By: Josh La Bella

AI overpowering and subsequently overtaking humankind has scared people for decades. Movies like I, Robot showcase the grim reality of an AI-dominated world where AI ignores the original confines humans assigned to them. Other movies—like The Terminator—toy with the idea that if AI becomes dominant, it will do anything to ensure its supreme status. Black Mirror, a Netflix show, explores various alternative societies where AI dramatically changed the universe—for better or worse. Today’s technology does not rise to any of the previous dramatic portrayals of AI . . . yet.

AB 594 does not have anything to do with replicants serving in LAPD to retire other replicants. However, it did understand the potential negative consequences that AI could bring to California’s civil servant positions and attempted to implement a framework to protect them from displacement.  Originally, AB 594 required the California Department of Technology (CDT) to appoint a Chief Artificial Intelligence Officer within CDT to oversee AI’s implementation into California government. Further, the Chief Artificial Intelligence Officer would work closely with the California Workforce Development Board to ensure that, if AI displaced any civil servants, California would reintegrate the displaced civil servants into a new civil service position. However, an amendment to AB 594 changed the CDT’s obligation to permitting—but not mandating—the CDT to designate a position to oversee AI if they so choose.

One interesting aspect of AB 594 is that it could potentially displace civil servants by implementing AI into civil service and taking jobs that do simple tasks like data input. Fortunately, if that were to happen, California civil servants have powerful precedent on their side to protect their jobs. Board of Regents v. Roth established a property right in a civil servant’s job after they become a permanent employee. The inherent property right in a civil servant’s job then triggers an additional judicial protection from a California Supreme Court case called Skelly v. State Personnel Board. When an administrative authority disciplines a civil servant, the civil servant receives a Skelly hearing. In the Skelly hearing, the administrative authority must present all the evidence they used against the civil servant in their decision to impose discipline. Therefore, if California wishes to replace civil servants with AI, the state must adhere to many different procedures.

AB 594 made it all the way to Governor Newsom’s desk; however, he ultimately decided to veto the bill. Governor Newsom’s veto letter explained that the CDT already possesses the power to evaluate and implement AI into California services. Thus, since the CDT already retains this power, there was no need for AB 594.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 594 and related legislation with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/different-vote-requirements-for-bills-and-legislative-actions

Most capitol observers are only aware of the majority vote and the two thirds super majority vote requirements for California legislation. However, there are actually several other categories of vote requirements on bills that come before the Legislature. The other categories are the three fourths vote, the 70% vote, and the four fifths vote.

The three fourths vote – which requires 30 votes in the Senate and 60 votes in the Assembly – is required to waive the requirement in the California Constitution that a bill may not be heard or acted upon until the 31st day after its introduction. This vote threshold also applies to a motion to postpone the reconsideration of a vote beyond the first legislative day succeeding the day the motion to reconsider was made.

The 70% vote requirement – 28 votes in the Senate and 56 votes in the Assembly – applies to:

  • Bills amending the statutory provisions – other than the bond provisions – of the California Stem Cell Research and Cures Act, which was known as Prop 71 when voters approved it
  • Bills amending the statutory provisions of the Victim’s Bill of Rights.

The final category, the four fifths vote – requiring 32 votes in the Senate and 64 votes in the Assembly – applies to the following measures:

  • Bills to amend the Tobacco Tax and Health Restoration Act of 1988, also known as Prop 99
  • Any bill to amend the Clean Air and Transportation Act of 1990, also known as Prop 116 and
  • Any bill to amend the California Wildlife Protection Act of 1990, also known as Prop 117.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/legislative-deadlines

The California Legislature works on the basis of deadlines for moving measures including bills, resolutions and constitutional amendments through the legislative process. This is in stark contrast to the US Congress that does not have similar deadlines. The Assembly Chief Clerk and the Senate Secretary each maintain information related to these legislative deadlines.

Most statutes take effect on January 1. The Legislature generally convenes the first week in January. The budget bill must be submitted by the Governor by January 10th. There’s a deadline in late January for the last day to submit bill drafting requests to the office of the Legislative Counsel. And February is the last day for bills to be introduced for that year.

In April there is the last day for policy committees to hear and report fiscal bills to fiscal committees. Two weeks thereafter will be the last day for policy committees to hear and report to the floor non-fiscal bills. There will be the last day for fiscal committees to hear and report bills to the floor, generally in late May.

The first week in June will generally be the last day to pass bills out of the house of origin. The budget bill must be passed by midnight, June the 15th. In late June or early July will be the last day for policy committees to hear and report fiscal bills for referral to the fiscal committee.

Generally, either the month of July or mid-July to mid-August in odd-numbered years will be the summer recess assuming that the budget bill has been passed. The Legislature will reconvene from the summer recess for generally four to five weeks. At that time there’ll be the last day for fiscal committees to meet and report bills to the floor. The last two weeks will be floor session only or generally no committee may meet absent a rule waiver.

The last day of session is August 31st in the even-numbered year or roughly mid-September in the odd-numbered year is the last day for any bill to be passed and the start of the interim recess upon adjournment in the odd-numbered year. The Governor will have 30 days to sign or veto bills that were passed by the Legislature to him or her at that point.

You can find a full transcript of today’s podcast here.

Greensheets Staff Writer Lauren Hirota

 By: Lauren Hirota

We’ve all seen the movie Concussion, and if you haven’t—you should. It tells the story of Dr. Bennet Omalu’s discovery of the degenerative brain disorder Chronic Traumatic Encephalopathy (“CTE”) in NFL players. With the success of the movie—coupled with countless stories of ex-NFL, high school, and youth football player’s suicides flooding the news—it’s no wonder why participation in youth programs has dropped almost 20% since 2009. Now more than ever parents are asking: are our kids safe? Are Friday night lights worth the long-term effects of CTE? Is there anything can we do? While states across the nation are beginning to look for solutions, California passed AB 1.

Also known as the California Youth Football Act, AB 1 compels various safety regulations for youth tackle football programs and mirrors those enacted in 2014 by AB 2127 for high school and middle school football programs. AB 1 limits full-contact work to thirty minutes per practice, with no more than two full-contact practices per week. The bill further prohibits all contact training during the off-season and requires coaches to stay up to date on head injury training and proper tackling and blocking techniques.

After numerous legislative brawls over youth football’s viability, AB 1 is California’s “Hail Mary” attempt at appeasing opponents of youth football while still keeping the sport afloat. Despite California’s attempt to toe the sideline, AB 1 fails to address the safety issues inherent to the sport and sets a new precedent by regulating the “private” sports industry.

While AB 1’s safety goals are admirable, the bill “bandwagons” the already widely accepted practices of youth programs, such as Pop Warner, across the country. Critics of AB 1 argue that sports leagues already effectively regulate themselves without the codification of weaker regulations by the government. Prior to the enactment of AB 1, Pop Warner—the nation’s largest youth football league—eliminated kickoffs for its three youngest divisions and implemented the “Heads Up Football” program to educate the league’s coaches on concussion management. Proponents of AB 1 say the bill effectively unifies the few straggling programs across the state that have yet to follow the outlined measures.

Despite AB 1’s lack of ingenuity, the bill breaks precedent by regulating the private sports industry. Historically, federal and state governments have allowed sports leagues to operate with vast freedom and discretion. It wasn’t until significant safety concerns, such as CTE, made headlines that governments began to take notice. While various previous regulations have addressed concussion management protocols off the field, AB 1 breaks ground by regulating the actual substance of the game—limiting a coach’s ability to run full-contact practices.

Despite its potentially tepid impact, AB 1 signifies the beginning of a long battle for youth football’s survival. With courts and legislatures more willing to hold football leagues accountable for failing to protect its players, the future of football hangs in the balance. AB 1 begins an important dialogue on the balances between private sports regulations and public welfare.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 1 and related legislation with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

The Capital Center for Law & Policy is excited to announce that it will host an event at the AALS 2020 Annual Meeting in Washington D.C. The event, Craft Beer Law and Policy, will be in the Jackson Room on the Mezzanine Level of the Marriot Wardman Park Hotel. It will run from 6:30 – 8:30 pm on Friday 1/3/2020.

The program will introduce you to the practice and study of craft beer law, the policy implications and legislative battles independent craft breweries constantly face, and introduce you to McGeorge’s first-ever craft beer law course at a U.S. law school.  The presentation will include a beer-tasting component led by Professor Dan Croxall and McGeorge Capital Center staff.

For more information on Professor Croxall you can read (and subscribe to) his blog, Craft Beer Law Prof, or follow him on Twitter @GoodBeerLawProf.

For updates on the event, follow the Capital Center for Law & Policy on Facebook and Twitter.

 

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/sponsored-bills-what-they-are-and-why-they-matter

To those who are not operating in or around the California State Capitol, sponsored bills are relatively unknown. However the media often focus on sponsored bills in a critical manner making matters confusing. In Congress, the term sponsor means the legislator whose name is on the bill. However in the California Legislature, the legislator whose name is on the bill is called the author rather than the sponsor. In California, sponsor refers to the individual or the group who brought the bill to the legislator, who then authors the measure on behalf of that sponsor.

The media’s claim is that legislators and legislative staff don’t fully understand the contents of a sponsored bill, and that the sponsor gets to call all the shots related to that sponsored bill. Or worse, the media will claim that legislators or their staff do not even have to do any work for a sponsored bill.

These criticisms are unwarranted. Legislators often solicit bill ideas from individuals or groups. Some legislators sponsor “There Ought to be a Law” contests, or solicit ideas by other means. Of course, legislators are expected to be responsive to their constituents, to community groups, or other organizations from their district or around the state. All of these groups are examples of sponsors who bring forth ideas for legislation to be considered by the California Legislature.

Even with a sponsored bill, the author and his or her staff must do a lot of work for the bill, just as if they were the ones who came up with the original idea for that bill. They have to work with the Legislative Counsel’s Office to draft or revise the bill language and any amendments, they also have to develop the bill’s fact sheet, which usually discloses the bill’s author, and sponsor, and other relevant information that’s used to promote the bill. Even if the sponsor writes the initial materials, they’re almost always revised by the author and the author’s staff. In addition, the author’s staff will complete the committee background materials, they’ll write talking points, they’ll solicit groups to support the measure, they’ll deal with opposition to the bill, they’ll work with the committee staff, the floor staff, leadership staff, and of course, they themselves will advocate for the bill with staff of other legislators in both houses.

Ultimately, the sponsor’s name is not on the bill, the legislator’s name is. By the way, sponsors are always listed on policy committee analyses so that other legislators and members of the public know who brought forth the bill to the particular legislator. In California there’s a fair amount of transparency when it comes to the legislative process, as opposed to a number of other states that don’t even list supporters and opponents of bills, let alone the sponsoring organization or individual. Moreover, it’s rare that a bill analysis will not call out a potentially self-serving piece of legislation that benefits the sponsor of that particular bill.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/the-problem-with-apa-exemptions

A fundamental purpose of both the federal and California Administrative Procedure Acts is to allow public participation in the federal and state rulemaking processes.

Providing notice to the public of the proposed rulemaking as well as an opportunity to be heard during the rulemaking process is key to having meaningful public participation in the quasi-legislative actions of executive branch agencies. However, with any exemption from the formal rulemaking process, that exemption precludes any meaningful public participation because notice to the public is lacking and therefore so is the ability for interested parties to participate in and ultimately to advocate for or against proposed regulations or changes to existing regulations.

All regulations are subject to the APA unless expressly exempted by statute. According to the Office of Administrative Law, OAL, the following are some of the common examples of exemptions to the APA including a local rule, internal management, forms, audit guidelines, the only legally tenable interpretation, rates, prices and tariffs, legal rulings of tax counsel and precedent decisions. I would add to this list the use of statutory exemptions created by the Legislature. It’s my belief that the California Legislature should refrain from abrogating public participation and input into the rulemaking process.

The OAL should always have the ability to be a check on these numerous rulemaking bodies and the hundreds of regulatory changes that they go through each year in order to ensure that these entities are properly complying with the relevant laws and regulations.

These statutory exemptions also represent an unwarranted delegation of authority being made by the Legislature to the executive branch of government. Instead of ensuring that the Legislature remains an equal branch of state government, by granting this exemption to a regulatory agency to bypass the APA, it’s my belief that the Legislature weakens its position towards its otherwise coequal branch the executive branch of state government.

You can find a full transcript of today’s podcast here.

By: Christy Grellas

I am one of the many Americans who is staying up to date with the college admissions scandal. It combines celebrities, elite universities, and fraud into a perfect media storm. Throughout the scandal, many wealthy parents across the United States paid Rick Singer roughly $25 million, in total, to get their children admitted through Singer’s “side door.” Lori Loughlin, an actress known for her television role on Full House, faces up to forty years in prison for conspiracy charges because she allegedly posed her daughters as crew team recruits to get them admitted to the University of Southern California.

AB 1312, the College Consultants Act, strives to make the college admissions process transparent by holding private college consultants accountable for their services. Historically, state and federal governments have not kept track of or classified independent educational consultants as a specialized professional group. Although California enacted the College Consultants Act to bring transparency to the college consultant profession, societal and institutional obstacles will impede the law’s ability to accomplish its goal—equal opportunity. Three key societal elements contributed to the scandal: parents, independent college consultants, and socioeconomic status. As a consequence of today’s meritocracy, being a quote-unquote good parent can conflict with being a good citizen. Independent college consultants profit from the inequitable—but legal—ways parents can purchase opportunity in the college admissions process.

This particular scandal comes in a higher education admissions environment that already feels like a rat race to many would-be college applicants. Many schools, in an effort to improve their rankings and applicant pools, find inventive ways to manipulate their data. For example, to improve standardized test score medians, schools give out more merit-based aid. But, that comes at the expense of students who require need-based aid. That shift creates an unfair advantage because wealthy families can afford college consultants who prepare their clients for standardized tests, consequently increasing the students’ scores. Ultimately, the college admissions system can deny deserving, but less affluent, students the benefits of a top education.

Misplaced meritocracy rewards having the money to access additional resources rather than the hard work and individual aptitude of students. College consultants capitalize on the resources and privileges wealthy families have at their fingertips. Their industry is made possible by elite universities running admissions systems that favor students with financial means rather than giving equal consideration to all applicants from all walks of life. The triple threat of misplaced meritocracy, college consultants, and unfair admission systems is exacerbated by socioeconomic disadvantages, making the College Consultants Act’s goal to promote equal admissions opportunity an unlikely feat. The College Consultants Act’s Task Force may eventually provide a more even playing field for all students applying to colleges and universities, but it has no binding authority yet. The College Consultants Act is a step in the right direction for equal opportunity in higher education, but it may not be sufficient to correct systemic social and institutional inequalities.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 1312 and related legislation with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/the-california-governors-line-item-veto-authority

Article IV, Section 10(e) of the California Constitution explicitly gives the Governor of California a power that not even the President of the United States has, the line-item veto.

The exact language of Article IV, Section 10(e) reads, “The Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill. The Governor shall append to the bill a statement of the items reduced or eliminated with the reasons for the action. The Governor shall transmit to the house originating the bill a copy of the statement and reasons. Items reduced or eliminated shall be separately reconsidered and may be passed over the governor’s veto in the same manner as bills.”

In other words, California’s Governor can reduce a line item of appropriation or eliminate the item of spending entirely. In the budget bill, the Governor can reduce or eliminate one or more lines items, but still approve the budget bill in total. And just as with other bills the Governor may veto, they must explain the reasoning for reducing or eliminating an appropriation with a line-item veto.

Similarly, as with bills vetoed by the Governor, the Legislature can override a line-item veto with a two-thirds majority vote in each house of the Legislature. This applies to any budget or appropriations bills in which items of spending were reduced or eliminated by the Governor. All of these may be subject to a veto override and then the items reduced or eliminated must be separately considered for purposes of the veto override. If the veto override is successful, then the reduced or eliminate appropriation is restored as originally approved by the Legislature.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/determining-germaneness

In the California Legislature, as with many other legislative bodies across the country, there’s often an initial question regarding whether amendments to an existing bill are germane to the subject matter of the existing bill.

In California, the office of the Legislative Counsel, who serve as the lawyers for the Legislature, may opine on germaneness. However, the actual determination of germaneness is decided by the presiding officer in either the State Assembly or the State Senate and that determination is subject to an appeal by the membership. This means that ultimately a majority of the Assembly or a majority of the Senate may rule on germaneness. Each house of the Legislature has its own rules to determine whether amendments are germane and ultimately, it is then up to a majority vote in each house of the Legislature to rule on germaneness.

In the Assembly, pursuant to Assembly Rule 47d, the Budget committee may introduce a bill that is germane to any subject within the jurisdiction of the committee in the same manner as any Assemblymember, which is pretty broad. Any other committee may introduce a total of five bills in each year of the biennial session that is germane to the committee’s subject matter. Assembly Rule 92 spells out in further detail when a specific amendment to a bill is or is not germane to the bill.

In the Senate, Senate Rule 23a functions similarly to Assembly Rule 47d. Senate Rule 23b goes on to state that a committee may amend into a bill related provisions that are germane to the subject and embraced within the title, with the consent of the author, and that it may then constitute a committee bill.

Senate Rule 38.5 requires specifically that every amendment proposed is to be germane and that in order to be germane, an amendment must relate to the same subject as the original bill, resolution, or other question under consideration. The rule also sets deadlines for action should the Senate President Pro Tem – or the Vice Chair of the Senate Rules Committee in the case of the Pro Tem not being present – decides that a point of order on the issue of whether an amendment is germane. If they decide the point of order is well taken, the question of germaneness is referred to the Rule Committee for consideration. The Rules Committee must then make its determination by the following legislative day unless the point of order and referral is made on the last legislative day preceding a recess. In that case the Rule Committee must make its determination because adjourning.

You can find a full transcript of today’s podcast here.