Bullet train is likely to face more environmental hurdles

As reported by the Los Angeles Times:

California’s high-speed train project is likely to continue to be buffeted by environmental challenges as a result of a decision by the state’s top court.

In a 6-1 ruling last week written by Chief Justice Tani Cantil-Sakauye, the California Supreme Court decided that federal rail law does not usurp California’s tough environmental regulation for state-owned rail projects.

The decision has broad significance, lawyers in the case said.

It clears the way for opponents of the $64-billion bullet train to file more lawsuits as construction proceeds and also allows Californians to challenge other rail uses, such as the movement of crude oil from fracking.

A federal court could later decide the matter differently, ruling that U.S. law trumps state regulation.

But lawyers in the field said …

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What Exactly is the “Rule of Law”?

court gavelPart of the difficulty in finding common ground on the immigration debate in California is a different understanding of a basic governmental concept: the “rule of law.”

California officials have readily used the phrase when it comes to resisting the Trump Administration’s immigration policy.

Chief Justice of the California Supreme Court, Tani G. Cantil-Sakauye, admonished the administration for stalking courthouses looking for people in the country illegally when she told the state legislature in her annual speech on the courts, “I submit to you today that the rule of law is being challenged.”

California’s Attorney General, Xavier Becerra, in responding positively to a federal court’s injunction halting Trump’s executive order against sanctuary cities, declared, “This injunction is consistent with the rule of law.”

Yet, those opposed to sanctuary cities and California’s effort to become a sanctuary state ask that if people came into the country against the laws on the books, is not that a violation of the “rule of law”?

Some have even compared the efforts to ignore federal immigration laws to the nullification efforts future Confederate states used to challenge federal authority prior to the Civil War.

Differing views on what constitutes the rule of law intensifies the country’s political divide. Ultimately, the United States Supreme Court will determine the law.

Cases before that court on the issue of state sovereignty have occurred in the past, of course. One case cited that may influence the outcome of a new Supreme Court test is Printz vs. United States.

This 1997 case, dealing with the Brady Gun Law, said the state could not compel local officials to execute federal law. The 5 to 4 majority declared that the Tenth Amendment to the constitution allowed the state to ignore a federal mandate, in this case requiring local law enforcement to enforce certain gun laws, because the constitution did not address the specific issue covered by the law.

Interestingly, the court majority, lead by Justice Antonin Scalia, were the conservative jurists on the court. Liberals may now use this decision to argue the Tenth Amendment allows states to declare sanctuary despite federal immigration laws because the sanctuary issue is not in the Constitution.

However, the Printz decision may not cleanly cover the issue of sanctuary cities. The majority opinion in Printz argued that the Framers of the Constitution allowed for federal regulation of international and interstate matters but reserved internal matters for the judgment of state legislatures. It may be argued that border security between nations is an international matter.

Cities can choose to not enforce federal immigration law, but they cannot stop the federal government from enforcing it. This is where the denial of federal funds to sanctuary cities comes into play and will ultimately be tested in court.

Despite the legal battle, it seems a basic understanding of what is meant by “the rule of law” is in order for the on-going immigration debate.

The American Bar Association attempted to frame a discussion of “the rule of law” in a three-page document.

The Bar Association dialogue started with questions:

“The rule of law is a term that is often used but difficult to define. A frequently heard saying is that the rule of law means the government of law, not men. But what is meant by “a government of law, not men”? Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it?”

The site contains differing views from two civil rights historical figures.

Elizabeth Cady Stanton, an American suffragist, social activist, abolitionist, and leader of the early women’s rights movement, is quoted: “It is very important in a republic, that the people should respect the laws, for if we throw them to the winds, what becomes of civil government?”

But one can respect laws and still resist, The Rev. Martin Luther King wrote in his Letter from the Birmingham Jail. “I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

The Bar Association comments, “The rule of law is intended to promote stability, but a society that operates under the rule of law must also remain vigilant to ensure the rule of law also serves the interests of justice.”

Strict adherence to laws on the books in relation to a concept of true justice reflects the current debate over immigration issues in this state. Yet, perception by the public of how laws are enforced is as an important part of this debate as is a finally sliced Supreme Court decision on the law. The public’s understanding of the “rule of law” is the tie that keeps in place the foundation of a civil society. So, it is incumbent on all sides of this debate to make clear what is meant in arguing for the “rule of law.”

Joel Fox is editor of Fox & Hounds and President of the Small Business Action Committee.

This article was originally published by Fox and Hounds Daily.

Large Loophole to Government Transparency Overturned by California Court

transparencySACRAMENTO – Earlier this month, the California Supreme Court unanimously overturned an appeals court decision that had provided a large loophole in the state’s public-records act.

The case, City of San Jose v. Superior Court of Santa Clara County, revolves around one question: “Are writings concerning the conduct of public business beyond (the California Public Records Act’s) reach merely because they were sent or received using a nongovernmental account?”

The superior court ruled that records concerning the public’s business should be turned over to the public upon request; the appeals court, however, found that agencies do not have “an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency,” or to even search for them.

The case goes back to 2009, when a local citizen, Ted Smith, sought records regarding the activities of the city of San Jose’s redevelopment agency, its executive director and some elected officials including the mayor and two City Council members, as the court explained. The city produced the requested documents from official phone numbers and email accounts – but would not provide information stored on the officials’ personal accounts.

The city offered a simplistic defense. Messages created on personal accounts are not public records because they are not within the control of the city. If the city had prevailed, the ramifications would be immense. Elected officials and governmental staff working for California’s numerous government agencies could legally shield sensitive information from the public merely by conducting such business on their personal email account or cellphone.

The appeals court exempted “huge swaths” of information based on where the information was located, not based on content, explained Jim Ewert, general counsel for the California Newspaper Publishers’ Association, which filed an amicus brief in the case. “If the Supreme Court had not decided (this way), it would have eviscerated the California Public Records Act,” he added.

A Los Angeles Times editorial captured the likely effect had the appeals-court decision stood: “As soon as a public official realizes that his constituents have no right to look at anything he says on his personal cellphone or laptop, he’ll simply do all of his sensitive or secret communications on those devices. With a flick of the wrist, public officials will exempt themselves from accountability.”

The state high court recognized the new reality of email and other electronic communications, even though the state Constitution and the public-records act were crafted in a time before such communications were envisioned. “It requires recognition,” the Supreme Court found, “that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”

The appeals court was concerned about the problems inherent in capturing and turning over records that were out of an agency’s control. But the state high court, while not mandating any particular policy in dealing with such matters, offered some possible scenarios in dealing with a public records request.

For instance, as a Lexology article explains, an agency could require employees to search their own emails for relevant records or develop a policy requiring “all emails involving agency business, sent by an employee through a private account, to be copied to the employee’s agency email account.” The main point is the court upheld the idea that the public has a right to access a public record, even if the details of obtaining it are up for debate.

In fact, the court explained that because the city did not try to search for any particular documents in its employees’ personal accounts, “the legality of a specific kind of search is not before us.” But it found that agencies are obliged to at least try to locate and disclose any such public documents on private servers “with reasonable effort.”

The decision, however, does not change the complex balancing act that exists between public access and privacy rights. Some documents are protected from public exposure, but the court’s ruling finds that the location of those documents – on a public or private server – has nothing to do with whether or not those documents are legitimate public records.

The high court quoted from the state’s public records act, which defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.” Not everything produced by a public employee is public, of course, and it might take hair-splitting to determine where to draw the line.

Here, the court used an example to illustrate the point: An employee’s email to a spouse complaining that “my coworker is an idiot,” is unlikely to be considered public, whereas “an email to a superior reporting the coworker’s mismanagement of an agency project might well be.” The court agreed that public employees do not “forfeit all rights to privacy.” But the city of San Jose claimed an exemption for all communications from personal accounts, which was an open invitation for employees to evade the clear intent of open-records laws.

The high court was not persuaded by the city’s argument that the Legislature required public access only to records “accessible to the agency as a whole.” Many genuinely public documents, it explained, are stored in “filing cabinets and ledgers” that would not be accessible to all of an agency’s employees.

The question, of course, is whether the document was produced by employees who are conducting business on behalf of the agency. It’s not a matter of where the document is stored that determines whether the public should have access to it. If, for instance, an agency contracted with a consultant to produce a report, then the agency – and therefore the public – has a right to that document even if the consultant is retaining that document, according to the court.

The recent presidential election reinforces the significance of these distinctions. “Our concerns are not fanciful,” the newspaper association’s brief explained. “For example, former Secretary of State and … presidential candidate Hillary Rodham Clinton turned over 50,000 pages of government-related emails that she had kept on a private account, although federal regulations, since 2009, have required that all emails be preserved as part of an agency’s record-keeping system.” Many other states consider public records on private servers to be accessible to the public.

While local and state government agencies still need to come up with policies that detail exactly how such records must be maintained and disclosed, the court resolved the fundamental principle: A public document is a public document, even if it was created and stored in a private email account.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

This piece was originally published by CalWatchdog.com

California Supreme Court Strikes Down Vergara Appeal

560px-School-education-learning-1750587-hHere’s an axiom of California politics. When it’s the teachers union against everyone – that’s right, everyone else – the teachers union wins. Yesterday’s decision by the California Supreme Court to not hear the Vergara case is just the latest example.

Prior to losing on appeal, which brought the case to the attention of the State Supreme Court, the original Vergara ruling upheld the argument of the plaintiff, which was that union supported work rules have a disproportionate negative effect on poor and minority students. As reported in the Los Angeles Times in June 2014:

“Los Angeles Superior Court Judge Rolf M. Treu tentatively ruled Tuesday that key job protections for California teachers violated students’ rights to equal educational opportunity. Treu struck down state laws that grant teachers tenure after two years, require seniority-based layoffs and govern the process to dismiss teachers. He ruled that those laws disproportionately harmed poor and minority students… [writing:]

‘All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school. Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.’”

And the evidence was indeed compelling. Watch these closing arguments in the case, and note that the plaintiff’s attorney used the testimony of the expert witnesses called by the defense attorneys to support his arguments!

But it isn’t just the union’s hand-picked experts who are against the teachers unions, when they reveal under cross-examination that union work rules indeed harm students, and disproportionately harm low-income and minority students. It’s every interest group, every stakeholder. Why, for example, would a teacher want to work in an environment where you come in and you care about students and you’re talented and you work very hard to get through to all of your students and get good educational results, and in the classroom right next to you somebody just shows up every day and doesn’t do anything? They make as much money as you do, and if they stick around, they get increases every year just like you will. If they are incompetent, they will not be fired. And if there’s a layoff, if they’ve been on the job one year longer than you, they’ll stay and you’ll go.

No wonder there’s a teacher shortage. Consider these statistics that measure teacher sentiments regarding the work rules that were challenged by the Vergara plaintiffs:

  • Teacher effectiveness should be a factor in granting tenure:
    72% of teachers agree, 93% of principals agree.
  • Students’ interests would be better served if it were easier to dismiss ineffective teachers:
    62% of teachers agree, 89% of principals agree.
  • Students’ interests would be better served if layoff decisions took teacher effectiveness into account:
    67% of teachers agree, 83% of principals agree.

Then there’s the social agenda of the teachers union. Their social agenda, in essence, is to indoctrinate California’s students – most of whom are people of color, and millions of whom are members of recent immigrant families – into believing they live in a racist, sexist nation, where they are condemned to lives of discrimination and thwarted achievement, when precisely the opposite is the reality. In reality, America is the most tolerant nation in world history, rejecting sexism and racism, and has provided opportunities to people of all backgrounds in measures that dwarf all other nations and cultures. But not according to the teachers union.

But this is California, and what the teachers union wants, the teachers union gets.

One small encouraging sign is the fact that two of the three dissenting attorneys are Brown appointees. The fight is bipartisan. It’s disappointing that judges appointed by Wilson and Schwarzenegger ruled against the plaintiffs, and it is possible that part of their motivation was judicial restraint, i.e., to not legislate from the bench.

Which leaves the legislature to change these rules that are destroying public education in California – jobs for life after two years, nearly impossible to fire incompetents, and seniority over merit in layoffs. Virtually any honest legislator in Sacramento will admit, off the record, that they don’t agree with the agenda of the teachers union. Plenty of retired democrats, including Gloria Romero, former Senate Majority Leader, and Antonio Villaraigosa, former Mayor of Los Angeles, have leveled withering criticism at the teachers union. But active politicians are targeted for political destruction if they stand up to the union machine, and they toe the line.

Parents, students, judges, legislators, and teachers themselves are all subordinates of the teachers union. It will take an extraordinary combination of bipartisan cooperation and raw political courage to change the status quo. But let’s be clear – the teachers union has won again, and everyone, everyone, was on the other side.

Ed Ring is the president of the California Policy Center.