McGeorge Capital Center for Law & Policy

 

 

 

 

 

 

 

In both the California State Assembly and the California State Senate, there are designated officers and elected leaders of these two bodies. We’ll take a quick look at some of those positions in the text and cover more of the positions in today’s podcast. We’ll start with the California State Assembly.

Speaker – he or she is the highest-ranking officer of the Assembly and is elected by the members at the beginning of the two-year session. He or she presides over floor sessions and has extensive powers and duties established by the Assembly Rules.

Majority and Minority Floor Leaders – The Majority Floor Leader is elected by the members of the majority party caucus, who represents the Speaker on the floor and oversees the floor proceedings through parliamentary procedures such as motions and points of order. The Minority Floor Leader is elected by the caucus having the second largest membership in the Assembly and is generally responsible for making motions and points of orders and representing the minority caucus on the Assembly Floor.

Majority and Minority Whips – The Whip is essentially the political leadership of each party in the Assembly. They are elected by their caucuses or appointed by the Speaker and there are usually Assistant Majority Whips and of course, on the other side of the aisle, there is the Minority Whip who is selected by the Republican leader and there are often multiple Assistant Minority Whips.

There are many positions in the California State Senate that are very similar to their counterparts in the Assembly so I’ll focus instead on President of the Senate and the President Pro Tem of the Senate.

President of the Senate – By law, this is the Lieutenant Governor. However, by custom the role is extremely limited. He or she may be invited periodically to preside over ceremonial occasions, such as the opening of the two-year legislative session. The only time the Lt. Governor is entitled to participate in the business of the Senate is in the case of a tie vote when he or she would cast the tie breaking vote.

Senate President Pro Tem – He or she is the leader of the Senate and serves as the chair of the Rules Committee. This individual is elected by the members, generally, at the start of the two-year session. The Pro Tem is the presiding officer who oversees the appointment of committee members, the assignment of bills, and the confirmation of Gubernatorial appointees, and of course, he or she is also the political leader of the majority party.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Today’s podcast is on the new rules for licensed shorthand reporters put in place by Assembly Bill 2084.

Governor Jerry Brown signed AB 2084 by Assemblymember Ash Kalra on September 21st as Chapter 648. The bill went into effect on January 1, 2019 and it adds Section 8050 to the California Business and Professions Code to limit the business practices of licensed shorthand reporters in the state.

AB 2084 prohibits an individual or entity that engages in any act that constitutes shorthand reporting, or that employs or contracts with another party to perform shorthand reporting, from engaging in specified business practices.

The bill also authorizes the attorney general, district attorney, city attorney or the CRBC to bring a civil action for a violation of these provisions of law. The new law subjects an individual or entity that violates these provisions to a civil fine not exceeding $10,000 per violation.

The bill specifies that this new code section applies to an individual or entity that engages in any licensed shorthand reporting activities.

Note however, that AB 2084 does not apply to an individual, whether acting as an individual or as an officer, director or shareholder of a shorthand reporting corporation, who possesses a valid license that may be revoked or suspended, or to a shorthand reporting corporation that is in compliance with Section 8044.

The new section of law also does not apply to a court, a party to litigation, an attorney of a party, or a full‑time employee of the party or the attorney of the party who provides or contracts for certified shorthand reporting for purposes related to this litigation.

Specifically the new code section prohibits an individual or entity from doing any of the following four items:

  1. Seek compensation for a transcript that is in violation of the minimum transcript format standards set forth in applicable regulations.
  2. Seek compensation for a certified court transcript applying to these other than those set out in statute.
  3. Make a transcript available to one party in advance of other parties, or provide a service to only one party.
  4. Fail to promptly notify a party of a request for preparation of all or any part of a transcript, excerpts or expedite for one party without the other party’s knowledge.

AB 2084 does not, however, prohibit a licensed shorthand reporter, shorthand reporting corporation, an individual entity from offering or providing long‑term or multi‑case volume discounts or services that are ancillary to reporting and transcribing a deposition, arbitration or judicial proceeding in contracts that are subject to law related to shorthand reporting.

You can find a transcript of today’s podcast here.

Today we talk with the expert in the field of heirs’ property rights, Texas A&M Law Professor Thomas Mitchell. Prof. Mitchell is the Reporter – read: primary drafter for those not intimately aware of the terminology used by the Uniform Law Commission – of a policy crafted through the ULC to protect the property rights of individuals who have tenancy-in-common ownership of property. Essentially, the policy makes it more difficult to force a sale of property – through a forced sale auction that results in a fire sale price on the property rather than it’s fair market value – by codifying in state law that the primary remedy is for properties to be divided rather than using the courts to force a sale. Professor Mitchell goes into greater depth in the podcast about how the process has been abused in the past and in state where this policy is not in effect.

Thanks to the research and tireless advocacy of Prof. Mitchell, this law is in effect in 12 states/jurisdictions in the U.S., has been introduced in seven more states, and is being re-considered in the District of Columbia.

We talk about the conversations and research that started Prof. Mitchell down the path to write these laws, some of the biggest challenges that he and his coalition faced getting the policy enacted in one state, and as he puts it, “battling the ghost of Strom Thurmond.”

To learn more about Professor Thomas Mitchell, you can visit his Texas A&M faculty page or his SSRN author page. You can also learn more about the Uniform Partition of Heirs Property Act here.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Mitchell is doing.

 

 

 

 

 

 

 

2018’s Assembly Bill 1976 essentially mandates that California employers must provide additional lactation accommodation to their employees. Governor Jerry Brown signed Assembly Bill 1976 by Assemblymember Monique Limón on September 30th as Chapter 940.

The bill requires an employer to make reasonable efforts to provide an employee wishing to express milk in private with an area in close proximity to her workspace that is not a bathroom.

The bill went into effect on January 1, 2019 and amends Labor Code Section 1031. Now, essentially, the bill provides agricultural employers to be in compliance with these requirements if they provide the employee with a private, enclosed, and shaded space. Also, the requirement was removed that the temporary lactation accommodation space be air conditioned.

The bill also allows employers who show that providing an employee with a lactation space that is not a bathroom would constitute undue hardship to that business to provide a lactation space that is not a bathroom stall. AB 1976 requires an employer to make reasonable efforts to provide that employee with use of a room or other location other than a bathroom.

In Labor Code Section 1031A, the bill strikes “toilet stall” and replaces it with the word “bathroom.” Also, subdivision B deems an employer to be in compliance with this provision of law if all four conditions that I will specify are met.

One, the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

Two, the temporary lactation location is private and free from intrusion while an employee expresses milk.

Three, the temporary lactation location is used only for lactation purposes while an employee expresses milk.

Four, the temporary lactation location otherwise meets the requirements of state law.

Lastly, a note to employers. Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement. These provisions of existing law continue even after AB 1976’s additional lactation accommodation requirements.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

There are a number of publications that are regularly used by the California Legislature and those who work in and around California’s state capitol. Of note is that several of these publications are specified in the California Government Code. I’ll provide a brief overview of some of the publications here, but I cover more in today’s podcast.

As an overarching provision, all printing for the Legislature and the individual houses is governed by the respective rules of the Senate and the Assembly, as well as the Joint Rules of the two houses. The Secretary of the Senate and the Chief Clerk of the Assembly are charged with printing all of the legislative bills, resolutions, constitutional amendments that are proposed by their respective members.

All of the legislative printing is done by the State Printing Office, or SPO, which is required by statute to print all of the laws, including initiative measures, as well as any other printing that is ordered by either the Senate or the Assembly. Now, by statute, the officers of the Assembly must appear on the front of all Assembly publications. There is no statutory requirement for the officers of the Senate. However, the same procedure is used in that house.

Article II of the Government Code deals with the Daily Journals of the Assembly and Senate. These two must be published by the State Printing Office. At least one copy of each Daily Journal of the Assembly and Senate must be authenticated. And after the final adjournment of the Legislature, the Journals for the entire session are bound and provided to the Secretary of State’s office.

Article III deals with the Legislative Manual. The Senate Secretary and the Assembly Chief Clerk must compile a Legislative Manual, or handbook, in December of each even-numbered year. The Legislative Manual includes state officers, members, and officers of both houses, lists of committees, rules of both houses, as well as the Joint Rules and other information that is deemed to be of use to legislators. This manual is provided to each legislator and elected state officer, as well as libraries throughout the state.

If you want to learn more about other legislative publications covered in the California Government Code, please listen to today’s podcast. You can find a transcript of today’s podcast here.

UNLV Boyd School of Law Professor Addie Rolnick talks with Jon Wainwright about her work to improve the juvenile justice system for tribal youth. Professor Rolnick goes over the biggest issues facing tribal youth who enter the juvenile justice system and offers the solutions she thinks are necessary to fix some of the cracks in the system.

One of the issues that we discussed that truly blew me away the lack of data on tribal youth in the justice system. Collecting data seems to me to be one of the easiest things an institution can do. This is one of the facets of the juvenile justice system that Professor Rolnick has been working to improve, having testified to Congress about this issue, as well as other improvements such as allowing for greater tribal control over juvenile justice, more flexible funding for tribes, and communication requirements for states and federal agencies, among other recommendations. As I mentioned before, she has brought these issues up to Congress as recently as last September when she testified to the U.S. Senate Committee on Indian Affairs’ Oversight Hearing on “Justice for Native Youth: The GAO Report on ‘Native American Youth Involvement in Justice Systems and Information on Grants to Help Address Juvenile Delinquency.'”

You can learn more about Professor Rolnick’s background and keep up to speed with her publications and news appearances here. Or, you can follow her on Twitter @acrolnick.

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and now TuneIn Radio, in addition to wherever else you listen to podcasts.

If you want to help more people hear this conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about UNLV Boyd School of Law Professor Addie Rolnick’s work.

 

 

 

While some aspects of drafting bills and amendments in California are certainly generic in nature to all types of legislative bill drafting, there are several unique aspects that are a part of bill drafting in the state of California. In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there’s the usual plain meaning rule where the judiciary will look to the “plain meaning” of the statutory language. Of course, in a legal dispute, the statutory language rarely has the same plain meaning to both parties of that dispute.

On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help the judiciary interpreting the bill language. Those who draft and analyze bill language are aware that there are many other canons of statutory construction, but after these general rules, bill drafters in California need to think about some of the following other issues such as conflicts with other bills. Here are some other aspects to consider.

Retroactive Versus Prospective Nature of the Bills

As you’re probably aware, in most instances, bills are prospective in their application. Most bills in California are effective on January 1 of the following year. However, in some instances a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will be applied retroactively.

For example, what effective date is contemplated? Should the bill drafter include a statement that the bill clarifies existing law? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited unless a public purpose is expressed in the bill language that justifies the retroactive application of the bill’s provisions.

Legislative Intent Language

Some bills include intent language which expresses the findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and the cons of using intent language. The following is one appellate court statement on the use of such language. “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body.” That was in Ballard v. Anderson back in 1971. They also said that other extrinsic aids to determine legislative intent are generally more persuasive.

There are other aspects that are unique to bill drafting in California, but these highlighted ones give you a sense of some of the factors to consider when drafting bills and amendments in California.

You can find a transcript of today’s podcast here.

 

 

 

Today’s post is on AB 1531, which provides for new rules for the payment of court fees.

This bill establishes specified rules regarding the payment of court fees when using an electronic filing service provider.

Essentially, the bill requires, if a duplicate payment is made to a court by a party or an electronic service provided by either credit card or other electronic means for things like court filing fees, then the court must issue any appropriate refund to the entity that made the most recent payment.

In addition, the new law allows an electronic filing service provider to notify the court clerk that fees remain unpaid, despite notice to the attorney of record, which would thereby allow the clerk to notify the attorney of record that he or she may be sanctioned by the court for nonpayment of those fees.

AB 1531 essentially adopts a last‑in, first‑out refund approach, which many courts around the state already utilize to address duplicate payment issues. In addition, AB 1531 is intended to make it easier for service providers to collect money owed to them that was not paid by attorneys of record who filed court documents through them by allowing the courts to sanction those attorneys of record.

You can find a transcript of today’s podcast here.

 

 

 

Today’s post is on obstacles faced in the legislative process.

As one might contemplate, there are numerous obstacles to overcome during the legislative process here in California. These are generally characterized as policy, fiscal, and political obstacles that may have to be addressed as a bill travels through the legislative process. Our effort here is to pose a few questions that one might want to ask before proceeding with a bill in the California Legislature.

The first set is policy obstacles. Naturally, there should be a good policy rationale for the legislation. Unfortunately, the Legislature generally examines a proposed solution rather than examine the policy problem that is attempted to be addressed and then determine what the best solution to that problem actually is.

At this early point, the bill’s proponents need to address these questions.

  • In presenting the bill, which contains a solution, has the policy problem been clearly explained?
  • Is this bill the best solution to the stated policy problem?
  • Are there other viable solutions to address the problem?
  • What are the potential policy problems with the other solutions?
  • Is there sufficient policy justification to make the proposed change in the law?
  • Is there evidence that the alleged shortcoming in existing law actually exists?

The next set is fiscal obstacles. Assuming the policy implications are addressed, the fiscal impact is duly considered by the respective appropriations committees. Note that even some policy committees do consider the fiscal impact of proposed legislation. The questions for addressing fiscal obstacles are:

  • Is there any fiscal impact due to the proposed law change contained in the bill? If so, how significant is the fiscal impact?
  • If there is a fiscal impact, is it to the state government, to local government, to the private sector, or a combination thereof?
  • If the fiscal impact is significant, is there some sort of funding source or a mechanism to help pay for the cost of the bill?
  • What is the likely position of the Governor’s Department of Finance: support or oppose or neutral?

Third is political obstacles. Some of the questions to pose in this area include:

  • Which groups are likely to support or oppose the bill and how can they impact the proposed law change?
  • Is there potential grassroots support for either side of the bill, in support or in opposition?
  • And how do the key legislative staff view the proposal?

In some instances, vote requirements may become an obstacle if the bill requires a super-majority vote for passage.

As one would expect, each controversial bill can create its own unique set of obstacles that will need to be addressed. That’s why there’s not a clear set of rules that apply in the same way for all pieces of legislation.

You can find a transcript of today’s podcast here.

AB 1565 (transcript)

Today’s post is on AB 1565 from the 2018 legislative session, which concerns a new labor‑related liability rule for direct contractors.

Governor Jerry Brown signed Assembly Bill 1565 by (then) state Assemblyman Tony Thurmond on September 19th as Chapter 528. As an urgency‑clause measure, the bill took effect on chaptering, which was September the 19th. It amends Labor Code Section 218.7 and creates a new labor‑related liability rule for direct contractors.

AB 1565 provides that for any contract entered into on or after 01/01/19, in order to withhold dispute payments, the direct contractor must specify in its contract with the subcontractor the specific documents and information that the direct contractor will require that the subcontractor must provide upon request.

Also, AB 1565 says that subcontractors may include the same requirements in their contracts with lower‑tiered subcontractors, and they, too, may withhold, as disputed, all sums owed.

The new law also declares that it must go into effect immediately due to the need to resolve the confusion created by existing language at the earliest possible time.

AB 1565 repeals the provisions that state that obligations and remedies are in addition to existing obligations and remedies provided by a law except that the provisions are not to be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions, including interest owed.

This repeal is of Subdivision H, contained in Section 218.7 of the Labor Code.