McGeorge School of Law

On today’s episode of The CAP·impact Podcast we talk with Erin Evans-Fudem – a Legislative Representative at the League of California Cities, and McGeorge class of 2012 – about the wildfires across California, some of the factors that have led to the surge in wildfires recently, and the issue of liability – specifically as it pertains to shareholder owned utilities like PG&E.

On that liability front, we walk through the legal doctrine called “inverse condemnation” – which is the current standard used in California when it comes to liability – some of the proposals the Legislature is working on to address the issue, and what cities are particularly concerned about on this issue.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Dynamex Operations West, Inc. v. Superior Court, a California Supreme Court Case, dramatically shifts the standard for employees and independent contractors in California. Before Dynamex, courts determined worker classification on the multi-factor test from the S. G. Borello & Sons, Inc. v Dept. of Industrial Relations decision, a balancing test of multiple factors such as the method of payment, length of service, required skills, etc. This new standard, called the “ABC” Test, is a stricter standard that drastically narrows the options for when a worker can be called an independent contractor.

This “ABC Test” requires that a worker can be called an independent contractor if:

“(A) [] the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.”

McGeorge alum Chris Micheli suggests that what makes this new paradigm so problematic is that it was “created by the Court with a limited set of facts before it and not by the Legislature and Governor who would utilize a public process of enacting legislation.”

With the amount of uncertainty surrounding the implications of the Dynamex decision, Micheli suggests a solution:

“The Legislature should adopt a bill in August …in order to “suspend” the Court’s decision for at least a year to allow the Legislature, our elected branch of government, to consider the implications of this case. This will allow the Legislature and Governor, after hearings and due consideration of the implications of such a drastic change in the law, to determine what is the best approach for all Californians.”

Business groups are intensely lobbying the Governor and Legislature to suspend the decision like Micheli suggests. However, labor unions and organizations are also lobbying the Legislature and Governor to leave the ruling be, stating that the decision will benefit employees by preventing companies from taking advantage of the independent contractor loophole.

Whether the decision is suspended or not, everyone is on unsteady ground. The full impacts of the decision are yet to be seen.

Regular vs. Special Sessions (transcript)

Today’s podcast is on the differences between regular and special sessions of the California Legislature.

As you may be aware, the California Legislature can be in regular, or special, or even joint sessions. A session is the designated period of time in which the Legislature meets. There are three types.

Our state constitution provides the dates for convening and adjourning the regular session. Other than that, the Legislature has the freedom to set its own calendar for meetings and recesses.

Generally, the Legislature begins meeting in the first week in January of each calendar year and concludes its work for the year either in mid‑September during the odd‑numbered years, or August 31st, the constitutionally mandated adjournment date in the even‑numbered years.

In terms of the period of time in which the legislature meets, they may do so in either regular or special session. A regular session is the one convened in December of the even‑numbered year pursuant to Article 4 Section 3A.

That section of our state constitution states, “The Legislature shall convene in regular session at noon on the first Monday in December of each even‑numbered year, and each house shall immediately organize. Each session of the Legislature shall adjourn sine die,” that is for good, “by operation of the Constitution at midnight on November 30th of the following even‑numbered year.”

A special session, on the other hand, is one that’s convened pursuant to a proclamation that’s issued by the governor of the state. Found in Article 4 Section 3B of the state constitution, this section reads, “On extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session.

When so assembled, it has power to legislate only on subjects specified in the proclamation, but may provide for expenses and other matters incidental to the session.”

One common misconception is that the Legislature must enact bills when called into special session. While the Legislature must convene a special session once it has been called by proclamation by the Governor, there is no legal requirement that any legislation actually be enacted, nor even be voted upon.

A joint session can occur in either a regular or a special session. A joint session is one in which both houses of the Legislature ‑‑ that is the Assembly and the Senate ‑‑ meet for a specified purpose. Due to its physical size, joint sessions are normally held in the chambers of the State Assembly.

As I discussed yesterday in my post “How California Municipalities are experimenting with voting,” cumulative voting is an electoral process in which voters have a number of votes equal to the number of seats to be elected. For example, if in an election there were three seats up for election, voters would have three votes that they could cast however they chose to – all for one candidate, or divided among multiple candidates. I also discussed yesterday that Mission Viejo is potentially going to be the first California city to adopt this electoral process. This sets up the obvious question, why adopt a new-to-California voting system?

The Southwest Voter Registration Education Project (SVREP) recently filed suit against Mission Viejo. Again, one asks why? Well, about one in five residents of Mission Viejo is Latinx, however for over a decade the city council has had no Latinx representation. The California Voting Rights Act prohibits district-based voting that would impair a protected class from appropriate representation. Specifically stated the CVRA was designed with “legislative intent to eliminate minority vote dilution.”

After a study, public hearings, and analysis by the city and SVREP, the city maintained their district-based voting. SVREP responded to the decision to maintain district-based voting with a lawsuit. The claim was that Mission Viejo’s district-based voting was a violation of the California Voting Rights Act.

The litigation ended with a settlement plan. SVREP and the City of Mission Viejo agreed that the district-based voting was to be replaced with the cumulative voting system. The city also agreed to put all five council seats up for election every four years. This means that every voter in Mission Viejo will have five votes to use however they wish, including casting all five votes for the same candidate in every city council election.

“If they can get 20 percent of voters to cast all of their votes for that one candidate, well then, they ought to have a voice,” SVREP’s attorney Kevin Shenkman said.

 

 

 

San Francisco has had a lively debate over their Ranked Choice Voting policy since its inception. Ranked choice voting (RCV) is where voters rank candidates by preference on their ballots. A candidate who wins the majority of first-choice votes is declared the winner. If no candidate wins on first-choice, the candidate with the fewest is eliminated and the second-choice on the eliminated candidate becomes first-choice for the remaining candidates. This is repeated until a candidate has won the majority of first-choice votes. Complicated? Maybe it’s easier to show you:

Candidate 1 has 450 votes or 40% of the votes

Candidate 2 has 300 votes or 26.67% of the votes

Candidate 3 has 200 votes or 17.78% of the votes

Candidate 4 has 175 votes 15.56% of the votes

Candidate 1 has a plurality, but not a majority. Rather than have Candidates 1 and 2 run head to head against each other in another election Candidate 4 is eliminated and the voters who selected them will now have their second-choice votes counted as first-choice. Assuming 75% of Candidate 4’s voters have Candidate 1 as their second choice and 25% have Candidate 2 as their second choice. When Candidate 4’s votes are redistributed, the outcome is:

Candidate 1 now has 582 votes or 51.73% of the votes

Candidate 2 now has 343 votes of 30.48% of the votes

Candidate 3 now has 200 votes or 17.78% of the votes

Candidate 1 now has a majority and is elected.

But this voting system can also get tricky. What if all of Candidate 4’s voters had Candidate 2 as their second choice? The result would instead look like this:

Candidate 1 has 450 votes, or 40% of the votes.

Candidate 2 has 475 votes, or 42.22% of the votes.

Candidate 3 has 200 votes, or 17.78% of the votes.

In this scenario, since neither Candidates 1 nor 2 have a majority. Candidate 3 is eliminated and their votes are redistributed based on who they have as their second choice candidate. And depending on how that breaks down, Candidate 1 – who led after the first round of votes were counted – could win or Candidate 2 – who led after the second round of votes were counted – could win.

California only has four cities that use ranked choice voting– San Francisco, Oakland, San Leandro, and Berkeley.

But now, another debate has been added to the mix. San Francisco city officials are recommending that instead of only having 3 ranked-choice selections, voters can select up to 10 candidates. The limitation of 3 ranked-choice selections was due to voting machine restrictions, but now San Francisco will have new ballots and machines that can be used as soon as the November 2019 election.

But ranked voting isn’t the only unconventional voting system in California, for long… Mission Viejo announced on July 27 that starting in 2020, it will put a cumulative voting structure in place. Mission Viejo would be the first city in California to implement this voting system.

For example, assume three of Missions Viejo’s City Council seats are up for election and there are five candidates running for those three seats. A voter in Mission Viejo would have three votes – one for each open City Council position – that they could cast however they choose. That could mean casing all three votes for one candidate, two votes for one candidate and one for another, or one vote for three different candidates.

Cumulative Voting is a method of election in which voters have a number of votes equal to the number of seats to be elected. Voters can assign as many of their votes to a particular candidate or candidates as they wish. Most commonly, it has been used to resolve voting rights cases for city council, county commission, and school board elections.

The difference between ranked choice voting and cumulative voting is this- in ranked choice voting – like traditional voting in California and the rest of the US – one candidate can receive a maximum of one vote from a voter. Cumulative voting, however, allows a voter as many votes for a candidate (or candidates) as there are opening seats.

The U.S. Senate is considering two pieces of legislation that would increase protections for Special Counsel Robert Mueller should they become law. The two bills, S. 1735 by Senators Graham (R – South Carolina) and Booker (D – New Jersey) and S. 1741 by Senators Tillis (R – North Carolina) and Coons (D – Delaware), approach this goal in two different ways. Both add a provision that a special counsel can only be fired for “good cause.”

S. 1735 requires that before a special counsel can be fired, the Attorney General must first file an action with the United States District Court for the District of Columbia and the House and Senate Judiciary Committees contemporaneously. Further, a three-judge panel must hear the action, and the special counsel can then only be removed if the court issues “an order finding misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice.”

S. 1741 reverses that process while keeping the standard for removing a special counsel the same. So instead of the Attorney General going to Congress and the court first, the Attorney General instead first informs the special counsel in writing the reason for the removal. After that, the removed special counsel “may file an action with paragraph (2) that the removal was in violation of this section” and that action must be heard within 14 days by a three judge panel. If the panel determines the special counsel’s removal violates the requirements in the bill, they would get their job back. Interestingly, S. 1741 is retroactive to May 17, 2017 – when Robert Mueller was appointed special counsel.

The last action either of these bills saw was at a September 26, 2017 hearing in the Senate Judiciary Committee, at which Akhil Reed Amar – Sterling Professor of Law and Political Science at Yale University – pointed out serious constitutional flaws in the bills, and proposed a way to achieve the goal of the bills without inviting constitutional challenges.

Invoking Edmond v US, Professor Amar points out that “the Court declared that an inferior officer must truly be … inferior (!) and must in general answer to some superior officer. … At present, a special counsel such as Robert Mueller is inferior (and thus constitutionally kosher) precisely because he can be fired at will  – surely by the AG, and probably also by the President” in his testimony to the committee.

Put another way, in what Amar calls “The Inferior-Means-Inferior Principle”:

Special counsels are not confirmed by the Senate; thus they are only permitted if inferior. But these bills aim to make them independent. One simply cannot both be truly independent and truly inferior. A truly inferior officer must have a superior officer within his own branch to whom he answers and who can countermand or remove him if the superior loses confidence in the inferior.”

This is just one of multiple examples that Amar cites in his argument as to why S. 1735 and S. 1741 fail to pass constitutional muster. He proposes, instead, that the Senate “revise its committee structure to create a new and powerful Standing Committee on Presidential Oversight.”

The committee he envisions “should at all times have an equal number of Republicans and Democrats regardless of which party controls the Senate as a whole” where “the Republican caucus should choose the Democratic members of Presidential Oversight Committee and the Senate Democratic caucus should choose the Republican members.” Further, “each committee caucus should by rules and traditions be given broad authority to insist on hearings; each Committee caucus, if unanimous or if backed by at least one senator from across the aisle for each caucus defector, should itself have subpoena power. This Committee should also have a generous budget to hire professional career prosecutors and investigators, akin to career staff attorneys in the Justice Department itself” and “this new Senate Oversight Committee should at all times be chaired by a member of the party opposite to that of the US President.”

As stated before, nothing has happened with either bill since last September, so it is yet to be seen if Professor Amar’s concerns and ideas appear in amended legislation.

On today’s episode of The CAP·impact Podcast we talk with McGeorge School of Law Capital Lawyering professor Chris Micheli about some of the institutional challenges to lawmaking in California. We then have a deep dive conversation with Assembly Member Chad Mayes about how our current state of hyper-partisan politics is affecting governing and lawmaking in California.

To learn more about Asm. Mayes’ new organization, New Way California, you can check out their website here.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter. Or you hit me up directly on Twitter @jon_wainwright.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Thanks for listening to today’s show.

Yesterday, President Trump announced that Judge Brett Kavanaugh will be the nominee to fill the seat on the Supreme Court vacated by the retiring Justice Anthony Kennedy. Right after the news about the nomination broke, McGeorge School of Law Professor Clark Kelso spoke with KCRA about the nomination and what to expect from the nominee to be the Supreme Court’s newest Justice.

At 53 years old, Judge Kavanaugh falls in the age range that Capital Center Director Professor Leslie Gielow Jacobs predicted the nominee would fall in, telling Insight’s Beth Ruyak, “I would predict the next Justice would be late forties, early fifties.”

 

 

 

Legislative Lingo (transcript)

Today’s topic is one of my favorites, legislative lingo.

It probably doesn’t come as much of a surprise that my colleagues and I, those who work in and around California’s state capital, use a number of different terms or lingo to describe different aspects of the California legislative process. I’ve tried to compile a short list of some of the more common terms used in the California legislative process.

I’ll cover a few of the terms here, and the rest are covered in the podcast. The first one is “41st senator.” There are 40 members of the California State Senate who are duly elected to represent the 40 Senate districts across the state of California, about 950,000 constituents each.

Due to the power of some of the staff in the upper house of the Legislature, there are a few staffers, particularly with committees or leadership offices, who are often viewed as being almost as powerful, if not as powerful, as some of those elected members of the State Senate. That’s why we use the term, 41st Senator.

Blue pencil. The term blue pencil is used to refer to the Governor in the State of California has an ability to line‑item veto, specific items of appropriations, either in the budget bill itself, which has numerous thousands of appropriations or individual appropriation bills.

The President of the United States does not have line‑item veto authority, but California’s Governor is one of those states that provides it. The line‑item veto authority can only reduce or eliminate items of appropriation. The Governor does not have authority to increase items of appropriation.

Gut and amend. It sounds rather ominous, doesn’t it? This is when amendments to a bill remove the current contents of the bill in their entirety. It’s gutted ‑‑ the bill is gutted ‑‑ and it’s amended, that is the language is replaced with entirely different provisions that are unrelated to the original contents of the bill. That’s a gut and amend.

Again, I cover many more terms in today’s podcast. Thanks for listening.

 

 

 

California’s Open Meeting Laws (transcript)

Today’s podcast is an overview of local and state open meeting laws here California. California has three types of open meeting laws that apply to local and state governmental entities.

These laws have been adopted over a number of years, and they equally apply to state agencies and departments, the Legislature, and local entities.

The open meeting acts are generally referred to Bagley‑Keene, LOMA, and Brown Act. What do all those mean, and to whom do they apply?

The Bagley‑Keene Act applies to state entities, the LOMA applies to the Legislature, and the Brown Act applies to local entities. You need to be aware of all three laws so that you can properly participate and be aware of what is happening at local and state governments and the meetings of relevant legislative and executive branch entities.

The Bagley‑Keene Open Meeting Law, generally referred to as “Bagley‑Keene,” was adopted by the State Legislature in 1967, and essentially implements relevant provisions of the California Constitution which requires meeting of public bodies and the writings of public officials and agencies to be open to public scrutiny.

What’s the practical impact of Bagley‑Keene? The Bagley‑Keene Open Meetings Act is applicable to state agencies and departments. The act requires that members of the public be able to address agenda items in public meetings of different state agencies and departments.

Of course, before one has the ability to comment on such agenda items, the public has to be made aware of meetings of these state agencies.

As a result, the notice of state agencies or department meetings must be provided to any person who makes such a request ‑‑ an interested party ‑‑ in writing, at least, 10 days in advance of the meetings of those state entities.

As you would imagine, those notices must include a specific agenda, the items of business to be transacted or discussed by the state entity, and no item can be added to the agenda after the notice has been issued.

Now, there are some instances where state entities can take action on items of business that were not on the agenda, but that’s in certain limited circumstances. Basically, it’s limited to the instances where a majority voted that state entity has deemed an emergency situation to exist.

As you can also imagine, the Bagley‑Keene Open Meeting Act requires all state agencies to conduct any meetings or functions in any of their facilities. It cannot occur where there’s any prohibition on admittance of people for protected classifications.

By the way, if Bagley‑Keene is violated, the decision of a body could be overturned so long as it’s challenged within 90 days. Of course, violations can be stopped or prevented by court action.

Next up is LOMA, the Legislative Open Meetings Act. That’s also in the Government Code like Bagley‑Keene, and it binds the California Legislature.

Now, be aware of a couple of things when it comes to LOMA. Caucuses of the Legislature ‑‑ party caucuses, Democrat and Republican in both houses ‑‑ have full authority to meet in closed session. Remember, state agencies have very limited authority to meet in closed sessions unless it’s for a specified exception, like litigation or personnel actions. That’s not applicable to legislative caucuses.

Legislators can meet informally, outside of committee hearings and floor sessions, to discuss policies so long as no formal actions are taken, and so long as less than a majority of the body is involved.

Last is the Ralph M. Brown Act which was adopted in 1953. The Brown Act applies to open meetings of counties and cities. It’s found also in the Government Code, around Section 54950.

Now, the purpose of the Brown Act is to guarantee the public’s right to attend and participate in the meetings of local elected bodies. It applies to city councils, the board of supervisors, and local government bodies so that they can’t hold secret workshops or study sessions.

Keep in mind that the Brown Act applies solely to city and county governments, as well as their agencies, boards, councils, etc.

What are some of the major provisions? The majorities of decision‑making bodies may not decide amongst themselves on issues within their own jurisdiction, except when they’re done so in open and publicly held meetings.

As a result of the Brown Act, local agencies have to publicize where and when their meetings will occur, as well as what will be discussed on the agenda. Of course, then the public can observe those meetings.

Now, at the local level, the Brown Act requires 72 hours or 3 days’ notice. Remember, that’s different than the Bagley‑Keene Act which requires 10 days’ notice. No action can be taken by those local bodies unless an item’s been placed on the agenda for consideration.