By: Emma Woidtke

As a young child, there were few things that I detested more than going to the doctor to get my routine vaccinations. And if I am being honest, I have fainted at the sight of the needle as an adult. However, the importance of receiving vaccinations vastly outranks my personal fears because vaccines keep me safe from preventable diseases. More importantly, when the rate of vaccination is high in a community, those who cannot receive vaccinations for medical reasons receive protection as well. This protection, commonly known as “herd immunity,” helps to protect vulnerable members of our society with weakened immune systems or who cannot receive a vaccination for legitimate medical reasons – like those undergoing chemotherapy, those diagnosed with HIV and AIDS, and babies. Prior to the passage of SB 276, herd immunity in California schools was in grave danger.

In 2015, the California Legislature enacted a law that ended the use of personal belief exemptions to exempt school-aged children from receiving vaccinations. The 2015 law was introduced in response to a measles outbreak in California. One of the purported purposes of the 2015 law was to increase the herd immunity rate in schools, which in turn would protect immunocompromised children. In theory, the 2015 law left medical-based exemptions as the only option for families seeking vaccination exemptions. However, some unscrupulous doctors in California seized on a new business opportunity created by the 2015 law and began selling illegitimate medical-based exemptions. A result of the increase in these illegitimate medical exemptions included a high concentration of unvaccinated children in classrooms, deteriorating the herd immunity rate.

In response to this, Senator Richard Pan (D – Sacramento), a pediatrician and the author of the 2015 legislation, introduced SB 276. SB 276 functions as a check on doctors and schools. When the vaccination rate of school drops below 95% or when a doctor issues more than 5 exemptions in a year, SB 276 triggers a review by the California Department of Public Health. SB 276 seeks to protect the extremely important herd immunity rate in schools while preserving medical-based exemptions for those who actually need them.

Hearings on SB 276 caused an impassioned uproar at the State Capitol this summer as thousands of parents argued their children would lose their exemptions under the new law. One of the protests even led to criminal charges against an anti-vaccination parent after a menstrual cup containing human blood was thrown onto the Senate Floor while lawmakers were in session. After a series of negotiations between the author and Governor Newsom, SB 276 reached its final form and was signed into law.

Many of the arguments raised in opposition to SB 276 mirrored the arguments from the 2015 law that removed the personal belief exemptions. However, the California Court of Appeals settled questions that arose after the passage of the 2015 law. The court found that the state’s interest in preserving health and safety under the state’s police power was strong enough to uphold the law. The resurrection of these arguments under SB 276 was improperly targeted.

SB 276 works as a check on the process of administering medical-based exemptions. It does not change the rights that parents have under the law to access medical exemptions for their children. Where a legitimate medical need exists, parents and their children still have access and the ability to obtain a necessary exemption. In protecting the process and requiring review, herd immunity remains a viable defense against preventable diseases. While I–like many others–do not enjoy getting vaccinated, the risk of the healthy population choosing not to receive vaccinations is too high. This risk is especially important when looking at the need to protect those who cannot receive vaccinations. This risk and need to keep herd immunity rates up extends to children in California schools.

You can listen to my interview with Thomas Gerhart about SB 276 on this week’s episode of In Session.

McGeorge Adjunct Professor Chris Micheli

The judiciary can be a forgotten branch of state government when it comes to the lawmaking process. The courts play a key role because judges interpret the laws and their decisions may comport with the interpretation intended by the Legislature, or their determinations may result in something quite different than intended. The courts can also strike down a statute or narrow its application.

Every year there are bills considered by the California Legislature because of a court decision. These types of bills may clarify existing law. They may overturn a court decision or they may amend the law to comport with the court’s interpretation of it.

When California statutes or regulations are challenged in court, the state or federal court that issues the decision establishes a policy for the state. California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts can play a role in the state’s lawmaking process when they issue a written decision that is based upon a legal challenge to either a new or an existing law.

The other way in which the courts make state public policy is through statutory interpretation. In this instance, there is a statute, or group of statutes, which may be unclear in their language or perhaps even silent on some aspect of the public policy or the particular area of law. Then the court is asked to fill in the gap. That is to discern the intent of the Legislature and give meaning to the particular area of law or individual statute.

As strange as it may sound, there is actually lobbying the judicial branch. Different interest groups work to influence the courts in several ways, the most common of which is the amicus curiae brief or a friend of the court brief, in which they present supporting or opposing arguments in the particular case. Some interest groups even file lawsuits against the government challenging the interpretation or enforcement of a statute or regulation.

Lobbying the judiciary is the forgotten, or even unnoticed, form of lobbying. It does not mean ex-parte, or one party communication with judges, that can obviously occur in the legislative process. These are prohibited. Instead, it means filing friend of the court briefs with the court, which is a formal process of lobbying the judicial branch of state government.

McGeorge Adjunct Professor Chris Micheli

Section 1 of the bill provides several uncodified statements of legislative intent. Section 2 of the bill adds a new provision to the law, proclaiming that it is unlawful for an employer to violate Section 432.6 of the Labor Code, which AB-51 is adding to the law. Therefore, any violation of the prohibition regarding pre-dispute arbitration would be deemed an unlawful employment practice, under California’s Fair Employment and Housing Act, which provides a number of remedies for its violation, including injunctive and declaratory relief, punitive damages and attorney’s fees.

Section 3 of AB 51 adds an entirely new section to the Labor Code. The new law essentially prohibits a person from requiring any applicant for employment, or any employee, to waive any right, forum, or procedure, for a violation of any provision of FEHA, or other specific statutes governing employment, as a condition of employment, continued employment or the receipt of any employment-related benefit. This prohibition includes the right to file and pursue a civil action or complaint, or to notify any State agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation of the law.

AB 51 also prohibits an employer from threatening, retaliating, or discriminating against, or terminating any applicant for employment, or any employee, because of his or her refusal to consent to the waiver of any right, forum or procedure for a violation of these statutes that govern employment. In addition, the new law states that an agreement that requires an employee to opt-out of a waiver, or take any affirmative action in order to preserve their rights, is deemed a condition of employment.

In terms of enforcement, in addition to any injunctive relief and any other remedies that are available, the new law provides that a court may award a prevailing plaintiff, enforcing his or her rights under Section 2, reasonable attorney’s fees. Now, there is one exception to this prohibition, and that’s for persons registered with a self-regulatory organization, as defined in the Securities Exchange Act of 1934, or any regulations adopted.

You can a full transcript of today’s post here.

McGeorge Adjunct Professor Chris Micheli

There are a number of legislative branch support agencies that assist Congress with its different functions. I go over some of them here and more in today’s podcast. Among them is the Library of Congress, which is the nation’s oldest federal cultural institution. It serves as the research arm of Congress. It’s also the largest library in the world and it houses the Congressional Research Service, or CRS, which provides non-partisan research and analysis on legislative and other oversight issues that are of interest to the United States Congress. It also assists members of Congress in their responses to specific questions and by preparing reports on legislative issues in anticipation of questions and other types of emerging issues. The CRS works with members, and committees, and congressional staff to work on these issues in problem areas, assess the implications of different proposed policies, and otherwise address the different needs.

There’s also the Congressional Budget Office, or CBO, which began in 1975 and provides non-partisan fiscal and policy analysis to both houses of Congress. Their major work includes the annual Economic and Budget Outlook that includes spending and revenue estimates for the next decade. The CBO analyzes the President’s budget proposals and, of course, looks at different spending and revenue estimates for specific legislative proposals being undertaken and considered by the Congress.

There’s also the General Accounting Office, or GAO, which also supports Congress. It does various analyses and evaluations, and even investigative functions. Generally, the Congress asks the GAO to study the programs and expenditures of different parts of the federal government. It often engages in these investigations and is sometimes referred to as the watchdog for Congress. It’s deemed to be independent and non-partisan, and again, looks at how the federal government’s executive branch usually is spending taxpayer dollars.

It also gathers specific information for Congress in doing investigations whether executive branch agencies are properly and efficiently doing their jobs. They routinely ask questions about government programs and evaluate whether or not the objectives of those programs to provide good public service is being provided to taxpayers.

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

McGeorge Adjunct Professor Chris Micheli

Assembly Bill 673 was authored by Assemblymember Wendy Carrillo. It was signed into law by Governor Gavin Newsom on October 10 and enacted as Chapter 716.

The bill contains one section which provides several amendments to Labor Code Section 210. The purpose of this provision of law is to provide penalties for the failure to pay wages to workers in the state of California.

First, the bill adds a new category of failure to pay wages that are subject to this penalty in Labor Code Section 210. Second, the bill removes the description of a civil penalty. Third, it provides that the penalties may be recovered under Labor Code Section 210, either by the employee as a statutory penalty or by the Labor Commissioner as a civil penalty through its citation process. The procedures for issuing, contesting and enforcing judgments for these citations issued by the Labor Commissioner are set forth in existing law and the same as. Fourth, this new law specifies that an employee can only recover the statutory penalties provided in Section 210 or to enforce a civil penalty under the Private Attorneys General Act, PAGA statute, but not for both, for the same violation of the Labor Code.

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

McGeorge Adjunct Professor Chris Micheli

In today’s post I will go over some tips for writing effective advocacy letters for bills and resolutions weaving their way through the Legislature or Congress.

  1. If you’re a constituent, identify yourself as such. Most elected officials feel quite compelled to respond to constituent mail versus out-of-district mail.
  2. Try to be brief and keep it simple. Keep your letter to just a page, or two at the very most. Be direct. Remember to request what action you want your elected representative to take.
  3. State your position in the opening paragraph of your advocacy letter. State it again in the closing paragraph too.
  4. Personalize your letter. Try to avoid using form letters with just one or two changes. Personalized letters carry much more weight with legislators and their staff. Explain how the legislation or resolution would impact you, or your business, or your area.
  5. Always be polite. Don’t be rude. No threats. Politicians respond better to praise than criticism.
  6. Try not to enclose additional material. The information is usually rarely read.
  7. Never exaggerate or lie. Stick to the facts and your own personal experiences only.
  8. Make sure your letter is delivered in a timely fashion. An advocacy letter doesn’t do any good if it reaches your legislator after the bill has been voted on.
  9. Try to get other groups to sign on to your letter or to send similar letters.
  10. Send a copy of your advocacy letter to any other members of the relevant committee.

I hope these general tips help you write more effective advocacy letters.

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

McGeorge Adjunct Professor Chris Micheli

An important but often overlooked component of the lobbying profession, even involving bills, is working with relevant state agencies or departments to secure a favorable recommendation on a bill that you’re lobbying either for or against. Administrative agencies, departments, boards, and commissions of state government can often be important players in public policy development both as it relates to pending legislation that’s being considered by the Legislature, and ultimately by the Governor.

Because they’re a part of the executive branch of government, these state agencies are generally directly accountable to the Governor. As a result, they play an important role in advising the Governor and his or her staff on pending measures. As such, those involved in legislative advocacy must engage with these administrative agencies, often early in the legislative process, to ensure that the agencies and departments are aware of your client’s position and their view on particular bills. The recommendations of these state administrative agencies, just like their federal counterparts, carry great weight in the executive branch and ultimately with the Governor and his or her staff when they’re making final decisions on whether to sign or veto these measures.

The Department of Finance makes a recommendation to either sign or veto every bill that reaches the Governor’s desk that has a fiscal impact to the state’s general fund. If it has an adverse impact on the fiscal health of the state, then you can probably expect a veto request by DOF and most often a veto by the Governor if you look at the last few administrations. In other words, regardless of whether the Governor is a Democrat or a Republican, the DOF appears to have tremendous sway over the final outcome of measures.

State agencies, departments, boards, and commissions provide both informal and formal advice on pending legislation. The informal advice can be transmitted to the Governor’s office as simply as with a phone call or an in-person conversation or an email. The formal advice comes in the form of a written analysis of the bill that’s usually accompanied by a recommendation for an official position. It is important for lobbyists to determine what the views of the relevant state agency or department are, and what they are likely to advise the Governor’s staff about a particular bill, early in the legislative process.

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

McGeorge Adjunct Professor Chris Micheli

Senate Bill 707 by Senator Bob Wieckowski was signed on October the 13th as Chapter 870. The new law deals with arbitration agreements.

Section 1 of the bill notes that it is the intent of the Legislature to affirm three different state court decisions regarding a company’s failure to pay arbitration fees that constitute a breach of the arbitration agreement. There are also six legislative findings and declarations in Section 1 of SB 707.

Section 2 of this bill amends Section 1280 of the Code of Civil Procedure by adding three definitions for consumer, drafting party, and employee. Section 3 of the bill amends Section 1281.96 of the Code of Civil Procedure to add specified information that needs to be collected. Under existing law, a private arbitration company that administers or is otherwise involved in a consumer arbitration must collect and publish at least quarterly and make available to the public on its internet website a single cumulative report that contains specified information regarding each consumer arbitration within the preceding five years. SB 707 adds a twelfth category of specified information.

Section 4 of the bill adds Section 1281.97 to the Code of Civil Procedure. It says that either employment or consumer arbitrations that require the drafting party to pay certain fees and costs before the arbitration can proceed, that the drafting parties deem to be a material breach of the agreement is in default and thereby waives its rights to compel arbitration if the fees or costs to initiate an arbitration are not paid within 30 days after their due date. If the drafting party materially breaches the agreement and is in default then the consumer or the employee can either withdraw the claim from arbitration or they can proceed to civil court, or they can compel arbitration, in which case the drafting party must pay all the fees and costs. Section 5 adds Section 1281.98 to the Code of Civil Procedure and is similar to Section 4.

Section 6 of the bill adds new Code of Civil Procedure section 1281.99. This new section requires a court to impose a monetary sanction against a drafting party that materially breaches an arbitration agreement.

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

By: Brittany Gamlen

You’ve probably heard the story of the college freshmen that goes to her first party and wakes up the next morning with more than a hangover. It is an unfortunate reality that many people will experience a sexual assault or rape at some point in their lives. This experience is often the most traumatic event in their life. Following a sexual assault or rape, many survivors elect to undergo a medical evidentiary exam—commonly known as a rape kit. A medical evidentiary exam collects any evidence from the sexual assault and provides medical treatment for any injuries sustained during the assault. However, in California many counties have few if any, personnel trained to perform these exams.

To improve access, Assemblymember Marc Berman (D-Los Altos) introduced AB 538—now Chapter 714. Assemblymember Berman aims to improve access by allowing physician assistants and nurse practitioners to be eligible to receive training on, and perform, medical evidentiary exams. Currently, only physicians and registered nurses are eligible to. The bill also expands the facilities eligible to perform these exams.

The bill also improves the efficiency and quality of medical evidentiary exams by standardizing the forms and procedures used doing the exam. Additionally, personnel performing the exams will receive more uniform training at the California Clinical Forensic Medical Training Center. This new training includes a greater focus on how to interact with certain groups of survivors—including minors, the elderly, strangulation victims, and victims of human trafficking. Likewise, the new procedures include more tests to diagnose survivors’ injuries, while the new forms include more documentation to help make the exams more effective.

Lastly, AB 538 increases the reimbursement hospitals receive for medical evidentiary exams from law enforcement. Presently, law enforcement reimburses hospitals for up to $300 for exams where the survivor does not report the sexual assault. AB 538 will require law enforcement to reimburse hospitals for the full amount of the medical evidentiary exam, regardless of whether the survivor reports the sexual assault.  Furthermore, AB 538 increases the reimbursements from the California Office of Emergency Services to law enforcement.

AB 538 has the potential to help many survivors across the state. However, it only requires counties with populations over 100,000 to have personnel trained to perform medical evidentiary exams present in their counties. Thus, AB 538 allows twenty-two of California’s counties to have no personnel trained to perform medical evidentiary exams. Many of these counties are next to one another—creating areas that are potentially 1,156 miles from the nearest medical evidentiary exam.  Therefore, even after the passage of AB 538, there are still many counties in California that do not have any personnel who can perform a medical evidentiary exam.

Likewise, there is no incentive or disincentive for counties to increase the number of sexual assault response nurses (“SANES”) in their hospitals and emergency medical facilities. Without an incentive or disincentive, it is possible that many counties will not send any medical personnel to receive the training.  Not only is it costly and time-consuming, but many counties have shortages of medical personnel and therefore do not have many people who are eligible for training. Similarly, creating one, centralized training location potentially makes it harder for eligible medical professionals to attend training if they must travel to the training center. Generally, medical personnel must pay for their own training and travel expenses when completing medical evidentiary exam training. Many personnel use vacation days to take time away from work to complete the training.

So, AB 538 may increase access to medical evidentiary exams for survivors, but it might not help survivors in rural parts of California. It is possible that some counties will not send the newly eligible medical personnel to complete the trainings. But, if AB 538 helps even one survivor, then it is a success.  The unfortunate reality is that it may have no impact on the counties that already do not have enough personnel trained to perform medical evidentiary exams.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 538 with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

McGeorge Adjunct Professor Chris Micheli

One of the controversial occurrences that occurs during the legislative sessions of the California Legislature are so-called gut and amend bills. According to the Legislative Counsel, these measures are defined as “when amendments to a bill remove the current contents in their entirety and replace them with different provisions.”

These types of amendments raise the legislative issue of germaneness, which generally refers to whether a proposed amendment is relevant to the subject matter that’s currently contained in that particular measure. While the Legislative Counsel in California may opine on the issue of germaneness, the determination of germaneness is generally decided by the presiding officer of the Assembly or Senate.

In addition, we have to consider the appropriateness of gut and amend bills in the context of Prop. 54 that was adopted by the voters and requires a bill to be in print for 72 hours before the final version of the bill can be voted upon by members of the Legislature. Now, because that ballot measure added the word “any” before the types of amendments, the 72-hour rule means it applies to both substantive and technical amendments.

Prop. 54 has to be taken into account at the end of the legislative session when dealing with gut and amend bills. Each house of the Legislature has rules related to determining whether these amendments are, in fact, germane to the current contents of the bill.

In the Assembly there is Assembly Rule 92. It basically says that an amendment to any bill, other than a bill stating legislative intent to make necessary statutory changes to implement the budget bill, is not in order when the amendment relates to a different subject than, or is intended to accomplish a different purpose than, or requires a title that’s essentially different than the original bill.

The Senate has Senate Rule 23(e) which draws a distinction to amendments to rewrite a bill. Here, the first inquiry is whether the amendment is germane to the current version of the bill, but adds a new subject to the bill that’s different from but relates to the current contents of the bill. Subdivision (f) of Senate Rule 23 acknowledges these new bills when an amendment creates a new bill if the amendment changes the subject of the bill to a new or entirely different subject.

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