On today’s episode of The CAP·impact Podcast I talk with Professor of Law and Director of the Immigration Clinic at Western State College of Law Jennifer Koh. Professor Koh’s work at the intersection of criminal law and immigration law is prolific, so there was a lot of ground for us to cover.

One newer project that she is working on is the Orange County Justice Fund, which was formed to raise the money to ensure that immigrants that call Orange County home can have an attorney represent them in immigration proceedings, rather than have to defend themselves in immigration court. In the interview we talk about the gap in federal law that created the need for OCJF.

We also talk about California’s sanctuary state law – SB 54. The school where Professor Koh teaches as, Western State College of Law, is in Irvine, California. From Irvine, Professor Koh was able to witness first-hand a series of cities in Orange County pass ordinances stating that the city would be opting-out of enforcing that state law. We talk about what authority cities have to do that, if at all.

Last, but certainly not least, we get the opportunity to talk about what it’s like to be cited in a United State Supreme Court Decision by none other than the Notorious RBG, Justice Ruth Bader Ginsburg.

I hope you have as much fun listening to the conversation as I did having it with Professor Koh. If you are interested in keeping up with the work that Professor Koh does, there are a couple places you can find her. You can find her on Twitter @jenniferleekoh and you can also refer to her faculty page for more information about her work and research as well.

And, as always, if you enjoyed today’s conversation, please take the time to leave us a five-star rating on Apple PodcastsiTunes, Stitcher Radio and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also get in touch with us and let us know what you thought about today’s show, the new show format, and what you think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

 

 

 

Today’s post is on AB 1531, which provides for new rules for the payment of court fees.

This bill establishes specified rules regarding the payment of court fees when using an electronic filing service provider.

Essentially, the bill requires, if a duplicate payment is made to a court by a party or an electronic service provided by either credit card or other electronic means for things like court filing fees, then the court must issue any appropriate refund to the entity that made the most recent payment.

In addition, the new law allows an electronic filing service provider to notify the court clerk that fees remain unpaid, despite notice to the attorney of record, which would thereby allow the clerk to notify the attorney of record that he or she may be sanctioned by the court for nonpayment of those fees.

AB 1531 essentially adopts a last‑in, first‑out refund approach, which many courts around the state already utilize to address duplicate payment issues. In addition, AB 1531 is intended to make it easier for service providers to collect money owed to them that was not paid by attorneys of record who filed court documents through them by allowing the courts to sanction those attorneys of record.

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

 

 

 

Today’s post is on obstacles faced in the legislative process.

As one might contemplate, there are numerous obstacles to overcome during the legislative process here in California. These are generally characterized as policy, fiscal, and political obstacles that may have to be addressed as a bill travels through the legislative process. Our effort here is to pose a few questions that one might want to ask before proceeding with a bill in the California Legislature.

The first set is policy obstacles. Naturally, there should be a good policy rationale for the legislation. Unfortunately, the Legislature generally examines a proposed solution rather than examine the policy problem that is attempted to be addressed and then determine what the best solution to that problem actually is.

At this early point, the bill’s proponents need to address these questions.

  • In presenting the bill, which contains a solution, has the policy problem been clearly explained?
  • Is this bill the best solution to the stated policy problem?
  • Are there other viable solutions to address the problem?
  • What are the potential policy problems with the other solutions?
  • Is there sufficient policy justification to make the proposed change in the law?
  • Is there evidence that the alleged shortcoming in existing law actually exists?

The next set is fiscal obstacles. Assuming the policy implications are addressed, the fiscal impact is duly considered by the respective appropriations committees. Note that even some policy committees do consider the fiscal impact of proposed legislation. The questions for addressing fiscal obstacles are:

  • Is there any fiscal impact due to the proposed law change contained in the bill? If so, how significant is the fiscal impact?
  • If there is a fiscal impact, is it to the state government, to local government, to the private sector, or a combination thereof?
  • If the fiscal impact is significant, is there some sort of funding source or a mechanism to help pay for the cost of the bill?
  • What is the likely position of the Governor’s Department of Finance: support or oppose or neutral?

Third is political obstacles. Some of the questions to pose in this area include:

  • Which groups are likely to support or oppose the bill and how can they impact the proposed law change?
  • Is there potential grassroots support for either side of the bill, in support or in opposition?
  • And how do the key legislative staff view the proposal?

In some instances, vote requirements may become an obstacle if the bill requires a super-majority vote for passage.

As one would expect, each controversial bill can create its own unique set of obstacles that will need to be addressed. That’s why there’s not a clear set of rules that apply in the same way for all pieces of legislation.

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

AB 1565 (transcript)

Today’s post is on AB 1565 from the 2018 legislative session, which concerns a new labor‑related liability rule for direct contractors.

Governor Jerry Brown signed Assembly Bill 1565 by (then) state Assemblyman Tony Thurmond on September 19th as Chapter 528. As an urgency‑clause measure, the bill took effect on chaptering, which was September the 19th. It amends Labor Code Section 218.7 and creates a new labor‑related liability rule for direct contractors.

AB 1565 provides that for any contract entered into on or after 01/01/19, in order to withhold dispute payments, the direct contractor must specify in its contract with the subcontractor the specific documents and information that the direct contractor will require that the subcontractor must provide upon request.

Also, AB 1565 says that subcontractors may include the same requirements in their contracts with lower‑tiered subcontractors, and they, too, may withhold, as disputed, all sums owed.

The new law also declares that it must go into effect immediately due to the need to resolve the confusion created by existing language at the earliest possible time.

AB 1565 repeals the provisions that state that obligations and remedies are in addition to existing obligations and remedies provided by a law except that the provisions are not to be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions, including interest owed.

This repeal is of Subdivision H, contained in Section 218.7 of the Labor Code.

New year, new style! We are shifting our focus on The CAP·impact Podcast from exclusively looking under the capitol dome in California and the surround sprawl of government buildings that make California’s state government to look at the tangible impacts legal academics are having on public policy at the local, state, and federal level all over the United States.

We are kicking this new series off with an interview with Texas A&M Professor Saurabh Vishnubhakat, who has helped in  refining PTAB – Patent Trial and Appeal Board – adjudication process for patents that takes place within the U.S. Patent Office. He is a former agency advisor and his work has been extensively cited. Prof. Vishnubhakat has been cited in Federal Circuit opinions, Patent Office rulemaking, Federal Trade Commission and U.S. Government Accountability Office reports on the patent system, as well more than twenty U.S. Supreme Court briefs on 10 different patent cases.

You can find his work on his Texas A&M faculty page or on his website vishnubhakat.org.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on Apple PodcastsiTunes, Stitcher Radio and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also get in touch with us and let us know what you thought about today’s show, the new show format, and what you think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

President Trump will address the nation tonight.  If he takes legal action, it will likely be to declare a national emergency under the National Emergencies Act of 1976.  The statute gives him wide leeway to decide what circumstances constitute an emergency.  He will declare the emergency to take advantage of two additional statutes, 10 USC 2808 and 33 USC 2293, which would allow him to reallocate Department of Defense construction funds to build the wall.

Congress is the nation’s lawmaker, and is the one responsible for allocating funds to complete projects like the wall.  These statutes allow the president to bypass Congress and reallocate funds that Congress has already appropriated, so long as those funds remain uncommitted to other projects.  To use these statutes, the emergency the president declares must “require the use of armed forces,” so expect him to make that case in his speech as well.

For more details, see Professor Chesney’s Lawfare post.

I also spoke about this on KFBK earlier today and I’ll update this post with the link to that conversation when they have it posted on their website.

SB 826 (transcript)

Today’s post is on Senate Bill 826 from the 2018 legislative session concerning California’s new mandate on women on publicly traded corporate boards.

Governor Brown signed SB 826 by State Senator Hannah Beth Jackson on September 30th. It was Chapter 954. It adds two new sections to California’s Corporations Code.

Essentially the new law requires every publicly held corporation whose principal executive offices are located in the state of California to have a specified minimum number of women on its board of directors.

It also requires the California Secretary of State to review and issue reports regarding corporate compliance with the bill’s provisions and authorizes the Secretary of State to impose fines for any violations of that bill.

The Legislature did make some modifications to the bill before they sent it down to the Governor for final action, including the addition of a fine for failure to timely file board member information with the Secretary of State. They modified the dollar amounts of the fines imposed for both the first and subsequent violations of the law.

What the bill essentially states is that no later than March 1, 2020 and annually thereafter, the Secretary of State will publish a report on its website that contains specified information. Again, it authorizes the Secretary of State to impose fines for violations of the bill.

These fines are quite substantial. For failure to timely file board member information the first violation is $100,000. For a second or subsequent violation, the amount goes up to $300,000 per violation.

Section One of the bill, which represents most of the bill’s contents, sets forth numerous legislative findings and decorations. In Section Two of the bill, it adds Section 301.3 to the Corporations Code, which we’ll cover in a moment.

Then it also adds Section 211.5.5 to the Corporations Code that essentially sets forth the requirements that will cover apply to a foreign corporation ‑‑ that is a publicly held corporation ‑‑ to the exclusion of the law, the jurisdiction in which that foreign corporation is incorporated.

What this new section of the Corporations Code says is that no later than the close of the 2019 calendar year, every domestic general corporation or foreign corporation that is publicly held, and whose principle executive office according to the corporation’s SEC 10K form is located in California, must have a minimum of one female on its board of directors.

Thereafter, the bill specifies that no later than the end of the 2021 calendar year, the required minimum number must be two female directors if the corporation has five directors or three female directors if the corporation has six or more directors.

This bill has gotten a lot of press attention and numerous legal scholars have questioned its constitutionality. We’ll have to wait and see once it’s implemented at the end of 2019 whether or not a publicly traded corporation undoubtedly incorporated out of state challenges this new statute.

 

Challenges to Lawmaking in California’s Legislative Process (transcript)

Today’s post is on the challenges to lawmaking in California’s legislative process.

Individuals and groups engaging in California’s lawmaking process may find several challenges in their legislative endeavors. There are certainly institutional challenges as well as political challenges that complicate the legislative process. These challenges must be overcome to achieve a successful outcome in enacting state legislation.

An initial, structural, challenge is California’s bicameral legislature and three separate branches of government. Naturally, in our form of government these separate branches are intended to provide a system of checks and balances on the other branches. In other words, our system of government combined with the two houses and 120 legislators that comprise the legislative branch of government means that there’s a natural, and intentional, tension in the lawmaking process.

In addition there are other institutional issues that can cause gridlock and create challenges in the lawmaking process. Two of the most commonly cited factors are term limits and the lack of bipartisanship. In the case of term limits, those who are newly elected and those who are in their final term of office are undoubtedly going to view each other’s role differently. Further, more seasoned legislators often are committee chairs, leaders, or otherwise in more influential positions to effect the outcome of pending legislation. One additional institutional factor that makes lawmaking is the sheer volume of legislation – roughly 2,500 bills per year.

Legislative rules can also create hurdles for achieving lawmaking success. For example, our state’s constitution requires a supermajority vote for passing tax increases in each house of the Legislature. The burden of achieving a higher vote threshold often increases the likelihood of failure with certain pieces of legislation.

In addition to these institutional factors we’ve covered there are also political reasons that can make the legislative process in the state of California evermore challenging. One such factor is the electoral process. In California, Assembly Members run for office every two years while Senators run for office every four years. As a result, these legislators are continually in a campaign mode and raising funds for their political races. Now, as a practical matter this can mean soliciting interest groups for campaign contributions – including those who regularly appear before legislators. Some of these legislators find it difficult to vote against their friends, especially those who might be helpful in their reelection efforts.

Other factors include the initiative process and voter approved ballot measures that constrain state spending and limit the ability of legislators to address public policy issues as well as competing funding priorities that are established by initiative for the state. These provisions of state law make it more difficult for legislators to craft solutions to public policy solutions facing the state because they often find their hands are tied by these constitutional or budgetary restrictions imposed by the voters.

In the end, there’s not a single factor that makes lawmaking in California difficult. Instead it’s a combination of factors that impact the resolution of public policy issues by the Legislature and that often result in gridlock and lack of success in lawmaking. The result can increase the partisanship in the Legislature, which then in turn creates hurdles, as both sides of the political spectrum engage in sometimes rigid ideology that in turn can create a lack of desire or need to compromise.

Over the weekend Professor Leslie Gielow Jacobs – Director, Capital Center for Law & Policy – appeared on KCRA 3 News to discuss the latest legal challenge to the Affordable Care Act. Her comments from the story are below.

On what to expect from the Appeals Court hearing the decision holding the Affordable Care Act unconstitutional:

It is my prediction that the Appeals Court will reverse his ruling and we’ll be right back where we are.”

On judging legislative intent:

What the judge was supposed to do was look at the intent of Congress and say – Well, without the individual mandate did Congress intend for the rest of the statute to stay there? – and it seems quite clear that in 2017 Congress did intend the statute to stay there because it didn’t abolish the statute itself.”

On the next step, appealing the ruling:

It’s hard for me to imagine that we won’t get a stay that puts this on hold because this is a momentous decision, it affects a lot of people, and the reason to give a stay is so the Court of Appeals has enough time to consider the matter.”

You can find the complete story by KCRA’s Max Resnik here.

 

Publishing Letters to the Journal (transcript)

Today’s post is on publishing letters to the Journal for determining legislative intent.

Sometimes in order to explain the intent behind a specific piece of legislation, one or both houses of the Legislature will utilize a process by which a legislator publishes a letter stating his or her intent to explain the piece of legislation. For Assembly Members, this is published in the Assembly Daily Journal, and for Senators this is published in the Senate Daily Journal.

Generally this letter from the legislator is used to explain perhaps an ambiguity in the bill, or explain the purpose of a particular change in the law or for some other reason. Again, in both the State Assembly and the State Senate such a letter to the Journal is a rather formal process. For example, the letter must be on the legislator’s letterhead and signed by that particular legislator.

The general custom and practice of the two houses of California’s Legislature is to have the respective leadership staff – meaning both the majority Democrat and minority Republican parties – review the contents of that letter from the legislator and determine whether or not either party has any objections to the contents found in the letter. Now, the consultants to the majority and minority parties may request revisions to that letter to the Journal, otherwise they’ll give their consent.

Now, if approval is not received by both sides of the aisle – and this is a rare occurrence – then the legislator can request that the letter be printed in the respective Daily Journal with a majority vote.

The general practice is that the Assembly letters are authored by the individual Assembly Member and they’re addressed to the Chief Clerk of the Assembly. Senate letters are written by the individual Senator, of course on his or her letterhead, and are addressed to the Secretary of the Senate.