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.

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.

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.”

In today’s episode, we finish our conversation with Adriana Ruelas and Adrienne Shilton from the Steinberg Institute. You can find the first half of our conversation here. Today we talk about SB 1113 and AB 1971.

They’re both interesting bills. SB 1113 would establish voluntary workplace mental health standards, meaning that the state of California would set standards for what would be in workplace mental standards, but companies could volunteer to adopt those standards.

AB 1971 is where we spend more time, however, and it’s the most controversial of the bills that we talked about. AB 1971 expands the definition of “gravely disabled” to “include a condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for medical treatment, if the failure to receive medical treatments, as defined, results in a deteriorating physical condition that a medical professional, in her or her best medical judgment, attests in writing, will more likely than not, lead to death within 6 months.” In practical terms, this bill would make it easier for medical professionals to place someone under a 5150 hold.

In addition to legislation, we also talk with Lacey Mickleburgh who is a staff attorney at McGeorge School of Law’s Homeless Advocacy Clinic, which is part of McGeorge’s Community Legal Services about the services  that they’re providing and the interdisciplinary approach they take to helping those who are experiencing homelessness or those who are housing insecure here in the Sacramento region.

You can learn more about the individual bills that we talk about in the links above, and you can learn more about Steinberg Institute and the work they do here. And you can learn more about all of McGeorge’s legal clinics here.

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. Or you hit me up directly on Twitter @jon_wainwright.

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

Yesterday, President Trump announced that Judge Brett Kavanaugh will be the nominee to fill the seat on the Supreme Court vacated by the retiring Justice Anthony Kennedy. Right after the news about the nomination broke, McGeorge School of Law Professor Clark Kelso spoke with KCRA about the nomination and what to expect from the nominee to be the Supreme Court’s newest Justice.

At 53 years old, Judge Kavanaugh falls in the age range that Capital Center Director Professor Leslie Gielow Jacobs predicted the nominee would fall in, telling Insight’s Beth Ruyak, “I would predict the next Justice would be late forties, early fifties.”

Earlier today, Professor Leslie Gielow Jacobs – Director of the Capital Center for Law & Policy at McGeorge School of Law – offered her reaction to Justice Kennedy’s announcement that he will be retiring from the Supreme Court of the United States, effective July 31, 2018. She gave her thoughts on the Capital Public Radio program Insight with Beth Ruyak. You can find some excerpts from her conversation with Beth below, and you can find the entirety of their conversation here.

On the space Justice Kennedy occupied on the Court:

“I have a fond place in my heart for what we call ‘swing justices.’ That is, if you’re the person in the middle, you’re certainly looking very, very carefully at the facts of each case the circumstances. That might cause you to go one way or another and you’re not as strict, maybe, ideologically one way or the other.”

On which cases will be Justice Kennedy’s legacy:

“Gay marriage is the biggest change. He was the one who came on to the Court and began writing these opinions and he was always assigned the majority opinion in that area of interpreting the Constitution, and the Equal Protection Clause, and gay rights. His influence there is profound. … If I had to choose a legacy, it’d be the gay rights cases.”

On things to look for in the next nominee for the Supreme Court:

“I would predict the next Justice would be late forties, early fifties.”

 

 

 

The Role of the Judicial Branch in the Legislative Process (transcript)

Today’s podcast is on the role of the judicial branch in the lawmaking process here in California. Members of the state and federal judiciary branches play a role in California lawmaking in the actual legislative process, as part of our state government system of checks and balances. When California statutes or regulations are legally challenged, for example, then the state or federal court that makes a determination establishes a public policy for the state.

Of course, California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state lawmaking process. In addition to these legal challenges, both federal and state courts may be called upon to interpret California statutes or regulations.

Statutory interpretation is a primary role of the judicial branch of government in the state lawmaking process. In fact, courts are regularly called upon to interpret state statutes and regulations, sometimes to the dismay of elected officials in the executive or legislative branches of government.
This third branch of government does play a crucial role in the lawmaking process when the courts determine what the legislative intent was of a statute, or whether a regulation comports with the Administrative Procedure Act, or whether a statute or regulation is constitutional. This, of course, is the most critical role of the judicial branch in the state lawmaking process.

Occasionally, the California Legislature passes a law that does not comport with the state or federal constitutions. Despite claims by judges that they leave lawmaking to the elected branches of government, when judges modify statutes or issue a determination of how a statute or regulation is to be interpreted and applied, then judges do, to some degree, become a critical part of the state policy making process.

Hence, from my perspective, all three branches of state government do, in fact, play a role in the development of state public policy.

 

 

 

It’s been three months since U.S. Attorney General Jeff Sessions came to Sacramento to announce his lawsuit against the State of California challenging various provisions of the new sanctuary state law.  I posted about my initial evaluation of the claims when Sessions announced the lawsuit.  Tomorrow is a big hearing in federal district court, so it’s time to check in again.

What’s been going on during the last three months?  Lots of papers have been filed.  California tried to move the case to San Francisco, but the judge said no so it will remain in Sacramento.  The United States and California have filed papers, and lots of groups and individuals have filed their own amicus curae briefs supporting one or the other side.

What’s going on to tomorrow?  Judge Mendez will hear oral argument on two motions.  The U.S. seeks a court order to block California’s sanctuary state laws and California is asking the judge to dismiss all of the United States’ claims.  The motions are flip sides of each other, each taking extreme positions about how good their claims are.  The U.S. argues that its claims are so good that the judge should grant a court order (preliminary injunction) before trial happens.  California argues that the claims are so weak that the judge should dismiss them all without having a trial at all.

California has a tough row to hoe on the motion to dismiss.  It has to prove that no set of facts could allow the U.S. to state claims.  It’s unlikely that Judge Mendez will dismiss any of the claims at this early stage.

So, the focus tomorrow will be on the U.S. motion for a preliminary injunction.  Unlike a trial, where the party just has to win, the U.S. has to show more to convince a judge to act early, and enter an order against the other side, before the judge has been able to hear all the arguments and see the evidence that would be presented at a trial.

Judge Mendez will come into the hearing very prepared.  He will have looked carefully at all the writings, researched the arguments, and will likely have pin-pointed questions to flesh out particular parts of the claims.  He likely knows how he is inclined to rule on each claim.   What?  Isn’t that pre-judging the case?  Yes, but that’s ok.  In fact, it is responsible judging.

This is not like a trial, where the jury is supposed to keep an open mind before it hears the evidence.  There may be some testimony tomorrow, and the judge should keep an open mind on that.  But most of tomorrow’s claims depend upon reading U.S. law and California law and deciding how they inter-relate.  These are complex legal questions and it is entirely appropriate that the judge would study them, think hard about them, and form initial opinions before oral argument.

The lawyers will be very prepared as well.  They wrote the pleadings and, during the last week, have undoubtedly been doing “moot court” preparations where they argue and take questions, trying to anticipate what the other side and the judge will say.

What is the standard of proof?

The U.S. needs to show (1) that it is likely to win at trial; (2) that it will suffer extraordinary harm if it must wait until trial for a court order; (3) that it will suffer more harm than California if it must wait until trial; and (4) that the public interest is on its side.

Both the U.S. and California have strong claims that they will suffer “irreparable” harm that cannot be repaired later if the court rules against them.  So, the focus of the case will be on whether the U.S. can meet its burden of showing a “likelihood of success” at trial on its claims.

What are the claims?

The basis for all three of the U.S. claims is that the California sanctuary state provisions violate the Supremacy Clause of Article VI of the Constitution.  The U.S. also claims that each provision violates what is called “inter-governmental immunities.”  This is a more difficult claim for the U.S., and so I’ll focus on the Supremacy Clause (preemption) claims as they relate to each California law.

The Supremacy Clause says that when state law conflicts with valid federal law, the federal law prevails.  No one disputes that this part of the Constitution exists, or what it says.  So what’s the big question with all three claims?  Is there a conflict or is this just another of many situations where the two different governments may regulate the same activities, but for different reasons?

California’s “Immigrant Worker Protection Act” (IWPA).  This law prohibits private employers from voluntarily complying with federal immigration enforcement requests for information. This means that the federal agents need to get a court order to obtain the information.  There is nothing explicit in the federal law that says California cannot do this. So, the question is whether the state law “frustrates the purpose” or “stands as an obstacle to enforcement” of federal law.  Maybe … or even, quite likely it does.  California has very good reasons for its law, but that is not the right question when the federal government claims preemption.  The focus is on what the federal government validly wants to achieve and whether the state law makes it systematically more difficult no matter the state’s strong interests.  Private California employers are citizens of the state and of the United States.  Expect to see the U.S. make the point that it should be able to seek voluntary compliance from its citizens on the same terms as the state, and the state effort to shift that balance unconstitutionally obstructs its lawful exercise of its powers.

California Assembly Bill (AB) 103.  This law allows California Attorney General Xavier Becerra to inspect immigration detention facilities to make sure they are being operated lawfully.  California has the power to do this and has a strong interest in making sure confinement conditions and other aspects of detention meet state and federal standards.  The U.S. claim that California is targeting it specifically is not particularly strong.  California can reasonably claim that its interest is in immigration facilities and what occurs in them, which pose particular issues that make them different from other types of facilities, and so it is targeting the type of facility not the federal government that operates them.  California does not obstruct federal law enforcement if it only imposes reasonable ministerial requirements that are similar to what it imposes on other entities that rent and operate other types of facilities.  It is not clear from the papers how the inspections work in practice.  Expect to see questions that go to the burden of the inspections on immigration enforcement officials, and that compare these burdens with inspection burdens imposed on other types of facilities.

California Senate Bill (SB) 54.  This law limits state and local law enforcements’ abilities to give certain types of information about current and former state prisoners to immigration enforcement officials.  The U.S. preemption claim is the weakest here, because, unlike with private employers, California has the superior power to direct the activities of state and local law enforcement.  The U.S. cannot constitutionally require state and local officials to assist with its immigration enforcement efforts.  Expect questions to the U.S. about what valid law entitles it to the information it seeks.  If the judge were to dismiss a claim tomorrow (which, as I said is unlikely), this would be it.

What happens after the hearing?

The judge can grant an order stopping enforcement of all, or single parts of the sanctuary law.  That is, the judge can accept all, some, or none of the U.S.’s claims.  Also, the judge can rule from the bench, meaning a court order goes into effect right away.  Or, more likely, the judge can take the claims “under submission,” and issue a ruling, along with a written opinion explaining his reasoning, later, in a few days or weeks.

After a ruling, we can expect the losing side to file an appeal.  The losing side will likely seek another court order, this time from the Ninth Circuit Court of Appeals, either granting an order stopping the California laws or stopping an order by the judge stopping California laws, whichever way the ruling goes.  A three-judge panel of the court of appeals will schedule argument.  We have already waited three months for this oral argument, so it is unlikely that the court of appeals would hear the appeal as an emergency.  More likely, argument would be within a few months.  After that, the losing party will likely try to convince the U.S. Supreme Court to accept the case and issue a ruling.  If the Court agrees, that ruling would likely not be issued until June 2019, at the earliest.

For more details, see Dean Vik Amar’s analysis in Verdict.

 

 

 

On Monday, May 14th, the Supreme Court published their decision to legalize sports betting from a case arising in New Jersey. However, that does not mean Americans can start placing their bets.

In a 6-3 ruling, the Supreme Court decision states that “[p]rovisions of the Professional and Amateur Sports Protection Act that prohibit state authorization and licensing of sports gambling schemes violate the Constitution’s anticommandeering rule.” This means that it is unconstitutional to prohibit states from legalizing sports betting, not that sports betting is now legalized across the country.

“The decision by the Supreme Court affirms that the choice to legalize sports wagering is one for the states to make for themselves,” State Assemblyman Adam Gray, D-Merced stated. Gray proposed a state constitutional amendment that would authorize sports wagering. But that amendment must make its way through the Legislature and California voters would then have to approve it. And as CALmatters’ Dan Morain points out, “that amendment faces many hurdles in the Legislature and voters would have to approve it. The soonest that could happen is 2020.”

With a major industry being legalized, parties are jumping to get a piece of the revenue. Several interest groups have begun to weigh in from tribal communities to online gambling websites (video link) – all showing support for the legalization.

Major sports leagues such as the MLB and NBA have been lobbying for legalization heavily across the states after the Supreme Court agreed to hear the case last June. Their lobbying also includes an addition called an ‘integrity fee’ for bets placed as well as a mandate that requires casinos buy real-time data from the leagues themselves.

As sports betting is legalized major parties are constructing ways to profit from the industry, including the government. The American Gaming Association estimates wagering at about $150 billion per year. By regulating the industry, the state of California and local governments could then tax sports gambling, producing more taxpayer money to fund programs.

So what does this mean for Californians? Sports betting is not legalized, so don’t place your bets… yet.

 

 

 

Helping Your Client’s Case by Changing the Law

Today’s  podcast  is  on  helping  your  client’s  legal  problem  by changing  the  law.

Any  lawyer  can  apply  the  facts  of  his  or  her  case  to  the  law  as  it  exists  today,  but  a  really  good  lawyer  is  one  who  would  look  closely  at  changing  the  law  to  benefit  his  or  her  client’s  legal  position.

What should you do as a lawyer for your client?  I  think  a  lawyer  should  complete  a  policy  analysis  of  any  issue  facing  his  or  her  client  and  potential  changes  to  the  law  that  could  be  made,  either  statutory  or  regulatory,  that  would  benefit  his  or  her  client.

Lawyers  need  to  have  a  firm  understanding  of  the  area  of  the  law  and  what  has  led  to  the  current  statutory  or  regulatory  issue,  and  what  are  the  pros  and  the  cons  of  a  particular  approach  to  changing  that  statute  or  regulation?  Look  at  using  a  lobbyist  to  help  change  the  law,  or  the  lawyer  himself  or  herself  could  make  that  similar  attempt.

An  effective  lobbyist  will  understand  the  politics  and  policy  regarding  a  particular  subject  matter  and  has  the  ability  to  make  statutory  or  regulatory  changes.  Then,  just  like  a  lawyer,  a  lobbyist  advocates  for  his  or  her  client’s  position  with  those  responsive  decision-makers.

Basically,  a  well-rounded  lawyer  will  appreciate  that  solving  his  or  her  client’s  legal  problem  can  sometimes  be  accomplished  by  actually  changing  the  law  in  those  cases  where  the  law  may  not  be  favorable  to  a  potential  client  outcome  or  position.

I hope you enjoy today’s podcast!