By: Mike Vitiello

What Rescinding the Cole Memo Means

All use, possession, or sale of marijuana violates federal law. So, why did states like Colorado, Washington, and now California believe that they could legalize marijuana for recreational use?

In 2013, after Colorado and Washington legalized recreational marijuana, James Cole, an attorney in the United States Department of Justice, issued a memo stating the federal government’s policy concerning states’ efforts to legalize recreational marijuana. That position was that as long as states followed certain guidelines, like keeping marijuana out of the hands of minors and keeping drug cartels out of the business, the federal government would let states regulate as they saw fit. That memo, known as the Cole Memo, along with a similar memo in 2009 relating to medical marijuana, encouraged investors, who are now pumping billions of dollars into marijuana businesses.

In 2016, candidate Trump seemed to take a similar position, allowing states to regulate as they see fit. But, he chose Jeff Sessions as his Attorney General, and Sessions has a long history of opposing marijuana. After a year of the Department of Justice sending uncertain signals about the federal government’s position on state regulation of marijuana, the Attorney General announced that he is rescinding the Cole Memo. What does this mean?

It means that US Attorneys can resume enforcing federal marijuana laws in states with legalized recreational marijuana. The Department of Justice has significant tools to use if it chooses to use them, including criminal prosecutions that could lead to long prison terms, and forfeiture that would allow the government to seize assets of marijuana industry members. That said, the Department of Justice has other more important priorities, including immigration and the opioid epidemic.

Further, Attorney General Sessions’ actions may actually help supporters of legalizing marijuana. Democratic members of Congress, especially those from states that have legalized recreational marijuana, oppose Sessions’ action. But a number of Republicans have seemingly been galvanized by this as well, including Iowa Congressman Rod Blum and Colorado Senator Cory Gardner. In what I think is a sea change, we’re seeing many members of Congress speak out in favor of the Cole Memo, when until now, no member of Congress had done so.

My own prediction is that the industry is already too big to fail, and investors have political clout. Their money, and the money in the industry isn’t red money or blue money, it’s green money, and as we all know, money talks.

If you’d like to learn more about the marijuana industry in California, and particularly, if you are interested in joining the cannabis industry in California, I recommend that you attend the McGeorge Capital Center for Law & Policy’s upcoming Executive Training on The Essentials for Cannabis Businesses, which I will be presenting at. You can purchase tickets here.

The Partnership’s Push to Increase State Funding to Prevent Domestic Violence

As a heads up, this podcast was recorded early last week, before Governor Brown revealed his January budget proposal. Some of the conversation is dated in that regard, now that this post is going up after the budget proposal was revealed. That aside, the conversation I had with Erin Scott – Board Chair, California Partnership to End Domestic Violence (The Partnership) – is still very much relevant.

Erin Scott – Board Chair, California Partnership to End Domestic Violence – sitting down with Jon Wainwright at The Partnership’s office in Sacramento.

Funding for domestic violence work in California has remained steady for the past few years at roughly $20.6 million annually. That funding comes out of the General Fund. and covers emergency response for domestic violence survivors and has become a part of California’ social safety net. It’s essential funding, but there’s more that could be done. Put another way, current funding only allows nonprofit organizations that serve domestic violence survivors to react to the problem of domestic violence. The Partnership is leading a push this year to double the amount of money in the General Fund being spent on domestic violence work with the new $20.6 million being spent on domestic violence prevention and addressing the longer term root causes of the issue.

As I mentioned before, our conversation was recorded before the budget proposal was revealed. Since then, the Governor’s budget proposal has been revealed, and the state’s investment in domestic violence crisis services remained steady at $20.6 million. In a statement following the announcement of the budget proposal Kathy Moore, Executive Director for The Partnership said,

We appreciate the state’s consistent investment … over the last 10 years,  but it’s simply not enough. […] On any given day, about half of the 5,410 domestic violence victims being served in California access emergency shelter, while the other half receive non-residential services – things like legal assistance, children’s counseling and other complimentary services. Yet average data also shows there are over 1,086 unmet requests for services every day. Continuing to band-aid these families crises with inadequate resources isn’t the solution. Victims are telling us they need more.“

No budget fight in the California Legislature is easy. The level of difficulty is only exacerbated when an organization is fighting for General Fund dollars – of which a minimum of 40% are already constitutionally earmarked for K-12 education. We said in the podcast that the funds The Partnership is going for comes out of one pot. It’s more like the funds are coming from half a pot, and there are numerous other groups angling for those same dollars. While Erin noted that “it’s never the perfect time for this kind of request,” I see a couple trends that point towards this being a good year to make the ask to double the funding for domestic violence work.

The first of those is the windfall – or surplus as some others are calling it – in this year’s state budget. It’s easier to ask for more funding in a year when there is more money available to the state to spend. The other trend that could help The Partnership is the #WeSaidEnough movement that has taken the California legislature by storm. While the issues of domestic violence and sexual harassment and assault in the workplace are most certainly not the same, my feeling is that the return to focusing on victims, and victims’ rights, and getting those victims the help that they need puts the political winds in a more favorable position for The Partnership in their effort to get the funding that agencies across California to start being more proactive, start addressing the long term root causes of domestic violence, and, hopefully, start reducing domestic violence in California.

This is a slight departure from our usual content. That said, last night’s event – the Belote Lectore on Journalism in the Era of Fake News – warrants the change of pace. The video above is of the entire one-hour discussion. Please enjoy the fantastic conversation between three stellar political journalists who know their craft inside and out.

The Annual McGeorge School of Law Mike Belote Endowed Capital Lecture was held last night at the Sterling Hotel in downtown Sacramento. The topic of last night’s event was Journalism in the Era of Fake News.

A full house of attendees enjoyed a dynamic, frank, and funny discussion which featured three influential journalists discussing the role of journalism today, as well as ethics in the journalism profession, the impact of Facebook and Twitter, and what members of the legal community can do to help journalists with combating the issue of fake news.

McGeorge Dean Michael Hunter Schwartz gave the opening remarks and then handed the discussion off Professor and Associate Dean for Experiential Learning Mary-Beth Moylan, who expertly moderated the evening’s discussion. The speakers were Jonathan Weisman, Deputy Washington Editor for the New York Times; John Myers, Sacramento Bureau Chief for the Los Angeles Times; and Joe Mathews, California columnist and editor for Zócalo Public Square.

The Mike Belote Endowed Capital Center Lecture series was made possible by a generous donation from Mike Belote (McGeorge Class of ’87), who is President of California Advocates, Inc. and a longtime Pacific McGeorge alumni donor and volunteer.

To stay up to date with the McGeorge Capital Center for Law and Policy and CAP⋅impact, you can subscribe to email updates by scrolling up and typing your email into the form just to the right of this post. You can Like CAP⋅impact on Facebook and follow us on Twitter @CAPimpactCA.

When Can You Participate in California’s Rulemaking Process

Today’s podcast is a continuation of my series about how to be a more effective regulatory agency advocate. This podcast, specifically, will discuss when you can participate in California’s rulemaking process.

By virtue of California’s Administrative Procedure Act – APA for short – interested parties have a number of opportunities to participate in the rulemaking activities of state agencies. California’s APA is modeled off of the federal APA, and the two share two key tenets – public notice and public participation.

There are two ways that interested parties can track what rulemaking bodies are doing. Those parties can either look at the body’s Rulemaking Calendar – which describes the actions that an agency anticipates it will take during the upcoming calendar year – and by signing up for the agency’s interested parties mailing list. Once you know the calendar, the next thing you need to know is: what is a regulation?

Essentially, a regulation is a form of legislation and it carries the force and effect of law – provided that it’s adopted in accordance with the required procedures pursuant to California’s APA and that it’s within the scope of the agency’s authority. It’s important to understand what a regulation is because if the proposed rule is not a regulation, then it does not have to comply with the APA, meaning that there aren’t the same requirements for public notice and public comment.

There are two ways members of the public can comment on formal rulemaking – in writing or at an oral hearing. California’s APA requires a minimum 45-day period for public comment in writing. Some agencies post a public hearing at the end of the 45-day period, some don’t – either because they think it’s not necessary or that the regulation is non-controversial. However, if a state agency receives a request in writing from any person, the agency is required by law to hold a public hearing. If there is a public hearing, I recommend that you submit written comment as well as participate in the public hearing.

Why should you participate? When an agency receives public comment – either in written form or orally – they must respond with an explanation of how the proposed action has been changed to accommodate that comment, or explain their reasons for rejecting the comment.

The rulemaking process concludes once the regulation has been adopted. Per the APA, agencies have one year to complete this process. Otherwise they have to start the process over again.

 

Liah Burnley – Policy Advocate, Californians for Safety and Justice

 

 

 

 

 

 

 

 

Informing Criminal Justice Reform Policies by Engaging with Crime Survivors and the Formerly Incarcerated

I recently spoke with Liah Burnley, who is a Policy Advocate for Californians for Safety and Justice (CSJ), about the history of and work that CSJ does. CSJ works on criminal justice reform issues, with a particular focus on reducing wasteful spending in California’s justice system and breaking the cycle of crime by promoting policies and spending that help create safe communities and safe neighborhoods.

But what I found particularly interesting in our conversation was how CSJ informs itself before making decisions on various policies. There are two main groups that CSJ works with to get this information, crime survivors and the formerly incarcerated. It should be pointed out that – at least according to CSJ – a crime survivor is not the same as a crime victim. Crime survivors are those who are impacted by crime. Does that include victims of crime? Absolutely. But survivors also include the family and neighbors of those victims. If you think of water dropping, the crime is the drop and all the ripples that come from that drop are the impacted survivors.

The sense that I had after talking with Liah is that this second group, the formerly incarcerated, are really at the core of what CSJ works on. CSJ got started, and made a name for itself, by working on Prop 47 implementation. In doing so, they learned about multiple other inefficiencies in California’s criminal justice system and expanded their work accordingly so that, as Liah put it, when people are out there trying to pull themselves up by their bootstraps that “those bootstraps are actually there.”

There was one other thing that Liah shared with me that stuck. It’s something that she lives by and seems to encapsulate the criminal justice reform movement, “each of us is worth more than the worst thing that we’ve ever done.” I think that in the majority of cases, that mantra holds true.

If you want to learn more about Californians for Safety and Justice, feel free to check out their website safeandjust.org. You can also Like Californians for Safety and Justice on Facebook follow them on Twitter @safeandjust.

Using Amicus Curiae Briefs to Influence Judicial Decisions

I sat down with Brian Landsberg – Professor of Law at McGeorge School of Law – recently to talk about the work of an organization that he is a member of. That organization is the Lawyers’ Committee on Civil Rights, of which, Professor Landsberg is a member of the Board of Trustees and the Chair of the Amicus Section. We talked about the history of the 50+ year old organization and how their work has evolved over that time.

The Lawyers’ Committee was founded by leaders of the American Bar Association in 1963 after meeting with President Kennedy, who was concerned that there were now lawyers representing civil rights demonstrators in the Deep South. At the urging of the President, those leaders formed the Lawyers’ Committee to, basically, provide pro bono representation for African Americans in South during that time.

Members of the American Bar Association meeting with President John F. Kennedy

The work of the Lawyers’ Committee has since evolved to cover voter protection activities, equal education, fair employment, fair housing, and racial justice in the criminal justice system. The Amicus Committee, which Prof. Landsberg chairs, advances the Lawyers’ Committee’s interests through the filing of Amicus briefs with the United States Supreme Court. The cases that they file on aren’t necessarily all race discrimination cases, but include sex discrimination and religious discrimination as well.

Misconception Monday – State Budget

Hello. This is Episode 8 of my Misconception Monday series. If this is your first time tuning in to these, you can listen to the previous episodes here.

Today’s podcast, just in time for the announcement of the Governor’s January budget proposal on Wednesday morning, will cover misconceptions about the State Budget. Some of the misconceptions that we will talk about in this podcast relate to the Governor’s May Revise, the federal and state fiscal years, trailer bills, and Budget Subcommittees.

California Gas Tax

As you’ve probably already noticed at the pump, California’s gas taxes are on their way up. But, before you (potentially) see ads bombard the airwaves later this year for and against a referenda on the gas tax, let’s break down what taxes and fees are increasing, and where those funds are going.

Pursuant to SB 1, the bill that enacted the new increases, there was an increase of 12 cents per gallon in the gas tax which includes an inflation adjustment on November 1, 2017. That increased the base excise tax to 30 cents a gallon. Also on November 1, 2017, there was a 20-cent per gallon increase to the diesel excise tax, increasing it to 36 cents per gallon. That increase also includes an inflation adjustment factor.

Additionally, there is a new transportation improvement fee added to the vehicle license that varies from $25 to $175 each year based on the value of the vehicle. That took effect on January 1, 2018. And starting July 1, 2020, there will be a new $100 annual vehicle registration fee that applies to zero emission vehicles with a model year of 2020 or later.

So where is all that money going? $1.8 billion annually goes maintenance and rehabilitation of the state’s system of highways. Another $1.7 billion goes to the rehabilitation and maintenance of local streets and roads annually. This is a very brief summary of where the revenues go. For the full analysis, you can refer to the LAO’s Overview of the 2017 Transportation Funding Package.

As you can imagine, this was controversial when it was passed, and remains controversial. Only one Republican legislator in both houses voted for the gas tax. Further two Democrats, one in the State Senate and one in the Assembly, voted no on the increases.

 

Types of State Agencies

Today I will be continuing my series of podcasts on how to be a more effective state regulatory agency advocate. In my first post, I gave a brief overview of Regulatory Advocacy. Today, I’ll look at the types of rule-making bodies in California state government.

You might remember from my last podcast that there are over 200 rule-making bodies in California at the state government level. Those 200 bodies all fall under one of three types of state agency: plural executive, independent agencies, and line authority agencies.

Plural executive agencies have separate constitutional authority executive powers and are overseen by officials or boards that are elected statewide. The Governor is the most widely known of these officials, of which there are nine total. Also in this group are a pair of officials who are appointed by the Governor in most other states, but are elected statewide in California: the Insurance Commissioner, and the Superintendent of Public Instruction. The powers of these officials are enumerated in the Constitution and in state statute.

The next type of agency is independent agencies. They have separate statutory or constitutional powers and they are independent of the line authority of the Governor. One example of this is the University of California Board of Regents. Regents are appointed by the Governor and confirmed by the State Senate, but their term of office is 12 years. The Governor can serve, at most, two four year terms for eight years total. You can see that the 12-year term Regents serve clearly establishes some independence from the Governor.

The third type of agency is line authority agencies. They’re called “line agencies” because if you look at a state organization chart, they fall on a line that comes directly from the Governor, which means that these agencies are directly under the control of the Governor. There are 11 agencies like this in California – ranging from the Transportation Agency to the Natural Resources Agency. These agencies form the Governor’s cabinet, and their secretaries – all appointed by the Governor – are the members of the Governor’s cabinet.

Next week, we’ll take a look at how the public participates in rule-making activities.

 

Stealthing

For today’s podcast, I sat down with Erinn Ryberg (McGeorge Class of ’13), Leg Director for Asm. Cristina Garcia, to discuss one of the bills her office worked on last year, AB 1033, which addressed the issue of stealthing. As Erinn describes it, “It’s a new name for something that’s been going on for decades.” The bill did not make it out of the Senate last year, but will very likely be coming back in 2018.

Stealthing is when, during sex, one partner – without the consent of the other partner – lies about using a condom or birth control, tampers with a condom, or removes a condom. It’s an issue that affects heterosexual and same-sex relationships, and again, it’s not a new issue. It’s only just being addressed now due to a combination of the practice having a name and continued rise in STD rates. AB 1033, initially, made stealthing an act of rape. That was later dropped down to sexual battery. You’ll need to listen to the podcast to learn why.

That said, AB 1033 was, at first, not about stealthing. It did not have anything to do with sexual battery or rape. It was an Indian gaming bill. This makes it a clear cut example of a gut-and-amend bill. It also raises the issue of germaneness, which is a rule that states amendments to a bill have to address the same issues as – or be germane to – the original bill. It was an issue that was flagged on AB 1033, but didn’t stop it from moving forward. It would not have necessarily stopped the bill dead in its tracks either in terms of its ability to get passed – from a rules perspective. However, the germaneness issue would come up were the bill to be challenged in court. Erinn and I talked for a while about the numerous issues that opponents had with the bill, and given our conversation, I think it would be safe to assume that germaneness might just be the beginning of the legal challenges AB 1033 would’ve faced.

We also talked at length about the procedural hurdles that the bill faced, the most notable of which was a committee amendment that bordered on being a poison pill.

Undoubtedly, this will be an issue to keep an eye on in 2018.