Earlier this week Professor Leslie Gielow Jacobs, Director of McGeorge’s Capital Center for Law & Policy, was interviewed by KCRA’s Mike Luery about recent actions by the federal government to reclaim nearly $1 billion pledged to California for the state’s high speed rail project that was authorized by voters in 2010. You can find the full story here.

In the video, Professor Jacobs is quoted as saying:

On who has the upper hand the upcoming legal fight over the money: “Obviously, the people who have the money have more power than the people who don’t.”

What to expect in response to the Trump administration’s letter indicating the federal government would be rescinding the grant funding: “Certainly, I would imagine California is going to try to provide a response. The question would be ‘What does that look like?’ and then if the federal government says, ‘We’re not going to give you this money’ I would imagine we’re going to see a lawsuit.”

Professor Jacobs was also quoted in the article section of the news story, saying about the case being made in the letter from the Trump administration to California, “This is a contract law issue. … California has fallen so short of its commitments – that is materially breaching the contract – which is what would give the federal government the ability not to give the money.”

AB 2664 sets in place new rules for court reporters pro tempore.

Governor Jerry Brown signed Assembly Bill 2664 by Assembly Member Chris Holden on September 18th as Chapter 497. The bill amends two Government Code sections. For example, it authorizes a pro tempore official reporter who is present in the courtroom providing that service to be appointed by the presiding judge of the court or the judge presiding in the department where the reporter will serve.

The bill also requires the Judicial Council to adopt rules to ensure that at the arranging party’s request, the court is required to appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tem, unless there’s a good cause shown for the court to refuse that appointment. It also requires that the fees and charges of the certified shorthand reporter be recoverable as taxable costs by the prevailing party.

The purpose of new Assembly Bill 2664 is to end the requirement that all parties involved in litigation must agree and stipulate to the use of a specific court reporter pro tempore before the reporter can be appointed by the court. The bill also clarifies that an arranging party’s shorthand reporter may be appointed the official pro tem reporter so long as that reporter is present in the courtroom and there’s no good cause to reject the appointment.

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

This week Jon talks with Notre Dame Clinical Professor of Law Judith Fox about her work as the Director of Notre Dame Economic Justice Clinic and a former Consumer Financial Protection Bureau Advisory Board member to protect individuals from predatory actors in the rent-to-own housing market.

Rent-to-own housing is something that sounds like a panacea for the affordable housing crisis being experienced in California. The exact types of contracts vary, but generally a rent-to-own contract – also known as a land contract – will have a much lower down payment than a traditional mortgage – something in the ballpark of 7% instead of 20% – and then there will be an option to buy the home at the end of a predetermined lease period.

If that sounds too good to be true, that’s because often it is. Some of the more predatory actors in this segment of the housing market will saddle the occupant of the house with all the responsibilities of home ownership – paying for repairs minor and major, paying property taxes, etc. – while not passing on the benefits of home ownership to the occupant, like allowing the to use the equity in the home to pay for repairs or extending the occupant the protections a traditional renter may have from actions like eviction. Worse, often these contracts will include mandatory arbitration clauses where the owner is the arbiter, and then states that the next course of action is to corporate mediation – where filing fees can be as high as $20,000. So basically, if you have you a legal complaint you want resolved, you have to take it up with the landlord first. And if you don’t like their decision? Tough.

That’s a brief overview of the issue. Prof. Fox covers many other shady and deceptive practices these predatory actors will utilize, as well as outlines numerous ways consumers can protect themselves from actors like these if they enter the rent-to-own housing market.

To learn more about Professor Fox, you can visit her University of Notre Dame faculty page or her SSRN page. And also be sure to check out Notre Dame’s Economic Justice Clinic, of which Prof. Fox is the Director.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Fox is doing.

On this week’s podcast Jon Wainwright talks with University of Wyoming College of Law Professor Tara Righetti about her work in the field of oil & gas law, specifically laws and regulations around incremental storage and pore space utilization.

The laws related to pore space utilization – which is one piece of the oil & gas storage puzzle – can be tricky to navigate because there isn’t much legal precedent in federal law related to it. That is because there is not a lot of carbon storage in the United States writ large.

But what is very interesting about her work is the role that these existing technologies and strategies can play in addressing climate change. One thing Professor Righetti points out is that the goals of climate activists and the oil and gas industry are not as mutually exclusive as one might think. The process of incremental storage – which is where a depleted oil or natural gas production well is used to store carbon – combined with existing carbon capture technology – that is, technology that pulls CO2 out of the atmosphere – is a “bird in the hand” that can be used right now to fight climate change and global warming.

To learn more about Professor Tara Righetti, you can visit her University of Wyoming faculty page or her publications page.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Righetti is doing.

 

 

 

 

 

 

 

Today’s post is on AB 2334 from the 2018 legislative session that concerns new employer reporting requirements for injuries and illness. Governor Jerry Brown signed Assembly Bill 2334 by State Assemblymember Tony Thurmond on September the 19th as Chapter 538. This new law went into effect on January 1, 2019.

The new law clarifies that the occurrence of a violation of an occupational safety and health order continues until that violation is corrected, that the Division of Occupational Safety and Health, DOSH, discovers the violation or the duty to comply with the requirement is no longer applicable. The bill AB 2334 amends several provisions of the Labor Code and adds two new provisions to the Labor Code.

Among other provisions, it requires DOSH to monitor rule‑making and implementation of the US Department of Labor’s Occupational Safety and Health Administration’s improved tracking of workplace injuries and illnesses rule regarding electronic submission of workplace injury and illness data.

It also requires DOSH, if it determines that the federal OSHA has eliminated or substantially diminished any federal submission requirements, to convene an advisory committee to evaluate how to implement changes necessary to protect the goals of that federal rule.

It, again, amends several Labor Code provisions to add new requirements, including a requirement that a citation or notice shall not be issued by the division more than six months after the occurrence of a violation.

Also, the new law added a statement of intent in 6410.1 of the Labor Code that DOSH should maintain a strong workplace injury and illness‑reporting standard and also the requirement that DOSH monitor rule‑making and implementation of the US Department of Labor with respect to the electronic submission of workplace injury and illness data.

It also says that individually identifying information may be used by the Office of Self‑Insurance Plans of the Department of Industrial Relations to carry out its duties.

The director may publish information regarding the cost of administration, workers’ compensation benefit, expenditures, solvency, and other information, as long as the information does not include any individually identifiable claim at information. All of this and more can be found in newly adopted AB 2334.

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

 

 

 

 

 

 

 

In both the California State Assembly and the California State Senate, there are designated officers and elected leaders of these two bodies. We’ll take a quick look at some of those positions in the text and cover more of the positions in today’s podcast. We’ll start with the California State Assembly.

Speaker – he or she is the highest-ranking officer of the Assembly and is elected by the members at the beginning of the two-year session. He or she presides over floor sessions and has extensive powers and duties established by the Assembly Rules.

Majority and Minority Floor Leaders – The Majority Floor Leader is elected by the members of the majority party caucus, who represents the Speaker on the floor and oversees the floor proceedings through parliamentary procedures such as motions and points of order. The Minority Floor Leader is elected by the caucus having the second largest membership in the Assembly and is generally responsible for making motions and points of orders and representing the minority caucus on the Assembly Floor.

Majority and Minority Whips – The Whip is essentially the political leadership of each party in the Assembly. They are elected by their caucuses or appointed by the Speaker and there are usually Assistant Majority Whips and of course, on the other side of the aisle, there is the Minority Whip who is selected by the Republican leader and there are often multiple Assistant Minority Whips.

There are many positions in the California State Senate that are very similar to their counterparts in the Assembly so I’ll focus instead on President of the Senate and the President Pro Tem of the Senate.

President of the Senate – By law, this is the Lieutenant Governor. However, by custom the role is extremely limited. He or she may be invited periodically to preside over ceremonial occasions, such as the opening of the two-year legislative session. The only time the Lt. Governor is entitled to participate in the business of the Senate is in the case of a tie vote when he or she would cast the tie breaking vote.

Senate President Pro Tem – He or she is the leader of the Senate and serves as the chair of the Rules Committee. This individual is elected by the members, generally, at the start of the two-year session. The Pro Tem is the presiding officer who oversees the appointment of committee members, the assignment of bills, and the confirmation of Gubernatorial appointees, and of course, he or she is also the political leader of the majority party.

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

 

 

 

 

 

 

 

Today’s podcast is on the new rules for licensed shorthand reporters put in place by Assembly Bill 2084.

Governor Jerry Brown signed AB 2084 by Assemblymember Ash Kalra on September 21st as Chapter 648. The bill went into effect on January 1, 2019 and it adds Section 8050 to the California Business and Professions Code to limit the business practices of licensed shorthand reporters in the state.

AB 2084 prohibits an individual or entity that engages in any act that constitutes shorthand reporting, or that employs or contracts with another party to perform shorthand reporting, from engaging in specified business practices.

The bill also authorizes the attorney general, district attorney, city attorney or the CRBC to bring a civil action for a violation of these provisions of law. The new law subjects an individual or entity that violates these provisions to a civil fine not exceeding $10,000 per violation.

The bill specifies that this new code section applies to an individual or entity that engages in any licensed shorthand reporting activities.

Note however, that AB 2084 does not apply to an individual, whether acting as an individual or as an officer, director or shareholder of a shorthand reporting corporation, who possesses a valid license that may be revoked or suspended, or to a shorthand reporting corporation that is in compliance with Section 8044.

The new section of law also does not apply to a court, a party to litigation, an attorney of a party, or a full‑time employee of the party or the attorney of the party who provides or contracts for certified shorthand reporting for purposes related to this litigation.

Specifically the new code section prohibits an individual or entity from doing any of the following four items:

  1. Seek compensation for a transcript that is in violation of the minimum transcript format standards set forth in applicable regulations.
  2. Seek compensation for a certified court transcript applying to these other than those set out in statute.
  3. Make a transcript available to one party in advance of other parties, or provide a service to only one party.
  4. Fail to promptly notify a party of a request for preparation of all or any part of a transcript, excerpts or expedite for one party without the other party’s knowledge.

AB 2084 does not, however, prohibit a licensed shorthand reporter, shorthand reporting corporation, an individual entity from offering or providing long‑term or multi‑case volume discounts or services that are ancillary to reporting and transcribing a deposition, arbitration or judicial proceeding in contracts that are subject to law related to shorthand reporting.

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

Today we talk with the expert in the field of heirs’ property rights, Texas A&M Law Professor Thomas Mitchell. Prof. Mitchell is the Reporter – read: primary drafter for those not intimately aware of the terminology used by the Uniform Law Commission – of a policy crafted through the ULC to protect the property rights of individuals who have tenancy-in-common ownership of property. Essentially, the policy makes it more difficult to force a sale of property – through a forced sale auction that results in a fire sale price on the property rather than it’s fair market value – by codifying in state law that the primary remedy is for properties to be divided rather than using the courts to force a sale. Professor Mitchell goes into greater depth in the podcast about how the process has been abused in the past and in state where this policy is not in effect.

Thanks to the research and tireless advocacy of Prof. Mitchell, this law is in effect in 12 states/jurisdictions in the U.S., has been introduced in seven more states, and is being re-considered in the District of Columbia.

We talk about the conversations and research that started Prof. Mitchell down the path to write these laws, some of the biggest challenges that he and his coalition faced getting the policy enacted in one state, and as he puts it, “battling the ghost of Strom Thurmond.”

To learn more about Professor Thomas Mitchell, you can visit his Texas A&M faculty page or his SSRN author page. You can also learn more about the Uniform Partition of Heirs Property Act here.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Mitchell is doing.

 

 

 

 

 

 

 

2018’s Assembly Bill 1976 essentially mandates that California employers must provide additional lactation accommodation to their employees. Governor Jerry Brown signed Assembly Bill 1976 by Assemblymember Monique Limón on September 30th as Chapter 940.

The bill requires an employer to make reasonable efforts to provide an employee wishing to express milk in private with an area in close proximity to her workspace that is not a bathroom.

The bill went into effect on January 1, 2019 and amends Labor Code Section 1031. Now, essentially, the bill provides agricultural employers to be in compliance with these requirements if they provide the employee with a private, enclosed, and shaded space. Also, the requirement was removed that the temporary lactation accommodation space be air conditioned.

The bill also allows employers who show that providing an employee with a lactation space that is not a bathroom would constitute undue hardship to that business to provide a lactation space that is not a bathroom stall. AB 1976 requires an employer to make reasonable efforts to provide that employee with use of a room or other location other than a bathroom.

In Labor Code Section 1031A, the bill strikes “toilet stall” and replaces it with the word “bathroom.” Also, subdivision B deems an employer to be in compliance with this provision of law if all four conditions that I will specify are met.

One, the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

Two, the temporary lactation location is private and free from intrusion while an employee expresses milk.

Three, the temporary lactation location is used only for lactation purposes while an employee expresses milk.

Four, the temporary lactation location otherwise meets the requirements of state law.

Lastly, a note to employers. Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement. These provisions of existing law continue even after AB 1976’s additional lactation accommodation requirements.

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

 

 

 

 

 

 

 

There are a number of publications that are regularly used by the California Legislature and those who work in and around California’s state capitol. Of note is that several of these publications are specified in the California Government Code. I’ll provide a brief overview of some of the publications here, but I cover more in today’s podcast.

As an overarching provision, all printing for the Legislature and the individual houses is governed by the respective rules of the Senate and the Assembly, as well as the Joint Rules of the two houses. The Secretary of the Senate and the Chief Clerk of the Assembly are charged with printing all of the legislative bills, resolutions, constitutional amendments that are proposed by their respective members.

All of the legislative printing is done by the State Printing Office, or SPO, which is required by statute to print all of the laws, including initiative measures, as well as any other printing that is ordered by either the Senate or the Assembly. Now, by statute, the officers of the Assembly must appear on the front of all Assembly publications. There is no statutory requirement for the officers of the Senate. However, the same procedure is used in that house.

Article II of the Government Code deals with the Daily Journals of the Assembly and Senate. These two must be published by the State Printing Office. At least one copy of each Daily Journal of the Assembly and Senate must be authenticated. And after the final adjournment of the Legislature, the Journals for the entire session are bound and provided to the Secretary of State’s office.

Article III deals with the Legislative Manual. The Senate Secretary and the Assembly Chief Clerk must compile a Legislative Manual, or handbook, in December of each even-numbered year. The Legislative Manual includes state officers, members, and officers of both houses, lists of committees, rules of both houses, as well as the Joint Rules and other information that is deemed to be of use to legislators. This manual is provided to each legislator and elected state officer, as well as libraries throughout the state.

If you want to learn more about other legislative publications covered in the California Government Code, please listen to today’s podcast. You can find a transcript of today’s podcast here.