Here’s what folks at the Capital Center for Law & Policy have been reading and thinking about this week. You can also hear an interview featuring McGeorge Professor, and Capital Lawyering Concentration Director, Dan Croxall on Capital Public Radio’s Insight with Beth Ruyak.

 

 

 

Leslie Gielow Jacobs

This is an interesting article about how human policy decisions outside the realm of greenhouse gas emissions exacerbate the effects of climate change.  This author studied recent home building trends and noticed that homes were placed in the likely paths of hurricanes, which will be more frequent and severe with climate change.  The research shows that development decisions should be made with the growing threats posed by climate change in mind.

New York Times

Opinion: This Map Show How the Carolinas Became More Vulnerable to Hurricanes by Stephen M. Strader (Stephen M. Strader is an assistant professor in Villanova University’s geography and environment department)

 

 

 

Jon Wainwright

This story started about two months ago with some excellent reporting by Matt Pearce, Richard Winton and David Montero about how MGM sued the survivors of the Las Vegas shooting last October. MGM “Sued survivors to claim immunity under a federal law passed in the wake of Sept. 11 that was designed to protect corporations from lawsuits after terrorist attacks. Experts said it was the first time such a lawsuit had ever been filed under the law.” The update to the story is that MGM is telling survivors that if they waive their legal notice that MGM will make a $500 donation in the survivors name to a charity that supports survivors or families of slain victims. It’s like the old saying goes: You can put lipstick on a pig, but it’s still a pig.

Associated Press (published in the Chicago Tribune)

MGM offers $500 donation to charity for each shooting survivor who waives notice of lawsuit by Regina Garcia Cano

 

This is a slight departure from our usual content. That said, last night’s event – the Belote Lectore on Journalism in the Era of Fake News – warrants the change of pace. The video above is of the entire one-hour discussion. Please enjoy the fantastic conversation between three stellar political journalists who know their craft inside and out.

The Annual McGeorge School of Law Mike Belote Endowed Capital Lecture was held last night at the Sterling Hotel in downtown Sacramento. The topic of last night’s event was Journalism in the Era of Fake News.

A full house of attendees enjoyed a dynamic, frank, and funny discussion which featured three influential journalists discussing the role of journalism today, as well as ethics in the journalism profession, the impact of Facebook and Twitter, and what members of the legal community can do to help journalists with combating the issue of fake news.

McGeorge Dean Michael Hunter Schwartz gave the opening remarks and then handed the discussion off Professor and Associate Dean for Experiential Learning Mary-Beth Moylan, who expertly moderated the evening’s discussion. The speakers were Jonathan Weisman, Deputy Washington Editor for the New York Times; John Myers, Sacramento Bureau Chief for the Los Angeles Times; and Joe Mathews, California columnist and editor for Zócalo Public Square.

The Mike Belote Endowed Capital Center Lecture series was made possible by a generous donation from Mike Belote (McGeorge Class of ’87), who is President of California Advocates, Inc. and a longtime Pacific McGeorge alumni donor and volunteer.

To stay up to date with the McGeorge Capital Center for Law and Policy and CAP⋅impact, you can subscribe to email updates by scrolling up and typing your email into the form just to the right of this post. You can Like CAP⋅impact on Facebook and follow us on Twitter @CAPimpactCA.

 

 

 

Recent action at the state, federal, and private corporate levels provides a window into the many ways to attack the problem of nondisclosure agreements in sexual harassment settlements.

Bar Nondisclosure Agreements in Settlements

A decade ago, the California Legislature changed the law to bar nondisclosure agreements in settlements of certain serious sexual abuse claims. The Legislature expanded it in 2016 to cover other types of claims with the passage of AB 1682. Now, Senator Connie M. Leyva (D-Chino) has announced her plan to introduce a bill to ban nondisclosure provisions in settlements of a broader list of sexual assault and harassment claims when the Legislature reconvenes in January. A similar bill is pending in the New York Legislature.

Remove Tax Deductibility of Payments if the Settlement Includes an NDA

In Congress’s new tax plan, there is a provision that takes away the business tax deduction for sexual harassment settlements that contain nondisclosure agreements. In the New York Times, University of Chicago Law School Professor Daniel Hemel called it “a nudge, not a hammer,” because most businesses will likely forego the deduction when forced to a choice.  It is also important to note that while the new provision impacts businesses, it does not affect government entities, such as the California Legislature.

Bar Mandatory Arbitration of Sexual Harassment Claims

Employers’ use of mandatory arbitration provisions has mushroomed over the last decade.  Now, over half the non-union U.S. employees are subject to such clauses.  In a series of cases, the U.S. Supreme Court has upheld employers’ rights to impose arbitration requirements, finding that federal law forbids states to limit them.  Given these holdings, a change in the law at the federal level is required to restrict employers’ use of arbitration provisions to keep women claiming sexual harassment out of court.

Now, California Senator Kamala Harris is one of several sponsors of a bipartisan bill the federal level that aims to end sexual harassment secrecy another way – by forbidding terms of employment contracts that require confidential arbitration, rather than an open lawsuit, for sexual harassment claims. The bill is co-authored by Rep. Cheri Bustos (D – Ill.) and Sen. Kirsten Gillibrand (D – N.Y.). According to Marina Fang’s reporting, the “Senate bill is also backed by Sens. Lindsey Graham (R – S.C.), Lisa Murkowski (R – Alaska)” and the “House version has support from Reps. Walter Jones (R – N.C.), Elise Stefanik (R – N.Y.), and Pramila Jayapal (D Wash).”

Private Action Instead of Legal Change

And a change in the law is not always necessary to address a problem like secret settlements, if powerful corporations decide, or can be nudged, to change on their own.  Microsoft recently announced that it will no longer force women alleging sexual harassment into mandatory arbitration.

The Role of the Media in California’s Legislative Process

Today’s podcast focuses on the role of the media in California’s legislative process. The media’s role is so important that they’re considered a fourth branch of government and sometimes referred to as the Fourth Estate.

Their coverage – or lack thereof – can have great influence over the fate of legislation. The media can bring to light what goes on behind the scenes during California’s legislative session. They can use their coverage to draw attention to a particular piece of legislation and make the public aware of it. The media also play a large role in the ethics of legislature by covering FPPC investigations and fines, and scandals – such as in 2014 when three State Senators were suspended due to alleged criminal conduct or, more recently, in their coverage of the #WeSaidEnough movement that is bringing to light the issues of sexual harassment in the Legislature working to make this arena a safer place to work. The opinions of newspapers’ editorial boards – sought after by candidates and ballot measures in campaigns – are also important in the legislative process.

This is why taking the media into account is a key part of legislative strategy. Whether responding to a headline with a timely piece of legislation to address an issue in their local paper, or trying to get their viewpoint on a bill out to the public via an opinion piece or a letter to the editor, the media are an important means for legislators, staff, and special interest groups to have their viewpoint heard. Social media has also become important for doing this.

Prop 54, which I talked about in an earlier podcast, has also changed the dynamics with the media. Effective now, any person is authorized to take video or audio recordings of legislative proceedings – closed session excluded – and can use that for any legitimate purpose without needing to pay a fee to the State of California. Effective January 1, 2018, the Legislature will have to make audio/visual recordings of all its proceedings available online – again, excepting closed sessions.

If the role of the media are something that interests you, you should also plan on attending the McGeorge Capital Center for Law & Policy’s annual Belote Lecture on January 11, 2018. This year’s topic is Journalism in the Era of Fake News and features Jonathan Weisman of the New York Times, John Myers of the Los Angeles Times, and Joe Mathews of Zócalo Public Square. You can RSVP the event by emailing mcgeorgeevents@pacific.edu or calling (916) 739-7138.

 

 

 

On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral argument in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.  Colorado civil rights law requires vendors to provide their products and services without discrimination according to, among other things, sexual orientation.  A Colorado baker claims that the U.S. Constitution trumps the state nondiscrimination law, and protects his right to refuse to bake a cake for a gay couple’s wedding celebration.  Several key distinctions explain the constitutional boundary between the baker’s right to refuse service and the state’s power to regulate.

Freedom of Religion Under the Constitution vs. Federal Statute

The baker claims that the state requirement that he provide a cake to be displayed and consumed at a gay marriage violates his freedom of religion.  Because he complains about the application of a state law, he must base his claim only on the U.S. Constitution.  In this respect, he is different from the owners of the Hobby Lobby retail chain, who several years ago successfully argued that the federal Affordable Care Act violated their freedom of religion by requiring them to pay into an insurance fund that could be used to finance birth control.  A different, more religious freedom-friendly test applied to the Hobby Lobby owners because they challenged a law enacted by Congress than the test that applies to the baker who challenges application of a state law.  Specifically, people claiming a burden on their free exercise imposed by federal law can claim an exemption from a neutral requirement, such as that all employers fund preventative health case such as contraception, by showing the law imposes a substantial burden on them because of their particular religious beliefs.  By contrast, to prevail under the federal Constitution and avoid application of a state law requirement, a person, like the Masterpiece baker, must show that the state law singles him out for especially disadvantageous treatment because of his religious beliefs.  The Colorado law does not do this.  It applies neutrally to all businesses.  For this reason, as Dean Erwin Chemerinsky explains in a recent op-ed, the baker’s free exercise of religion claim is weak.

Freedom of Religion vs. Free Speech

Because the Masterpiece baker cannot prevail on his free exercise of religion claim, he primarily claims that the Colorado law unconstitutionally compels him to speak.  To succeed on the speech claim, the baker must convince the Court that the cakes he bakes qualify as “speech” protected by the Constitution.  The Court has made clear that it will not accept that “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Instead, it requires both that the speaker intend to send a message and that the audience be likely to understand it.  So, to prevail on his compelled speech claim, the baker must transform the conduct of creating and providing a visually appealing, edible product into a message of endorsement from him, likely to be understood by wedding attendees, of the event at which it will be displayed and consumed.  The constitutional determination of whether wedding cake viewers understand a message from the baker must be made from the perspective of reasonable observers within the community, not according to the baker’s subjective assessment of his own messaging.  And, as Professors Dale Carpenter and Eugene Volokh point out in their amicus brief, viewed objectively, the answer is obvious: “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.” A generic cake without overt messaging, however lovely, is not constitutionally protected speech.

Message vs. Status Refusals to Serve

The First Amendment protects people from being required to participate in sending messages with which they disagree.  Professor John Corvino points out in a recent New York Times op-ed, that a baker’s claim would be more likely sound if he refused to decorate a cake with two grooms, or if she refused to write on a cake, according to a client’s request, “Homosexuality is a detestable sin.”  Instead, the Masterpiece baker’s claim is that he may refuse to provide a cake without identifiable pro-gay marriage messaging to gay people because its use at the reception compels him to endorse the event.  According to Corvino, the latter baker’s “objection was about what she sold; a design-based objection. [The Masterpiece baker’s] objection was about to whom it was sold; a user-based objection,” which does not implicate the baker’s right to speak.

Vendor Nondiscrimination Laws vs. Consumer’s Right to Boycott 

Governments have the constitutional power and duty to regulate the qualities of products and services, and how they are sold by vendors, to protect the public and promote the public interest, including ensuring access by members of the public to the products and services without discrimination according to particular traits, which governments may identify differently.  Colorado has chosen to identify sexual orientation as a protected trait and businesses that take advantage of the many Colorado laws that protect and promote business operations are legitimately subject to nondiscrimination limits as well.  By contrast, citizens who spend money, rather than make it through dealing with the public, retain their individual rights to choose who to patronize and where to spend their money.  Five Justices of the Supreme Court have found Congress, at least, to lack the power to force individuals to purchase products to promote a public purpose.

In his role as vendor, the Masterpiece baker must comply with reasonable government regulations of his business operations, including nondiscrimination laws.  In his purchases as a private citizen, he may refuse to spend money in ways that he alone determines may violate his conscience, or for any other reason at all.