Yesterday was the deadline for ballot initiatives that had qualified for the ballot – that is, they received the requisite number of signatures – to be pulled from November’s ballot. In fact, three initiatives were withdrawn from the ballot for this November.

The three initiatives that Californians will not be voting on come November are an initiative pushed by paint companies like Sherwin-Williams and ConAgra that “would have blunted a state appeals court ruling that made the companies liable for the cleanup” of lead pain in homes according to Liam Dillon of the Los Angeles Times. The initiative would’ve blunted that appeals court ruling by shifting the financial burden to taxpayers.

An initiative pushed by Bay Area real estate developer Alastair Mactaggart that would have vastly expanded consumer protections related to their data online was pulled after a deal was worked out between Mactaggart and legislators. The compromise legislation, according the New York Times creates “one of the most significant regulations overseeing the data-collection practices of companies in the United States,” granting “consumers the right to know what information companies are collecting about them, why they are collecting that data, and with whom they are sharing it.” The new protections go into effect in January 2020.

The third initiative that was pulled was one that would have required local governments to specify how new revenues raised were going to be spent, and also increased the vote requirement for new revenue measures – read: new taxes – to be a two-thirds supermajority. That initiative, which was backed by the beverage industry, was pulled from the ballot “in exchange for a ban on new soda taxes until 2031.”

That leaves 12 measures on the ballot for voters to decide on. Ben Christopher at CALmatters pulled together an excellent summary of the initiatives, which you can find here. And as a quick overview, voters will be faced with two repeal measures – one to repeal the recently passed gas tax and another to repeal the Costa-Hawkins Act which has limited local governments’ ability to enact rent control measures. There will also be four bond measures – water, children’s hospitals, affordable housing, and supportive housing for those suffering from mental illnesses. The other seven initiatives include:

  • A change to Prop. 13 allowing “older or disabled homeowners to take their lowered property tax base with them when they move,”
  • An initiative to split California into three states, an expansion of 2008’s Proposition 2,
  • A carve-out allowing private ambulance services to require their EMTs to remain on call during meal and rest breaks
  • Ending daylight savings time in California, and
  • Requiring companies that run dialysis clinics “to pay back insurers profits over 15 percent of qualifying business costs.”

As I mentioned before in my post about the repeal of Costa-Hawkins, there is a lot of money to be spent this election cycle. That will be one of the big fights, along with the gas tax repeal and the dialysis clinics initiative. Governor Brown has already voiced his opposition to the gas tax repeal via Twitter. I would not be surprised if he spends a good portion of his nearly $15 million war chest on defeating the repeal. The dialysis initiative has well-heeled groups on both side of it as well, with the SEIU-UHW on the proponent side, and DaVita – a company that netted $1 billion last year – fighting the initiative off.

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.

 

 

 

The Role of State Agencies in Policy Making (transcript)

Today’s podcast is about state agencies and their role in public policy development. California’s agencies – including departments, board, and commissions – engage in a fair amount of public policy making through both their rule making authority, as well as their interpretation and enforcement of existing statutes and regulations.

These state agencies are the ones who generally run the day-to-day operations of state government, and they’re charged with implementing the statutes adopted by the Legislature and signed into law by the Governor. With over 200 of these agencies in California state government, there are many state agencies that do policy development by adopting regulations and implementing statutes. They can also engage in policy making when issuing guidelines, legal opinions, management memos, and other sorts of written documents wherein they interpret and implement laws and regulations.

Generally speaking, the authority of state agencies to adopt policy through their rule making process is defined and often restricted by state statute. These statutes usually prescribe each agency’s authority to adopt policy. And of course, it’s an established principle of administrative law that an agency cannot go beyond its legally prescribed authority to regulate. On the other hand, many statutes confer broad powers to some state agencies regarding matters that directly affect the public generally. The regulations and administrative practices of these agencies often affect millions of Californians in their daily lives.

It’s important to understand the rule making process and the role of state agencies in conducting rule making. One interesting phenomenon is that businesses cannot rely in good faith upon the written determinations issued by state agencies. State agencies’ written interpretation is often not given significant legal weight by a reviewing court. In other words, despite being charged with interpreting, implementing, and enforcing California statutes and regulations, individuals and businesses that obtain written guidelines from state agencies have little to no protection from legal liability if they follow that written guidance.

 

 

 

Last week, a ballot initiative to repeal the Costa-Hawkins Rental Housing Act qualified for the November ballot. Yesterday, the Assembly Committee on Housing & Community Development and the Senate Judiciary Committee held a joint initiative hearing on the measure.

Costa-Hawkins was passed in 1995 and was most recently amended in 2004. The law limits the ability of local governments to enact rent control measures. Specifically, it exempted single family units and condominiums from rent control, as well as exempted apartment units built after February 1, 1995 from local rent control ordinances. The legislation also bans vacancy control, also known as strict rent control, which is described by Elijah Chiland at Curbed LA as “which is when a unit’s rent is capped even after a tenant moves out.”

Costa-Hawkins is now back in the conversation as part of the overall conversation around California’s housing affordability crisis. In the analysis the LAO presented at yesterday’s hearing, it was pointed out that the typical renter in California pays more than 50% more than the typical renter nationwide. There are also areas in California where rent is at twice the national average, per LAO’s analysis.

Those factors, among numerous others, are what drive the supporters of the initiative to repeal Costa-Hawkins. Repealing the initiative would mean that single-family homes, condominiums, and apartment units built after February 1, 1995 could become subject to rent control should local governments choose to enact rent control measures on those units. A repeal would also allow local governments to enact limits on how much a landlord could increase rent on a unit as it changes from one tenant to the next.

Proponents of the repeal argue that rising rents are forcing people out apartments and into their cars or on to the streets, with Dr. Peter Dreier of Occidental College pointing out that a five percent rent increase in Los Angeles led to 2,000 people losing their homes. The argument in favor of repealing Costa-Hawkins can be easily summed up – as it was said by many of the almost 150 supporters who spoke in favor of the repeal at yesterday’s hearing – by internet famous former New York gubernatorial candidate Jimmy McMillan:

Opponents of the repeal argue that repealing the rent control restrictions in Costa-Hawkins will not only not help California’s housing crisis, but could potentially make the crisis worse. Karim Drissi, with the California Association of Realtors, argued that the real issue driving the housing crisis is the lack of supply of housing noting that California needs to build 180,000 housing units annually just to keep pace with population growth. The current pace is half that. Rather than enact rent control, he pointed out that streamlining the permitting process and fixing parts of CEQA would be more effective ways to address the crisis.

Debra Carlton, with the California Apartment Association, pointed out that the LAO’s analysis showed that repealing Costa-Hawkins would reduce the existing stock of rental housing – as property owners would convert their rental homes to personal living spaces. She also noted that builders continue construction of apartment units because Costa-Hawkins exempts the apartments they build from rent control.

Money will be an interesting factor to watch in this ballot fight. Michael Weinstein of the AIDS Healthcare Foundation is behind the proponents of the repeal, and he is no stranger to pouring money into high profile campaigns. In 2016 his organization, the AIDS Healthcare Foundation (AHF), “spent $4.6 million on Proposition 60, which mandates that performers in all pornographic videos wear condoms, and $17.7 million on Proposition 61, which forbids California to pay any more for the prescription drugs is purchases than does the federal Veterans Administration” according to LA Weekly.  AHF’s spending was in support of both of those ballot measures, and in both cases, they lost. It is worth noting that the Prop. 61 battle was “one of the priciest ballot measures in California history.” In addition to the aforementioned Realtors and Apartment Associations, opposition to the repeal includes the California Chamber of Commerce. All of these groups are well heeled and won’t be afraid to spend large sums of money, potentially into the high tens of millions of dollars, on a campaign to defeat the repeal.

 

 

 

Yesterday, California Attorney General Xavier Becerra joined twenty other state Attorneys General in signing a letter demanding that the U.S. Department of Justice, led by U.S. Attorney General Jeff Sessions, “end its new ‘zero tolerance’ immigration policy which separates children from their parents.”

This action comes short of Attorney General Becerra’s more common course of action, which has been to sue the Trump administration over policies that California does not agree with. Under Attorney General Becerra, California has initiated or joined a lawsuit against the Trump administration nearly three dozen times, according to CALmatters. Seven of those lawsuits relate to immigration policy.

A facility called Casa San Diego, operated by Southwest Key Programs, in El Cajon, California houses children who were separated from their parents at the border. The San Diego Union Tribune reports that, “According to staff there, about 10 percent of the children held in Casa San Diego were separated from their parents at the border.”

So it is a little surprising that Becerra has only signed on to a strongly worded letter rather than sue, especially given the reporting by Ginger Johnson with ProPublica and by Franco Ordoñez and Anita Kumar with McClatchy. ProPublica has some of the first audio to come out of a government facility in Texas housing children who were separated from their parents at the border. McClatchy reported that “the Trump administration has likely lost track of nearly 6,000 unaccompanied migrant children.”

It is possible that a lawsuit to change the policy won’t be necessary, per this tweet from Politico’s Christopher Cadelago.

Legislation would certainly be helpful on this front, especially given that what is in Trump’s executive order is yet to be seen. Dara Lind with Vox points out that “There is no law that requires immigrant families to be separated.” Vicki Gonzalez with KCRA reports that Congress is working to reach a solution this week. One bill addressing the issue is Sen. Dianne Feinstein’s (D – California) Keep Families Together Act currently has the support of 49 U.S. Senators, including Feinstein’s fellow California Senator, Kamala Harris.

Silicon Valley venture capitalist Tim Draper’s initiative to split California into three states, being marketed as Cal 3, qualified for this year’s November ballot. The idea is problematic.

What the three proposed California’s would look like. Credit: Los Angeles Times graphics

But before we dive in to the what if’s of what happens after it passes, or the big if that is if it passes, it needs noting that there is a strong chance that this could not be on November’s General Election ballot even though it received the number of signatures necessary to qualify.

That’s because this initiative is ripe for pre-election review by the California courts, according to McGeorge professor and elections expert Mary-Beth Moylan. And not only is it ripe for review by the courts, but she thinks the likelihood of the courts throwing the initiative out – that is, removing from the ballot – is very high. Here’s her reasoning for that, from an interview that she gave to KCRA 3 News in Sacramento:

The California Constitution gives people the initiative power to make laws. This isn’t really enacting a law. This is attempting to alter the boundary lines of the State of California and to create essentially two new states … The California Constitution itself says that the boundary lines for California are those that were set at the time of the 1849 (state) constitution. Any attempt to change that provision, I think, would amount to a revision, which people don’t have power to make revisions. The only way the constitution of California can be revised is if the Legislature sets a constitutional convention or proposes revisions to the people.”

The first question that comes to mind is, if this initiative passes, could California actually split into three states? The short answer is yes, but I’d be remiss if I didn’t say that there is a very wide gulf between could happen and would happen.

Article IV, Section 3 of the U.S. Constitution reads: “no new States shall be formed or erected within the Jurisdiction of any other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.” So, the constitutional ability to split California exists. There is even precedent for a state to be created by splitting off from another state.

In 1863, West Virginia became a union state after delegates from Union-supporting counties in the northwestern part of the wanted to break off from the Confederate state of Virginia. Should all the necessary hurdles be cleared, splitting California “would be the first division of an existing U.S. state since the creation of West Virginia” according to John Myers at the Los Angeles Times. But the circumstances are worth emphasizing here. The creation of West Virginia happened during the Civil War when a portion of a Confederate state decided to leave and join the Union. These circumstances are not at play today.

That leads to the Congressional hurdle, which appears to be insurmountable given the current Congress, assuming the initiative passes in November. The three proposed states are divided up along existing county lines. When you look at which counties are in each proposed state, it looks like the U.S. Senate would easily add three more Democratic Senators (in addition to current Senators Feinstein and Harris), a proposition that would not go over with Republicans.

But, for the sake of argument, say the initiative passes, Congress approves, it clears every legal hurdle it faces, and California indeed splits into three states. Can Cal 3 deliver on the benefits it says passing the initiative will reap? Let’s take a look at a couple:

  • Lower taxes – The promise is that “Cal 3 would encourage each state set lower tax rates.” For one, taxes are not mentioned at all in the proposed initiative that was submitted. So to claim that the initiative encourages the new states to lower taxes is dubious. Further, there’s no guarantee that elected officials in Northern California (likely to be predominantly from the San Francisco Bay Area and Sacramento) or in California (predominantly from Los Angeles) would set tax rates lower than they are currently.
  • Local Identity, Autonomy, & Diversity – The promise is “Rather than being managed remotely – and ineffectively – from Sacramento, each state will have the autonomy to make choices based on the most pressing needs and opportunities closest to home.” Considering that 56 of the Legislature’s 120 members come from either Los Angeles County or the Bay Area (19 members of the Senate and 37 members of the Assembly) it’s fair to be concerned that other parts of the state aren’t having their voices heard when weighed against the clout of these two dominant urban population centers. But again, the way Cal 3 divides California doesn’t do much to ease that concern. The new California would be dominated by elected officials from Los Angeles over those from the other central coast counties and Northern California would be dominated by Bay Area and Sacramento electeds over those from the rural north of the state.

There will definitely be money on both sides of this fight. Tim Draper, obviously, support is it and Democratic consultant Steve Maviglio is leading the effort to oppose and has been doing so for months. While there is definitely enough sentiment supporting the idea to split up California that Draper thinks it’s a worthwhile use of time and money, I don’t the votes – at the first step of passing the initiative or at the second step of getting the votes in Congress to sign off on this – for the plan to come to fruition.

This post was updated as of 8:45am on 6/14/17 to include a quote from McGeorge Professor Mary-Beth Moylan on the likelihood of the initiative holding up to legal challenges.

 

 

 

President Trump announced on Wednesday, April 4th that he planned to deploy the National Guard to patrol the U.S. – Mexican border to prevent illegal immigration. California Governor Jerry Brown, who is in charge of overseeing the deployment of National Guard troops in California, agreed to cooperate.

But why the request from the Trump administration to increase the number of troops on the border? The number of apprehensions at the U.S. border is at the lowest it has been in over 17 years. The Trump Administration believes that this number will increase in the future. Further, former Presidents George W. Bush and Obama both deployed troops to the border to enforce immigration, but at varied amounts of personnel, with the overall number of agents increasing dramatically since 1995.

The Trump Administration did not initially release any specifics about the number of troops, deployment times, or costs with Homeland Security Secretary Kirstjen Nielsen stating, “I don’t want to get ahead of the governors. This is a partnership with them.”

California has 55 border patrol officers assisting in the prevention of illegal drugs and Governor Brown on Wednesday April 10th, announced that he would send an additional 400 National Guard members to patrol the border in response to President Trump’s announcement.

However, Governor Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. “This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws… Here are the facts: there is no massive wave of immigrants pouring into California. Overall immigration apprehensions on the border last year were as low as they’ve been in nearly 50 years (and 85 percent of the apprehensions occurred outside of California).”

President Trump himself tweeted: “California Governor Jerry Brown is doing the right thing and sending the National Guard to the Border. Thank you Jerry, good move for the safety of our Country!” Early Tuesday April 17th, President Trump changed his tune and criticized Governor Brown’s handling of the situation.

When asked about the disagreement, Governor Brown commented “Trying to stop drug smuggling, human trafficking and guns going to Mexico, to the cartels, that sounds to me like fighting crime. Trying to catch some desperate mothers and children or unaccompanied minors coming from Central America, that sounds like something else.” However, he announced that they were very close to an agreement about the National Guard troops to be sent.

The Many Roles of Your District Attorney

On today’s episode I sat down to speak with Ana Zamora. She’s the Criminal Justice Policy Director for the ACLU of Northern California and she is running their Meet Your DA campaign here in California. This is a slightly different take on our Policy Change in that instead of discussing the process of changing public policy, we discuss the process of implementing – or not implementing in some cases – a recently changed policy.

Meet Your DA is a slightly different kind of campaign. It’s not directly trying to elect particular candidates to District Attorneys’ offices across California. Rather, the campaign is focused on helping people get to know who their local District Attorney is, and highlight some of the positions those DA’s have taken on recent criminal justice reform ballot measures.

Ana and I also discuss the power and influence that a District Attorney has in local law enforcement and how that influence plays out in the criminal justice and prison systems in California.

We also dive into the different roles that a District Attorney plays. The most obvious is the role of prosecutor and representative of the people in court. But getting back to the Meet Your DA campaign, we also talk about District Attorney’s role as a policy implementer and how embrace, or not embrace, recent criminal justice reform measures that have been passed by California’s voters via the initiative process.

 

 

 

Policy Analysis in the Legislative Process

Today’s post is on policy analysis in the legislative process. Specifically, we’ll be exploring differences between the policy analysis process used in the California Legislature and the processes used in academia and elsewhere.

For anyone who has seen a bill introduced in the California Legislature that’s in print, one of the first items you see is a section titled The Legislative Counsel’s Digest. Is this actually an analysis of the bill? Not really. Instead, the purpose of the Legislative Counsel’s Digest is to succinctly describe what current law is, and then summarize the changes that are proposed in the bill.

Legislative proposals in California are analyzed by the staff of committees to which they are referred, as well as by the staff of the respective houses prior to a proposal coming up for a floor vote. As a result, a typical bill that makes it into law is analyzed as many as six times – by a policy committee in each house, by a fiscal committee in each house, and on the floor of each house.

In the California Legislature there’s no fixed policy analysis methodology, but there is one commonality that differentiates the policy analysis process in the Legislature from the process used in academia and elsewhere.  In the California Legislature, we find that policy analysis is generally focused on the evaluation of a specific proposal. In other words, rather than beginning the analysis with the definition of the problem, the analysis emanates from a proposed solution that is proposed in the bill.

The policy analysis methodologies that are taught in academia and used in other sectors tend to start from the definition of the problem and once the public policy problem is defined, then the analysis turns to identifying and evaluating various alternatives to address that stated problem. This policy analysis is usually a rigorous, multi-step process that involves a thorough analysis of the various alternative means of addressing the public policy problem.

While there are some practical realities that make it difficult, if not impossible, for legislative bodies and legislative staff to apply traditional policy analysis on each and every bill, this does not mean that traditional policy analysis cannot be infused into at least a portion of the legislative process. I explore some potential ways the California Legislature could do so in the podcast.

I think the legislative process would be better served in the long-term by providing greater policy analysis of both the problems and solutions being debated by members of the Legislature.