When you think of the right to vote, you probably think about state laws.  But cities and towns make laws that control the right to vote, too.  Did you know that “in November 2016, Berkeley, California decided to lower the voting age to sixteen for its school board elections and San Francisco voters narrowly rejected a referendum to reduce the voting age to sixteen for all of its city elections?”

Professor Joshua A. Douglas of the University of Kentucky College of Law shows how municipalities in California and across the nation are trying out expanded types of voter qualifications, playing their constitutional role as “laboratories of experiment” for new ideas, or “test tubes of experiment” in Professor Douglas’s words.

For the issue brief, see Joshua A. Douglas’s Expanding Voting Rights Through Local Law.

For the full law review article, see The Right to Vote Under Local Law, also by Joshua A. Douglas.

By: Mike Vitiello

Intro to Marijuana Law

Marijuana law is one of the fastest-growing areas of the law in most states throughout the country. California is no exception, particularly since the state’s voters passed Proposition 64 in the November 2016 election, legalizing recreational use of marijuana for adult users. Since then, the state has established new agencies, which in turn have promulgated many new rules to regulate recreational use of marijuana when sales go “live” in January 2018.

With this recent legitimization of marijuana use, the field of “marijuana law” has developed significantly since its previous days as essentially a niche of criminal defense. In states like Colorado, Washington, and now California that have legalized recreational marijuana, individuals in the marijuana business need legal advice on many aspects of the trade – from contract negotiation to licensing applications and insurance issues. Not only is the area developing for private marijuana law practice, but several of these state agencies are hiring as well, including the Bureau of Cannabis Control, the Department of Health, and CalCannabis Cultivation Licensing.

The emerging field of marijuana law is not without a few wrinkles, however. Most notable is the fact that marijuana remains a Schedule I drug under the Controlled Substances Act, meaning that use or possession of the drug in any form and in any amount remains illegal under federal law, regardless of state law. The Obama administration’s tolerance of state legalization can easily be reversed by the Trump administration. Given this balance, lawyers in the field of marijuana law can face professional responsibility issues as to how they advise their clients – a basic tenet of attorney ethics is never to advise one’s client to engage in a violation of the law.

Despite the uncertainty with the new administration’s approach to marijuana, the field prevents many opportunities for lawyers as the new legalization regime develops and becomes more established.

 

 

 

The Controlled Substances Act (CSA), signed into law by President Richard Nixon in 1970, is the main federal statute regulating possession and use of certain substances, such as heroin, LSD, and cocaine. The CSA has five “schedules” that rank these substances based on three main attributes: the drug’s potential for abuse, existence of a current medical use, and its potential for safe use under medical supervision. The Food and Drug Administration (“FDA”) and the Drug Enforcement Administration (DEA) make these determinations.

Schedule I is for substances that the FDA and DEA have determined to have a high potential for abuse, no currently accepted medical use, and a lack of safety for use under medical supervision. Schedule I drugs are the most tightly regulated of all five schedules. Any use, even simple possession, of any amount of a Schedule I substance is illegal and punishable under federal law. Cannabis is currently classified as a Schedule I drug in the CSA, along with heroin, peyote, and MDMA. Any possession or use of the substance, even if legal under state law, is illegal under federal law and punishable under the CSA.

There is substantial public support for marijuana’s medical use, indicated by 29 states in the country legalizing some form of medical or recreational marijuana. The CSA has not caught up to public sentiment, largely in part to the different processes between a state ballot initiative and rescheduling of a substance in the CSA. At the state level, citizens can generally make any change to the law by drafting an initiative, qualifying it the ballot, and passing it by the required vote at an election. By contrast, the CSA entails a more stringent process. Generally, in order for the DEA ad FDA to find a substance to just have medical treatment value – let alone make determinations regarding potential for abuse or potential for safe use under medical supervision – it must meet five conditions:

  1. The drug’s chemistry must be known and reproducible;
  2. There must be adequate safety studies;
  3. There must be adequate and well-controlled studies proving efficacy;
  4. The drug must be accepted by qualified experts; and
  5. The scientific evidence must be widely available.”[1]

One of the most prominent difficulties for cannabis in meeting these five conditions is that it is very difficult, if not impossible, to have two different samples of cannabis leaves with the exact same chemical makeup. This is due to the fact that it is harvested off of a natural plant. Further, different varieties of cannabis plants have different chemical makeups, creating even more variations. Therefore, under the CSA’s current structure and requirements, it is unlikely that cannabis can be rescheduled as a drug with potential medical value.

In response to this difficulty, members of Congress have introduced bills that would reschedule cannabis within the CSA. The most recent attempt at legislative rescheduling is House Resolution 2020, which would place cannabis in Schedule III (which lists drugs that have lower potential for abuse, currently accepted medical use, and low/moderate risk of dependence if abused). Possession and use of Schedule III drugs without a prescription is illegal, so rescheduling cannabis to this category would greatly restrict, if not outlaw entirely, its recreational use. H.R. 2020 was introduced by Rep. Matt Gaetz, a Florida Republican, in April 2017. Given the public sentiment overall in support of medical marijuana and a new wave of support in Congress, a legislative rescheduling may be possible, however it remains unlikely that cannabis will be rescheduled by the DEA and FDA.

[1] Jonathan P. Caulkins et al., Marijuana Legalization: What Everyone Needs to Know 84 (2d ed. 2016).

Kendall Fisher is Editor in Chief of the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

By: Shelby Lundahl

Human trafficking is a $32 billion global industry that transverses national boundaries. It is a problem that exists in every state in the U.S., and California is one of the largest sites of human trafficking in the nation. That may be due to a number of factors, including California’s vast size, large population, and international border. In 2016 alone, there were 1,322 reported cases of human trafficking, which is a fraction of the true number of cases. Most cases go unreported due to fear of the trafficker, fear of law enforcement, or a sense of hopelessness. Even so, the number of reported cases of human trafficking has swung up and down over the past five years. Human trafficking is a widespread problem and difficult to recognize, prompting California lawmakers to introduce Assembly Bill 1227 earlier this year to attack the problem head-on.

AB 1227 seeks to spread awareness of human trafficking and implement prevention measures in local communities. It directly targets the segment of the population most vulnerable to being trafficked – children ages nine to eighteen. Assembly Members Rob Bonta (D-Alameda) and Evan Low (D-Campbell) introduced the legislation, which quickly gained full bipartisan support. AB 1227 makes human trafficking education and training mandatory in public middle schools and high schools in California.

The training has a three-fold approach. First, the education program aims to deliver comprehensive prevention education and training procedures on human trafficking. The information will allow teachers, administrators, and students to become aware and begin to develop an understanding of human trafficking. Second, it helps students recognize signs of human trafficking, which include force, fraud, and coercion. And finally, the education will help students avoid becoming victims themselves. Human traffickers use subtle and clever tactics to lure children in – such as using other young people to befriend these children, offering jobs that seem too good to be true, or pretending to be romantically interested in these children – making it critically important that students can recognize these tactics and extract themselves from the situation.

AB 1227 had widespread support from school districts, faith-based organizations, teachers, labor unions, and district attorneys’ offices across the state. Although there are no exact numbers, AB 1227 is expected to cost approximately $20,000 to develop the training curriculum and approximately $5 million to provide the training to the teachers and school district personnel across the state. Teachers will receive continuation training, as necessary, which ensures the information being presented to the students is up-to-date. Further, the different agencies and offices who encounter young children – such as: child welfare agencies, public health departments, sheriff’s departments, and juvenile courts – are encouraged to work together to develop intervention programs. Once the curriculum is developed and implemented, the number of potential reporters and people on the lookout for human trafficking will increase and hopefully lead to an end to this horrific form of modern-day slavery.

To learn more about AB 1227, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

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

 

 

 

The Importance of Honesty

In this In Practice podcast, I talk about my second rule for being an effective lobbyist, which is to always be honest. There are many reasons why it is important to always be honest, but perhaps the best reason is that it is easier to remember the truth than it is to remember what lies you’ve told in the past, and to whom.

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.

 

 

 

AB 10 In Depth with Erinn Ryberg

Welcome to California Lawmaking In Depth. In this series, we examine individual pieces of legislation with the people who were directly involved in crafting, supporting, or killing the bill. The conversations focus in on the process of passing – or killing – the particular bill.

In this inaugural In Depth conversation, I chatted with Erinn Ryberg – Legislative Director for Assemblymember Cristina Garcia (D-Bell Gardens) – about AB 10. We discuss how the idea for the bill came to Asm. Garcia and the changes it went through on its way to the Governor’s desk.

At the time this was recorded, Governor Jerry Brown had not yet acted on the bill. On October 12, Gov. Brown signed AB 10 into law as part of a legislative package of bills to help “women, children, and families across the state.” That package of bills also included AB 480, by Asm. Lorena Gonzalez Fletcher (D-San Diego).

 

 

 

Congress has the power to regulate how guns are sold at gun shows, or to prohibit gun show sales entirely.  But it has not done so. This leaves a patchwork of different state rules across the nation. And while states may create and enforce their own rules within their geographical areas, policy choices of neighboring states inevitably bleed across the borders. A recent UC Berkeley study showed that gun violence increased 70 percent in parts of California after Nevada gun shows.

The National Institutes of Health (NIH) partially funded the gun show study. However, for two decades, the Centers for Disease Control and Prevention (CDC) has not funded gun violence research because the CDC is prohibited by Congress from using appropriated money“to advocate or promote gun control.” Since 2012, the NIH has been subject to a similar restriction, but has interpreted it to permit funding research such as the Nevada gun show study. According to a piece in JAMA:

Why the 2 federal agencies have interpreted the same rider so differently is not clear. Critics say the CDC has overreacted to the amendment’s vague language. But other observers note that the size of the NIH budget gives it less reason to be concerned about retaliation by pro-gun members of Congress.”

To read the entire article, see: Tale of 2 Agencies: CDC Avoids Gun Violence Research But NIH Funds It

Check out our In Briefs:

Congress’s Commerce Power

 

 

 

Effectively using imagery, simile, and metaphor

In this In Practice podcast, I discuss how telling a compelling story can help an advocate clarify points and simplify complex topics. To be able to tell these stories, an advocate’s skills are greatly enhanced by a solid grasp of how to effectively use imagery, simile, and metaphor – which I review in greater depth in this podcast.

For more information and advocacy tips, stay tuned here at CAP·impact and look for my posts on the blog Global Lawyering Skills as well.

 

 

 

Congress’s Commerce Power

In some countries, the national government could devise a way to combat homelessness, fund it, and implement a single solution in the same way throughout the country.  Not so in the United States.  Despite the Court’s broad interpretation Congress’s commerce power, Congress does not have the power to tell states that they must adopt a particular solution to homelessness.

It can, however, use taxpayer money to encourage states to develop solutions.  That’s what Congress and the Department of Health and Human Services (DHHS) have done.  Congress gives money to manage the Medicaid program to the states.  DHHS granted California a waiver from Medicaid rules to implement its own solution, which is to use the federal money to award “Whole Person Care” grants to cities and other groups to coordinate the number of different types of care that vulnerable populations, such as the homelessness, need.

Sacramento received one of the grants.  But while cities, like Sacramento, have the power to create and coordinate the extensive outreach necessary to direct homeless people to medical and mental health care services, counties are the entities charged by the state with delivering those services, and counties are the ones that receive taxpayer funding to do so.  So, implementing a “Whole Person” homelessness solution requires a team of government entities, at different levels, working together to exercise their various powers granted in a constitution or delegated by a legislative body to get the job done. While a system of diffused power encourages new ideas and fresh approaches, it also increases the likelihood of complications, when entities charged with addressing different parts of a policy problem, like homelessness, find it difficult to collaborate.

Yesterday, the Sacramento Bee’s Editorial Board penned its opinion on the current situation in Sacramento. You can read it here.

Check out our In Briefs.

 

 

 

The filibuster is an oddity of Senate procedure at the federal level, which, when available, allows Senators in the minority to influence the content of bills by threatening to block consideration of it.  In the last number of years, the Democratic and Republican Senate leaders have eliminated this rule for Presidential appointments.  Although it still remains for legislation, the Senate can write it away for bills with budgetary impacts.  That’s what the Senate did last week, paving the way for passage of a tax reform bill by a mere Senate majority, rather than 60 votes out of 100 if the filibuster were available.

USA Today explains:

The biggest thing — which senators from both parties emphasized this week — is the passage of “reconciliation instructions” that tell the Senate Finance Committee that a tax bill cannot be filibustered if it adds $1.5 trillion or less to the deficit. …

The budget also includes reconciliation language that the energy committee could use to ease restrictions on oil drilling in the Arctic, so a bill that is brought up to do that also may not be filibustered.”

Want to learn more. Listen to our In Brief podcasts.

Filibuster