After the introduction of a new bill in the California Legislature, or upon a bill passing one house and moving over to the second house for further consideration, that measure must be referred to a committee for a hearing.

The referral or assignment of a bill is governed by the Joint Rules of the Legislature as well as the respective rules of the Assembly and the Senate. In the California Legislature the referral of bills is done by the Rules Committee in each house. Though the rules of both houses provide that their committees must hold hearings and act upon bills referred to them as soon as practicable after they’ve been referred certain requirements must be met before that can occur. As a general rule, a bill is referred to the committee or committees that have jurisdiction over the provisions of the bill based upon the rules of the respective house and past referral decisions.

During a regular session of the Legislature committees must wait for a period of thirty days after a bill has been introduced and in print before they may take action on that bill. These prohibitions may be dispensed with by an extraordinary vote. This waiting period permits proponents and opponents to review the provisions of the bill and prepare testimony for presentation to the committee.

A schedule or calendar of bills set for hearing is proposed by each committee in the Legislature and publication of this hearing list is done in the Daily File of the Assembly and Senate and it must occur at least four days in advance of hearing by the first committee and at least two days in advance by subsequent committees of the same house. If a committee wishes to hold an informational hearing on a general topic, then a four day file notice is also required.

As one can imagine, which committee gets to hear a bill could impact the outcome of the bill depending on the subject matter and the receptivity of the committee to the bill. In most instances the bill referral is relatively straightforward. Sometimes, however, more than one committee might be appropriate to hear a bill. In most cases, only one policy committee will get to hear a bill. However there are occasions when it’s necessary for more than one committee to hear a bill. As a result, the referral of bills is an important part of the legislative process in California.

You can find a full transcript of today’s podcast here.

 

 

 

 

 

 

 

SB 820, from the 2018 legislative session, concerns a prohibition on confidential settlement agreements.

Governor Jerry Brown signed SB 820 by State Senator Connie Leyva on September 30th as Chapter 953. The bill prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or administrative action.

The bill went into effect January 1, 2019 and it specifically allows plaintiffs in these types of actions to retain the right to request provisions in settlement agreements that shield their identity. Note that the Assembly amendments expanded the claims that are covered by the bill, extended the scope to cover court orders, and also narrowed an exception that’s available at the request of the claimant.

SB 820 makes a provision in the settlement agreement that prevents the disclosure of factual information related to the claim for those agreements entered into on or after 1/1/19 to be void as a matter of law and against public policy. The new law provides that a court may consider the pleadings and other papers in the record or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.

This new law applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex. It does not prohibit the entry or enforcement of any agreement that includes the disclosure of the amount that was paid in settlement of the claim.

The bill also creates an exception where it is not applicable if a party is a government agency or public official. For a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity if that provision within the settlement agreement that is made at the request of the claimant.

You can find a transcript of today’s podcast here.

Associate Dean, Distinguished Professor of Law, and Co-Director of the Center for Law and Energy Resources in the Rockies Sam Kalen got on the phone with Jon Wainwright to talk about some of the clinical opportunities for law students at University of Wyoming, interstate power grids and how those can be created without preempting federal law, NEPA and efforts to curtail some of its impact.

On the podcast, we talk about our favorite public lands, some of the great clinic opportunities afforded to University of Wyoming Law students who get involved in the university’s Center for Law and Energy Resources, how states can build out interstate grids without running afoul of federal law and regulations or running headlong in to preemption issues, and explore the National Environmental Policy Act.

To learn more about Dean Kalen, you can visit his University of Wyoming College of Law faculty page or his publications page. You can also learn more about University of Wyoming College of Law’s Center for Law and Energy Resources in the Rockies here. And lastly, if you are interested in reading Dean Kalen’s book on energy policy, you can ask your local bookseller for Energy Follies: Missteps, Fiascos, and Successes of America’s Energy Policy or find it online on sites like this one.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, or wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Dean Kalen and the rest of the faculty at University of Wyoming College of Law is doing.

 

 

 

 

 

 

 

 

Governor Jerry Brown signed Senate Bill 838 by State Senator Robert Hertzberg on September 28th as Chapter 889 and this bill authorizes corporations to include a provision in their articles of incorporation authorizing the use of blockchain technology to record and track the issuance and transfer of stock certificates.

The bill was, before reaching the Governor’s desk, revised to modify the definition of blockchain technology and the bill added a January 1, 2022 sunset date. So this bill, which takes effect on January 1, 2019, will be in effect for three years.

The author is the sponsor of the bill and his stated intent is to provide privately held corporations with a more secure means to protect their shareholders from fraud involving the issuance and transfer of stock certificates. According to his statement, “SB 838 is intended to authorize privately held corporations to issue and transfer share certificates through blockchain technology or distributed electronic networks. And by authorizing this technology to be used in this way, California is engaging in new technology that will protect consumers and corporations from cases of fraud and theft.”

California is the first state in the country to authorize the use of blockchain technology to record and track the issuance and transfer of stock certificates. Despite the theoretical value that blockchain technology holds for securely and accurately documenting stock transfers, no other state has approved this technology for this purpose so far. We’ll have to look forward to how it works over the next three years.

Texas A&M Law Professor William Henning is a former Executive Director of the Uniform Law Commission and has his fingerprints on laws in all 50 states, DC, Puerto Rico, and the US Virgin Islands that affect your everyday life. He took the time to talk with me about some of the laws he’s helped draft and enact, and just how far ranging the work of the Uniform Law Commission is.

We primarily focus in on two laws that he’s been involved with through his work with the Uniform Law Commission. The Uniform Commercial Code – Professor Henning’s bread and butter as it were – is one. The other is a law enacted after Hurricane Katrina to help mobilize aid to areas where emergencies have been declared.  While those are the two main acts discussed, we talked about at least half a dozen different pieces of legislation – all of which is wide ranging – and which are enacted all over the country. That just starts to give an impression of how impactful the work of the Uniform Law Commission is.

To learn more about Professor Henning, you can visit his Texas A&M School of Law faculty page or his SSRN page.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, or wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Henning is doing.

 

 

 

 

 

 

 

Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

When a bill in the California Legislature fails passage, either in a policy or fiscal committee or on the floor of the Assembly or Senate, it can be granted what’s called reconsideration. According to the Legislative Counsel, reconsideration is a motion that gives the opportunity to take another vote on the matter previously decided either in a committee hearing or a floor session. This is an important rule because it provides the legislator another opportunity to return to his or her colleagues and seek a second bite at the apple.

After a committee has voted on a bill, reconsideration may be granted only one time. Pursuant to Joint Rule 62(a), reconsideration may be granted within 15 legislative days or prior to the interim study joint recess, whichever occurs first.

Let’s explore the differences and similarities between the Assembly’s and Senate’s reconsideration processes.

 

The Assembly Process

In the State Assembly a motion to reconsider on the next legislative date must be made on the same day that the vote to be reconsidered was taken. On the Assembly floor, no motion to reconsider can be adopted unless it receives an affirmative vote of 41 Assembly Members. Upon making a motion for reconsideration, the question or measure to be reconsidered is placed upon the unfinished business file in the Assembly Daily File and no further action can be taken prior to the next legislative day.

A motion to reconsider, which is neither taken up nor continued on file, lapses after a specified time. Once a reconsideration motion has elapsed then the question or measure returns to the same position it held prior to the motion being made. When reconsideration is granted, the matter is to be reconsidered, resumes its exact position before the Assembly voted on that question and then the author may take it up immediately after reconsideration is granted.

 

The Senate Process

A motion to reconsider a question may be made by any Senator on the day on which the vote was taken. The motion may be considered on the day it is made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators. In the Senate, bills may be reconsidered by a majority vote, even though the bill required a 2/3 majority vote for ultimate passage. Note that Constitutional Amendments that are adopted can be reconsidered by only 14 votes while Constitutional Amendments that have been defeated require a 2/3 vote for reconsideration.

According to the Senate Standing Rules on the day on which a vote has been taken on any question, a motion to reconsider the vote may be made by any Senator. Reconsideration may be granted only once and the motion may be considered on the day it was made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators on the Senate Floor.

Reconsideration can serve as a valuable tool to legislators and interest groups in order to allow modifications to a measure to address why a measure initially failed passage. For those opposed to the measure, however, it means remaining vigilant to ensure that the bill does not get revived in a matter that results in continued opposition.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

SB 1001, from the 2018 legislative session, made California the first state to enact a bot bill.

Governor Jerry Brown signed Senate Bill 1001 by State Senator Robert Hertzberg (D – SD 18) on September 28th as Chapter 892. The bill is effective on July 1, 2019 and it prohibits a person from using a bot to communicate or interact with another person in California online with the intent to mislead the other person about the bot’s artificial identity for the purpose of knowingly deceiving that person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction, or to influence a vote in an election.

The California Legislature made a number of changes to SB 1001 before it arrived on the Governor’s desk. Those include updating definitions and removing requirements for online platforms to take actions such as: enabling users to report bots violating the provisions of law, investigating and determining within 72 hours whether to act upon reports received by users, and – three – providing details of user reports and internal investigations to the Attorney General upon request.

SB 1001 adds an entire new chapter to California’s Business and Professions Code. It defines the terms “bot,” “online,” “online platform,” and “person.” Bot is defined as an automated online account where all, or substantially all, of the actions or posts of that account are not the result of a person. New B&P Code Section 17941 makes it unlawful for any person to use a bot. However, a person using a bot is not liable under this code section if the person discloses that it is in fact a bot. That disclosure must be clear, conspicuous, and reasonably designed to inform persons with whom the bot communicates or interacts that it is a bot.

Also, new Section 17942 provides that this law does not impose a duty on service providers of online platforms including but not limited to web hosting and internet service providers.

Again, the new provisions in SB 1001 go into effect on July 1, 2019.

You can find a transcript of today’s podcast here.

On this week’s  episode of The CAP⋅impact Podcast Jon explores the legal and regulatory frameworks around the growing legalized sports betting industry with Drake University Law School Professor Keith Miller. Professor Miller talks about the role that gambling plays in the budgets of state’s that already have legalized gambling and provides a cautionary note to states thinking about legalizing sports betting. Professor Miller also discusses some of the numerous public policy issues that gaming law – and legalizing sports betting – implicates. The conversation delves into tax law and crafting public policy that doesn’t worsen the issue of problem gambling.

On the issue of tax policy, Professor Miller points out, “If legislators in a state see sports betting as a gold mine of revenue … they are going to be disappointed.”

To learn more about Professor Miller, you can visit his Drake University Law School faculty page or his SSRN page.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Fox is doing.

 

 

 

 

 

 

 

Most Capitol observers know that the Legislative Counsel, and her deputies, serve as the attorneys for the California Legislature, but that role is actually much broader. In today’s podcast we’ll look at the numerous activities that are undertaken by California’s Legislative Counsel.

Under Government Code Section 10207(a) the Legislative Counsel maintains an attorney-client relationship with each member of the Legislature with respect to communications between the legislator, the member, and the Legislative Counsel, unless provided otherwise by the Rules of the Legislature. As a result, all the materials arising out their relationship – such as proposed bills and amendments, analyses, opinions, and other memorandum – are actually not public records unless provided otherwise in the legislative rules.

In addition, in Government Code Section 10207(b) 1, the Legislative Counsel maintains an attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. In subdivision 10207(b) 2, whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or legislative measure that’s pending the Legislative Counsel delivers two copies of the opinion. First to the named author of the bill, and then a copy to any other author of the bill who requests a copy.

Government Code Section 10232 requires the Legislative Counsel to advise any state agency as to the preparation of measures to be submitted to the Legislature. And in Section 10232.5, the Legislative Counsel may provide legal services to our State Auditor.

In Section 10233, upon request, the Legislative Counsel must aid and assist any member of the Legislature regarding bills, resolutions, and measures – drafting them in proper form and furnishing to the legislator all the information that is appropriate. Note that in addition to serving as legal counsel to the Legislature, state law also requires services to be provided to the Governor regarding legislation.

The Legislative Counsel also prepares legislative measures, at the written suggestion of a judge or the Supreme Court or the Courts of Appeal or the Superior Courts. Also note that under Government Code Section 10242, the Legislative Counsel must advise the Legislature from time to time as to any legislation that’s necessary to maintain the codes, or codify such statutes that are enacted from time to time, subsequent to the enactment of codes. The Legislative Counsel cannot appear in any action or court proceeding without the prior approval of the Joint Rules Committee.

So there are quite a few statutorily required activities for the current Legislative Counsel, who is Diane Boyer-Vine. She oversees about 85 attorneys who are employed in the Office of the Legislative Counsel, as well as staff of the Legislative Data Center, who is also overseen by the Legislative Counsel. And note that the Legislative Counsel serves at the pleasure of the Legislature and is effectively elected, or appointed to their position, by the adoption of a resolution by both the Assembly and the State Senate.