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FEDERAL SHUTDOWN: Day 35 

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EAR TICKLER: On the KQED Political Breakdown podcast, Scott Shafer and Marisa Lagos sit down with San Francisco Public Defender Jeff Adachi to discuss Harris' time as District Attorney, his work in the Public Defender's office

From the CapitolHappy Friday! You made it! 

I'm happy today is here and am asking for a quiet day after a frenetic one yesterday. I woke up thinking that I was going to write about Kamala Harris's uneven reception as a presidential candidate by the "progressive" community. I put that in quotes not to demean anyone, but the term means different things to different people. For example, in the housing sense, self-proclaimed progressives land themselves in either the NIMBY or YIMBY camps.

Anyway, I'll get to KDH's presidential bid after the jump, but yesterday became Maienschein and PG&E day. I tackled most of Maienschein's switch from Republican to Democrat in yesterday's Nooner and, as it was being sent out, the story of the CAL FIRE investigation conclusion that PG&E equipment was not at fault in the 2017 Tubbs fire broke. Shortly after that, the Governor's Office announced the Gavin would hold a 2pm press conference outside of his office (behind Bacteria Bear for those who know the real estate).

This weekend has lots of news developing so if you ignore The Nooner over the weekend, make sure you catch up on Monday. Because of time and research needs, the stories that I won't get to today include:

  • The state is suing Huntington Beach for "willfully standing in violation of state housing law," Governor Gavin Newsom announced today.
  • Former Assemblymember Sebastian Ridley-Thomas was recently found to have "more likely than not" acted inappropriately toward two female employees. He has registered as a lobbyist and taken a subcontract from another firm to lobby for Los Angeles Unified School District. However, his lobbyist registration status is "In suspense." Neither I nor other lobbyists I have talked to have seen that before. What does it mean?

MAIENSCHEIN: Clearly, while the day started as a whisper, Assemblymember Brian Maienschein's departure from the GOP was known. While it was whispers, his website had been taken down, although as I noted, he was still listed on the roster as a Rep, but that changed by the afternoon. His affiliation was changed to "Democratic" on the Assembly website and his web site re-emerged on the Democratic caucus template.

The question will be how much the caucus welcomes him and how his votes land. Local Democratic activists are essentially taking his change as a victory, while quite skeptical. What will matter is how major constituencies of the Democratic Party treat him. Not far to the south, those constituencies wrapped their arms around Nathan Fletcher, another Republican turned Democrat with an DTS layover. But, flipping the nonpartisan seats in San Diego local government has long been a priority for local Democrats and labor, so the Fletcher treatment cannot necessarily be seen to be a mold for what Maienschein faces.  

CAL FIRE: PG&E NOT AT FAULT IN TUBBS FIRE; GOVERNOR SPEAKS; IS ANYBODY LIABLE?
Forty-eight hours after fire victims and plaintiffs attorneys asked the Legislature to stall the impending bankruptcy of Pacific Gas & Electric (PG&E) and enact legislation to extend the SB 901 securitization authority to include 2018 fire victims, the California Department of Forestry and Fire Protection (CAL FIRE) released the results of its independent investigation. The report concludes that the cause of the fire was "private electrical system adjacent to a residential structure," not that owned by PG&E.

Assemblymember Cecilia Aguiar-Curry (D-Winters), who represents Lake and Napa counties in the affected area, writes in a release:

"This 'facility' consisted of private power lines connected to a home from PG&E main lines, legally and through agreement with the utility.  Maintenance for such facilities is the legal responsibility of the homeowner.  The fire resulted from a failure of the homeowner’s equipment, most likely caused by weather conditions at the time."

The Tubbs Fire in Napa, Sonoma and Lake counties started on the evening of October 8th, 2017 and burned a total of 36,807 acres, destroying 5,636 structures and resulting in 22 civilian fatalities and one firefighter injury.

Governor Gavin NewsomGovernor Gavin Newsom held a 2pm press conference outside of his office to address the report. Asked by a reporter if he was surprised with the conclusion of the CAL FIRE report, he said "If you weren't surprised, that would surprise me." It was widely believed in Capitol circles, markets and, some would argue, PG&E itself that the utility's equipment was at fault. PG&E's stock climbed +5.92 (73.72%) on the news (ticker PCG).

As of 10am today, there was profit-taking and the stock had given back 1.85 of that gain.

The utility has filed with the state a plan to file for under Chapter 11 for a restructuring bankruptcy on or after January 29. PG&E responded with a press release regarding the CAL FIRE ruling, but did not make a statement as to how it might affect the planned bankruptcy filing.

The corporation has filed an 8K SEC filing indicating possible liability of $30 billion from the 2017 and 2018 fires. Governor Newsom stated that his administration believes that, of that, $17 billion is attributable to the Tubbs Fire. $10 billion of that was believed to be direct property danage. However, he notes that there were 17 other fires believed to be caused by PG&E equipment in 2017.

Of course, there is the 2018 "donut hole" issue, particularly with the Butte County Camp Fire that largely destroyed Paradise, CA. There are a lot more pieces of the causation puzzle pointing to PG&E from that fire, particularly from an eyewitness CAL FIRE station chief. That fire destroyed 18,804 structures and took 86 lives.

On the Tubbs fire, the shift of causation from PG&E equipment to that of a private homeowner means that there is little financial recovery for victims of that fire. Newsom stated that around 200 households that fell victim to that fire did not have insurance and a significant number of others were underinsured. While individual victims are often the images that come to mind, many businesses and government agencies were affected and were counting on financial relief from PG&E.  

The legal premise of strict liability for inverse condemnation does not carry to  an individual property owner, and negligence would have to be shown for any liability. To seek damages from the homeowner would hit the maximum insured value of that homeowner's policy and would mean cents on the dollar that seeking relief would likely not be worthwhile. 

Governor Newsom was clear to reporters that his focus is on ensuring "safe, reliable, and affordable" electrical service. PG&E's financial destiny, including whether they seek bankruptcy, is up to its board of directors. The governor does not plan to come forward with his own plans on planning for handling cost recovery for wildfires, instead looking to the newly convened SB 901 five-member Commission on Catastrophic Wildfire Cost and Recovery. "Otherwise, it would make no sense for me to appoint three members to the commission." He made the appointments on Tuesday, which include Dave Jones who just completed eight years as state insurance commissioner.

Another appointment Newsom made Tuesday was Genevieve Shiroma to the Public Utilities Commission. A longtime engineer and leader in air quality in state government and member of the California Agriculture Relations Board, Shiroma recently concluded her final term on the elected board of directors of the Sacramento Metropolitan Utility District (SMUD). SMUD provides electricity service to over 1.5 million residents of the city of Sacramento and several neighboring communities. Noting that SMUD has tangled with PG&E in the past and has worked to support community choice aggregators (CCAs) in other communities, I asked Newsom if that observers should read something in to the appointment. With a smile, Newsom said "You just did."

Newsom also pointed out that the state's renewable power standards to reduce carbon emissions are written into state law and PG&E or any successors must continue to follow them, regardless of a bankruptcy filing. While there are many critics in the Legislature of PG&E, it is largely recognized in the Capitol as a leader for an investor-owned utility in renewable energy. That said, the investment community has criticized PG&E for overpaying for renewables for political purposes. Several of the suppliers of such energy, such as solar and wind, fear that a bankruptcy could lead to a court-imposed renegotiation of those contracts.

As the members of the Legislature returned to their districts for the weekend and Tuesday's "on or after" bankruptcy filing approaching, the only word that can be used to describe the situation is uncertainty. All assumptions and possible routes through this maze involving many players completely changed today. The bulk of the SB 901 indigestion that many members had after voting for the bill on the last day of session without really knowing its implications is largely abated. 

The "good" news is that the donut hole can be closed to cover the 2018 victims without a $30 billion possible securitization leading to a non-palatable rate increase by the Public Utilities Commission. The "bad" news is that now the 2017 victims will point their fingers to 2018 victims and say that the former are the ones now being treated unfairly.

Sure, property claims were paid for insured or low-interest FEMA/SBA loans were extended for 2017 victims, but the insurers and borrowers were expecting a liability deep pocket, but those hopes may have been dashed yesterday. And, that's just for property losses (including displacement costs), and not personal injury. Remember, 22 people died in the Tubbs Fire and their were looking for actual expenses and wrongful death claims if negligence could be found. 

There was a lot of anger over SB 901, but it is important to remember that the cost-recovery securitization was one part of a 71-page bill. Yes, the process to get to a final bill was the exemplar of the adage that watching legislation being crafted is like sausage being made. 

That said, there were plenty of non-controversial items in the bill including wildfire prevention responsibilities of public and private entities and the establishment of the above-mentioned commission. The governor's proposed budget budget includes expansion of the CAL FIRE aviation fleet--$11.4 million for the first year of operating the large air tankers that will be transferred from the U.S. Air Force and $109.4 million General Fund to continue the replacement of CAL FIRE's Vietnam War‑era helicopters with new state‑of‑the art helicopters.. The feds are also sending more planes to California. 

While there is the $17 billion number associated with the Tubbs Fire, the breakout of the remainder of claims between the 17 other 2017 fires and the 2018 fires is not clear. The 2017 fires other than Tubbs can be securitized under SB 901, but the authority of PG&E to seek the cost-recovery surcharge for the 2018 Camp Fire would need legislative approval. That puts legislators in a pickle of treating the 2018 victims "more favorably" than 2017 victims. While the victims in 2017 largely aligned with their insurance companies to urge passage of SB 901, that bond likely breaks. The insurers will now be focused on closing the 2018 donut hole so they can recover something, anything. 

And, of course, the plaintiffs lawyers are redoubling their efforts to expand the SB 901 authority to the 2018 victims. And, despite CAL FIRE's finding that PG&E's equipment was not directly responsible for the Tubbs Fire, that does not mean that the investor-owned utility is absolved of claims. It just means that strict liability for inverse condemnation does not apply. Victims and insurance company lawyers will look at PG&E's process for approving the private homeowner's "equipment" for connection to the utility's power lines. If that process was faulty, it could be negligence and damages could be recovered under the regular preponderance of the evidence that fire caused the damage (property, personal, and in extreme negligence, pain and suffering). It's just a much lengthier and costly legal process.

There appears to be no quick action on closing the SB 901 donut hole with the result of the CAL FIRE investigation still months off. While there appears to be urgency, there really isn't need for the Legislature to act immediately. Only after identifying a cause and scoping out the actual liability for the Camp Fire, the securitization process that would include rate approval and cost recovery bond sales actually be pursued.

ANYTHING BUT AN EMPTY SUIT WITH NICE HAIR: Admittedly, I personally like Governor Gavin Newsom. That said, I've tried to take a critical eye and have taken signs from how others in the media who are more pure journalists and others around the Capitol who are skepitcal receive him. He has irked some in the media by holding policy events outside Sacramento without issuing press advisories. That's justified, particularly to journalists on a beat, such as water or housing. 

However, there have been three significant press events in his first seventeen days in office. During the unveiling of his budget proposal, he used only a legal pad and got into detail while strolling the stage, pointing at the charts on the screen. Then, on January 14 after the market close, he held an impromptu press avail following the PG&E bankruptcy, which he did yesterday after the CAL FIRE report. In both of the latter cases, he talked without notes and answered detailed questions from reporters. While he could have memorized facts about the budget over a couple of weeks, the knowledge about the fire destruction is not something you memorize like a school kid's locker combination.

Gavin indeed has nice suits and enviable hair, but anyone who believes he does not have policy chops are not paying attention or drunk with their own political narrative.

KAMALA'S unWELCOME PARTY AND #CAKEDAY after the jump...

Probolsky Research

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KAMALA'S unWELCOME PARTY IN THE CALIFORNIA HISTORY CONTEXT: California's Presidents include Herbert Hoover, Richard Nixon, and Ronald Reagan. Of those who ran and didn't lose in the primary during my political lifetime are Jerry Brown and Pete Wilson.

White guys. Now, I don't have anything against white guys, but...

...you would think that a Democrat who is the daughter of Jamaican and South Asian immigrants and has law enforcement credentials while being against the death penalty would be celebrated by the California left in the current political environment.

Rather, social media is finding every possible case where Kamala Harris's (KDH's) prosecutorial actions were suspect. The topic was discussed on a recent episode of Slate's What's Next podcast and, as noted above, in this week's KQED Political Breakdown podcast. 

She indeed operated like too many prosecutors have across Calilfornia. Only by being a prosecutor in San Francisco and a the first female and first woman state attorney general did many of these stories raise eyebrows. And, she did piss off the defense community by challenging her former boss who was the incumbent, Terrance Hallinan, a former public defender, to win her first public office as San Francisco district attorney.

Admittedly, they trouble me, but I'm guessing time spend in the State Library studying Pat Brown's tenure as attorney general would raise similar questions. You may have heard of this guy named Earl Warren. He presided over the most defining Supreme Court of the United State during the landmark civil rights area. He authored the majority opinion in Brown v. Board of Education, Reynolds v. Sims (one-person, one-vote for state legislative districts), and Miranda v. Arizona. Yeah, he's the one that popularized "You have the right to remain silent" on all those Dick Wolf shows that occupy every hour, every day on some channel.

Before that, Warren was governor of California and, before that, attorney general. His historical claim to fame as attorney general was the enforcement of FDR's Executive Order 9066. That order sent 110,000-120,000 Japanese-Americans to internment camps. My congresswoman, Doris Matsui, was born in the Poston War Relocation Center internment camp in Poston, Arizona. After the war, like many Japanese-Americans, Doris's family returned to the Central Valley town of Dinuba. In most cases, they started their lives over.

Doris's late husband, congressman Bob Matsui, was born here in Sacramento 81 days before Pearl Harbor and then was interned at the Sacramento Tule Lake War Relocation Center a year later. I don't know exactly where Bob Matsui's family lived at the time, but it was likely in this neighborhood. The Southside Park neighborhood as it is known now was then the home of many Japanese and Chinese American families, as their residence in areas closer to the center of town was prohibited under racist zoning laws.

In October 2017, a "Sakura Grove" of flowering cherry trees was planted in the park to honor the neighborhood's history. The historic neighborhood, now very diverse is why the Sacramento Buddhist Church is at Riverside Blvd and X. Founded in 1899, the temple began at 1221 Third Street and moved for space needs and rezoning around the perimeter of downtown to grow and deal with the city's zoning laws. It has remained at 2401 Riverside since 1959 and, while still majority Japanese-American, now draws a diverse attendance each Sunday.

Another Japanese-American from Sacramento is San Francisco district attorney Jeff Adachi, cited at the top of today's Nooner as the guest in KQED's Political Breakdown podcast. His parents and grandparents lived here and were relocated to the Rohwer War Relocation Center in Arkansas. Like Bob Matsui's family, they were likely from the neighborhood I now call home.

Of course, during Warren's second year in office as governor and before his 1953 swearing-in as Chief Justice, the Stone Court handed down Korematsu v. United States, upholding the constitutionality of 9066. Korematsu and other imprisoned objectors were largely released over time on various procedural grounds. The ruling is generally believed to have been on wrong legal grounds but there has not been an on-point "ripe" case to lead to a specific reversal of the precedent. In 1988, President Reagan signed the Civil Liberties Act of 1988 authored by Norm Mineta of San Jose and co-sponsored by then-Senator Pete Wilson to provide compensation to internees, specifically citing that the internment had been based on race and prejudice rather than legitimate security concerns.

Warren's legacy as attorney general as an abomination. His time steering the Supreme Court during tumultuous times and his own pen drive the passion for justice of many law students, lawyers, judges, and activists to this day. Oh, and, yes, he was a Republican nominated to the Court by Republican Dwight D. Eisenhower.

The other day in writing up the Nooner Sofa Degree, I wrote that I was adding a book my an undergrad junior lecturer of mine, Kathryn Olmsted. It was in her class at UC Davis that I first learned about California's history of Japanese-American internment in California. We read Prisoners Without Trial  by Roger Daniels. Let's just say that it wasn't something taught in grade school growing up three miles down Yorba Linda Boulevard from the birthplace (and now resting place and library) of Richard Milhouse Nixon.

I knew about Earl Warren as I read about him in the Los Angeles Times when I used to diagram sentences after learning the grammar structure technique from Miss Fujiyama at Morse Elementary. In Daniels's book, I read the following paragraph:

"Warren, later a Chief Justice of the Supreme Court, would regret those these and other anti-Japanese words and deeds until his dying day and apologized for them in his memoirs." 

I read that graf as we were tasked to come up with ideas for a term paper for the California History class. I thus chose the topic of the evolution of Warren during his time as attorney general and enjoyed hours in the library stacks at Davis. I think that was the introduction to the UC Davis Law Library, where I would later spend three years finishing NYT crossword puzzles that I didn't complete during class.  

My point of this Friday tangent is that there are probably legitimate criticisms of Kamala's time in office. Had she lost that race for San Francisco District Attorney, California likely would not have its first female of color United States Senator. The other non-white senator from California was S.I. Hayakawa, who served from 1977-83. Hayakawa, a Democrat-turned-Republican, was born and Canadian-born and teaching in Illinois at the time of World War II and arrived as an English Professor in San Jose State University in 1955 and became the university's president in 1969, appointed by the state board while Ronald Reagan was governor and during the controversial free speech years. 

It is unlikely that under the stewardship of Earl Warren as attorney general S.I. Hiyakawa would have come to California during the war years, even though it's unclear whether 9066 would have applied to him. He wouldn't thus have become a university president or United States Senator preceding Pete Wilson, who then co-sponsored the legislation to provide reparations to internees.

I don't endorse or contribute to political candidates because I spend my days writing to you. I'll vote in the 2020 presidential election and, as you know me, I will likely vote for a Democrat. I learned from my study of the history of Earl Warren that our great leaders may have erred in the past and subsequently go to great lengths to rewrite the narrative of their history in different roles, different times.

Had we based Earl Warren's run for governor based on his actions as attorney general, we likely would never had the Warren Court. While Brown was unanimous, Reynolds v. Sims was 5-4, as was Miranda. For the left criticizing Harris for her time as DA and attorney general while blasting the current Roberts Court for 5-4 conservative decisions, just think about that for a moment.

When I consider candidates, the past is part of the consideration. What I really care about is what they are doing now and what they plan for the future. I don't know how Kamala will play out, but I do know that what I read in social media is meaningless at this point. Yes, KDH has a paper trail as an elected executive than Barack Obama never had. And, on Bill Clinton, it's time to pull out Primary Colors. Capitol folks, the boss is away today--$3.99 on YouTube. And, don't get me started on the dirt the public had on #45 before a majority of electoral votes placed him in The White House. 

Kamala should not be treated to a different standard. As Americans, as Californians, we owe her more than four days as a candidate before dismissing her. After all, the white guys listed above were given far more forgiveness and some went on to do great things.

Oddly, I hadn't talked to Kathryn Olmsted, now full professor at UC Davis, since being in her class in 1995. However, she remembered me and my paper after an email after the Sofa Degree write-up. It's one of those moments when you are not sure that being remembered by a teacher is a good or a bad thing. But, it is also one of the few classes I can say I truly remember from undergrad, and i would say that reflects positively about her.

Have a great weekend, or, talk to you tomorrow,

Scott

#CAKEDAY: Happy birthday to Tim Schmelzer!

CLASSIFIEDS

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