McGeorge School of Law brought together a panel of judges and justices from across the United States and the world to discuss issues of constitutional law and justice to celebrate a $1 million gift to the school from the Tsakopoulos Family Foundation. The gift created the new Justice Anthony M. Kennedy Endowed Chair at McGeorge School of Law, and the panel features retired U.S. Supreme Court Justice Anthony Kennedy, international Judge Ann Power-Forde, former California Supreme Court Justice Joseph Grodin, and Judge Dr. Wolfgang Brandstetter of the Constitutional Court of the Republic of Austria.

Before diving in to the storm of links, thank you to Cogent Legal for live streaming and recording audio at the Justices on Justice event.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or 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 stay in touch with us and let us know what you thought about today’s show and 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.

McGeorge Professor and Director of the Capital Center for Law & Policy, Leslie Gielow Jacobs, was interviewed by KCRA’s Max Resnik about President Trump’s incorrect claim that he can change the U.S. Constitution via executive order.

On whether or not the President can use an executive order to change the Constitution, Professor Jacobs responded, “He doesn’t have the authority, unilaterally, to issue and executive order that changes either what’s in a statute or what’s in the Constitution.”

You watch the entire interview and see the other questions KCRA had for Professor Jacobs here.

If you missed last night’s Justices on Justice event, you missed out. Fortunately, you can catch the entire discussion here.

With so many fantastic and distinguished jurists sharing their wealth of knowledge last night it was nearly impossible to get through the questions prepared by our moderator, Professor Leslie Gielow Jacobs, let alone the great questions we received from our audience members and viewers online.

While we were not able to ask all of the questions that were submitted to us, we were able to ask a few, and you can listen to the answers to the questions in the videos below.

From a pre-law student – Was there ever a case where your personal ethics or moral system affected, or threatened to affect, your handling of a case?

Answer from former California Supreme Court Justice Joseph Grodin

Answer from United States Supreme Court Associate Justice Anthony Kennedy (ret.)

Answer from Constitutional Court of Austria’s Judge Wolfgang Brandstetter

Answer from Presiding Judge Ann Power-Forde, Constitutional Court Chamber at the Kosovo Specialist Chambers in The Hague

The second question that was asked, and directed specifically to Judge Power-Forde was: In the introductions, it was stated that Judge Power-Forde has emphasized children’s rights in her work. In your opinion, what are the next steps that need to be taken in the national and international community to protect the rights of children?

Judge Power-Forde’s answer to that question was:

There was a third question posed to the jurists, however, none of them attempted to respond to it in the very short amount of time left. That question was: What are your views on whether it is appropriate for judges to have life tenure?

Those are the three audience questions that were asked. Below are many of the other questions that were asked by audience members. This isn’t a full list, as there were multiple questions that were very similar.

  • What’s your favorite food?
  • How do you individually determine what is best for the people of your country? Do you fear that some people may not feel objectively justified by your decisions?
  • Do you think that the desire to be a justice disqualifies one from being a justice?
  • What current laws do you believe should be changed in order to help future generations?
  • Have you ever doubted if a decision you made was morally right as opposed to legally right?
  • What do you see as a growing problem within the field of law? How do we remedy these problems?
  • What is one piece of advice that you would give to young aspiring lawyers?
  • What was the hardest case you ever had to decide? Why?
  • Which case that decided was your favorite and why?
  • How do you distinguish justice from right and wrong?
  • When do you consider something “settled law?”
  • How do you balance animosity between justices on your respective courts? How does the debate/discussion flow?
  • What is the court’s involvement/influence in the issue of freedom of the press?
  • How is your Court funded?
  • Do you think that the ECHR can slow or stem the growth of the far right in Europe?
  • How do the courts strike a balance between education on the case and the merits of the parties?
  • Why do you think European countries were more willing to yield some of their sovereignty to the ECHR than the United States has been to yield some of its sovereignty to the Inter-American Court of Human Rights?
  • Are the decisions of your court influenced at all by the decisions other courts around the world?
  • When deciding a case, does the impact of the decision on the Court’s legitimacy sway your decision?
  • How would the U.S. program on immigration enforcement by separating minors from parents without a hearing fare under the ECHR?
  • What rights and/or values would be most helpful and strategic in encouraging coordination, mitigation, and accountability on the issue of climate change? How can local, national, international, and supernational courts work to mitigate the impacts of climate change?

There were also multiple questions on the confirmation process for U.S. Supreme Court justices, both in general terms and in terms specific to the most recent confirmation.

 

McGeorge School of Law professor and Director of the Capital Center for Law & Policy, Leslie Gielow Jacobs appeared on Capital Public Radio’s Insight earlier today preview tonight’s Justices on Justice event.

As we’ve mentioned in previous posts, the event is SOLD OUT. However, there will be overflow seating at McGeorge School of Law in the Courtroom, which will have a live simulcast of the discussion. Tonight’s panelists are Associate Justice of the United States Supreme Court Anthony Kennedy (retired), Presiding Judge of the Constitutional Court Chamber at the Kosovo Specialist Chambers in The Hague Ann Power-Forde, Justice of the California Supreme Court Joseph Grodin, and Judge in the Constitutional Court of the Republic of Austria Dr. Wolfgang Brandstetter.

If you are unable to attend the event in person, you can also watch it via the live stream below.

Tonight’s event, celebrating the newly created Justice Anthony M. Kennedy Endowed Chair, is made possible by a $1 million gift from the Tsakopoulos Family Foundation, which was doubled by the University of the Pacific’s Powell Fund match to create a $2 million endowment. Angelo K. and Sofia Tsakopoulos are longtime friends of Anthony and Mary Kennedy and the McGeorge School of Law. Kyriakos Tsakopoulos is a 1997 McGeorge alumnus. The Endowed Chair will provide the resources to bring prominent faculty to McGeorge to teach and advance legal thinking through scholarship and leadership in the legal community.

Even though this Monday’s Justices on Justice is sold out, do not despair. There are still ways you can be a part of the conversation. If you want to experience the event in person there will be some overflow seating for the event in the Courtroom at McGeorge School of Law, where there will be a live simulcast. If you aren’t able to make it McGeorge on Monday but still want to watch it live, you can watch the event from the comfort of your own home via our live stream. If you are not able to enjoy the event live, you will be able to watch in its entirety on McGeorge’s YouTube page or listen to Justices on Justice on The CAP⋅impact Podcast.

This events celebrates the newly created Justice Anthony M. Kennedy Endowed Chair, which is made possible by a $1 million gift from the Tsakopoulos Family Foundation, which was doubled by the university’s Powell Fund match to create a $2 million endowment. Angelo K. and Sofia Tsakopoulos are longtime friends of Anthony and Mary Kennedy and the McGeorge School of Law. Kyriakos Tsakopoulos is a 1997 McGeorge alumnus. The Endowed Chair will provide the resources to bring prominent faculty to McGeorge to teach and advance legal thinking through scholarship and leadership in the legal community.

The event is a panel discussion moderated by McGeorge School of Law Professor, Constitutional Law expert, and Capital Center Director Leslie Gielow Jacobs. The panelists are Associate Justice of the United States Supreme Court Anthony Kennedy (retired), Presiding Judge of the Constitutional Court Chamber at the Kosovo Specialist Chambers in The Hague Ann Power-Forde, Justice of the California Supreme Court Joseph Grodin, and Judge in the Constitutional Court of the Republic of Austria Dr. Wolfgang Brandstetter.

We look forward to having you join us either in person or online for this event.

We want to you to be a part next week’s event – Justices on Justice. Please join the University of the Pacific, McGeorge School of Law community at this event to celebrate the newly created Justice Anthony M. Kennedy Endowed Chair, made possible by a $1 million gift from the Tsakopoulos Family Foundation, which was doubled by the university’s Powell Fund match to create a $2 million endowment. Angelo K. and Sofia Tsakopoulos are longtime friends of Anthony and Mary Kennedy and the McGeorge School of Law. Kyriakos Tsakopoulos is a 1997 McGeorge alumnus. The Endowed Chair will provide the resources to bring prominent faculty to McGeorge to teach and advance legal thinking through scholarship and leadership in the legal community.

The event is a panel discussion moderated by McGeorge School of Law Professor, Constitutional Law expert, and Capital Center Director Leslie Gielow Jacobs. The panelists are Associate Justice of the United States Supreme Court Anthony Kennedy (retired), Presiding Judge of the Constitutional Court Chamber at the Kosovo Specialist Chambers in The Hague Ann Power-Forde, Justice of the California Supreme Court Joseph Grodin, and Judge in the Constitutional Court of the Republic of Austria Dr. Wolfgang Brandstetter.

While this event is SOLD OUT, you will be able to catch a livestream of it here.

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.