Capital Lawyering

Subscribe to Capital Lawyering

For a more in depth discussion of Proposition 8, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 8: Fair Pricing for Dialysis Act

Current Law

  • California Health and Safety Code regulates chronic dialysis clinics (CDCs)
  • Current law does not limit the revenue of chronic dialysis clinics providing kidney dialysis treatment.

Proposed Law

  • Limit chronic dialysis clinics revenue and require clinics to issue refunds for revenue above 115 percent of the costs of direct patient care service and health care quality improvements.
  • Assess penalties if clinics fail to maintain information or timely submit a report required, report inaccurate or incomplete amounts or percentages, or fail to timely issue a full rebate.
  • Require clinics to submit annual reports to the California Department of Public Health (CDPH). These reports shall include the number of dialysis treatments provided, the amount allowable costs, the amount of owner/operator’s revenue car, the amount by which revenues exceed the cap, and the amount of rebates paid.
  • Prohibit clinics from refusing to treat patient based on source of payment for care.

Policy Considerations

 

Yes on Proposition 8 No on Proposition 8
  • Lower costs of dialysis treatment.
  • Improve patient care by incentivizing clinics to spend more of direct patient care services.
  • Ensure clean dialysis centers because clinics would spend more on health care quality improvements.
  • Require corporations to refund excessive profits that aren’t spent on improving patient care.
  • Clinics will operate at a loss because reimbursement rates are too low.
  • Clinics will be forced to close.
  • Patients will be forced to seek treatment at more expensive hospital emergency rooms due to closures of clinics.
  • Definition of “allowable” costs excludes critical staff and necessary services to operate a dialysis clinic.
  • Presents constitutional issues, giving rise to a post-election challenge.

Analysis of Proposition 8 provided by John Ponce and Anupe Litt.

For a more in depth discussion of Proposition 11, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 11: Emergency Ambulance Employees Safety and Preparedness Act

Current Law

  • Federal law – Under the Fair Labor Standards Act of 1938, emergency employees may not receive compensation for interrupted breaks.
  • State law – Under the California Labor Code, employer-mandated on-call rest breaks are illegal.
  • CA Supreme Court – In Augustus v. ABM Security Services (2016), the California Supreme Court held that on-call breaks violate state labor law. Full compliance with the Augustus decision would potentially increase costs for ambulance providers by more than $100,000 annually.

Proposed Law

  • Allows emergency medical technicians (EMTs) and paramedics to remain on-call during breaks.
  • Requires employers to pay EMTs and paramedics at their regular rates during their breaks.
  • Requires 911 ambulance operators to maintain high staffing levels to provide coverage for breaks.
  • Requires training for certain emergency incidents related to active shooters, multiple casualties, natural disasters, and violence prevention.
  • Requires employers to provide employees mandatory mental health coverage, as well as yearly mental health and wellness training.
  • Retroactively prevents emergency employees from bringing claims pursuant to Augustus against ambulance service providers, including claims already pending.

Policy Considerations

Yes on Proposition 11 No on Proposition 11
  • Ensures 911 emergency will not be delayed because EMT’s always on-call.
  • Provides important additional training for emergency employees.
  • Increases efficacy of mental health services.
  • Negatively impacts labor union workers.
  • Excludes private sector emergency employees from labor law protections.
  • Allows ambulance companies to require workers to remain on-call during their breaks.

Analysis of Proposition 11 provided by Anupe Litt and David Witkin.

For a more in depth discussion of Proposition 5, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 5: Property Tax Transfer

Current Law

  • California allows homeowners who are over the age of 55, disaster victims, or individuals with severe disabilities to sell their residence and transfer the property tax to a new home.
  • However, there are a number of restrictions.
    • This property tax transfer can only be done once.
    • In most situations the transfer must be within the same county. However, if the Board of Supervisors of the receiving country allows inter-county transfers, then an individual can transfer their property tax to another county.
    • The replacement property is required to be of equal or lesser value.

Proposed Law

  • Proposition 5 would amend these restrictions for homeowners who are over the age of 55, disaster victims, or individuals with severe disabilities.
    • Removes the cap on number of times a property tax can be transferred.
    • A property tax could be transferred anywhere in the state.
    • The replacement property could be worth more than the original home.

Policy Considerations

Yes on Proposition 5 No on Proposition 5
  • By giving seniors an incentive to move, Prop. 5 will increase economic activity and open up much needed housing.
  • Seniors and individuals with severe disabilities cannot move out of inadequate housing due to the tax penalty they might face.
  • Disaster victims cannot move out of the county without facing a property tax penalty.
  • Annual property tax losses for cities, counties, and special districts of around $150 million in the near term, growing over time to $1 billion or more per year (in today’s dollars).
  • Annual property tax losses for schools of around $150 million per year in the near term, growing over time to $1 billion or more per year (in today’s dollars).
  • Increase in state costs for schools of an equivalent amount in most years.

Analysis of Proposition 5 provided by John Knobel and Meghan Shiner.

For a more in depth discussion of Proposition 12, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 12 – Standards for Confinement of Specified Farm Animals; Bans Sale of Noncomplying Products

Current Law

  • California’s laws on animal cruelty are extensive, covering a wide range of behaviors and types of animals.
  • These concerns led to Proposition 12’s predecessor, Proposition 2 (2008), which targeted the treatment of farm animals.
  • Proposition 2 did not provide specific size requirements for the confinement of farm animals. The only standard it created was that farm animals “must be able to turn around freely, lie down, stand up and extend their limbs.”

Proposed Law

  • Proposition 12 amends the California Health and Safety Code and would address issues Proposition 2 did not address.
  • Proposition 12 sets specific space requirements for the confinement of egg-laying hens, breeding pigs, and calves raised for veal. These would be phased in over several years.
  • Starting in 2020, egg-laying hens would be required to have 1 square foot of floor space, and calves raised for veal would be required to have 43 square feet of floor space. Starting in 2022, egg-laying hens must be in cage-free housing, and breeding pigs would be required to have 24 square feet of floor space.
  • Proposition 12 would prohibit businesses from knowingly selling eggs, liquid eggs, uncooked pork, or veal that come from animals that are housed in ways that do not meet the new requirements.
  • Proposition 12 also provides two key changes to enforcement:
    • It requires the California Department of Food and Agriculture promulgate rules and regulations for the implementation of the act by September 1, 2019.
    • It provides that any person in violation of the act is guilty of a misdemeanor and is to be punished either by imprisonment or by paying a fine not to exceed $1000.

Policy Considerations

Yes on Proposition 12 No on Proposition 12
  • A YES vote means farmers would be required to provide more space for egg-laying hens, breeding pigs, and veal calves.
  • California businesses would be banned from selling eggs or uncooked pork or veal that came from animals housed in ways that did not meet these requirements.
  • Prop 12 is a necessary step towards ending cruelty against farm animals.
  • Prop 12 will reduce risk of food poisoning, lead to job growth, and sensibly strengthen anti-cruelty laws put forward by prior law.
  • A NO vote means the current law relating to space and businesses selling animal products remain the same.
  • Proposition 12 is deceiving voters because it would actually prolong the suffering of animals rather than relieve it.
  • California was supposed to be “cage-free” in 2015, and Proposition 12 simply prolongs the suffering of egg-laying hens since it extends the deadline to comply with the law.
  • Based on the language of the proposed standards, Proposition 12 will actually result in smaller confinement spaces rather than larger spaces.

Analysis of Proposition 12 provided by Anna Lisa Thomas and Kevin Bursey.

For a more in depth discussion of Proposition 7, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 7: Daylight Saving Time

Current Law

  • In 1949, California voters adopted Proposition 12 an initiative titled “An Act Providing For Daylight Saving Time in the State of California.”
  • The key provisions established United States Standard Pacific Time as standard time within the state and provided that time advance one hour during a period from the last Sunday in April until the last Sunday in September.
  • The United States Congress passed the Uniform Time Act in 1966 to create daylight saving time nationwide, which effectively replaced the existing California law.
  • Currently under federal law, daylight saving time starts the second Sunday in March and ends the first Sunday in November.
  • Despite this fact that the existing language in the California Government Code still says that daylight saving time ends on the last Sunday in September, daylight saving time in California ends the first Sunday in November as required by federal law.
  • California’s current daylight saving time law, Daylight Saving Time Act of 1949, does not allow the California legislature to update the language in the current statute or ask the federal government to stop the twice per year time change with voter approval.

Proposed Law

  • The repeal of the Daylight Saving Time Act would allow the legislature to control changes to daylight saving because the voter initiative would be replaced by the proposed legislative initiative and no longer require voter approval to any daylight saving changes.
  • Proposition 7 updates California’s daylight saving time dates to be consistent with the federal Uniform Time Act.
  • Proposition 7 gives the California Legislature the power to ask Congress to allow California to go onto daylight saving time all year. The Legislature would need a two-thirds (2/3) vote to ask the federal government if California can change to have full-time daylight saving time, rather than changing the clocks in March and November.

Policy Considerations

Yes on Proposition 7 No on Proposition 7
  • Would allow the Legislature to update the current daylight saving language and to ask the federal government to have daylight saving time all year.
  • Does not guarantee that California would be able to stop changing the clocks because the Legislature may not ask the federal government for all year daylight saving time, or the federal government could say no.
  • The Legislature would not have to ask the voters for permission to change daylight saving laws in the future.
  • Would not change anything because California must follow the federal government’s daylight saving time rules.
  • The existing nonconforming language in the California Government Code would remain unchanged.
  • The Legislature would not have the ability to change daylight saving laws without voter approval in the future.

Analysis of Proposition 7 provided by Anna Lisa Thomas and Sarah Steimer.

 

 

 

An In Depth Conversation on Capital Lawyering Courses (transcript)

Today’s post is the final post in my series on the Capital Lawyering coursework offered at McGeorge School of Law. My previous posts in this Capital Lawyering series have looked specifically at the Intro to Capital Lawyering  – soon to be called Capital Lawyering and Policy Making – and Lawmaking in California courses offered at McGeorge. To close out the series I sat down with Jon Wainwright and we talked about some of the different specifics of the courses.

For example, we talk about the background of the adjunct professors who teach McGeorge’s Capital Lawyering courses. Intro to Capital Lawyering/ Capital Lawyering and Policy Making is taught by the former Chancellor of the California Community College system, Tom Nussbaum. My co-teacher of the Lawmaking in California course is the Legislative Counsel, Diane Boyer-Vine.

We also talk about what makes the Capital Lawyering coursework unique compared to more traditional law school courses. One example of that uniqueness is that the Lawmaking in California course isn’t held at the law school’s campus, but rather at the State Capitol, and Jon and I trade anecdotes about how being in the Capitol towards the end of session can make the dynamics in the building more interesting for students.

It was a fun conversation and an interesting way to wrap up my series on Capital Lawyering. If you are thinking about going to law school, and are also interested in working in or around California’s state capital, be it in the California Legislature, or at a lobbying firm, or in house at a company or trade association, or a State Agency, I encourage you to listen to this series of podcasts.

 

 

 

McGeorge’s Lawmaking in California course – Part 2 (transcript)

Today’s post is Part 2 of my posts on the Lawmaking in California course that I teach alongside Legislative Counsel Diane Boyer-Vine at McGeorge School of Law as part of the school’s Capital Lawyering program. You can find Part 1 of this series, which I posted last week, here.

As I mentioned in last week’s podcast, the objective of the course is for students to walk away with an of understanding the fundamental components of the legislative process as well as the rulemaking process and avenues of direct democracy in California.

The Lawmaking in California course has multiple class sessions that focus on the legislative process, starting as early as the second class session. The first class on legislative process is on the California Legislature’s legislative calendar and committee system. The second class on the legislative process looks at floor sessions and legislative publications. The course also features classes examining the role of lobbyists, ethics, the media, and the Governor in California’s legislative process.

While the legislative process in the California Legislature is the focus of the bulk of the class sessions, the legislative process alone doesn’t give the holistic view of lawmaking in California that students need to be effective Capital Lawyers. The course also looks at the Constitutional provisions and case law concerning the powers of the Legislature, and the limits of those powers. There is also a class session on statutory research and understanding legislative intent. Additionally, the course examines the state budget process, the rulemaking process at the intersection of statutory enactments and the rules promulgated to implement those statutes, and forms of direct democracy.

There are also class sessions dedicated to the practical skills students will need to be effective Capital Lawyers. Those classes are spent on drafting bills and bill amendments, and then on drafting bill analyses.

That concludes the overview of the Lawmaking in California course taught at McGeorge. Next week’s post will be my last one in this series on the coursework offered to students in the Capital Lawyering program at McGeorge School of Law.

 

 

 

McGeorge’s Lawmaking in California course – Part 1 (transcript)

In today’s post I continue my series looking at the courses offered by the Capital Center for Law & Policy at McGeorge School of Law to train aspiring Capital Lawyers who plan to work in and around California state government. Today’s post is one of two on McGeorge’s Lawmaking in California class.

McGeorge’s Lawmaking in California course is only one of a handful of law school courses that is dedicated specifically to forms of lawmaking in the state of California. It covers the fundamental components of the legislative process as well as discussions of the rulemaking process and avenues of direct democracy.

The topics covered in the course include legislative procedure, bill drafting and analysis, legislative history and intent, advocacy, relationships with the Executive Branch, and the powers and limits of the Legislative Branch of California state government.

The course is taught in downtown Sacramento at the State Capitol, rather than on the law school campus, as this provides students with the feel of the practice of Capital Lawyering. Instead of having a textbook, the course uses a close to six hundred page reader that’s full of substantive information that be readily used as a reference guide for anyone working in or around the legislative and/or regulatory processes. The reader is compiled by the course’s two professors, Diane Boyer-Vine and me.

In addition to a midterm and final – each worth 20% of a student’s grade – the course features practical writing assignments – a bill and amendment drafting project and a bill analysis drafting project. The bill drafting project not only requires that students draft a bill, but also draft a substantive amendment to address one or more opposition concerns that could be raised with the original bill and drafting an urgency clause for the bill as well as a justification for that urgency clause.

That’s the 30,000 foot overview of McGeorge’s Lawmaking in California course. Next week we’ll discuss more of the particulars of the class.

 

 

 

Intro to Capital Lawyering – Part 2 (transcript)

Today’s post is part two on the Introduction to Capital Lawyering course – to be called Capital Lawyering and Policy Making going forward – that is offered at McGeorge School of Law. You can find my first post on the Capital Lawyering and Policy Making course here.

McGeorge’s Capital Lawyering and Policy Making course is taught by adjunct professor Tom Nussbaum, who is a former Chancellor of the California Community College system. He also authored the course reader.

According to Professor Nussbaum, policy analysis is the rubric for problem solving that is typically applied in policy making settings, like the California Legislature. As such, the first three class sessions revolve around various policy analysis methodologies and applying policy analysis to real world issues.

The course also serves to introduce students to the various venues for lawyering in the government, with a particular focus on California state government. Of the fourteen class sessions that comprise this course, half of them focus on lawyering at the three levels of government. Four of those courses focus on California state government, two classes focus on lawyering at the federal government level, and one is dedicated to local government.

As I mentioned in last week’s post, the purpose of the course is to provide students with exposure to capital lawyering in general while educating them about the levels of government so that students understand that government may provide an avenue to resolve a client’s legal problem beyond traditional litigation of alternative dispute resolution. Students will take away from this course the knowledge that changing the law may be the best approach to solving a legal issue rather than litigating it.

In next week’s post, as part of this larger series on how the Capital Center for Law & Policy trains capital lawyers, I’ll start walking you through McGeorge’s Lawmaking in California course, which I co-teach with Legislative Counsel Dianne Boyer-Vine.

 

 

 

Intro to Capital Lawyering – Part 1 (transcript)

Today’s post is a continuation of last week’s post about the role of the capital lawyer. As I mentioned last week, I’ll be explaining how the Capital Center for Law & Policy at McGeorge School of Law trains capital lawyers. Today’s podcast is the first of five that will give an overview of how McGeorge School of Law trains capital lawyers.

The podcast today is part one of going over the Introduction to Capital Lawyering course. Part two will be next week’s podcast. This is the one mandatory course in the Capital Lawyering concentration. I should also note that starting in fall 2018, the name of this course will be different. The new name for the course going forward is “Capital Lawyering and Policy Making.”

The course is geared to give students the proverbial 30,000 foot view of the three levels of government, as well as the three branches of government – with a particular emphasis on California state government. The overall objective of the course is to ensure that students are informed and aware of the different avenues available to address a client’s legal issue.

Specifically, the learning objectives of the course are to introduce and acquaint students with the fundamental knowledge and skills that are essential to lawyering with California state government and with government in general; ensure that students will be able to perform policy analysis using a variety of methodologies; ensure students will be able to weigh and consider particular venues to pursue a policy change and they’ll be able to determine which venue provides the greatest opportunity for client success. The course also serves to provide students with an understanding of the many career options available to capital lawyers in and around California state government, which I go into greater detail on in the podcast. These are just a few of objectives, but there are many more.

Next week we’ll dive into the syllabus and more of the specifics of the Capital Lawyering and Policy Making course.