Monday, August 31, 2009

Another Los Angeles Times Article On The Con-Con

This one (here) focuses on Repair California. The convention process is long and complicated. What else is new?

Insurance Commissioner Sues To Halt Sale Of SCIF Assets

One of the ways in which the State is attempting to raise funds for this year's budget is the sale or other disposition of assets belonging to the State Compensation Insurance Fund (SCIF), the workers' compensation insurer of last resort in California. Believing that these assets may only be used for purposes related to workers' compensation, Insurance Commissioner Steve Poizner has filed a lawsuit to stop the sale or other disposition of SCIF assets. A copy of the Petition/Complaint is here. The principal thrust of the complaint is that the sale violates Article XIV, Section 4 of the California Constitution, which requires the Legislature to establish a "complete system of workers' compensation. The Complaint also alleges a violation of Article II, Section 10(c). Howard Rice is representing the Commissioner, along with Adam Cole, Chief Counsel for the Department of Insurance (DOI), and several other lawyers from the DOI.
ps. Here is an article on the lawsuit, from last Friday's Los Angeles Times.

Sunday, August 30, 2009

Right To A Jury In Tax Refund Actions

In Franchise Tax Board v. Superior Court (here), the Court of Appeal held that a taxpayer in a tax refund action has the right to a jury trial. Under the California Constitution, whether a party in a particular action has a right to a jury depends on whether an anologous cause action would have cognizable in the common law courts in 1850, when the first California Constitution was adopted. Because taxpayers could sue tax collectors for a refund at common law before 1850, and because the relief sought is monetary rather than equitable, the right to a jury trial attaches to the modern day statutory tax refund action.

MICRA and Mortality

The malpractice reform statute, MICRA, generally provides for the enforceability of agreements to arbitrate medical malpractice claims, provided that the patient has a thirty-day period to rescind. But what happens if the patient dies allegedly due to the physician's malpractice before the 30-day period expires? In Rodriguez v. Superior Court (here), the court held that the constitutional policy that jury trial waivers be strictly construed, enunciated in Grafton Partners v. Superior Court, trumped the statutory policy in favor of arbitrating medical malpractice claims.

Another Cell Phone Plaintiff Bites Tne Dust

Weren't you irritated when you bought a fancy new cell phone free, or at a discount, because you signed up for a two-year plan, and then discovered that you were paying sales tax figured on the undiscounted sales price that you didn't pay? Me too. But it's all perfectly legal, according to a regulation put out by the Board of Equalization. And if you file a lawsuit claiming that the carrier didn't give you proper notice, you hit the bar of Article XIII, Section 32, which prohibits the issuance of injunctions against tax collection. That's what happened to the plaintiff in Yabsley v. Cingular Wireless (here). That's true even for a cause of action against the cell phone company based on the company's failure to disclose how much the tax is.

Does The MMPA Amend The CUA?

No, says the Court of Appeal in People v. Hochanadel (here). The "CUA" is another term for Prop. 215, the medical marijuana initiative. The "MMPA" is the "Medical Marijuana Program Act." Under Article II, Section 10(c) a statutory initiative can only be amended by another initiative, unless the initiative provides otherwise. Prop. 215 does not permit legislative amendment, so the Legislature can't amend it. In this case, the People contended that the MMPA, which sets up rules for marijuana cooperatives, was an unconstitutional amendment to Prop. 215. But the court rejected the argument, holding that the statute merely implemented the initiative, by identifying groups that could lawfully provide marijuana to medical users protected by Prop. 215, without diminishing the rights granted by the measure.

A Charge To Collect A Tax Is, Guess What? (A Tax)

Ever since the enactment of Prop. 13 there have been dozens of cases demarcating the boundary line between taxes, which at the local level now require voter approval, and fees, which sometimes do not require such approval (even under Prop. 218). The latest battle in this saga is Weisblat v. City of San Diego (here). There the City tried to impose a fee to cover the costs of imposing a tax on renters of real property. Not surprisingly, the court held that the charge was a tax, not a fee, since it did not cover the cost of regulation or the cost of providing a service to these property owners. Accordingly, the case largely restates settled law, and is far from the sweeping victory that it has been portrayed as by anti-tax groups. In fact, the only novel thing about the case is its holding that the tax was a "general tax" under Prop. 218, rather than a "special tax," even though it was intended to cover specific costs. That holding should give local government a chance to levy more general taxes that require only a majority vote.

Friday, August 28, 2009

Is The Con-Con Like "Magic Beans"?

That's what the Howard Jarvis Taxpayers Association thinks (here). You can see why they might be leery of the idea--some of their sacred cows are in the line of fire. But I didn't remember what "Magic Beans" were. Perhaps I've forgotten my Grimm's Fairy Tales.

Wednesday, August 26, 2009

Does The Constitution Prohibit The Legislature From Drafting Ballot Arguments?

That;s what the Howard Jarvis Taxpayers Association claims. The case is now pending in the Third Appellate District. Here is the HJTA's Opening Brief; here is the Legislature's Respondent's Brief; and here is the HJTA's Reply. Thanks, Tim Bittle, for sending these along.

Monday, August 24, 2009

The Convention Requires Compromise

So says the Los Angeles Times (here). But what kind of compromise? Ending "fees that are actually taxes"? That's what's "buzzing" in Sacramento, according to this report. RIP, Sinclair Paint.

Friday, August 21, 2009

The Con-Con Makes The New Yorker

Here is Hendrik Hertzberg's "Talk of the Town" piece about our ungovernable state and the proposals for a constitutional convention.

Thursday, August 20, 2009

Court of Appeal Issues Palma Notice in Line Item Veto Case

The Court of Appeal has issued a "Palma notice" in the line item veto case (here). This is a formal indication that the court (but need not) issue a formal ruling in the case.

The Governor Meets With Proponents Of A Part-Time Legislature

The San Francisco Chronicle reports here. Here is a link to the text of the initiative.

Wednesday, August 19, 2009

The Los Angeles Times On Reform Proposals

This article from the Los Angeles Times summarizes the competing proposals to reform California government. It also mentions a circulating initiative to return California to a part-time Legislature. Would the cure be worse than the disease?

Sunday, August 16, 2009

California Forward's Proposals To Revise The California Constitution

Here's a different approach than the con-con, a set of proposals from a business-backed group called California Forward to revise the California Constitution. The proposals are discussed in this article from the Sacramento Bee. Other than a requirement that new funding sources be identified for new programs, and perhaps a two-year budget cycle, there's not much here to warm the hearts of Republicans or conservatives. So this proposed revision probably wouldn't get the two-thirds vote of the Legislature necessary to put it on the ballot. And you couldn't put it on the ballot by initiative, because (a) a measure with all these changes would probably fall afoul of the single subject rule; and (b) it would be a revision of the constitution, which you can't do by initiative. So it's hard to see where this is headed. If they can't get the Legislature to pass it they would have to split it up into several measures, which is expensive and changes the political dynamic considerably.

Tuesday, August 11, 2009

Steinberg Files Line-Item Veto Lawsuit

Here is the story from the Sacramento Bee. Here is the San Francisco Chronicle story, by Bob Egelko, which adds that the case has been assigned to Judge Peter Busch, a former partner of mine who is now one of the two law and motion judges in the San Francisco Superior Court. Here is a copy of the petition itself (thanks to Robin Johansen, petitioner's counsel, for sending it along).
ps. Here is an article analyzing the politics of the lawsuit.
pps. Another lawsuit has been filed challenging the line item vetoes in the Court of Appeal in San Francisco. Here is the petition and here are the exhibits; and here is a link to the docket for that case.

Monday, August 10, 2009

The Administration Defends The Line Item Vetoes

The Los Angeles Times has posted this article by Andrea Hoch, the Governor's Legal Affairs Director, and Jennifer Rockwell, the chief counsel for DOF. And, more generally, the Times also reports on the recent rise in budget-related litigation here.

Saturday, August 8, 2009

Steinberg to Sue Governor Over Line-Item Vetoes

So reports the Sacramento Bee in this article. He'll be represented by the Remcho, Johansen firm. The Los Angeles Times covers the story here.

Friday, August 7, 2009

Thursday, August 6, 2009

Supreme Court Slightly Narrows Workplace Privacy Protection

In Hernandez v. Hillsides, Inc. (here), the Supreme Court has held that an employer did not violates its employees' constitutional rights to privacy by surreptitiously monitoring their office for pornographic computer use during non-work hours. While the Court held that the employees had privacy interests in their workplaces (which may be the most important part of the holding), it also held that the intrusion was not highly offensive and significantly serious so as to violate those interests. The court placed particular emphasis on the fact that the employees were not monitored during work hours (indeed, no one was actually videotaped) and the employer's interest as a residential facility for neglected and abused children to prevent such computer use.

Water Charges Are Fees Not Assessments

In Paland v. Brooktrails Township (here), the Court of Appeal has clarified the scope of Proposition 218 as applied to water charges. The plaintiff claimed that a minimum monthly base rate imposed by a special district for water service that was available but not used constituted a "fee" that is required to comply with the requirements of Article XIII D. Section 6, rather than an "assessment" required to comply with Article XIII D, Section 4. The difference is important because, among other things, an assessment requires a vote of the assessees, while a fee (for water service) does not. Here's the holding: "[W]e conclude the water and sewer base rates imposed on parcels with water or sewer connections regardless of whether they are active or inactive, and whether or not the property owner uses the services, is a fee subject to the provisions of article XIII D, section 6, not an assessment subject to the requirements of article XIII D, section 4." Ungrammatical, but correct, in light of prior Supreme Court authority holding that water charges are fees.

Wednesday, August 5, 2009

Are The Line Item Vetoes Legal?

Here is an interesting post that discusses the issue, with links to conflicting opinions from the Legislative Counsel and the Department of Finance.
ps. Here is an editorial from the Los Angeles Times on the same subject; here is an article from the same paper; here is an article from the San Francisco Chronicle and here is an article from the Sacramento Bee. None of the articles really add much, although one indicates that legislators may file briefs if someone else initiates litigation.

Tuesday, August 4, 2009

Is Bigger Better?

Ryan Connerty suggests that a bigger Legislature means more democracy in this op-ed piece from the Los Angeles Times. Would it cost too much? Cut the legislators' pay, he says. (Coonerty teaches constitutional law at UC Santa Cruz.)

Monday, August 3, 2009

The Two Different Two-Thirds Requirements

In this column, Dan Walters distinguishes between the two-thirds requirements for passing a budget and increasing taxes (for purposes of increasing revenue). He says the former stands a reasonable chance of being repealed, while the latter is politically untouchable.