Advocacy in Practice with Judge Allison Claire

I recently sat down with Judge Allison Claire, a United States Magistrate Judge in the United States District Court for the Eastern District of California. We discussed her advice to attorneys practicing in her courtroom and chambers, and in the Eastern District more generally.   To hear her insights, please visit the links below.

Judge Allison Claire’s page on the District Court’s website.

The Eastern District Court’s Local Rules (effective April 1, 2017).

Judge Claire’s Local, Local rules.

Judge Claire’s rule regarding Informal Telephonic Conferences re Discovery Disputes.

 

 

Hate Speech

The First Amendment prohibits the President or Congress from taking away the NFL’s tax deduction because the league permits players to engage in political protest.

The President tweeted this morning, “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!”

Last month, Republican Congress Member Matt Gaetz said the same thing in a press release announcing his sponsorship of a bill to remove professional sports leagues’ tax exemption.  According to Gaetz, “[N]owhere in the Constitution does it say that Americans are required to subsidize disrespect for America.”

Both comments fail to acknowledge a fundamental constitutional limit on government action.  The very essence of the First Amendment’s right to speak is protection from government censorship, meaning penalties imposed because the government broadly, or a particular government official, disagrees with the idea expressed.  The prototype of speech most highly protected is speech critical of the government because citizens must hear and understand all points of view to form the opinions that allow them to participate meaningfully in our democracy.

The Constitution grants the President, and Congress, the power to do many, many things.  And many of these things make it more difficult for people to listen and to speak.  Taxes on paper and ink make books more expensive.  Tax deductions for charitable and religious organizations allow them to direct the money saved toward spreading their messages.  But purpose matters.   There is no question that Congress may change tax law to remove the NFL’s tax exemption, or that the President may publicly urge Congress to do so.  But Congress may not remove the tax exemption for the purpose of penalizing the NFL for tolerating its players’ political speech.

To be sure, proving the unconstitutional “purpose” of a large body like Congress is more difficult than proving the President’s unconstitutional purpose for an executive action through use of his own statements as evidence, as courts held with the second travel ban.  Nevertheless, these statements by public officials, combined with the largely “symbolic” effect of removing the limited tax exemption, provide a base of evidence to support a lawsuit, defended against with tax dollars, should Congress act soon to change a tax law that many people might well agree, as an economic or tax policy matter, makes no sense.

 

 

 

On Friday, numerous federal agencies announced new rules that allow employers to opt out of providing no-cost contraceptives to employees by claiming religious or moral objections. California law blunts, but not entirely, the impact of this rule change.  California’s Contraceptive Coverage Equity Act of 2014 requires private and Medicaid managed care plans offered in the state to provide the same range of no-cost contraceptives as required by federal law prior to Friday’s rule change.  This state law does not apply to roughly 25% of California employees (4.6 million) who work for employers who fund their own insurance. Only three other states have laws similar to California’s, so the federal rule change impacts most employees across the nation.

Also on Friday, California Attorney General Xavier Becerra sued the Trump administration over the changes to federal rules, arguing that the changes violate the U.S. Constitution and federal law.

The new rules expand the types of employers who can avoid providing no-cost contraceptives through their health insurance plans, and the reasons they can offer to do so.  Previously, only houses of worship could claim a complete “exemption” from the free contraceptives requirement.  A more narrow group of employers with religious objections could request an “accommodation.”  With an accommodation, the employers could avoid paying for their employees’ contraceptives and shift the cost to the insurer, but the employees would still receive contraceptives with no co-pay.  The current rule change extends “exemptions” to all types of employers who claim religious objections and employers other than publicly held companies that claim “moral convictions” against providing contraceptive coverage to employees.  Institutions of higher education may also claim these exemptions and avoid funding contraceptives as part of student health insurance.

The new rules primarily affect the cost of contraceptives for employees, rather than coverage of them by employer plans, since federal civil rights law requires employers to include prescription contraceptives if they cover other prescription preventative care.  But, as a recent Kaiser Family Foundation report points out, even low co-pays limit access to contraceptives, and increase the risk of unintended pregnancy.  The report, written prior to Friday’s rule change, concludes:

If the Trump Administration modifies or eliminates the ACA contraceptive coverage rule, scope of coverage will depend on where a woman lives, where she works, and her insurance plan. Millions of women could lose no-cost coverage for the full range of contraceptive methods. Insurance companies and employers will be the ones to make choices about coverage and cost-sharing.  For some women, their choices will be limited, and some of the most effective and costly methods will be out of financial reach.

For more information on the federal rulemaking process, see the Federal Register’s Guide to the Rulemaking Process.

By: Michael Hopkins

If you’ve applied for a job, you’ve likely seen the box. Have you ever been convicted of a felony? For many people, this box is no big deal, you check no and you move on with the rest of the application. For those people with a criminal conviction, however, this box is much more than part of a job application—it can be the barrier to employment.

This is the position taken by the sponsors and supporters of AB 1008. Supporters point to stories of individuals with convictions being unable to find a job. They also point to studies in which employers say they would rather hire any other stigmatized group of people before formerly convicted people. AB 1008 supporters claim the felony conviction box on job applications allows employers to summarily deny jobs to a whole class of people without meeting them, without interviews, and without giving them a chance.

Assembly Members from northern and southern California came together to sponsor the bill; those members were: Assembly Members McCarty (D-Sacramento), Weber (D-San Diego), Holden (D-Pasadena), Gipson (D-Carson), and Reyes (D-Colton).

AB 1008 bans the conviction box from job applications. Any employer with five or more employees, including private employers, is prohibited from asking any question seeking disclosure of an applicant’s conviction history on a job application.

AB 1008 does more than just affect job applications; the bill also prevents employers from looking into or asking about an applicant’s conviction history until after a conditional offer of employment is made. In practice, this means that an employer cannot run a criminal background check on an applicant until the employer gives the conditional offer of employment. Basically, the employer says we want to hire you for this job, but we’ll first look into your background first.

The delaying of criminal background checks is designed to give all applicants, including those with conviction history, a chance to engage and build some rapport with the employer. Studies have demonstrated that formerly convicted people can explain their past convictions and highlight their positive qualities during an interview. This provision of AB 1008—the delaying of a criminal background check—is designed to give formerly convicted applicants that chance.

If after running the criminal background check the employer finds a conviction that causes it to believe the applicant should not be hired, AB 1008 imposes notification and procedural requirements on the employer. The employer must make an individualized assessment of whether the conviction history justifies rescinding the conditional offer. The employer must also notify the applicant and give them at least five business days to respond to the rescission. This response period may be extended another five business days.

The employer must consider any information submitted by the applicant before finalizing the decision. The employer must also notify the applicant if the rescission is finalized.

AB 1008’s opponents claim the bill adds delays and expenses to the hiring process. AB 1008 certainly adds steps to the hiring process, such as the notification requirements. Further delays and expenses can come in the form of the required individualized assessment.

Opponents also point to the bill’s impacts on employer liability. Employers can be sued by hiring a person with a violent history or tendencies who later injures or harms another. Employers reduce the chances of hiring these people by running background checks. By placing limits on background checks, the argument is that employers will lose this tool used to reduce liability.

Despite the opposition, AB 1008 made its way through the California Legislature. The bill passed both the Assembly and Senate and is now on Governor Brown’s desk. Governor Brown has until October 15, 2017 to act on the bill.

To learn more about AB 1008, check out my interview on “In Session,” a podcast from the University of the Pacific Law Review, here.

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

 

 

 

Certiorari

California is one of seven states that bans assault weapons, which are semi-automatic, military-style weapons with features that make them easy to conceal, and easy to fire multiple rounds of ammunition continuously. The National Rifle Association (NRA) is in the process of filing a series of lawsuits challenging the most recent assault weapon restrictions passed by the California Legislature in 2016 (AB 1135 and SB 880).  A petition for review currently pending in the U.S. Supreme Court is of high interest to Californians because it asks the Court to accept the same arguments made by the NRA in its constitutional challenge to California’s new assault weapons restrictions.

The petition currently pending at the U.S. Supreme Court requests that it accept review of the Fourth Circuit Court of Appeals’ en banc decision upholding Maryland’s assault weapons ban – Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). Gun owners and dealers argue that because certain types of prohibited assault weapons, specifically the AR-15 and AK-47, are “popular” choices for self-defense, the Constitution’s Second Amendment prohibits states from banning them.

 

AR-15 Assault rifle

 

AK-47 Assault Rifle

 

 

 

 

 

The challengers ask the Court to interpret the Constitution to mean that “[t]he individual – and not the government – retains the right to choose from among common arms those that they believe will best protect their person, family, and home.”  Pet. For Writ of Cert. at 3.  This interpretation of the Constitution, if adopted by the Court, could dramatically restrict the power of California’s citizens, and the citizens of other states, through their legislatures, to limit the availability of weapons they determine to pose particular dangers of misuse.  These weapons include guns or accessories with rapid-fire or other assault features that have been commonly used in mass shootings, including the most recent Las Vegas tragedy.

The Court has discretion to accept or refuse review of lower court decisions. Since its two  decisions in 2008 and 2010 interpreting the Second Amendment to protect an individual’s right to possess a gun in the home for self-defense, the Court has not agreed to review challenges to gun restrictions. Only Justices Thomas and Gorsuch seem inclined to review and strike down gun restrictions in the short term, complaining in a dissent last term about the Court’s “treatment of the Second Amendment as a disfavored right.” Peruta v. California, 582 U.S. (2017).

The challengers in the pending case, Kolbe v. Hogan, filed their petition for review on July 21, 2017. West Virginia, joined by twenty other states, filed an amicus brief supporting the request for review. The State’s response is due on October 10, 2017. Once all the briefs are in, the Court will discuss the petition at a Friday conference and decide whether to grant review.

For more information on:

Assault weapon laws, federal and state: Law Center to Prevent Gun Violence – Assault Weapons

Gun laws generally, state by state: Reuters Gun laws in the US, state by state – interactive

A history of the AR-15 and AK-47: New York Times “Tools of Modern Terror” by C.J. Chivers

Want more information?  Check out our In Briefs.

 

 

 

Hate Speech

Yesterday, the California State Senate Committee on the Judiciary held its first hearing on “Combating Hate While Protecting the Constitution.” The Senate Committee heard testimony from constitutional scholar and dean of the University of California, Berkeley School of Law, Erwin Chemerinsky, and from Joanna Mendelson with the Anti-Defamation League’s Center on Extremism. Ben Shapiro, a conservative commenter and former editor at Breitbart, was invited to give testimony by the Republican members of the committee, but was not given a spot on the panel. Shapiro gave public comment instead.

You can read a recap of the hearing by Taryn Luna in the Sacramento Bee’s Capitol Alert. You can also watch the full committee hearing on The California Channel. There will be a second hearing on this topic by the Senate Public Safety Committee on October 18.

Want to learn more? Check out our In Brief podcasts.

 

 

 

Welcome to our In Brief series. In these posts and podcasts, we break down the key concepts in the day’s news and quickly explain why it matters to Californians.

Gerrymandering

Political Question Doctrine

Today, the U.S. Supreme Court heard oral arguments in Gill v. Whitford, in which a three-judge district court held that in drawing the state’s voting lines after the 2000 census, the Wisconsin Legislature engaged in unconstitutional partisan gerrymandering.

California is one of the few states to delegate the task of district line-drawing to a commission independent of the state legislature.  The California Redistricting Commission (CRC) filed an amicus curiae brief in the Gill v. Whitford case which, according to its press release, “focuses on the viability of non-partisan criteria and independent redistricting processes as alternatives to partisan districting.”

You can see a preview of the arguments on SCOTUSblog by Amy Howe, and recaps of today’s oral arguments in the Los Angeles Times by David Savage or on SCOTUSblog by Amy Howe. You can also listen to my interview with Beth Ruyak on Capitol Public Radio’s Insight  where I give my overview of Gill v. Whitford as well as other cases on the Supreme Court’s docket for this term.

Want more information?  Check out our In Brief podcasts.

 

 

 

Welcome to Policy Change in Practice. In this series, we talk with the key people engaged in changing public policies at every level of government. Our conversations focus on how their organizations change policy, as well as their personal tips and insights into the most effective ways to make change.

Policy Change in Practice with Sosan Madanat

For our first Policy Change in Practice conversation, I sat down with Sosan Madanat, the Executive Director of the Foundation for Democracy and Justice (FDJ), which is based in Sacramento, California.

As a 501(c)(3) nonprofit organization, FDJ does not engage in lobbying to achieve policy change. We talked about how it uses public education events – in libraries and at panel events and resource fairs – as a tool to change public policy and the challenges in doing so.

To learn more about the Foundation for Democracy and Justice, you can visit its website. Or you can find it on any of its social media pages:

Facebook: Foundation for Democracy and Justice

Twitter: @FDJ_CA

Instagram: fdjca

Advocacy impacts decision makers and prompts policy change. We bring you news, practice tips, and practical examples of advocacy aimed at legislators, regulators, judges, and juries. We help you understand who exercises influence to impact law and policy and how they do it, and we provide tools and resources so you can master the art of making change.

Policy changes constantly in California. We keep you up to speed on the most pressing public policy issues, and on potential solutions as they are considered and tried. We help you understand the operations and output of various policy-making bodies, from local to global in scale. And we bring you nuanced insights from experienced players in the public policy arena about how to choose the best tools and places to make change.