By: Tyler Wood

The Greensheets issue of The University of the Pacific Law Review (UPLR) is a time honored tradition at McGeorge School of Law. It traces its history back to 1969, when Volume 1 critiqued legislation signed into law by Governor Ronald Reagan. We’re now on Volume 48. Greensheets is more than just the most popular Law Review issue of the year, but it’s also one the most widely read issues of any law review in the country by state legislators, judges, and lobbyists.

So what is Greensheets, exactly? Authoring the Introduction to UPLR’s first volume (then known as the Pacific Law Journal), Earl Warren, then Chief Justice of the United States Supreme Court and former Governor of California captured the enduring vision that still guides our work today, saying in part:

“Without detailed information on the legislative history of a given bill, the courts, of necessity, are left to their own resources to determine the rationale underlying a particular statute. It is such information, together with a critical analysis of newly enacted legislation, which the Pacific Law Journal intends to provide. For that reason, I believe it to be a welcome addition to the field of jurisprudence, and I extend to the staff of the Journal my best wishes for a successful endeavor.”

Today on the podcast, I recap the bills In Session covered this year and provide updates on whether each bill ultimately became law. Thank you so much for following these blog posts and listening to our podcast this season. Stay tuned next fall to hear a new host talk about a new group of bills with a new group of staff-writers. And make sure to check out all of our episodes from Season 1. The bills we looked at this year were:

Episode 1: SB 258 – Cleaning Product Labeling

Episode 2: AB 954 – Food Labeling

Episodes 3 & 4: SB 10 – Bail

Episode 5: AB 1008 – Employment Discrimination

Episode 6: Nevada AB 391 – Bestiality

Episode 7: AB 1528 – Cannabis

Episode 8: AB 1227 – Human Trafficking

Episode 9: SB 33 – Arbitration Clauses

Episode 10: SB 54 – Sanctuary State

Tyler Wood is the Chief Legislation Editor for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

 

 

 

On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral argument in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.  Colorado civil rights law requires vendors to provide their products and services without discrimination according to, among other things, sexual orientation.  A Colorado baker claims that the U.S. Constitution trumps the state nondiscrimination law, and protects his right to refuse to bake a cake for a gay couple’s wedding celebration.  Several key distinctions explain the constitutional boundary between the baker’s right to refuse service and the state’s power to regulate.

Freedom of Religion Under the Constitution vs. Federal Statute

The baker claims that the state requirement that he provide a cake to be displayed and consumed at a gay marriage violates his freedom of religion.  Because he complains about the application of a state law, he must base his claim only on the U.S. Constitution.  In this respect, he is different from the owners of the Hobby Lobby retail chain, who several years ago successfully argued that the federal Affordable Care Act violated their freedom of religion by requiring them to pay into an insurance fund that could be used to finance birth control.  A different, more religious freedom-friendly test applied to the Hobby Lobby owners because they challenged a law enacted by Congress than the test that applies to the baker who challenges application of a state law.  Specifically, people claiming a burden on their free exercise imposed by federal law can claim an exemption from a neutral requirement, such as that all employers fund preventative health case such as contraception, by showing the law imposes a substantial burden on them because of their particular religious beliefs.  By contrast, to prevail under the federal Constitution and avoid application of a state law requirement, a person, like the Masterpiece baker, must show that the state law singles him out for especially disadvantageous treatment because of his religious beliefs.  The Colorado law does not do this.  It applies neutrally to all businesses.  For this reason, as Dean Erwin Chemerinsky explains in a recent op-ed, the baker’s free exercise of religion claim is weak.

Freedom of Religion vs. Free Speech

Because the Masterpiece baker cannot prevail on his free exercise of religion claim, he primarily claims that the Colorado law unconstitutionally compels him to speak.  To succeed on the speech claim, the baker must convince the Court that the cakes he bakes qualify as “speech” protected by the Constitution.  The Court has made clear that it will not accept that “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Instead, it requires both that the speaker intend to send a message and that the audience be likely to understand it.  So, to prevail on his compelled speech claim, the baker must transform the conduct of creating and providing a visually appealing, edible product into a message of endorsement from him, likely to be understood by wedding attendees, of the event at which it will be displayed and consumed.  The constitutional determination of whether wedding cake viewers understand a message from the baker must be made from the perspective of reasonable observers within the community, not according to the baker’s subjective assessment of his own messaging.  And, as Professors Dale Carpenter and Eugene Volokh point out in their amicus brief, viewed objectively, the answer is obvious: “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.” A generic cake without overt messaging, however lovely, is not constitutionally protected speech.

Message vs. Status Refusals to Serve

The First Amendment protects people from being required to participate in sending messages with which they disagree.  Professor John Corvino points out in a recent New York Times op-ed, that a baker’s claim would be more likely sound if he refused to decorate a cake with two grooms, or if she refused to write on a cake, according to a client’s request, “Homosexuality is a detestable sin.”  Instead, the Masterpiece baker’s claim is that he may refuse to provide a cake without identifiable pro-gay marriage messaging to gay people because its use at the reception compels him to endorse the event.  According to Corvino, the latter baker’s “objection was about what she sold; a design-based objection. [The Masterpiece baker’s] objection was about to whom it was sold; a user-based objection,” which does not implicate the baker’s right to speak.

Vendor Nondiscrimination Laws vs. Consumer’s Right to Boycott 

Governments have the constitutional power and duty to regulate the qualities of products and services, and how they are sold by vendors, to protect the public and promote the public interest, including ensuring access by members of the public to the products and services without discrimination according to particular traits, which governments may identify differently.  Colorado has chosen to identify sexual orientation as a protected trait and businesses that take advantage of the many Colorado laws that protect and promote business operations are legitimately subject to nondiscrimination limits as well.  By contrast, citizens who spend money, rather than make it through dealing with the public, retain their individual rights to choose who to patronize and where to spend their money.  Five Justices of the Supreme Court have found Congress, at least, to lack the power to force individuals to purchase products to promote a public purpose.

In his role as vendor, the Masterpiece baker must comply with reasonable government regulations of his business operations, including nondiscrimination laws.  In his purchases as a private citizen, he may refuse to spend money in ways that he alone determines may violate his conscience, or for any other reason at all.

Prop 54 and the 72-hour in print rule

Hello. In today’s podcast I’m exploring how the California State Assembly complies with the 72-hour in print rule that was put in place by Prop 54. Prop 54 was a constitutional amendment that was passed by the California voters in November 2016. It did two things, but only one of those things is germane to today’s discussion.

The 72-hour in print rule became a hot topic of discussion in 2017 – the first year Prop 54’s rules affected the California Legislature – during the House of Origin deadline on June 2nd. Before we get in to that, what exactly is the 72-hour in print rule? The rule is, essentially, that before a bill can be voted on to become a statute, it must be in print and published on the internet for at least 72 hours. Colloquially, this has been referred to as the 3-day in print rule, but that is incorrect. The language in the constitutional amendment refers specifically to hours, not days. There is an exception made for bills necessary to address a State of Emergency that has been declared by the Governor.

That leads us to the question at hand. During the House of Origin deadline week, the Assembly passed 95 bills that had been amended but had not been in print for 72 hours since being amended. The author of Prop 54 publicly claimed that this action violated the new rules. So what happened to those 95 bills after they left the Assembly?

Of the 95 bills, only three were not amended in the Senate. The other 92 bills were amended in the Senate, which means that when they left the Assembly they were not in their final form. What of the three that were not amended? Those bills returned to the Assembly for what they called a final form vote and that is how the Assembly complied the Prop 54’s 72-hour in print rule.

Knowing When to Stop

In today’s podcast, I talk about my sixth rule for being an effective lobbyist: knowing when to stop. This is closely related to last week’s rule about persistence tempered by patience.

For more advocacy tips from me and from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive or attend one of the next sessions of Capitol Seminars, hosted at McGeorge School of Law in Sacramento.

 

 

 

 

I spoke about this issue yesterday on ABC 10 in Sacramento with Giacomo Luca.

Matt Lauer and Garrison Keillor are the most recent men terminated by their private employers because of credible allegations of sexual misconduct.  Contract terms set out the ability of the media outlets to discipline these employees.  But what of state and federal elected officials, who are put into office by a vote of the people and serve the citizens rather than a private employer?  A constitution – again either state or federal – is what sets out the ability of a legislature, or the people, to discipline elected officials.

Article IV, Section 5 (a) (1) of the California Constitution provides that the Assembly or Senate may expel a member by a 2/3 vote, without specifying particular grounds for expulsion.  Proposition 50 passed by the voters in June 2016 amended the Constitution to give both Houses the power to suspend members with or without pay, with a recitation of reasons and by a 2/3 vote.  The California Constitution also provides a procedure for the voters to recall an elected official prior to the end of the official’s term. That can be done by means of a popular vote.

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”  The Constitution does not specify grounds for expulsion but in practice the grounds have involved disloyalty to the nation or corruption.  Censure is a less severe form of disciple, imposed by a majority vote of either House, which states disapproval of a member’s behavior but does not remove the official from office or limit the official’s powers.  There is no federal voter recall procedure, and impeachment, available against the President, government officials, and judges, does not apply against Congress members or Senators.

 

 

 

The Assembly Rules Subcommittee on Harassment, Discrimination, and Retaliation Prevention and Response met yesterday to discuss how the institution will address and change the Assembly – and Senate’s – policies to address and fix the pervasive culture of sexual harassment in the Building.

Earlier this week, Jon Fleischman gave a fairly comprehensive rundown of the allegations that have been dominating the news related to California’s Capitol. He also pointed out a procedural approach and four potential policy fixes. He called on Republicans to urge Governor Brown to call a Special Session to address this issue, and notes potential bills the Legislature could consider in that Special Session:

  • A bill to establish that a law enforcement agency (perhaps the California Highway Patrol) has jurisdiction over investigations of allegations of sexual harassment in the Capitol. The idea is to put someone in charge of such investigations who is not beholden to legislators.
  • The Melendez whistleblower protection bill that has been shoved into a legislative drawer for years.
  • A bill to make sure that the legislature is subject to the California Public Records Act, like every other part of state government.”

The Sacramento Bee reported yesterday that Assembly Member Kevin McCarty is floating that he may introduce legislation that would require lawmakers, not taxpayers – as has been the case in settlement payouts for sexual harassment settlements – to pay for their sexual harassment settlements.

“We could deduct their pay. If they’re a former legislator, we could go after them in the judicial process,” McCarty said. “Some people have suggested you don’t pay out at all. But that would mean some people who are harmed, harassed, have zero recourse.””

But perhaps the most important policy idea was raised in a question by Asm. Eloise Gomez Reyes. She asked Rules Committee staff about the number of complaints in the past three and half years registered against members of the Assembly. The response was that complaints were not tracked at all. This fact is stunning. Asm. Vince Fong followed up on her questions, asking, “Isn’t it a problem that we don’t track complaints?” Staff replied it was a valid point.

Among the arguments for tracking the number of complaints were: by tracking complaints, it helps set the tone that this conduct is unacceptable; the number of complaints can be used to identify trends and potentially get ahead of issues and address them before they become major issues.

Changing Rules Committee policy – if not changing the law to enshrine in statute – to ensure the number of complaints lodged against members of the Legislature and senior staff are tracked is critical and a very necessary first step.

There are other serious issues that were raised in hearing as well, such as: records of complaints and investigations are only held for six years – in the Assembly – even though members can be in office for twelve years; lack of confidence in the system’s ability to protect staffers who come forward with complaints; and lack of a level playing field for the complainant and the person the complaint is being lodged against.

There is also a lot from yesterday’s hearing that I’m leaving out. That is not to say that those other portions of the hearing are not important. Everything brought up in the hearing is incredibly important. However, I wanted to focus on the first steps the Assembly – and the Legislature more broadly – are taking and can take to make the necessary systemic changes to make the Building a safe work environment. Yesterday’s hearing is one of those first steps. Addressing the records issues – tracking complaints and retention of those records – is another critical first step. But these are just first steps on a long, long road to regaining the trust and confidence of the staffers who work in the Building and the voters who send elected officials to it.

 

 

 

Working with Coalitions to Amplify Your Voice

I sat down with Beth Hassett, the CEO and Executive Director of WEAVE – Women Escaping A Violent Environment – to talk about the policy work that it does. Like many of the organizations I’ve talked to, WEAVE is a 501 (c)(3) – so they are limited in the amount of lobbying that they are allowed to do. There is, however, a firm that they work with that does pro bono lobbying on their behalf.

However, WEAVE is still active in the policy arena, educating and advocating on behalf of their clients who are women, children, and men trying to escape victimization in its many forms. Most of WEAVE’s work focuses on closing loopholes and correcting the unintended consequences of laws from the past.

WEAVE also belongs to a couple of coalitions that do a lot of policy work, and by working with these coalitions, WEAVE is able to amplify their voice and bring it to a larger audience. Those coalitions are CalCASA – the California Coalition Against Sexual Assault – and CPEDV – the California Partnership to End Domestic Violence.

We talked at length about the process for how CPEDV establishes its legislative and policy priorities as well as how they go about working to accomplish those goals. You will have to listen to our conversation for those details.

I hope you enjoy this week’s conversation with Beth Hassett. Be sure to check back next week when I talk with her about a bill that WEAVE worked on a few years back to increase protections for domestic violence victims, AB 1407. That bill took an interesting path, so I think you all will enjoy that conversation as well.

For more information on WEAVE, please visit their website – www.weaveinc.org. You can also find WEAVE on Facebook, @WEAVEInc and on Twitter, @WEAVEinc.

As Beth mentioned in the interview, you can also visit CPEDV’s website to learn more about their policy priorities. CPEDV can also be found on Facebook at @CAPartnershiptoEndDV and on Twitter @cpedvcoalition.

 

 

Misconception Monday: Bill Amendments

Welcome to Episode 4 of my Misconception Monday series of podcasts. In today’s episode, we will dispel common misconceptions about bill amendments. If you want to get a better sense of what this series is about – and to learn about other common misconceptions about the California legislative process – you can refer back to my previous Misconception Monday posts on bills, bill deadlines, and bill referrals. I hope you learn something, and more importantly, enjoy.

 

Differences Between the Assembly and the State Senate

In today’s podcast, I explore some the differences between the California State Senate and State Assembly, as they relate to the legislative processes of both houses. For the most part, the differences are fairly minor, since they both play similar roles in the legislative process. In other cases, the differences are more interesting. As to the differences between the two houses that aren’t just about legislative processes? Well, that’s another podcast.

 

 

 

California Cannabis Coalition v City of Upland

I recently sat down with Matt Read, the Policy Director for Sacramento City Council Member Steve Hansen, to discuss a very interesting California Supreme Court case – California Cannabis Coalition v. City of Upland. As Matt points out in the interview, the case itself was kind of boring. The implications of the decision however, are much more interesting.

Very quickly, the California Supreme Court’s decision in the case essentially ruled that parts of California’s Proposition 218 – specifically, parts related to procedures – did not apply to some initiatives that were ran in the City of Upland by marijuana dispensaries seeking clarification on rules ahead of impending state regulations. This led to other, potentially bigger questions.

Backtracking just a little bit, the most notable impact of Proposition 218 is that it instituted vote thresholds for different types of taxes levied by local governments. General taxes, those used to fund government functions generally, are subject to a 50% + 1 threshold. That’s the same threshold any political candidate needs to win office. Special taxes – taxes directed to a specific project like building new schools or road repairs – which are more commonly used by local governments, are subject to a 2/3 majority vote.

While those thresholds remain the same if a local government were to put a tax measure on the ballot, the decision in Upland potentially allows for citizen-led tax initiatives to be subject to the 50% + 1 threshold, regardless of whether the tax is a general tax or a special tax. What exactly is a citizen-led initiative? That much is unclear, or as Matt put it, “The Court punts on that … question.” You’ll have to listen to our conversation to get a better sense of why that is, and to get a better sense of the numerous other questions that this particular California Supreme Court ruling invites.

2018 was already shaping up to be a very interesting election year, and it appears that the decision in California Cannabis Coalition v. City of Upland will only make this upcoming cycle more interesting.