UNLV Boyd School of Law Professor Addie Rolnick talks with Jon Wainwright about her work to improve the juvenile justice system for tribal youth. Professor Rolnick goes over the biggest issues facing tribal youth who enter the juvenile justice system and offers the solutions she thinks are necessary to fix some of the cracks in the system.

One of the issues that we discussed that truly blew me away the lack of data on tribal youth in the justice system. Collecting data seems to me to be one of the easiest things an institution can do. This is one of the facets of the juvenile justice system that Professor Rolnick has been working to improve, having testified to Congress about this issue, as well as other improvements such as allowing for greater tribal control over juvenile justice, more flexible funding for tribes, and communication requirements for states and federal agencies, among other recommendations. As I mentioned before, she has brought these issues up to Congress as recently as last September when she testified to the U.S. Senate Committee on Indian Affairs’ Oversight Hearing on “Justice for Native Youth: The GAO Report on ‘Native American Youth Involvement in Justice Systems and Information on Grants to Help Address Juvenile Delinquency.'”

You can learn more about Professor Rolnick’s background and keep up to speed with her publications and news appearances here. Or, you can follow her on Twitter @acrolnick.

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

If you want 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 UNLV Boyd School of Law Professor Addie Rolnick’s work.

Governor Jerry Brown signed Assembly Bill 2282 by Assemblywoman Susan Eggman on July 18, 2018 as Chapter 127. The bill provides clarity on several provisions of existing California law that’s intended to prohibit the use of prior salary history in negotiations between employers and applicants for employment. The bill amended Labor Code Sections 432.3 and 1197.5 and went into effect on January 1, 2019.

AB 2282 defined the terms “pay scale,” “reasonable request,” and “applicant” for purposes of the existing law. AB 2282 further clarified that existing law does not prohibit an employer from asking an applicant for employment salary expectations for the position that he or she is applying for.

In addition, the new law allows an employer to make a compensation decision based upon an employee’s current salary, so long as any wage differential from the particular compensation is noted.

The bill specifies that the prohibition on asking a job applicant about prior salary does not actually forbid the employer from asking the applicant for employment about his or her salary expectations.

In terms of specific provisions, the bill also said that a “pay scale” means a salary or hourly wage range, and that a “reasonable request” means a request that’s made after the applicant has completed an initial interview with the employer. Then AB 2282 defines an “applicant” to mean an individual who is seeking employment and is not currently employed with that particular employer.

Note, too, that AB 2282 also made two important changes to California’s Equal Pay Act in both the equal pay provisions. One is based upon gender and the other on race or ethnicity.

The new law struck the requirement that salary history shall not, by itself, justify any disparity in compensation. “Prior salary shall not justify any disparity in compensation.”

This bill didn’t have any opposition and moved relatively easily through the legislative process. It was co‑sponsored by the American Association of University Women, California Employment Lawyers Association, and equal rights advocates.

 

 

 

While some aspects of drafting bills and amendments in California are certainly generic in nature to all types of legislative bill drafting, there are several unique aspects that are a part of bill drafting in the state of California. In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there’s the usual plain meaning rule where the judiciary will look to the “plain meaning” of the statutory language. Of course, in a legal dispute, the statutory language rarely has the same plain meaning to both parties of that dispute.

On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help the judiciary interpreting the bill language. Those who draft and analyze bill language are aware that there are many other canons of statutory construction, but after these general rules, bill drafters in California need to think about some of the following other issues such as conflicts with other bills. Here are some other aspects to consider.

Retroactive Versus Prospective Nature of the Bills

As you’re probably aware, in most instances, bills are prospective in their application. Most bills in California are effective on January 1 of the following year. However, in some instances a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will be applied retroactively.

For example, what effective date is contemplated? Should the bill drafter include a statement that the bill clarifies existing law? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited unless a public purpose is expressed in the bill language that justifies the retroactive application of the bill’s provisions.

Legislative Intent Language

Some bills include intent language which expresses the findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and the cons of using intent language. The following is one appellate court statement on the use of such language. “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body.” That was in Ballard v. Anderson back in 1971. They also said that other extrinsic aids to determine legislative intent are generally more persuasive.

There are other aspects that are unique to bill drafting in California, but these highlighted ones give you a sense of some of the factors to consider when drafting bills and amendments in California.

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

Today’s post is on AB 1654 by Assemblywoman Rubio from the 2018 legislative session. AB 1654 creates a new exemption from the Labor Code Private Attorneys General Act of 2004, otherwise known as PAGA.

The exemption is strictly for the construction industry, and it exempts from PAGA an employee in the construction industry – which is defined with respect to work performed under a valid collective bargaining agreement in effect any time before January 1, 2025.

That collective bargaining agreement, CBA, must contain certain provisions, including among other things a grievance and binding arbitration procedure to address violations that authorize the arbitrator to award otherwise available remedies.

PAGA, in effect, encourages class‑action type lawsuits over minor employment issues because once a PAGA lawsuit has been filed, the employee or class plaintiff is suing on behalf of the state.

The issues involved are no longer subject to arbitration. The threat of extended litigation, including wide‑ranging discovery allowed when prosecuting civil claims in court, on behalf of an entire class of workers, provides enormous pressure on employers to settle claims regardless of the validity of those claims.

Assemblywoman Rubio, the bill’s author, stated, “This bill would commit PAGA claims arising in the building and construction industry to the grievance and arbitration machinery of a collective bargaining agreement maintained by the employers and a union in that industry so long as that CBA expressly provides for certain key provisions, including grievance and binding arbitration procedures.”

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

Today’s conversation with Professor Natalie Nanasi, who teaches at Southern Methodist University’s Dedman School of Law, was recorded in mid-December. At the time, what drew me in to the conversation was that it was about something that runs completely counter to popular perceptions of the state of Texas, a state law and program to certain people to surrender their guns. However, recent events close to home here in Sacramento created a different, albeit tragic, parallel.

The Texas state law discussed in today’s episode requires people who are convicted of felony or misdemeanor domestic violence charges to surrender any and all firearms that they own. There have been numerous issues with enforcing that law – which we discuss in the podcast so I won’t go into all of them here – but one of the issues that factored into the difficulty of enforcing the law was the lack of awareness of it within the law enforcement community. It is an issue Prof. Nanasi and her colleagues are working to address by educating, and pushing for re-training of, the law enforcement community in Dallas County on this law, from police officers to prosecutors to judges, so that the law can be better enforced, and domestic violence survivors can be safer.

Just a few weeks ago, Davis Police Officer Natalie Corona was shot and killed while responding to a traffic collision in downtown Davis. The man who shot her, as part of a conviction for a September 2018 battery charge, was ordered to surrender firearms and ammunition that he owned pursuant to California Penal Code Section 29810. That section of penal code also prohibited him from acquiring, or attempting to acquire, any more guns or ammunition. He surrendered an AR-15 semiautomatic rifle. However, investigators found two pistols at his residence, and at this time it is still unclear when and where he acquired those pistols. What is clear is that at some point, some part of the system broke down and there was a failure to fully enforce the law.

What we know from these recent tragic events as well as Department of Justice data is that the result of failing to fully enforce laws that take guns out of the hands of people who should not have them are inevitably tragic. It’s a reminder that the work Professor Nanasi and her colleagues at SMU’s Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women are doing is critically important.

We’ve posted a link to Professor Nanasi’s report – Taking Aim at Family Violence – A Report on the Dallas County Gun Surrender Program – so you can read it for free at your convenience. You can also keep up with Professor Nanasi’s work by following her SSRN author page or by following her on Twitter @NatalieNanasi.

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, or wherever else you listen to podcasts. And if you want 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 Prof. Nanasi’s work.

 

Today’s post is on AB 1804, which creates a new CEQA exemption for housing projects.

The new law provides a statutory exception from California’s Environmental Quality Act – CEQA – for infill development, residential and mixed‑use housing projects that occur within an unincorporated area of a county.

Essentially, CEQA requires a lead agency to prepare or cause to be prepared and certify a completion of an environment impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment, or to adopt a negative declaration if it finds that the project will not have that effect.

Assembly Bill 1804 exempts from CEQA, only until January 1, 2025, residential or mixed‑use housing projects that are located in unincorporated areas of a county meeting certain requirements. The lead agency must file a Notice of Exemption with the Office of Planning and Research and the county clerk in the county in which that project is located.

Now, there are a number of different requirements for that residential or mixed‑use housing project to meet. The new CEQA exception only applies if all of these conditions that are described in this new code section are met. Once all those provisions are met, then the CEQA exemption applies.

You’ll have to take a look at Section 21159.25 of California’s Public Resources Code to read all of the different conditions that must be met.

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

On today’s episode of The CAP·impact Podcast I talk with Professor of Law and Director of the Immigration Clinic at Western State College of Law Jennifer Koh. Professor Koh’s work at the intersection of criminal law and immigration law is prolific, so there was a lot of ground for us to cover.

One newer project that she is working on is the Orange County Justice Fund, which was formed to raise the money to ensure that immigrants that call Orange County home can have an attorney represent them in immigration proceedings, rather than have to defend themselves in immigration court. In the interview we talk about the gap in federal law that created the need for OCJF.

We also talk about California’s sanctuary state law – SB 54. The school where Professor Koh teaches as, Western State College of Law, is in Irvine, California. From Irvine, Professor Koh was able to witness first-hand a series of cities in Orange County pass ordinances stating that the city would be opting-out of enforcing that state law. We talk about what authority cities have to do that, if at all.

Last, but certainly not least, we get the opportunity to talk about what it’s like to be cited in a United State Supreme Court Decision by none other than the Notorious RBG, Justice Ruth Bader Ginsburg.

I hope you have as much fun listening to the conversation as I did having it with Professor Koh. If you are interested in keeping up with the work that Professor Koh does, there are a couple places you can find her. You can find her on Twitter @jenniferleekoh and you can also refer to her faculty page for more information about her work and research as well.

And, as always, if you enjoyed today’s conversation, please take the time to leave us a five-star rating on Apple PodcastsiTunes, Stitcher Radio and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also get in touch with us and let us know what you thought about today’s show, the new show format, and what you think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

 

 

 

Today’s post is on AB 1531, which provides for new rules for the payment of court fees.

This bill establishes specified rules regarding the payment of court fees when using an electronic filing service provider.

Essentially, the bill requires, if a duplicate payment is made to a court by a party or an electronic service provided by either credit card or other electronic means for things like court filing fees, then the court must issue any appropriate refund to the entity that made the most recent payment.

In addition, the new law allows an electronic filing service provider to notify the court clerk that fees remain unpaid, despite notice to the attorney of record, which would thereby allow the clerk to notify the attorney of record that he or she may be sanctioned by the court for nonpayment of those fees.

AB 1531 essentially adopts a last‑in, first‑out refund approach, which many courts around the state already utilize to address duplicate payment issues. In addition, AB 1531 is intended to make it easier for service providers to collect money owed to them that was not paid by attorneys of record who filed court documents through them by allowing the courts to sanction those attorneys of record.

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

 

 

 

Today’s post is on obstacles faced in the legislative process.

As one might contemplate, there are numerous obstacles to overcome during the legislative process here in California. These are generally characterized as policy, fiscal, and political obstacles that may have to be addressed as a bill travels through the legislative process. Our effort here is to pose a few questions that one might want to ask before proceeding with a bill in the California Legislature.

The first set is policy obstacles. Naturally, there should be a good policy rationale for the legislation. Unfortunately, the Legislature generally examines a proposed solution rather than examine the policy problem that is attempted to be addressed and then determine what the best solution to that problem actually is.

At this early point, the bill’s proponents need to address these questions.

  • In presenting the bill, which contains a solution, has the policy problem been clearly explained?
  • Is this bill the best solution to the stated policy problem?
  • Are there other viable solutions to address the problem?
  • What are the potential policy problems with the other solutions?
  • Is there sufficient policy justification to make the proposed change in the law?
  • Is there evidence that the alleged shortcoming in existing law actually exists?

The next set is fiscal obstacles. Assuming the policy implications are addressed, the fiscal impact is duly considered by the respective appropriations committees. Note that even some policy committees do consider the fiscal impact of proposed legislation. The questions for addressing fiscal obstacles are:

  • Is there any fiscal impact due to the proposed law change contained in the bill? If so, how significant is the fiscal impact?
  • If there is a fiscal impact, is it to the state government, to local government, to the private sector, or a combination thereof?
  • If the fiscal impact is significant, is there some sort of funding source or a mechanism to help pay for the cost of the bill?
  • What is the likely position of the Governor’s Department of Finance: support or oppose or neutral?

Third is political obstacles. Some of the questions to pose in this area include:

  • Which groups are likely to support or oppose the bill and how can they impact the proposed law change?
  • Is there potential grassroots support for either side of the bill, in support or in opposition?
  • And how do the key legislative staff view the proposal?

In some instances, vote requirements may become an obstacle if the bill requires a super-majority vote for passage.

As one would expect, each controversial bill can create its own unique set of obstacles that will need to be addressed. That’s why there’s not a clear set of rules that apply in the same way for all pieces of legislation.

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

AB 1565 (transcript)

Today’s post is on AB 1565 from the 2018 legislative session, which concerns a new labor‑related liability rule for direct contractors.

Governor Jerry Brown signed Assembly Bill 1565 by (then) state Assemblyman Tony Thurmond on September 19th as Chapter 528. As an urgency‑clause measure, the bill took effect on chaptering, which was September the 19th. It amends Labor Code Section 218.7 and creates a new labor‑related liability rule for direct contractors.

AB 1565 provides that for any contract entered into on or after 01/01/19, in order to withhold dispute payments, the direct contractor must specify in its contract with the subcontractor the specific documents and information that the direct contractor will require that the subcontractor must provide upon request.

Also, AB 1565 says that subcontractors may include the same requirements in their contracts with lower‑tiered subcontractors, and they, too, may withhold, as disputed, all sums owed.

The new law also declares that it must go into effect immediately due to the need to resolve the confusion created by existing language at the earliest possible time.

AB 1565 repeals the provisions that state that obligations and remedies are in addition to existing obligations and remedies provided by a law except that the provisions are not to be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions, including interest owed.

This repeal is of Subdivision H, contained in Section 218.7 of the Labor Code.