two-tier test in California

1996The court quoted with approval an earlier case which held: “ ‘In order for the judge to be disqualified, the prejudice must be against a particular party . . . and sufficient to impair the judge’s impartiality so that it appears probable that a fair trial cannot be held.’ (Italics added.)” (Andrews, supra, 28 Cal.3d at p. 792 , quoting Ensher, Alexander & Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327 ].) The Supreme Court explained this two-tier inquiry as follows, “The first inquiry consists of deciding whether the moving party has set forth legally sufficient facts to d

1996The court quoted with approval an earlier case which held: “ ‘In order for the judge to be disqualified, the prejudice must be against a particular party . . . and sufficient to impair the judge’s impartiality so that it appears probable that a fair trial cannot be held.’ (Italics added.)” (Andrews, supra, 28 Cal.3d at p. 792 , quoting Ensher, Alexander & Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327 ].) The Supreme Court explained this two-tier inquiry as follows, “The first inquiry consists of deciding whether the moving party has set forth legally sufficient facts to d

1982Discussion I It is established that the right to privacy is fundamental in nature and encompasses “ ‘ “Our freedom to associate with the people we choose. ” ’ ” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R. 4th 219 ].) “Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subject to strict scrutiny by the courts . . . .” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) Plaintiff argues that Code of Civil

1982Discussion I It is established that the right to privacy is fundamental in nature and encompasses “ ‘ “Our freedom to associate with the people we choose. ” ’ ” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R. 4th 219 ].) “Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subject to strict scrutiny by the courts . . . .” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) Plaintiff argues that Code of Civil

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1986(Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 127 [ 201 Cal.Rptr. 70 ]; Bobb v. Municipal Court (1983) 143 Cal.App.3d 860, 865 [ 192 Cal.Rptr. 270 , 39 A.L.R.4th 432 ].) The applicable test depends on the naturé of the right infringed.

1986(Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 127 [ 201 Cal.Rptr. 70 ]; Bobb v. Municipal Court (1983) 143 Cal.App.3d 860, 865 [ 192 Cal.Rptr. 270 , 39 A.L.R.4th 432 ].) The applicable test depends on the naturé of the right infringed.

1986(Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 127 [ 201 Cal.Rptr. 70 ]; Bobb v. Municipal Court (1983) 143 Cal.App.3d 860, 865 [ 192 Cal.Rptr. 270 , 39 A.L.R.4th 432 ].) The applicable test depends on the naturé of the right infringed.

1986(Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 127 [ 201 Cal.Rptr. 70 ]; Bobb v. Municipal Court (1983) 143 Cal.App.3d 860, 865 [ 192 Cal.Rptr. 270 , 39 A.L.R.4th 432 ].) The applicable test depends on the naturé of the right infringed.

1983(Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ]; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ].) For example, in Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ], a woman challenged the constitutionality of a California law prohibiting females from tending bar unless they or their husbands held a liquor license on equal protection grounds.

1983(Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ]; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ].) For example, in Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ], a woman challenged the constitutionality of a California law prohibiting females from tending bar unless they or their husbands held a liquor license on equal protection grounds.

1983(Molar v. Gates (1979) 98 Cal.App.3d 1, 12 [ 159 Cal.Rptr. 239 , 12 A.L.R.4th 605 ].) In California, which employs the traditional two-tier test of equal protection, distinctions involving “suspect classifications” or classifications that impair “fundamental rights” will be subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of showing both that it has a compelling interest which justifies the classification and that the classification is necessary to further that compelling interest.

1983(Molar v. Gates (1979) 98 Cal.App.3d 1, 12 [ 159 Cal.Rptr. 239 , 12 A.L.R.4th 605 ].) In California, which employs the traditional two-tier test of equal protection, distinctions involving “suspect classifications” or classifications that impair “fundamental rights” will be subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of showing both that it has a compelling interest which justifies the classification and that the classification is necessary to further that compelling interest.

1982Thus, in the first instance the appellate court need only review the record to determine whether the trial court’s findings are supported by substantial evidence; in the second, the appellate court itself reviews the administrative record to determine whether the agency’s decision was supported by substantial evidence.” (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840, 842 [ 130 Cal.Rptr. 169 ]; citations omitted; italics in original.) The issue, then, is whether plaintiffs’ asserted right of access to Highway 50 involved a “fundamental vested right.” The Supreme Court n

1982Thus, in the first instance the appellate court need only review the record to determine whether the trial court’s findings are supported by substantial evidence; in the second, the appellate court itself reviews the administrative record to determine whether the agency’s decision was supported by substantial evidence.” (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840, 842 [ 130 Cal.Rptr. 169 ]; citations omitted; italics in original.) The issue, then, is whether plaintiffs’ asserted right of access to Highway 50 involved a “fundamental vested right.” The Supreme Court n

1982Thus, in the first instance the appellate court need only review the record to determine whether the trial court’s findings are supported by substantial evidence; in the second, the appellate court itself reviews the administrative record to determine whether the agency’s decision was supported by substantial evidence.” (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840, 842 [ 130 Cal.Rptr. 169 ]; citations omitted; italics in original.) The issue, then, is whether plaintiffs’ asserted right of access to Highway 50 involved a “fundamental vested right.” The Supreme Court n

1982Thus, in the first instance the appellate court need only review the record to determine whether the trial court’s findings are supported by substantial evidence; in the second, the appellate court itself reviews the administrative record to determine whether the agency’s decision was supported by substantial evidence.” (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840, 842 [ 130 Cal.Rptr. 169 ]; citations omitted; italics in original.) The issue, then, is whether plaintiffs’ asserted right of access to Highway 50 involved a “fundamental vested right.” The Supreme Court n

1982Discussion I It is established that the right to privacy is fundamental in nature and encompasses “ ‘ “Our freedom to associate with the people we choose. ” ’ ” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R. 4th 219 ].) “Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subject to strict scrutiny by the courts . . . .” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) Plaintiff argues that Code of Civil

1982Discussion I It is established that the right to privacy is fundamental in nature and encompasses “ ‘ “Our freedom to associate with the people we choose. ” ’ ” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R. 4th 219 ].) “Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subject to strict scrutiny by the courts . . . .” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) Plaintiff argues that Code of Civil

1979(See a study of Justice Stevens’ critical views of the two-tier test in Comment, The Emerging Constitutional Jurisprudence of Justice Stevens (1978) 46 U.Chi.L.Rev. 155, 206-217.) Justice Brennan writing for himself, Justices White, Marshall and Blackmun, declared that the equal protection problem he saw in University of California Regents v. Bakke (1978) 438 U.S. 265, 324 [ 57 L.Ed.2d 750, 792 , 98 S.Ct. 2733 ], could not be measured by either the strict scrutiny or the rational relationship test and thus he applied an intermediate test.

1979(See a study of Justice Stevens’ critical views of the two-tier test in Comment, The Emerging Constitutional Jurisprudence of Justice Stevens (1978) 46 U.Chi.L.Rev. 155, 206-217.) Justice Brennan writing for himself, Justices White, Marshall and Blackmun, declared that the equal protection problem he saw in University of California Regents v. Bakke (1978) 438 U.S. 265, 324 [ 57 L.Ed.2d 750, 792 , 98 S.Ct. 2733 ], could not be measured by either the strict scrutiny or the rational relationship test and thus he applied an intermediate test.

1978(See, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 761 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ], and cases cited.) For the reasons stated in part I, ante, the denial of a postindictment preliminary hearing deprives the defendant of “such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution.

1978(See, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 761 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ], and cases cited.) For the reasons stated in part I, ante, the denial of a postindictment preliminary hearing deprives the defendant of “such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution.

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of

1976Proc., § 1085) and limit its examination to a determination of whether the administrative action was “ ‘arbitrary, capricious, or entirely lacking in evidentiary support, or whether . . . [it] has failed to follow the procedure and give the notice required by law.’ ” (Pitts v. Perluss, 58 Cal.2d 824, 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], quoting Brock v. Superior Court, 109 Cal.App.2d 594, 605 [ 241 P.2d 283 ]; Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 174-175, 179 [ 70 Cal.Rptr. 407 , 444 P.2d 79 ].) If the administrative proceedings are adjudicatory, the court must proceed under Code of