and reform of the parole process.

Section 29 states that, in a criminal case, the People of the State of California have the right to due process of law and to a speedy and public trial.

Section 30 provides that this Constitution cannot be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the People through the initiative process. In addition, hearsay evidence must be admissible at preliminary hearings, as prescribed by the Legislature or by the People through the initiative process.

Section 31 specifies that the State is prohibited from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Section 32 requires that certain provisions are enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law including parole consideration and credit earning.