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.

 

 

 

How to Start a Non-Profit

I sat down with McGeorge alum Aaron Brieno (’14) to talk about his new non-profit community based organization, Inspire California. Inspire California, to put it briefly, exists to help create and foster and college-ready and college going among high school aged students in the Central Valley, and in particular, the area of the Central Valley that Aaron is from, Hanford.

The quick background as to why Aaron decided to start this organization is that he read in his local newspaper one day in 2014, that the Central Valley had made a list of the top ten least educated regions in the country. Given all the different that California is a leader in, it was stunning to learn that any region in California would make that list.

So he decided to do something about it. At first, he thought it was a task he could tackle on his own. Aaron soon realized this would be an endeavor that would require more resources than he alone could muster.

You’ll need to listen to the podcast for most of the details on what resources you need and how to use them to get from idea to an established and operating organization. But the short answer for those looking for the short answer on resources, Aaron’s go to’s were: Nolo’s How to Start a Non-Profit in California, Google, the California Secretary of State’s website, and the California Association of Nonprofits’ website.

So, how does Inspire California achieve its mission? Thanks to a lot of legwork on Aaron’s part, Inspire California connects high school students in the Central Valley with college educated young professionals who are from the Central Valley. Those young professionals serve as mentors to these students, covering all the bases from taking phone calls to talk to proofreading college essays and personal statements.

There’s a lot more than Aaron and I cover in our conversation, and I hope you take the time to give it a listen and enjoy.

 

 

 

A first response to reports that California taxpayers have paid roughly $25 million in the last three years to settle sexual harassment-related cases is outrage. A closer look reveals a more complex picture. LAPD paid, on average, $30 million annually from 2012-2014 to resolve legal claims involving officers’ conduct. Since 2006, CHP has paid over $25 million in similar claims. Undoubtedly, California taxpayers pay far more than these amounts to resolve claims of negligence and misconduct by state employees. Taxpayer funded sexual harassment settlements aren’t anomalies; they’re part of a broader structure where the state, as employer, pays for injuries caused by employee actions.

Why does the law make employers pay for bad acts by their employees? One reason is that employers direct and control their employees’ actions, making them partially responsible for employee actions within their job’s scope. When employers have to pay out money for employees’ bad behavior they should be motivated to make the appropriate changes.

Another reason is that the purpose of civil damages judgments is to compensate victims – not punish perpetrators. Employers are in a better position to buy insurance or accumulate enough funds to pay for injuries.

What about employees who’ve engaged in egregious behavior? Shouldn’t they be punished by paying? In civil suits, juries may award punitive damages to punish an employee who’s found to have acted in a way that’s more blameworthy than workplace negligence or misconduct (acting with oppression, fraud, or malice); generally the employee, rather than the employer, pays. If the employee’s conduct is criminal, then they may be charged and, if convicted, punished with fines or imprisonment.

Back to sexual harassment…isn’t that bad enough that the perpetrator, rather than taxpayers, should pay? Again, a closer look reveals that it’s more complicated than it seems. For one, sexual harassment settlements are just that – settlements. They’re not adjudicated liability.  Even if we’re talking about sexual harassment judgments, the reasons mentioned above still apply.

Additionally, and importantly, another consideration is the impact that an “employee pays” rule would have on state employees doing their jobs, interacting with other employees and members of the public every day.  We want to deter bad behavior but we don’t want to “over-deter” it with a rule that makes employees frightened to act because if they – maybe – cross a line, or someone claims they did, they’ll be paying for a lawyer and a judgment, if it comes in. UCLA Law School Professor Johanna C. Schwartz, who conducted the aforementioned study of police department payouts, concludes that in most instances the departments, rather than the officers, should pay for misconduct claims because requiring officers to pay would result in this type of over-deterrence. She recommends transparency of payouts, and making the departments pay from their budgets rather than charging the taxpayers from the general fund..

Another note on “over-deterrence” comes from the Constitution. The Constitution provides the President absolute immunity from lawsuits for damages arising from his actions as President.  These lawsuits include claims by an employee of sexual harassment. The Supreme Court has also interpreted the Constitution to give different levels of immunity to different types of government officials. In doing so, the Court explains the Constitution creates “breathing room” around the actions of government officials, shielding them from paying damages even when conduct violates the law:

Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”

Most state employees are not government officials entitled to constitutional immunity. Even state government officials entitled to immunity may lose it if their actions violate clearly established law. Nevertheless, the over-deterrence concern runs through legal and policy judgments about who should pay for employee misconduct and explains why often, when the employer is the state, the taxpayers pay.

 

 

 

The Partnership, the brain trust, and the activists working to end domestic violence

This week, I’m posting another conversation I had with Erin Scott – Board Chair of the California Partnership to End Domestic Violence. As we allude to in our conversation, she is also the Executive Director of the Family Violence Law Center, which is based in Oakland, CA.

Today’s conversation is related to last week’s chat that I had with Erin about The Partnership’s effort to double funding for domestic violence, which would allow for more prevention efforts in California. It’s also a follow up to the conversation we had a while back with Beth Hassett, the CEO and Executive Director of WEAVE, and the work that they do with coalitions, including The Partnership. We talked, in a broad sense, about the work The Partnership does to achieve its vision of “a California free of domestic violence.”

In addition to the coalition work that The Partnership does with its members all across California, they lean on and assist other ally organizations that don’t necessarily work on domestic violence issues but do work on issues that overlap with domestic violence like sexual assault, immigration, employment law, economic security, and many other issues. When thinking about useful tools to change public policy with, a brain trust of other experts that know the issues that overlap with yours inside and out is a very good tool to have.

The other thing that stands out to me about how The Partnership works is that their approach to public policy is designed to minimize unintended negative consequences of policies aimed at eradicating domestic violence. The process by which The Partnership does this is by pulling in input from their members all over California, which helps ensure that its policy decisions don’t inadvertently hurt some of its members. Erin said it better than I did,

One of the great things about that amount of input is … my agency is in Oakland, and something that might be very beneficial to my agency in Oakland might have a negative impact in a rural area that I might not think of if it was just me on the phone giving that input to The Partnership.”

It’s this balancing act that The Partnership pulls off – balancing the need and conditions of its member agencies and the domestic violence survivors that they serve – between the urban and rural parts of the state that I find special.

To learn more about CPEDV, please visit their website and specifically, their page on their policy priorities.

To keep up to date with the work The Partnership is doing, you can check out their page on Facebook and you can follow them on Twitter, @cpedvcoalition.

You can also follow Erin’s organization on Facebook and Twitter, @FamilyVLC.

By: Mike Vitiello

What Rescinding the Cole Memo Means

All use, possession, or sale of marijuana violates federal law. So, why did states like Colorado, Washington, and now California believe that they could legalize marijuana for recreational use?

In 2013, after Colorado and Washington legalized recreational marijuana, James Cole, an attorney in the United States Department of Justice, issued a memo stating the federal government’s policy concerning states’ efforts to legalize recreational marijuana. That position was that as long as states followed certain guidelines, like keeping marijuana out of the hands of minors and keeping drug cartels out of the business, the federal government would let states regulate as they saw fit. That memo, known as the Cole Memo, along with a similar memo in 2009 relating to medical marijuana, encouraged investors, who are now pumping billions of dollars into marijuana businesses.

In 2016, candidate Trump seemed to take a similar position, allowing states to regulate as they see fit. But, he chose Jeff Sessions as his Attorney General, and Sessions has a long history of opposing marijuana. After a year of the Department of Justice sending uncertain signals about the federal government’s position on state regulation of marijuana, the Attorney General announced that he is rescinding the Cole Memo. What does this mean?

It means that US Attorneys can resume enforcing federal marijuana laws in states with legalized recreational marijuana. The Department of Justice has significant tools to use if it chooses to use them, including criminal prosecutions that could lead to long prison terms, and forfeiture that would allow the government to seize assets of marijuana industry members. That said, the Department of Justice has other more important priorities, including immigration and the opioid epidemic.

Further, Attorney General Sessions’ actions may actually help supporters of legalizing marijuana. Democratic members of Congress, especially those from states that have legalized recreational marijuana, oppose Sessions’ action. But a number of Republicans have seemingly been galvanized by this as well, including Iowa Congressman Rod Blum and Colorado Senator Cory Gardner. In what I think is a sea change, we’re seeing many members of Congress speak out in favor of the Cole Memo, when until now, no member of Congress had done so.

My own prediction is that the industry is already too big to fail, and investors have political clout. Their money, and the money in the industry isn’t red money or blue money, it’s green money, and as we all know, money talks.

If you’d like to learn more about the marijuana industry in California, and particularly, if you are interested in joining the cannabis industry in California, I recommend that you attend the McGeorge Capital Center for Law & Policy’s upcoming Executive Training on The Essentials for Cannabis Businesses, which I will be presenting at. You can purchase tickets here.