Today’s post is on securing gubernatorial appointments.

The Governor has the authority to appoint several thousand individuals to serve in his or her administration during his or her four-year term of office. Some of these positions require the advice and consent of the Senate. There are two aspects to these types of gubernatorial appointments. First, securing the appointment from the Governor and then secondly, getting the appointee confirmed by the Senate.

The likely more difficult aspect of gubernatorial appointments is not confirmation but actually securing the appointment in the first place. While there are many appointed positions across California state government, the Governor usually makes only a handful of appointments that are either controversial or are such an important post that they generate interest. A lobbyist usually comes into play more during the Senate confirmation process.

The first step in securing a gubernatorial appointment is applying for a position. There are documents that can be found on the Governor’s website including the statutory index on all available appointments. Then, there’s information on the boards and commissions including descriptions, salaries, stipends, how often they meet, etc., which is under a separate tab. And then there’s the actual appointment application, which involves an online application that allows an individual to apply for up to ten positions for consideration by the Governor and his staff.

All of these are found on the Governor’s official website.

After an individual has been notified of receiving an appointment, it must be determined whether he or she needs to be confirmed by the California State Senate. If there is no confirmation, then the individual assumes the position once he or she has been officially appointed by the Governor.

For those that require confirmation, there will be Senate Rules Committee review of that gubernatorial appointee. Now, there are two types of individuals that receive Senate Rules Committee review. There are those that are required to appear before the committee in an open hearing and then there are others who are quote: “subject to confirmation but not required to appear before the Senate Rules Committee.” These individuals submit written responses to Committee Members’ questions, but they don’t have to testify or appear in an open hearing. And of course, interest groups can submit written comments to the Rules Committee members if so desired.

On today’s episode of The CAP·impact Podcast we talk with Erin Evans-Fudem – a Legislative Representative at the League of California Cities, and McGeorge class of 2012 – about the wildfires across California, some of the factors that have led to the surge in wildfires recently, and the issue of liability – specifically as it pertains to shareholder owned utilities like PG&E.

On that liability front, we walk through the legal doctrine called “inverse condemnation” – which is the current standard used in California when it comes to liability – some of the proposals the Legislature is working on to address the issue, and what cities are particularly concerned about on this issue.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Dynamex Operations West, Inc. v. Superior Court, a California Supreme Court Case, dramatically shifts the standard for employees and independent contractors in California. Before Dynamex, courts determined worker classification on the multi-factor test from the S. G. Borello & Sons, Inc. v Dept. of Industrial Relations decision, a balancing test of multiple factors such as the method of payment, length of service, required skills, etc. This new standard, called the “ABC” Test, is a stricter standard that drastically narrows the options for when a worker can be called an independent contractor.

This “ABC Test” requires that a worker can be called an independent contractor if:

“(A) [] the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.”

McGeorge alum Chris Micheli suggests that what makes this new paradigm so problematic is that it was “created by the Court with a limited set of facts before it and not by the Legislature and Governor who would utilize a public process of enacting legislation.”

With the amount of uncertainty surrounding the implications of the Dynamex decision, Micheli suggests a solution:

“The Legislature should adopt a bill in August …in order to “suspend” the Court’s decision for at least a year to allow the Legislature, our elected branch of government, to consider the implications of this case. This will allow the Legislature and Governor, after hearings and due consideration of the implications of such a drastic change in the law, to determine what is the best approach for all Californians.”

Business groups are intensely lobbying the Governor and Legislature to suspend the decision like Micheli suggests. However, labor unions and organizations are also lobbying the Legislature and Governor to leave the ruling be, stating that the decision will benefit employees by preventing companies from taking advantage of the independent contractor loophole.

Whether the decision is suspended or not, everyone is on unsteady ground. The full impacts of the decision are yet to be seen.

Regular vs. Special Sessions (transcript)

Today’s podcast is on the differences between regular and special sessions of the California Legislature.

As you may be aware, the California Legislature can be in regular, or special, or even joint sessions. A session is the designated period of time in which the Legislature meets. There are three types.

Our state constitution provides the dates for convening and adjourning the regular session. Other than that, the Legislature has the freedom to set its own calendar for meetings and recesses.

Generally, the Legislature begins meeting in the first week in January of each calendar year and concludes its work for the year either in mid‑September during the odd‑numbered years, or August 31st, the constitutionally mandated adjournment date in the even‑numbered years.

In terms of the period of time in which the legislature meets, they may do so in either regular or special session. A regular session is the one convened in December of the even‑numbered year pursuant to Article 4 Section 3A.

That section of our state constitution states, “The Legislature shall convene in regular session at noon on the first Monday in December of each even‑numbered year, and each house shall immediately organize. Each session of the Legislature shall adjourn sine die,” that is for good, “by operation of the Constitution at midnight on November 30th of the following even‑numbered year.”

A special session, on the other hand, is one that’s convened pursuant to a proclamation that’s issued by the governor of the state. Found in Article 4 Section 3B of the state constitution, this section reads, “On extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session.

When so assembled, it has power to legislate only on subjects specified in the proclamation, but may provide for expenses and other matters incidental to the session.”

One common misconception is that the Legislature must enact bills when called into special session. While the Legislature must convene a special session once it has been called by proclamation by the Governor, there is no legal requirement that any legislation actually be enacted, nor even be voted upon.

A joint session can occur in either a regular or a special session. A joint session is one in which both houses of the Legislature ‑‑ that is the Assembly and the Senate ‑‑ meet for a specified purpose. Due to its physical size, joint sessions are normally held in the chambers of the State Assembly.

The consumer litigation finance industry in the state of New York is currently unregulated. The industry is not new, it has been around for about two decades, but it is starting to gain increased scrutiny. Companies in the industry help litigants make ends meet while they wait for settlements to be paid out, and only collect on their loan if the litigant is successful. However, there are reports of these companies charging interest rates of as high as 124 percent on those loans.

New York’s state legislature is considering legislation to regulate the industry with S. 3911 and A. 8966. S. 3911 would define consumer litigation financing agreements as those where the amount of funding is no more than $500,000. It also puts in place other restrictions, including a cap on charges of 16% of the funded amount.

  1. 8966 is largely similar, but notably does not define consumer litigation financing agreements as those where the funding amount is less than $500,000. It focuses much more on the details of the contracts but leaves the definition of what a consumer litigation financing agreement much more open than its Senate counterpart.

Maya Steinitz, Professor of Law at the University of Iowa College of Law and Visiting Professor of Law at Harvard Law School offered testimony on May 16, 2018 at the New York State Senate Committee on Consumer Protection regarding these two bills. Her testimony specifically focused on consumer litigation financing. Professor Steinitz notes areas in these proposed new regulations that can be improved upon to make the legislation more effective at protecting consumers.

She even notes that S. 3911 is going in the “correct direction” by exempting “contracts offering non-recourse financing of more than $500,000 from its scope.” This is a step in the right direction “in the sense that the Senate bill attempts to focus its protection on those individuals who are less sophisticated litigants.” While the exemption for contracts financing over $500,000 is a step in the right direction, it’s an “imperfect way to capture the difference between different kinds of litigation finance consumers.” Borrowing from the field of securities regulations – which distinguishes between unsophisticated and sophisticated investors she suggests “protecting ‘unsophisticated plaintiffs’” and advises “amending sections 2 and 4 of the Senate bill to read … “‘Consumer litigation funding company’ shall mean a person or entity that enters into a consumer litigation funding contract to provide non-recourse funding to an unsophisticated plaintiff” and “‘Consumer litigation funding contract’ shall mean a contract to provide non-recourse funding to an unsophisticated plaintiff.”” Essentially, to best protect consumers, she argues that the legislature create separate classes of litigants and that the regulations protect those who need the most protecting.

Another concern that Professor Steinitz expressed to the Committee was that “the combination of the compensation of the third part litigation funders and the attorneys’ contingency fees would, separately or combined, leave the wronged or injured plaintiffs without meaningful recovery and remediation.” Her suggestion to address this would be to have “the statute directly guarantee a minimum return to the plaintiff.

She further elaborates that the legislation “should ensure a minimum recovery of no less than 50%, barring extraordinary circumstances, to the plaintiff.” This would necessitate defining “Net Recovery” in statute, and she suggests that the definition of Net Recovery be “the total amount awarded to the consumer less the disbursements of the litigation–including filing fees, transcript costs, expert witness fees, and similar expenses—advanced by the attorney. The charges of the consumer litigation finance company and any attorneys’ fees shall not be included in the calculation of the Net Recovery.”

Both the Assembly and Senate bills are still under review, and Steinitz’s suggested amendments have not yet been added to either piece of legislation. However, it is not unlikely that the bills will undergo further amendment as they progress through New York’s legislature, and Steinitz’s suggestions may still be added.

On today’s show we are giving you the rundown on what the biggest issues facing the California Legislature are in its final month of session. August is going to be a four week sprint to the finish line, so brought on CAP·impact podcast regular – as well as lobbyist, capitol observer, McGeorge alum, and McGeorge adjunct professor – Chris Micheli to help distill which of the roughly 1,400 remaining bills the California Legislature has to work on will be the most interesting.

You can find a similar rundown that Chris wrote on Fox & Hounds, however, he goes into more depth on these bills and a few others on our podcast.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

As I discussed yesterday in my post “How California Municipalities are experimenting with voting,” cumulative voting is an electoral process in which voters have a number of votes equal to the number of seats to be elected. For example, if in an election there were three seats up for election, voters would have three votes that they could cast however they chose to – all for one candidate, or divided among multiple candidates. I also discussed yesterday that Mission Viejo is potentially going to be the first California city to adopt this electoral process. This sets up the obvious question, why adopt a new-to-California voting system?

The Southwest Voter Registration Education Project (SVREP) recently filed suit against Mission Viejo. Again, one asks why? Well, about one in five residents of Mission Viejo is Latinx, however for over a decade the city council has had no Latinx representation. The California Voting Rights Act prohibits district-based voting that would impair a protected class from appropriate representation. Specifically stated the CVRA was designed with “legislative intent to eliminate minority vote dilution.”

After a study, public hearings, and analysis by the city and SVREP, the city maintained their district-based voting. SVREP responded to the decision to maintain district-based voting with a lawsuit. The claim was that Mission Viejo’s district-based voting was a violation of the California Voting Rights Act.

The litigation ended with a settlement plan. SVREP and the City of Mission Viejo agreed that the district-based voting was to be replaced with the cumulative voting system. The city also agreed to put all five council seats up for election every four years. This means that every voter in Mission Viejo will have five votes to use however they wish, including casting all five votes for the same candidate in every city council election.

“If they can get 20 percent of voters to cast all of their votes for that one candidate, well then, they ought to have a voice,” SVREP’s attorney Kevin Shenkman said.

 

 

 

San Francisco has had a lively debate over their Ranked Choice Voting policy since its inception. Ranked choice voting (RCV) is where voters rank candidates by preference on their ballots. A candidate who wins the majority of first-choice votes is declared the winner. If no candidate wins on first-choice, the candidate with the fewest is eliminated and the second-choice on the eliminated candidate becomes first-choice for the remaining candidates. This is repeated until a candidate has won the majority of first-choice votes. Complicated? Maybe it’s easier to show you:

Candidate 1 has 450 votes or 40% of the votes

Candidate 2 has 300 votes or 26.67% of the votes

Candidate 3 has 200 votes or 17.78% of the votes

Candidate 4 has 175 votes 15.56% of the votes

Candidate 1 has a plurality, but not a majority. Rather than have Candidates 1 and 2 run head to head against each other in another election Candidate 4 is eliminated and the voters who selected them will now have their second-choice votes counted as first-choice. Assuming 75% of Candidate 4’s voters have Candidate 1 as their second choice and 25% have Candidate 2 as their second choice. When Candidate 4’s votes are redistributed, the outcome is:

Candidate 1 now has 582 votes or 51.73% of the votes

Candidate 2 now has 343 votes of 30.48% of the votes

Candidate 3 now has 200 votes or 17.78% of the votes

Candidate 1 now has a majority and is elected.

But this voting system can also get tricky. What if all of Candidate 4’s voters had Candidate 2 as their second choice? The result would instead look like this:

Candidate 1 has 450 votes, or 40% of the votes.

Candidate 2 has 475 votes, or 42.22% of the votes.

Candidate 3 has 200 votes, or 17.78% of the votes.

In this scenario, since neither Candidates 1 nor 2 have a majority. Candidate 3 is eliminated and their votes are redistributed based on who they have as their second choice candidate. And depending on how that breaks down, Candidate 1 – who led after the first round of votes were counted – could win or Candidate 2 – who led after the second round of votes were counted – could win.

California only has four cities that use ranked choice voting– San Francisco, Oakland, San Leandro, and Berkeley.

But now, another debate has been added to the mix. San Francisco city officials are recommending that instead of only having 3 ranked-choice selections, voters can select up to 10 candidates. The limitation of 3 ranked-choice selections was due to voting machine restrictions, but now San Francisco will have new ballots and machines that can be used as soon as the November 2019 election.

But ranked voting isn’t the only unconventional voting system in California, for long… Mission Viejo announced on July 27 that starting in 2020, it will put a cumulative voting structure in place. Mission Viejo would be the first city in California to implement this voting system.

For example, assume three of Missions Viejo’s City Council seats are up for election and there are five candidates running for those three seats. A voter in Mission Viejo would have three votes – one for each open City Council position – that they could cast however they choose. That could mean casing all three votes for one candidate, two votes for one candidate and one for another, or one vote for three different candidates.

Cumulative Voting is a method of election in which voters have a number of votes equal to the number of seats to be elected. Voters can assign as many of their votes to a particular candidate or candidates as they wish. Most commonly, it has been used to resolve voting rights cases for city council, county commission, and school board elections.

The difference between ranked choice voting and cumulative voting is this- in ranked choice voting – like traditional voting in California and the rest of the US – one candidate can receive a maximum of one vote from a voter. Cumulative voting, however, allows a voter as many votes for a candidate (or candidates) as there are opening seats.

 

 

 

Bills, Amendments, & Resolutions – Part 2 (transcript)

Today is part two of looking at bills, constitutional amendments, and resolutions. You can find last week’s post here. Today we’re going to talk about constitutional amendments and resolutions.

Constitutional amendments can be proposed by initiative ‑ that is, by the people ‑ as one of the forms of direct democracy that we have here in the state of California. In this context, we’re talking about constitutional amendments being placed on the statewide ballot by the Legislature.

Of course, in order to adopt those amendments to our state constitution, it requires a vote of the people, a simple majority. That’s 50 percent plus one.

The Legislature, just like the people, has the power to place measures on the ballot to amend California’s state constitution. These constitutional amendments are ACAs, Assembly Constitutional Amendments, or SCAs, Senate Constitutional Amendments.

Constitutional amendments proposed by the Legislature require a two‑thirds vote of each house of the Legislature for passage, rather than a simple majority vote. However, constitutional amendments are not sent to the Governor, so the Governor cannot sign or veto a constitutional amendment.

In other words, if an ACA or an SCA passes both houses of the California Legislature with a minimum two‑thirds vote in favor, that constitutional amendment is automatically placed on the next statewide ballot, with or without the consent of the Governor.

Let’s switch gears now to resolutions. Keep in mind that resolutions are formal expressions of the views of the California Legislature. Resolutions do not carry the force and effect of law.

Bills, from our prior podcast, create statutes or amend statutes. Those are the laws. Resolutions are not laws. They’re expressions of support or opposition.

Interestingly, in the California Legislature, there are three different types of resolutions. These three different types of resolutions can be considered individually by either house, or the other two have to be considered and approved by both houses.

One type of resolution is used by either house individually, meaning it only passes that single house in order to take effect. Those we call house resolutions.

The other two types of resolutions, which we call a concurrent resolution or a joint resolution, require adoption of both houses of the California Legislature before they are given a chapter number by the Secretary of State.

McGeorge School of Law’s Professor, and Capital Center for Law & Policy Director, Leslie Gielow Jacobs was recently quoted in “Threatening Words: Courts lack clarity in determining when rants and raves exceed the boundaries of protected speech and should be considered a real danger” by David L. Hudson Jr. in the August 2018 edition of ABA Journal.

Hudson analyzed the protections under the First Amendment regarding threatening speech. While the First Amendment does not protect against true threats, miguided or offensive language is protected.

Below are the quotes from Professor Jacobs in Hudson’s article.

On the difficulties of determining what is protected and what is not:

“The unclear part of the definition is what makes a threat ‘true,’ meaning that it is an expression dangerous enough for the government to have the power to punish, and the definition is narrow enough that it does not chill protected speech,”

On best way to determine what is considered a true threat, and thus not protected by the First Amendment:

“My view, shared by most of the circuit courts, is that the best test is an objective test … The speaker must intend to send a communication that is objectively a threat to an objectively identifiable recipient or recipients. Whether the communication is a true threat should look to the reasonable perception of a well-informed, intended recipient of the threat.”

Agreeing with Justice Sotomayor on the dangers of having no guidelines for what is protected speech and what is not when it comes to threatening speech:

“The uncertain state of the law puts both speakers and victims of threatening speech at risk, and it engenders costly litigation,” Jacobs says. “I agree that it would be helpful for the court to clarify what limits the free speech guarantee places on the ability of governments to penalize threats.”