In December, the Court will hear argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  A cake baker claims that a Colorado civil rights law, which requires him, as a merchant serving the public, to provide his product on a nondiscriminatory basis to gay people for their weddings, unconstitutionally compels him to speak.  A decision in favor of the cake baker would restrict the ability of California and California cities to enforce similar nondiscrimination laws.

President Trump’s appointee, Justice Gorsuch, likely provided the fourth vote to grant review in the case. The Trump Administration has filed an amicus brief arguing that the Court should interpret the Constitution in the way the baker suggests.

Recently, in the Take Care blog, Yale Law School Professor Robert Post reviews the Department of Justice’s brief in light of free speech doctrine.  The DOJ’s key claim is that creating a cake should be constitutionally protected at the same level as core political speech. So, because the Constitution forbids the government to compel a child to engage in the expressive action of saluting the flag, the Court should interpret it to forbid the state to compel a custom cake baker to make a cake to be used at an “expressive” event, such as a gay wedding.  Dean Post responds:

If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings—furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.

Any such conclusion would … rip the guts out of any effort to establish equality in the commercial marketplace.”

You can read Professor Post’s full commentary on Take Care.

 

 

 

 

This Lead Up to Legalization blog series will cover California’s foray into legalized recreational marijuana. We will cover issues leading up to our state’s January 2018 implementation, including the structure of Proposition 64, marijuana’s classification under the Controlled Substances Act, and many other issues that arise during the state’s transition.

At the time of this post, eight states have legalized marijuana for recreational adult use, and 29 states have some form of legalized medical marijuana. At the same time, cannabis remains a Schedule I drug under the federal Controlled Substances Act, meaning that any use or possession of the drug is illegal under federal law. How then can states legalize any form of marijuana, whether recreational or medical, without facing sanctions from the federal government?

The answer largely lies with two memos written by attorneys at the United States Department of Justice during the Obama administration. The memos provided states with the basic guidelines for legalizing marijuana. Essentially, if the states met the suggested elements in the memos, federal prosecutors were encouraged to direct their attention elsewhere. The first memo, written by Deputy Attorney General David Ogden in 2009, provided guidelines for states that had legalized marijuana for medical purposes. Ogden notes that the Justice Department’s main priorities focus on “the disruption of illegal drug manufacturing and trafficking networks,” but clarifies, “As a general matter, pursuit of these priorities should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Ogden provides several factors that would raise a red flag for federal prosecutors and invite prosecution, including: sales to minors, violence, and unlawful use of firearms associated with medical marijuana sales.

In 2013, Deputy Attorney General James Cole published a similar memo, this time regarding both medical and recreational marijuana. Like Ogden’s memo, the “Cole memo,” as it is commonly referenced, lists eight issues that states should account for in their marijuana regulations, or else risk triggering federal prosecution. These include, among others: preventing the distribution of marijuana to minors, diversion of marijuana to states that have not legalized the substance, and use or possession of marijuana on federal property. Cole sets up a similar federal-state balance as Ogden did, writing that states with strong marijuana regulatory systems that prevent the issues listed out in his memo are “less likely to threaten the federal priorities,” and therefore less likely to trigger federal prosecution.

Neither the Cole nor the Ogden memos constitute a guarantee or absolute shield against federal enforcement of the Controlled Substances Act. The memos themselves even contain such disclaimers.For example, the last sentence of the Cole memo reads, “Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.” Even so, federal resources are currently unlikely to be used to prosecute individuals for personal marijuana use in legalized states.

Thus far into the current administration, the Justice Department has abided by these memos and allowed states to set up marijuana regulatory structures in compliance with the Cole and Ogden memos. However, the memos do not technically have the force of law. A new memo from the Trump administration’s Justice Department could reinstate federal prosecution without regard to the Cole and Ogden memos.

President Trump has made conflicting statements on his stance regarding state-legal marijuana. Thus, the future remains uncertain for these states.

The next post in this series will go over the federal Controlled Substances Act and how cannabis fits into that regime.

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: Trevor Wong

In 1996, Californians passed Prop 215 allowing qualified medical patients the right to cultivate and possess marijuana. In 2016, Californians passed Prop 64 allowing adults over the age of 21 to use marijuana recreationally. In the twenty intervening years, the Obama Administration gave California and other states assurances that if they developed a robust regulatory and enforcement system for medical or recreational adult use of marijuana, residents who complied with state laws and regulations would have a reasonable expectation that they would not be subject to harassment, arrest or incarceration by the federal government. Under those assurances, California’s marijuana industry flourished, growing into a multibillion-dollar industry. Security and continued growth, however, depends on whether the Trump Administration continues Obama era policies.

While campaigning, President Trump never made his stance on marijuana clear. At times, he said that marijuana legalization should be left to the states, while at other times, he claimed that Colorado’s legal marijuana industry was a “real problem.” When Trump appointed Jeff Sessions (a staunch anti-drug crusader) as Attorney General many saw it as a signal that the administration might eventually reverse the Obama-era policies and begin greater enforcement of federal marijuana laws in California and nationwide.

To mitigate the risk of such a policy reversal, Assembly Member Jones-Sawyer (D-Los Angeles) proposed AB 1578. The bill would have prohibited state and local law enforcement agencies from taking certain actions unless federal authorities first obtained a court order. Some of the actions prohibited without a court order include: using agency money, facilities, property, equipment, or personnel to assist a federal agency to investigate, detain, detect, report, obtain information, or arrest a person for cannabis activity that is authorized or allowed under California law.

The bill drew opposition from law enforcement organizations and a major local government group. Both were concerned that the bill, by needlessly preventing cooperation between federal and state officials, would place California in violation of federal law and would lead to inefficiencies not present under the current law. But those concerns may be overstated because AB 1578 would not have prevented all cooperation. On the contrary, cooperation would still be lawful whenever federal authorities obtained a court order. Moreover, under AB 1578, federal authorities would still be able to enforce federal drug laws related to marijuana in California themselves. They simply would not be able to use California resources to enforce those laws.

Another major concern was that federal law would preempt AB 1578. But because the federal government cannot force state and local law enforcement agencies to enforce federal law in the first place, it is likely that AB 1578 would have withstood a preemption challenge because it would merely have codified the already-existing right of state and local law enforcement agencies to not affirmatively assist the federal government in enforcing federal law.

Ultimately, AB 1578 did not pass. But that does not necessarily spell disaster for California’s marijuana economy. Because the federal government cannot force state and local law enforcement authorities to enforce federal law, even without this bill, local law enforcement is not obligated to assist federal authorities in enforcing federal marijuana law. So to the extent state and local law enforcement simply refuse to help federal authorities, the goal of this bill can be achieved, despite the fact the legislature did not pass the bill. In addition, although the Trump administration’s position on the issue is still unclear, for the time being, marijuana users in California do not have to worry about federal prosecution because the Obama-era policies are still in effect. Nonetheless, the risk that the Trump administration will reverse Obama-era policies remains, and California residents will remain in limbo until the Trump administration makes its intentions clear one way or the other.

To learn more about AB 1528, check out my interview on “In Session,” a podcast from the University of the Pacific Law Review.

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

 

 

 

Preemption

On October 11, 2017, the California Department of Motor Vehicles published revised regulations that would allow companies to deploy fully driverless vehicles on California roads as early as 2018. Currently, autonomous vehicles on California roads must have a person with access to the controls.

According to the National Conference of State Legislatures, 21 states have passed some type of driverless vehicle legislation.

Wired.com quotes Professor Bryant Walker Smith, of the University of South Carolina School of Law, as singling out California’s leadership role in crafting and implementing driverless vehicle regulations: “California is special…It’s really big, it’s where a lot of this action is happening, it has the track record to be thinking through these issues, and it’s pretty committed to them.”

California’s 2012 law that allows autonomous vehicles to operate in the state and authorizes the DMV to write driverless car regulations provides, as it must, that federal driverless car laws will supersede California laws if the two conflict.  The House has passed a bill, and the Senate is considering a similar version, which, if passed and signed into law would greatly expand federal preemption of driverless vehicle regulation.

Want to learn more, check out our In Briefs.

 

 

 

Be a Sponge

In this In Practice podcast, I talk about my first rule for being an effective lobbyist, which is to be a sponge. It might sound fairly common sense, but this rule has served me well throughout my career as an advocate. These are not just helpful for aspiring legislative advocates only, but serve as useful guidelines for careers in legal advocacy – save for one rule, which I will go over in a later podcast.

For more advocacy tips from myself 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.

 

 

 

Today’s Senate Public Safety Committee Informational Hearing on the recent rise of violence at protests struck at the heart of one the most difficult questions California, and the nation, has had to deal with this year: How do we balance the need to protect our constitutional rights to free speech and assembly – even speech that some people find repugnant – with the need to protect public safety when protests turn violent? It featured testimony from the law enforcement officials and organizations that help develop hate crime training for law enforcement officers.

While the protests and violence in Charlottesville immediately come to mind, it’s an issue that’s plagued California recently as well. A few notable instances in California are the violent protests at UC Berkeley in February in opposition to an event featuring Milo Yiannopoulos and a clash between neo-Nazis and protesters at the State Capitol in Sacramento that left 10 injured.

Testimony from the law enforcement officials at the hearing focused on how they’ve modified and modernized their training and tactics to allow them to identify bad actors and pull them out of a situation while protecting a group of protesters right to protest while also preventing violence, either entirely or at least preventing violence from escalating.

Today’s informational hearing also provided a great example of the California Legislature’s committee process at work. The information gathered by lawmakers today will be crucial in the upcoming year as they go forward crafting legislation to help law enforcement officials more quickly deescalate potentially violent protests while protecting everybody’s right to free speech.

For more on committees, and their role in the California lawmaking process, please listen to Erinn Ryberg’s podcast on committees below. And for a refresher on hate speech, please also check out Leslie Gielow Jacob’s earlier post on the topic, as well as her podcast on hate speech – which I’ve also included below.

Legislative Committees

Hate Speech

 

 

 

Components of a Trial

In this In Practice podcast, I talk about the components of a trial, with a special focus on how to judge how well an attorney is performing in any given segment of the trial. Similarly, for attorneys tuning in, you could use the information in this podcast as a refresher on how to be a more effective trial advocate. I go over the hallmarks of effective and ineffective advocacy at the stages of: jury selection, opening statement, direct examination, cross examination, and closing argument.

For more information and tips on how to improve your advocacy, please refer to our In Practice Archive.

 By: Erinn Ryberg

Actions the Governor Can Take on Legislation

As Legislative Director for Assembly Woman Cristina Garcia, I’ve learned a couple of things about Governor Brown when it comes to how he’ll act on legislation. The first thing I’ve learned? More often than not, he signs bills into law. John Myers had a piece in the Los Angeles Times today, noting that Governor Brown only vetoed 12% of the 977 bills that came to his desk this year – down from vetoing 15% of bills last year. The second thing I’ve learned is about the types of bills that land in that 12%.

There are two categories of bills that Governor Brown likes to veto – bills that create new crimes and bills that either cut taxes or create new spending. I’ll start with why he tends to veto the spending bills. The reasoning tends to fall along the lines of new spending bills – new money leaving the General Fund – or new tax cut bills – money no longer entering the General Fund – should be considered with all the other budget priorities as part of the budget process, not as separate, standalone bills. You can imagine my very pleasant surprise when it was announced that he signed my boss’s bill, AB 10 into law. I’ll have more on that bill in another post and conversation with Jon Wainwright. The reasoning behind his vetoes of bills creating new crimes is that the Governor believes that California’s penal code is long and complex enough and there’s no need to make it any longer or more complex.

You can also find a great in depth piece on the some of the major bills Governor Brown signed this year on CALmatters, including AB 10.

For more information on California lawmaking, check out our other In Brief podcasts.

By: Emily Malhiot

Before 2017, Nevada was a member of a minority of states that lacked an anti-bestiality law. The rationale behind anti-bestiality laws is two-pronged: (1) protect animals and (2) prevent future violence to humans. Bestiality is considered animal abuse because the act could physically harm or even kill the animal. Additionally, it is often a precursor to other crimes, including sex-related offenses, crimes against children, and domestic violence. Despite growing concerns about animal cruelty and the connection between animal and human violence, bestiality remains a troublesome topic. Legislators are hesitant to sponsor such bills, and research and resources for bestiality investigations remain limited. However, law enforcement agencies and the public are paying more attention because of increased awareness and increased media attention.

Nevada Assembly Member Richard Carrillo (D-Las Vegas) introduced AB 391, which creates the crime of bestiality. Under AB 391, the crime of bestiality occurs when a person knowingly and intentionally (1) “engages in sexual conduct with an animal;” (2) “causes another person to engage in sexual conduct with an animal;” (3) “permits any sexual conduct” with an animal on any premises owned by that person; (4) aids or abets in any way; or (5) “photographs or films” the act. If the abused animal does not die or suffer serious bodily injury during the commission of the offense, and the offender does not have a previous felony conviction for cruelty to animals, the penalty is a gross misdemeanor. If, however, the abused animal dies or suffers serious bodily injury during the commission of the offense, or if the offender has a previous felony conviction for cruelty to animals, the penalty increases to a felony. Additionally, for a period of time determined by the court, the offender cannot own or have an animal in his or her household and cannot volunteer or work where there is access to animals. Lastly, the judge may require the offender to undergo psychological counseling.

AB 391 follows the majority of states in using the traditional term of “bestiality” in its language. States like California and Oregon classify bestiality as animal sexual abuse, reflecting the idea that animals cannot consent to such acts. Naturally, because bestiality is a sexual crime, the question of whether offenders should be placed on sex offender registries remains open; AB 391, however, does not to include this. AB 391 also moves away from the modern trend of classifying bestiality as animal cruelty, instead classifying it as a crime against morals and indecency. The reason for this is that sexual abuse does not always reveal a physical injury to the animal. A general concern regarding anti-bestiality laws is whether they invade an individual’s privacy. However, similar to child abuse cases, because animals cannot consent or speak up about their abuse, the animal’s safety and the potential future safety of humans trumps over privacy.

One problem is determining whether this bill will prove effective in protecting both animals and humans. Bestiality research and statistics remain limited for law enforcement agencies, which are now starting to pay attention. Another concern is whether law enforcement agencies will enforce the law and investigate cases.

Despite the uncertainty around the bill’s effectiveness, abused animals have greater protections and there is now recourse for these animals and for people who report these crimes to the police.

To learn more about Nevada AB 391, check out my interview on “In Session,” a podcast from the University of the Pacific Law Review.

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

 

 

By: Adrienne Brungess

Credibility and Ethos in Persuasion

In this In Practice podcast, I talk about ways advocates can bolster the ethos of their arguments, that is, strengthen their credibility with the audience and the judge, as well as some pitfalls to avoid that can undermine an advocate’s credibility. In short, you can strengthen your own credibility by demonstrating respect, candor, and zeal while avoiding errors – from mistakes as seemingly trivial as grammatical errors in written arguments to sarcastic and/or personal attacks.

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.