California Legislature abandons state’s middle class

taxesCalifornia’s middle class, who pay the bulk of all taxes in California, are constantly under attack from Sacramento politicians. Already this year, the Legislature approved Senate Bill 1, to add 19 cents per gallon to the cost of fuel beginning in October and an average of a $50 increase in the car tax. This translates into at least $400 in additional taxes for the average California family.

Now, Sacramento politicians have compounded the damage by imposing another fuel cost increase by extending the state’s cap-and-trade program, a market-based regulatory system for controlling greenhouse gas emissions. Under this program, impacted industries buy credits at auction which are then used to incentivize decreases in pollution levels.

Surprisingly, many industries forced into the “cap-and-trade” auctions supported the extension because they were threatened by Gov. Brown, environmental extremists and powerful regulators with an alternative program run completely by the government bureaucrats at the California Air Resources Board. And those were not idle threats.

Be that as it may, some legislators are using the “it could have been worse” argument to claim that they’ve won some sort of victory for taxpayers. Without cap and trade, they say, your fuel costs would have increased by nearly two dollars a gallon. Even if completely true — which is doubtful — cap-and-trade advocates won’t tell you the whole story. The non-partisan Legislative Analyst’s Office has said that under the legislation just approved, fuel prices could go up by 21 cents in 2022 and 71 cents by 2030. Only in the Alice in Wonderland world of Sacramento politics does a 71 cent fuel price increase constitute a victory for taxpayers.

So what’s the ultimate impact on working Californians? If the new legislation is added into April’s gas tax increase, consumers will see their price at the pump increase as high as 40 cents per gallon by 2022 and 90 cents by 2031. Overall household fuel costs will likely eventually increase by over $1,000 a year per household. And all this is occurring so that liberal Democrats can reach an arbitrary threshold of a 40 percent reduction in greenhouse gas emission levels by 2030.

While the handful of Republicans in the California Legislature — who make up less than a third of the members in each house — are usually the reliable opposition to the punishing policies inflicted on the middle class by the majority party, that did not prove to be the case last week. Eight Republicans voted for the extension.

But could they argue they received something in return which benefits their voting constituents? Nope. The vast majority of California taxpayers will receive no direct financial relief in exchange for their thousand dollars a year they will pay for goods and services. Perhaps it would be easier to share in the cost of climate change if California wasn’t going it alone on cap-and-trade in the United States, while we emit only one percent of the world’s greenhouse gas emissions.

The extension of cap-and-trade ensures one thing, that funding for high-speed rail will continue. The legislation dictates that at least 25 percent of the new funding will be spent on a train that a majority of Californians have made it clear they would reject if given another chance on a statewide ballot. Ironically, high-speed rail has proven to be a net increaser of greenhouse gas emissions. So much for trying to save the world.

A hollow victory at best is the suspension of the infamous fire tax against those living in rural unincorporated areas of California. Some 800,000 property owners will no longer have to pay this fee, which remains the subject of a class action lawsuit commenced several years ago by Howard Jarvis Taxpayers Association lawyers. While the suspension (not repeal) of the tax is welcome relief for rural property owners, it does not include any rebates for the millions of dollars already paid. For that reason the HJTA litigation will continue over the issue of refunds.

As is common with complex legislation that ultimately hurts the middle class, special interests suffered little or no harm and, in many instances, negotiated for a financial windfall. Most got a piece of the revenue from the higher gas prices that consumers will be paying. The governor got more funding for high-speed rail and corporations got significant tax breaks. But legislators couldn’t even fight to give citizen taxpayers a rebate for the higher gas prices they’ll be paying. Will any legislator fight for them? Is there anyone left in the Capitol who will put the middle-class taxpayer before their next political deal that results in another crushing financial burden? For the sake of this once Golden State, we hope so.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

This article was originally published by the Orange County Register

Legislature’s scary precedent: Giving unions private workers’ cell numbers, home addresses

Even those Capitol observers who are aware of the degree to which the Democratic-controlled Legislature is in the tank for public-sector unions might be shocked by the latest bill that’s making its way to the governor’s office.

Legislators are about to require that private-sector workers in the home-care industry provide a wide range of personal information – home address, email contact, cellphone number – to any labor organization that wants it. Those unions would then be free, at their discretion, to pester these workers into joining the union.

seiu unionThe bill only affects one industry, but the precedent is clear. How long before an ever-expanding list of private workers in California are subject to union organizers showing up at their doorstep and contacting them on their private emails and cell phones? The Service Employees International Union (SEIU) has already been able to unionize home healthcare workers receiving government payments to care for a loved one. Clearly, SEIU is expanding its horizons.

In fact, the bill apparently is such a priority to the Democratic leadership that Senate President Pro Tempore Kevin de Leon, D-Los Angeles, recently stacked the Human Services Committee with three new Democratic members to assure its passage. It’s a highly unusual move to expand the size of a committee to assure passage of particular legislation.

Assembly Bill 1513 ostensibly is designed to improve the licensure and regulation of home-care organizations – companies that provide aides to the homes of sick, disabled or elderly people to help them with laundry, cooking, showers and other basic needs.

The state already requires aides to pass background checks, receive necessary training and register with the California Department of Social Services to help combat abuse. The aides must already provide their personal information to the state government. Clients can search an existing database to double-check the backgrounds of those who provide such work in their homes.

This new Home Care Services Consumer Protection Act claims to improve home health services by allowing “home care aides the opportunity to benefit from information, resources and more,” according to Assemblyman Ash Kalra, D-San Jose. But the real purpose is to let the bill’s sponsor, SEIU, gain personal information for organizing purposes.

There’s no need to speculate about the goal here. The previous version of the bill required employees to provide their personal information to the state, which would then provide the information “to a governmental or non-profit entity that provides training, educational classes, and other specified services …” upon that entity’s request.

The newly amended bill requires “a copy of a registered home care aide’s name, mailing address, cellular telephone number, and email address on file with the department to be made available, upon request, to a labor organization.” The labor unions would be free to use the information for “employee organizing, representation and assistance activities.” That provides wide latitude with few restrictions.

The bill includes an “opt out” mechanism, but that doesn’t offer much protection. A home-care worker would need to go through the trouble of trying to keep personal information out of the union’s grasp. And we’ve seen the problems with such a system in the current union dues-paying system.

A 1977 U.S. Supreme Court ruling allows public employees to opt out of paying those portions of their dues that are used for direct political purposes. But employees who want to opt out often complain about the difficult and convoluted process of doing so. Obviously, unions – and the state government – have no reason to make such a process easy.

This bill is nothing more than a union-organizing ploy. Again, the state government already has all the requisite personal information of those who provide home-care services. The public can search that information using an employee number. We’re talking about private employees of private companies working for private people. This is different from the Medicaid-funded In-Home Supportive Services (IHSS) system.

Legislators also have recently passed two bills, as this writer detailed for the California Policy Center, that provide public-sector unions with unfettered on-the-job access to teachers and other government workers in order to provide seminars about union membership. That legislation is a pre-emptive effort in case the U.S. Supreme Court, as some expect, strikes down mandatory union membership. A.B. 1513 is even more noxious because it gives unions a right to contact employees of private companies outside of the job site.

The bill also undermines a compromise that was hammered out between unions, legislators and Gov. Jerry Brown in 2013. That’s when the Legislature passed the previous version of the Home Care Services Consumer Protection Act to require the licensing and regulation of the private home-care industry. Unions had pushed for the inclusion of personal employee information back then, but concerns about privacy scuttled that idea.

Now they’re back for the same thing again and are likely to get the bill through because of De Leon’s committee-packing efforts. De Leon removed Sen. Josh Newman, D-Fullerton, and added Democratic Sens. Connie Leyva of Chino, Mike McGuire of Healdsburg and Anthony Portantino of La Cañada-Flintridge. Newman is facing a recall, so this takes him off of the hot seat on a controversial union vote in conservative-leaning Orange County.

Ironically, Democratic legislators often have tried to enhance the privacy of public employees with a variety of bills. Yet when it comes to private-sector employees, the Legislature is more than happy to let union organizers know exactly where they live – and even have access to their cell-phone numbers and email addresses.

“A.B. 1513 is clearly just a labor grab, and will do nothing more than boost unions’ membership rolls and bottom line at the expense of home care aides and the frail elderly and disabled individuals they serve,” said Trevor O’Neil, president of Colonial Home Care Services in Orange and co-chairman of the Home Care Association of America, California chapter. “Home care is an out-of-pocket expense, and any mandated increases to employee pay and benefits will result in higher prices for people who depend upon these services to remain in their homes.”

That’s for sure. But even worse – home-care workers could now be subject to unwanted visits from Nick the Union Organizer. And how long will it be before other unions follow this lead and coerce the Legislature to hand over your personal information?

Steven Greenhut is a contributing editor to the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

This article was originally published by the California Policy Center

Updated Legislative Priorities for Small Business Advocates

CA-legislatureFollowing the annual legislative house of origin deadline, NFIB California reflected on our victories and challenges ahead with our “The Good, The Bad, & The Ugly” bill list. Each year we proactively identify which bills will have the greatest impact, either negative or positive, to our 22,000 small businesses across California. Throughout the year we advocate in the Capitol for these priorities in order to lower the burden and cost of doing business in this state.

It is now halftime in the Legislature, and with that comes some welcome victories for small business, but more importantly there remain significant challenges ahead in these final months of this legislative session. With this being the first year in the 2017-18 two-year session, it is important to remember nothing is ever truly dead, but below are some highlights of where small business stands at legislative halftime.

Victories:

Good Bills Passed

AB 657 (Cunningham): Requires state agencies that significantly impact small businesses to display the name and contact information of the small business liaison on the agency’s Web site, and to fill any vacancy in this position within 3 months. Passed out of Assembly, in Senate Appropriations.

AB 816 (Kiley): Requires public California Environmental Protection Agency meetings, including subordinate departments like CARB and OEHHA, to be broadcast online and interactive to the public. It also requires them to be recorded for future access. Passed out of the Assembly, in Senate Rules.

Bad Bills Stopped

AB 5 (Gonzalez-Fletcher): Requires employers with 10 or more total employees to offer more hours to their part-time employees before they can hire new workers, including temporary or seasonal staff. It creates a new right to sue your employer if you don’t get more hours. Held in Assembly Appropriations.

AB 43 (Thurmond): Imposes a 10% tax on businesses that contract with CDCR for the “privilege” of having a state contract in order to fund education programs designed to discourage future criminals. It sets a bad precedent by taxing businesses just for having a state contract. Held in Assembly Appropriations.

SB 300 (Monning): Requires all sugar-sweetened beverages sold in California to have a health warning label, and creates new civil penalties for failure to do so. This is yet another example of nanny government. Held in Senate Health.

Challenges Ahead:

Needs to Pass

AB 12 (Cooley): Requires all agencies to do a full review of their regulations to see if they are outdated, too costly, or overlap with other rules. Such a full-scale review has not happened in decades. Held in Assembly Appropriations.

AB 77 (Fong): Requires legislative approval for any regulations with an economic impact of over $50 million. Held in Assembly Appropriations.

AB 281/AB 1429/AB 1430: Create desperately needed PAGA reforms, including extending the timeframe in which a business can cure a problem before being sued, limiting the types of PAGA suits, and requiring an agency investigation before suing.

AB 1005 (Calderon): The Department of Consumer Affairs oversees the licensure of businesses and professions. This bill would allow 30 days for abatement of the violation before the administrative fine becomes effective. Held in Assembly Appropriations.

Need to Stop

AB 1008 (McCarty): Prohibits employers from asking applicants about convictions until they make a conditional offer of employment. It creates new obligations and liabilities for employers and allows for new lawsuits. It will hamstring a small business owner’s ability to quickly fill a position. Passed out of the Assembly, in Senate Rules.

SB 2 (Atkins): Creates a new $75-$225 per document fee (or tax) for the transfer of real property to fund affordable housing programs. Held on the Senate Floor.

SB 562 (Lara): Creates fiscally reckless single-payer healthcare system in California. This would cost $400-500 billion annually, and would require enormous tax increases to fund. It would hurt the quality of healthcare for our citizens. Passed out of the Senate, in Assembly Rules.

SB 640 (Hertzberg): An intent bill that will expand the state sales tax to services. Small businesses would have to collect a new tax, and also pay the tax when they contract out for services. Held in Senate Governance & Finance.

Tom Scott is CA Executive Director, National Federation of Independent Business.

This article was originally published by Fox and Hounds Daily

The California caste system

Caste system IndiaAfter the Legislature imposed billions of dollars in new car and gas taxes on Californians last month, a friend emailed me to register his disappointment and disgust: “It’s like we live in an apartheid society where the politically powerful live in luxury and laugh at the working people of our state.”

Sadly, his point is accurate. The separation between the ruling class and the rest of Californians is becoming more extreme by the day. So much so, in fact, that California is beginning to resemble a society based on a caste system, meaning a formal structure of social stratification (usually associated with India) deriving from the hereditary division of the population into the highest caste (Brahmins) and various castes below.

California’s high cast Brahmins reside primarily in coastal enclaves including the San Francisco Bay Area, Santa Barbara, Malibu and the west side of Los Angeles but they are also numerous in the Silicon Valley and Hollywood. These elites tend to be high income or wealthy and can afford to separate themselves from the trials and tribulations suffered by average citizens. This immunity from “real world” problems allows them to obsess about issues like bathroom access, climate change or the president’s hair. They lack respect or compassion for less fortunate citizens and, if truth be known, they find those outside their caste to be annoying.

And a gas tax? This tax to them is nothing when they can avoid paying it by plugging in their $120,000, taxpayer subsidized Teslas. And if their cars do run on gas, they never even bother to check the price. These are folks who wouldn’t be caught dead in a Walmart.

Next in the caste hierarchy are the politicians and members of government employee unions. While the Brahmans may help to elect the politicians, as do the unions, this second tier caste is much less secure because they still have to scrounge for financial advantage. The unions — representing the highest compensated state and local workers in all 50 states — are constantly seeking more pay and benefits. And because the politicians are constantly trying to consolidate and expand their influence, they establish a symbiotic relationship with the unions to keep campaign contributions rolling in that guarantee reelection. (Some electeds, who have spent years living off the taxpayers’ dime, genuinely fear they may not be qualified for work in the private sector and so will do almost anything to keep a grip on power.)

These politicians will parrot the concerns of the Brahmins about matters like the environment, but they do not have a committed belief system. They trip all over themselves in their rush to make environmental law exceptions for projects like stadiums that are backed by wealthy interests or unions in a position to secure or advance the politicians’ careers.

The next rank on the scale of who’s who in California are the non-working poor. While the upper classes do not want to rub elbows with them, they are regarded as useful because their votes can be purchased through extensive entitlement programs that are paid for by the very lowest class.

On the very bottom rung of the stature ladder, the equivalent of the Indian’s “Untouchables,” are working Californians, and the lowest of these workers is anyone who labors at a job that requires perspiration — these are regarded as little more than beasts of burden.

When the elites bother to consider members of the working class, they regard them as a source of tax revenue and little more. Ideally, to their way of thinking, they exist to pay taxes and not make waves.

A massive new gas tax adding to the burden of working Californians? Why it is just the price of being able to share a beautiful state and great weather with their social betters.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

This piece was originally published by the Orange County Register

Small Business Bills Approach Deadlines: The Good, Bad and Ugly

CA-legislatureMay is a critical month for legislation to move through various policy and fiscal committees before the house of origin deadline. Any Assembly bill which does not make it to the Senate (or Senate bill to the Assembly) by June 2 is effectively dead for the remainder of the calendar year, but can be revived in 2018, during the second year of the two-year session. These are known as two-year bills.

While NFIB is tracking and lobbying a wide range of bills and we will not know their fate for another couple of weeks, we have released an updated list of our Good, Bad, & Ugly bills. These bills represent legislative proposals which will have the greatest impact, either positive or negative, on small businesses in California.

Running a small business in a state which enacts nearly 1,000 new laws and associated fees and penalties every year, it is absolutely essential that the business community is aware of these bills before they become law, and engage in the process. This is why we always have the latest version of The Good, The Bad, & The Ugly bills available at www.nfib.com/ca/gbu

Below are a few highlights of what we are working on the coming weeks. Following the house of origin deadline, we will update our full list and continue to advocate for policies that help small businesses survive in California.

Good Bills:

AB 1005 (Calderon): DCA Penalties: Right to Cure: The Department of Consumer Affairs oversees the licensure of businesses and professions. This bill would allow 30 days for abatement of the violation before the administrative fine becomes effective.

SB 524 (Vidak): DLSE Regulatory Compliance: Creates a “good faith” defense for employers that complied with written guidance on Division of Labor Standards Enforcement regulations.

Bad Bills:

AB 43 (Thurmond): Department of Corrections Contracting Tax: Imposes a 10% tax on businesses that contract with CDCR for the “privilege” of having a state contract in order to fund education programs designed to discourage future criminals. It sets a bad precedent by taxing businesses just for having a state contract.

SB 300 (Monning): Sugar-Sweetened Beverage Warnings: Requires all sugar sweetened beverages sold in California to have a health warning label, and creates new civil penalties for failure to do so. This is yet another example of nanny government.

Ugly Bills:

AB 5 (Gonzalez-Fletcher): “Opportunity to Work” Act: Requires employers with 10 or more total employees to offer more hours to their part-time employees before they can hire new workers, including temporary or seasonal staff. It creates a new right to sue your employer if you don’t get more hours.

SB 562 (Lara): “The Healthy California” Act: Creates a single-payer healthcare system in California. This would cost $250 billion annually, and would hurt the quality of healthcare for our citizens.

Tom Scott is the State Executive Director for NFIB California, which represents 22,000 dues-paying small business members across the state.

This piece was originally published by Fox and Hounds Daily

More sleight of hand with gas tax hikes

gas prices 2If Gov. Brown and members of the California Legislature think that the backlash against the car and gas tax increases will subside any time soon, they are mistaken. The controversy continues to dominate both traditional and social media and, in fact, the more that taxpayers learn about these transportation tax hikes the angrier they get.

Our political elites are learning that taxes on cars and gasoline remain very unpopular because they fall disproportionately on the working Californians — which is where the majority of voters reside. And the resentment might only grow when the taxes actually kick. Just wait until the bills from the DMV start showing up in the mail starting in January of next year and the gas tax increase starts even earlier in November of this year.

There are times when Californians are simply resigned to pay higher taxes imposed by Sacramento, but this might not be one of those times. Many are calling for a referendum of the tax hikes only to be disappointed with the news that, under the California Constitution, a tax increase can’t be repealed via a referendum. Nonetheless, it is possible that the tax package can be rolled back via an initiative and some groups are pondering that course of action. Other interests want more immediate action and are openly discussing recall efforts against some legislators who supported the tax package. …

To read the entire column, please click here.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

Proposed CA Bill Would Cause Massive Tax Increase and Potential International Trade War

TaxesDespite multiple tax increases being adopted by voters just last November, SB 567 (Lara) was introduced that, if enacted, will result in another multi-billion dollar tax increase on businesses and individuals. And, the bill could once again raise the ire of major international trading partners, including Great Britain and Japan.

With the newly acquired super-majority status of Democrats in both the state Assembly and state Senate, the business community has been concerned about potential tax increases brewing in the Legislature. SB 567 represents the biggest threat so far.

SB 567 would make four major changes to California tax law. According to the bill’s author, this measure “will close four popular loopholes that benefit millionaires and ensure high income earners making above one-million-dollars annually, pay their fair share in taxes.” Senator Lara also claims, “Millionaires have mastered our tax code to take advantage of popular loopholes. As a result, the super-rich and the largest corporations in California do not pay their fair share in taxes.”

The approach of seeking new sources of revenue, such as that contained in SB 567, seems counter-intuitive after the electorate adopted multi-billion tax increases just a few months ago by passing Prop. 55 (12-year extension of the Prop. 30 personal income tax increases), Prop. 56 (a $2 tax imposed on each pack of cigarettes), and Prop. 64 (which includes several tax increases on marijuana and marijuana products).

What is different for the 2017 session is that Democrats have achieved the necessary 2/3 majorities in the state Senate and Assembly to pass tax increases without any Republican involvement under the requirements of Prop. 26 (amending Article XIIIA, Section 3(a) of the California Constitution), assuming signature by the governor – or enough votes to override a gubernatorial veto. California is one of just a handful of states that requires a 2/3 majority for increasing taxes by a vote of the Legislature.

What does SB 567 propose? As introduced, the bill contains four significant tax increase provisions. First, for tax years beginning January 1, 2018, SB 567 would require charitable remainder trusts (CRTs) to be at least 40 percent of the initial fair market value of all of the property placed in trust. Existing state law exempts from state tax any charitable remainder trust including that the value of the trust must be at least 10% of the initial fair market value of all the property placed in trust.

A CRT is an irrevocable trust that generates an income stream for the donor to the CRT with the remainder of the donated assets going to charity. Unfortunately, proponents claim CRTs benefit charities but allow taxpayers to avoid paying taxes. The bill would raise the amount going to the charity by 300 percent. It would make a CRT less attractive and adversely impact charitable giving. It would also take California out of conformity with federal law, which creates administrative burdens for both taxpayers and the Franchise Tax Board in administering the law.

Second, for persons who died on or after January 1, 2018, SB 567 would revise the law so that no adjustment is allowed where the person who acquires the property has an adjusted gross income or net income over a specified amount. Existing state law, for the purpose of calculating the gain or loss upon the disposition of property, generally the basis of property acquired from a decedent is the fair market value at the date of death.

California conforms to federal tax law on the “step-up in basis” for appreciated property that has been inherited. SB 567 would eliminate this provision of federal law for those with income above $1 million, once again targeting those upon whom the State of California is ever dependent upon financially. As a result, the bill would create different rules for California taxpayers complying with federal law and force those individuals to pay capital gains on inherited property that has appreciated in value.

Third, SB 567 would retroactively to January 1, 2017 eliminate the deduction for compensation paid to CEOs for pay based on commission or on meeting certain performance goals. Retroactive tax law changes are fundamentally unfair to taxpayers as they change the rules midstream. This creates undue hardship and confusion for residents.

Existing state law, in conformity with federal tax law, provides that a publicly held corporation may not deduct remuneration paid to the CEO to the extent the amount of compensation exceeds $1 million, except where the amount is based on commission or on meeting certain performance goals. As such, a deduction for that compensation is permitted on that basis even if it exceeds $1 million. This change in law would take California out of conformity with federal income tax law by disallowing the deduction for publicly-traded corporations.

Fourth, SB 567 would retroactively to January 1, 2017 remove the water’s-edge election and specify that all existing electors would be unable to file using the water’s-edge method for tax years beginning on or after January 1, 2023, thereby forcing all corporations to file on a worldwide unitary basis. Existing state law allows corporations to elect whether their income is determined on a water’s-edge or worldwide unitary basis.

While the U.S. Supreme Court upheld California’s use of “worldwide combined reporting,” the state allowed a “water’s-edge election” beginning in 1987 due to pressure from foreign governments and multinational corporations, as well as sound tax policy. SB 567 would re-open this debate and cause countries like England and Japan to again propose retaliatory measures against U.S. corporations.

The claim by proponents of this tax law change is that corporations stash money in tax haven countries and worldwide combined reporting is the only way to tax those revenues. SB 567 would repeal the water’s-edge election and force all corporations to pay much more in corporate taxes to California. Under this approach, California companies would end up paying taxes on foreign income earned outside the U.S. which would be inappropriately apportioned to California. The bill would represent a massive tax increase disguised as “fairness” in taxation.

Moreover, SB 567 would grant California the ability to tax income earned outside of the water’s-edge of the United States, a practice which is not followed by any other state in the nation. The practical effect would be to allow the state to tax income that has already been subject to taxation by a foreign jurisdiction. And California-based companies would be subject to retaliatory tax measures by other countries in which they are conducting business.

As the Legislative Counsel has correctly determined, SB 567 makes multiple changes in state statutes that would result in a taxpayer paying a higher tax within the meaning of Article XIIIA, Section 3 of the California Constitution and thus requires a 2/3 majority vote of both houses of the Legislature in order to reach the governor’s desk. Hopefully, the Legislature will reject this measure.

Chris Micheli is a lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be reached at cmicheli@apreamicheli.com.

This piece was originally published by Fox and Hounds Daily.

Gun Groups Should Be Allowed to Put Lawmakers’ Home Addresses on Internet Says Fresno Judge

As reported by the Sacramento Bee:

Attorneys for the California Legislature are weighing whether to appeal a federal court ruling that could allow gun rights advocates to publish the personal information of individual lawmakers.

Diane Boyer-Vine, the state’s legislative counsel, said Wednesday that her office was reviewing the preliminary injunction issued by U.S. Chief District Judge Lawrence O’Neill of Fresno.

O’Neill had moved to halt a California law that restricts the internet publishing of home addresses or phone numbers of elected or appointed officials who feel their safety is threatened, or if the elected officials or their representatives demand that they not be published.

“At its core, plaintiffs’ speech is a form of political protest,” O’Neill wrote, giving the parties until March 10 to decide how to proceed. “The court therefore finds that the legislators’ home address and telephone number touch on matters of public concern in the context of plaintiffs’ speech.”

The case, brought last fall with the help of the Firearms Policy Coalition, was filed after the Legislature’s lawyer blocked a blog post from listing what its author described as the home addresses of 40 legislators who voted for gun control legislation signed by Gov. Jerry Brown. …

Click here to read the full story

 

Understanding California Legislative History and Intent

CA-legislatureAttorneys, lobbyists, legislative staff and others examining California statutes should understand the basics of legislative history and intent research. Unfortunately for attorneys, the subject of legislative intent is not a particularly well covered aspect of the typical law school curriculum where heavy emphasis on the case method of studying law tends to restrict the discussion of legislative purpose to what the courts say on the subject.

However, because California courts have a long tradition of relying upon bill analyses and other evidence of legislative history in the same manner as they do case law – to clarify the meaning of a statute and properly apply the Legislature’s intent – practitioners would do well to know how to discover and apply the Legislature’s intent with respect to the statutes that at are issue in their cases.

For others, such as lobbyists, staff or the media, the focus is typically upon the proposed solution contained in a particular piece of legislation, and not upon the accompanying expressions of legislative intent. However, both are important. At minimum, it is a good idea to confirm one’s understanding of a proposed legislative solution with the statements of legislative intent from the bill’s legislative history. Here are at least three reasons why:

(1)  Our codes are rife with ambiguities that the courts will look to the legislative history to clarify.

(2) The courts will overlook a statute’s plain reading if it collides with evidence of the Legislature’s actual intent or to avoid an absurd application.

(3) Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and Sacramento Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the Legislature in enacting a particular new law or amending an existing law.

Sir Francis Bacon is attributed with the statement “knowledge is power.” Applying that wisdom here, lobbyists and others should be well versed in the legislative history and intent of the code sections that their clients have hired them to “watch” and or/amend. Attorneys should utilize a well-established area of legal research that can shed light on the meaning of statutory terms at issue. And solid news reporting should include relevant aspects of the story surrounding how and why the bill of interest was passed.

In California, the primacy of legislative intent has long been established by both statute and case law. For example, Code of Civil Procedure Section 1859 (enacted in 1872) provides this mandate to the courts: “In the construction of a statute, the intention of the Legislature … is to be pursued, if possible.” Also, the judicial notice statutes identify admissible legislative history materials in Evidence Code Section 452(c). The cases cited under those sections identify various records with which the courts have a high comfort level.

In general, evidence of legislative intent can be derived from two primary sources: An intrinsic analysis of the statute and its surrounding statutory context according to standard principles of statutory construction, and the use of extrinsic aids to reconstruct the legislative history of a statute.

The wider historical circumstances surrounding the adoption of a statute can yield extrinsic evidence of legislative intent that is outside the statute itself, such as relevant historical background, the chronology of events and the presumption that the Legislature is aware of prior law. Again, such evidence may even contradict any so-called “plain reading” of the statute which contradicts persuasive, extrinsic evidence of legislative intent.

In properly researching legislative history and intent, interested persons should ask the following questions to guide their efforts:

  • What is the plain meaning” of the language in the statute? To what extent is the meaning self-evident?
  • Why was the statute adopted? What needs prompted it? What problem or evil was the Legislature trying to correct?
  • What happened in the Legislature during the process of adoption? What is the statute’s legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was created? What has been the response of the courts, the agency charged with administering the statute, the legislature, the public, scholars, etc.?

The California State Archives has a vast collection of original legislative papers that can be accessed by source and session year (e.g., authors’ files, committee and study files, Governor’s Chaptered Bill Files, party caucus files, Senate Floor analyses files, agency files, Law Revision Commission Study Files). Interested persons can phone in research requests to the State Archives at (916) 653-2246, but be prepared to wait as they often have backlogs. “Walk-ins” receive priority treatment and the $.25 per page cost must be paid in advance.

In addition, a wide variety of state legislative offices have insightful materials (i.e., legislator offices, committee offices, partisan offices, floor analysis offices), especially when it comes to more recent legislation, as well as agency analyses and bill files. Access to records held by these offices varies widely depending on the personalities involved and their willingness to make their files available to members of the public. The Legislative Open Records Act, Gov’t Code Sections 9070, et seq. assures public access as specified.

Finally, there are numerous sources to help determine the legislative history and intent of a bill’s provisions such as:

  • The Legislature’s own online databases. They provide committee and floor analyses, bill versions, the final calendars, votes and governor’s vetoes, past session laws, journals, etc. It is not recommended that you rely upon the minimal collection of legislative history materials that Westlaw provides. In the main, it merely provides materials that you can obtain for free from the Legislature’s websites.
  • Previous related, failed legislation. The history of predecessor failed bills can be considered relevant when the legislative effort spans multiple sessions.
  • Interim hearing study and/or transcript and related files. Excerpts from testimony at public legislative hearings which preceded the enactment of a statute may be of some relevance in ascertaining legislative intent.
  • Other formal studies and/or recommendations, such as those published by the California Law Revision Commission or a state agency.
  • All versions of the bill, as introduced, amended, enrolled and chaptered along with Legislative Counsel’s Digest on the face of the bills. Always note when your language of interest came in and relevant amendments.
  • Legislative Journal entries addressing substantive matters. Letters of intent by the author, committee reports, and similar information contained in the Journals.
  • Bill Background Worksheets, which are requested by the committee and filled out by the author’s office, sometimes with attachments.
  • Policy and fiscal committee analyses (both partisan and nonpartisan versions).
  • Department of Finance fiscal reports.
  • Floor analyses for third reading (both partisan and nonpartisan versions).
  • Statements by the author for committee and floor purposes.
  • The legislative author’s letter to the governor. Note that the courts can be more friendly toward such letter if they cast light on the history of a measure and are a reiteration of legislative discussion and events, and not merely as an expression of personal opinion.
  • Statements by proponents and opponents, such as letters, testimony, position papers, etc.
  • Analyses by state agencies.
  • Opinions by the Legislative Counsel and the Attorney General.
  • Enrolled Bill Reports to the governor from various state entities, such as the Legislative Counsel, agencies and departments and the governor’s staff.
  • Contemporaneous, unpassed legislation may be a significant indicator of the intent underlying legislation passed during the same session.
  • Online research manuals can be helpful. For example, Legislative Research & Intent LLC, which is a commercial provider of legislative history research, supplies numerous complimentary research assistance and resources at www.lrihistory.com.

It is important for attorneys and others to possess a basic understanding of what legislative history research consists of and where to look for insights into what the Legislature intended when it enacted a new law or amended an existing statute. An insistence upon going beyond simply reading the statute allows one to consider valuable extrinsic evidence of what was intended by the Legislature in the adoption of the particular legislation of interest.

Carolina Rose is the President and Founder of Legislative Research & Intent, LLC which has provided legislative history research since 1983, and provides related expert witness services. Chris Micheli is an attorney and lobbyist with the firm of Aprea & Micheli, Inc. For more information contact carolina.rose@lrihistory.com or cmicheli@apreamicheli.com

Dem-on-Dem Contests Cost the Party $90 Million in 2016

democrat supermajority sacramento californiaA new report tallying the costs of running against members of your own party revealed that Golden State Democrats spent big in 2016 on races without a Republican.

This year, “Democrats raised or spent a total of $90.8 million on same-party races — a 67 percent increase from 2014 when Democrats spent $54.3 million,” according to the study, citing data from the California Secretary of State, California Fair Political Practices Commission and Federal Election Commission, and issued this week by Forward Observer. “The average budget for a same-party race between Democrats was $3.95 million in the 2016 cycle, up 30.7 percent since 2014,” the last year in the Congressional election cycle.

That means Democrats are now spending massive sums of money against other Democrats in political races due to the passive of Proposition 14, the California top-two primary law which went into effect in 2012.

Those figures struck a sharp contrast to spending for similarly situated candidates in the California GOP, which spent far less over the same two-year period. Those state Republicans “raised or spent $2.76 million on same party races in 2016,” Forward Observer observed. “This is a sharp decline (approximately 84 percent) in spending on same-party races since 2014, when Republicans spent $17.2 million.” One key to the big divergence between Democrats and Republicans, the report noted, was the lack of any Republican-on-Republican competition for a seat in the state Senate or the U.S. House of Representatives.

Jungle primaries

Intraparty fights between Democrats attracted more outside spending this year. $339,000 went “to support Assemblywoman Nora Campos, D-San Jose, who is running against state Sen. Jim Beall, D-San Jose, in the 15th Senate District,” as the Sacramento Bee reported earlier this year, while “several hundred thousand dollars” went to “help former Assemblyman Raul Bocanegra or oppose the incumbent, Assemblywoman Patty Lopez, D-San Fernando, in Los Angeles County’s 39th Assembly District.”

“And in the Inland Empire, a campaign committee funded by the grocery workers union has spent $75,000 to support Eloise Gomez Reyes, the Democrat running to unseat Assemblywoman Cheryl Brown, D-San Bernardino, in the 47th Assembly District.”

For Democrats, the shifting political sands have complicated what was seen by some as an implicit advantage in the so-called “jungle primary” system California voters ushered in six years ago through Proposition 14. That initiative inserted a constitutional amendment to afford Californians a single, nonpartisan primary election, pitting the top two vote-getters, regardless of party, against one another in the general election. But instead of making candidates’ lives easier — and the Democratic party’s — Prop. 14 has appeared to have cost them, demanding higher expenditures. “Democrats have spent a total of $194.2 million on same-party races since Prop. 14 first went into effect in 2012,” Forward Observer concluded. “Republicans have spent $34.5 million over the same period. Thus, for every dollar spent or raised by Republicans, $5.64 was raised or spent by Democrats.”

Ideological Fights Within the Democratic Party

Another effect of the new system, harder to quantify but possibly more serious, has been a sharpening differences between the more moderate and more progressive wings of the party, sparking sometimes thorny disagreements that could have been soften had all candidates vying for office run against Republican opponents. In some cases, such as Kamala Harris’ race against Loretta Sanchez, the challenger was too weak to force a bruising battle over political agendas. In others, however, a more moderate non-incumbent drew a clear line on policy and was rewarded at the ballot box. Last year, for instance, Orinda Mayor Steve Glazer — a former aide to Gov. Jerry Brown who pitted himself against the BART strike and won support from Chuck Reed, the ex-San Jose Mayor spearheading public pension reform — bested Assemblywoman Susan Bonilla, D-Concord, the far more liberal Democrat who initially had been widely expected to win the race to replace outgoing state Senator Mark DeSaulnier.

This piece was originally published by CalWatchdog.com