On today’s episode of The CAP·impact Podcast, I sit down with McGeorge adjunct professor, and very good friend of the podcast, Chris Micheli, to talk about recent California Supreme Court decision in Dynamex Operations West, Inc. v Superior Court.

https://soundcloud.com/capimpactca/episode-21-dynamex-decoded

For those unfamiliar with the case, it, in essence, drastically changed how independent contractors are classified in California. Chris and I talk about what the old rules were, how the Dynamex decision will effect employers in the traditional economy space – as well as the new gig economy – and what we can reasonably expect to see the Legislature do in the upcoming year to address some of the issues raised by the business community by Dynamex.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Now that the California Legislature’s two-year legislative session has come to a close the drama around the bills that have worked their way through the legislative process has switched gears from “Will it pass?” to “Will the governor sign it?”. While we’re not completely through the period of time that the Governor has to sign or veto legislation, I thought it would be fun to take a look at how some of the bills we’ve followed here on CAP·impact – either on the blog or on The CAP·impact Podcast – have fared so far. Below is a list of some of the bills we’ve tracked with what their status is – alive, dead, or waiting for action by the Governor.

Assembly Bills

  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

So at this point one of the bills we looked at this year has become law, six have passed both houses of the California Legislature and are waiting to be acted on by Governor Brown, and 4 are dead.

By: Molly Alcorn

Stephon Clark, a 22-year-old African American man, was in his grandparent’s backyard late one night when Sacramento police officers shot and killed him. National news screamed about police brutality. Protests against police flooded the streets and the internet.

AB 931 was an attempt to combat the rise of deadly police shootings in California. Assemblymember Shirley Weber (D-San Diego) introduced AB 931 in order to raise the standard for deadly force when used by peace officers. However, as it moved through the California Legislature, more and more pieces of the bill were left behind.

AB 931 was notable in a few ways.

First, AB 931 would have changed California law so that “Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance . . . when necessary given the totality of the circumstances . . . unless committed by a public officer whose gross negligence substantially contributed to making it necessary.”

AB 931 would have additionally amended the California Penal Code to, “Notwithstanding any other law, a peace officer may use deadly force only when such force is necessary to prevent imminent and serious bodily injury or death to the officer or to a third party.”

The legislation defined “Necessary” as “given the totality of the circumstances, a reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to a third party.”

This is where the opposition began. AB 931 prohibited officers from using deadly force if the officers were at fault for creating the need to use force. Basically, if an officer provoked someone and then had to use deadly force to stop them, the officer would be liable. This provision was similar to the “provocation rule” from City of Los Angeles, California v. Mendez, a previous California court decision. However, this provision conflicted with the Supreme Court’s finding that liability could not be placed on officers involved in deadly shootings if they were reckless or provoked the need to use deadly force. The provision was removed.

Additionally, AB 931 stated that officers could still be liable for using deadly force if they failed to meet the reasonable standard under the Penal Code § 196. This meant that if an officer acted in a way that was incompatible with proper regard to human life or where a reasonable officer would have foreseen that their conduct would create a likelihood for death or serious bodily harm, they could be held liable. Officers and interested parties protested this, citing that the Supreme Court held in Graham v. Connor that hindsight could not be used to establish liability. The provision was removed.

Additional amendments were made due to arguments over the impact of AB 931. Proponents, such as Professor Seth Stoughton, civil rights groups, and members within the legislature, argued that the bill would not harm officers following the law and would benefit the public. Opponents, such as police interest groups, argued that AB 931 would adversely affect peace officers and their training and liability.

Amendments aside, AB 931 was held in committee in the Senate effectively killing the legislation. Thus, the standard of care for police officers remains unchanged since enacted in 1872.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Molly Alcorn is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

 

 

 

Today’s post is on the effective dates of statutes.

https://soundcloud.com/capimpactca/effective-dates-of-statutes

In the California Legislature legislation that contains an urgency clause take effect immediately upon the Governor signing the bill and it being chaptered by the Secretary of State – which occurs the same day.

With the exception of measures which take immediately, tax levies and bills calling an election, bills enacted in the first year of the legislative session before the Legislature adjourns all go into effect on January 1 of the following year. This same rule applies to the second year of the legislative session as well.

A statute enacted in a special session goes into effect on the 91st day after that special session has adjourned.

A statute – now there are some exceptions – for those that establish boundaries of the legislative, congressional, or election district enacted by a bill passed by the Legislature before adjourning for joint recess and in the possession after that date go into effect on January 1 unless a copy of a referendum petition effecting the statute is submitted to the Attorney General – in accordance with Section 10(d) of Article II of the state constitution – and then the statute goes into effect the 91st day after the enactment unless the Secretary of State receives that petition for the referendum.

Note that in Section 9(c), statutes calling elections, statutes providing for tax levies or appropriations for the usual and current expenses of the state, and urgency statutes go into effect immediately upon enactment.

The exceptions to this general rule are set forth in Section 9600b of the Government Code, which again reiterates that constitutional provision that statutes calling elections, those statutes calling for tax levies or appropriations for expenses of the state, and urgency statutes go into effect immediately.

Here’s what we at the Capital Center for Law & Policy been reading and thinking about this week … aside from the Senate Judiciary Committee hearings for Judge Brett Kavanaugh. CNN has rundown of where he stands on the various issues he may face as a Justice on the United States Supreme Court – should he be confirmed – here. You can also find our conversation with Maggy Krell, Chief Legal Counsel for Planned Parenthood Affiliates of California, on yesterday’s episode of The CAP⋅impact Podcast. The New York Times also ran an anonymous op ed from someone inside the Trump administration.

 

 

 

Leslie Gielow Jacobs

New York Times

To Anyone Who Thinks Journalists Can’t Change the World by Marie Tae McDermott

Journalists are killed here in the United States and across the world for publishing truth. This article is about how journalists stay alive and impact policy.

 

 

 

Jon Wainwright

Fortune

The Blue Light Emitted from Electronics Can Cause Accelerated Blindness, Study Finds by Renae Reints

Admittedly, this is an older story, but it’s one that I find myself constantly going back to think and talk about. I spend most of my work day looking at a computer screen and I also spend a good bit of time in the evenings and on weekends looking at my phone. I also have a family history of Macular Degeneration, so when I saw this study, let’s just say I was less than thrilled. I’ve since turned night-mode back on on my phone to reduce blue light in the evening.

On today’s episode of The CAP⋅impact Podcast we talk with Maggy Krell, Chief Legal Counsel for Planned Parenthood Affiliates of California about the impact of US Supreme Court Justice Anthony Kennedy’s retirement from the highest court in the nation, the potential impact of Judge Brett Kavanaugh’s confirmation to the Supreme Court, the numerous attempted and proposed changes to healthcare policy at the federal level, and what all of that means for Californians.

We also talk with McGeorge Professor Ederlina Co about SB 320 by State Senator Connie Leyva (D – Chino), which recently passed the California Legislature and is awaiting Governor Brown’s signature, and the significance of that bill in light what has been going on in Congress and at the federal level in regards to healthcare.

https://soundcloud.com/capimpactca/kennedy-kavanaugh-and-access-to-healthcare

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

 

Enrolled Bill Reports and Gubernatorial Actions on Bills (transcript)

Today’s podcast on enrolled bill reports and gubernatorial actions on bills.

https://soundcloud.com/capimpactca/enrolled-bill-reports-and-gubernatorial-actions-on-bills

Once an enrolled bill reaches the Governor’s desk for final action, enrolled bill reports, or EBRs are produced for the Governor and his senior staff to consider the merits of the bill pending on the Governor’s desk. An enrolled bill is the final version of the bill that has passed both houses of the Legislature and is pending final action by the Governor.

California’s Governor has three choices with a bill that reaches his or her desk: sign the bill, veto the bill, or allow the bill to become law without his or her signature. The enrolled bill report, or again most often referred to as an EBR, is the analysis of a bill with information and a recommendation for action by the Governor written by staff.

EBRs are prepared for bills but not for constitutional amendments or resolutions because these measures are not acted upon by the Governor. Generally, there are at least three EBRs that are prepared for the Governor’s review with each bill that reaches his or her desk. The first is from the Department of Finance, the second is the relevant agency that has jurisdiction over the subject matter of the bill, and the third is by the Legislative Counsel.

The Governor’s bill file normally contains letters from outside parties that are urging the Governor to sign or veto the particular bill. They’re often submitted by interest groups that have supported or opposed the bill as the measure traveled through the legislative process. The Governor’s staff may have their own notes from meetings they’ve held with proponents and opponents of the bill.

All of these documents are clearly intended to provide the Governor and his or her staff with the information that they need to make an educated decision about whether to sign or veto the bill. Depending on the bill and how the particular Governor approaches decisions on pending legislation, these EBRs can be the critical basis for whether the bill gets signed or vetoed that year.

Thank you for joining today.

By: Camille Reid

Should the internet be open? This question is on the minds of many internet users, startups, and internet service providers (ISPs), like Verizon or AT&T. Those individuals who believe the internet is meant to be open are termed net neutrality supporters. Net neutrality refers to the concept that the internet should be equal to all who access it, and not controlled by ISPs who can slow down, speed up, or otherwise disturb user access.

Consumers and small startups demand net neutrality because of the potential for an ISPs potential to favor its own applications over others it does not own. This and other concerns over the open internet mounted after the Federal Communications Commission (FCC) “Restoring Internet Freedom Order” in 2017. The order created a much less regulated Internet by classifying it as an information service. The FCC reasoned that classifying the internet in this way will result in better investment and competition that benefits the consumer. The order rolls back Obama-era net neutrality regulations that many internet users and small companies came to rely on. In response to the FCC’s annihilation of those net neutrality protections, many states responded with lawsuits and legislation. California’s response to the FCC’s order comes in the form of Senate Bill 822 by Senator Scott Wiener (D-San Francisco). Senator Wiener introduced the bill to ensure that all customers have access to the open internet.

SB 822 attempts to restore the regulations contained in the FCC’s 2015 Open Internet Order. In keeping with that ideal, this legislation prohibits ISPs from blocking, speeding up or slowing down websites and applications. The bill also requires ISPs to engage in disclosure of its performance and management practices. One part of SB 822 that goes further than the FCC’s 2015 order are the provisions prohibiting zero-rating.

“Zero-rating” is a provider activity where the ISP excludes a majority of websites from a consumer’s usage allowances, while allowing other applications to squeak by without affecting a user’s data caps. For example, T-Mobile allows its user to stream unlimited video and audio from select services like Netflix, and AT&T gives its users the opportunity to access DirectTV for free. T-Mobile and AT&T could then slow down the stream from Netflix or another competing streaming service, thereby giving preferential treatment to its networks. This legislation would disallow ISPs from such obvious favoritism. Most importantly, SB 822 authorizes sanctions and penalties against an ISP for violations, and it also provides the California Public Utilities Commission authority to oversee the quality of internet service that ISPs offer consumers.

Supporters for SB 822 include more than 200 organizations ranging from websites – like Reddit – to business groups – like the California Association of Realtors – to public safety organizations – like CalFire. These organizations argue that SB 822, and protecting net neutrality, is extremely necessary based on the egregious network discrimination done by ISPs. Recently, Verizon slowed internet connections while firefighters battled the Mendocino Complex Fires. Firefighters said that because they were unable to access items like weather forecasts, lives were jeopardized. Supporters of SB 822 focus on its goal to ensure that each Californian is able to connect, invent, and participate online no matter the amount of money they have or where they live.

Opposition to SB 822 hinges on the notion that Senator Wiener’s net neutrality legislation would throttle investment in parts of California and that it is preempted by the FCC’s 2017 order. Those in the camp opposing SB 822 – which includes members of California’s business community, cell phone companies, ISPs, and organizations like the California State Conference of the NAACP and California League of United Latin American Citizens (LULAC) – argue that ISPs have a specific budget, and any additional regulations brought on by this bill would stop advancement by stifling investment. Opponents also reference preemption as a blockade to SB 822 and rest their rationale on the preemption clause found in the FCC’s 2017 order, which stops states from regulating the internet if it conflicts with the FCC’s objectives.

Despite strenuous opposition and legal issues, SB 822 continues to move forward, having passed both houses of the California Legislature last week. The bill is currently awaiting the Governor’s signature. Senator Wiener’s enthusiasm and belief in the bill is unwavering: “[w]e are moving closer and closer to enacting the strongest net neutrality protections in the nation. Much work remains… but we have momentum.”

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Camille Reid is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

Here’s what the people at the Capital Center for Law & Policy have been reading and thinking about this week.

 

 

 

Molly Alcorn

New York Times

Asian-American Students Suing Harvard Over Affirmative Action Win Justice Dept. Support by Katie Benner

Students are suing Harvard over discrimination. This is not a new story- Universities across the country have been sued for racial discrimination against minorities. However, this story caught my interest due to the very stern statement of interest from the Justice Department. In this letter, the Justice Department states that Harvard failed to “adequately explain how race factors into its admissions decisions.” Of course, to keep things interesting, Harvard fired back by stating it was “deeply disappointed” but not surprised “given the highly irregular investigation the D.O.J. has engaged in thus far.”

 

 

 

Jon Wainwright

Santa Rosa Press Democrat

https://soundcloud.com/capimpactca/episode-19-vote-requirements-legislative-publications

On today’s podcast, McGeorge Capital Lawyering adjunct professor Chris Micheli breaks down the different vote requirements different types of legislation have to clear, and there’s more than just the majority and 2/3 requirements most folks know about. Chris also goes over the different kinds of legislative publications. And to wrap up today’s show, we talk with Kim Barnes – the Chief Legislation Editor for University of the Pacific Law Review’s Greensheets Edition and host of the podcast In Session – to talk about what to expect from the second season of In Session.

If you aren’t subscribing to In Session already, you can find it on Apple Podcasts and you will start seeing new episodes every week starting on Tuesday, September 4. You can also follow University of the Pacific Law Review on Facebook and Twitter.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.