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E-194 - Thursday, August 22, 2019
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RECENT AURAL PLEASURE:
UPDATED: Lawsuit information page for SB 27 (McGuire and Wiener): Primary elections: ballot access: tax returns.
IN TODAY'S NOONER:
Happy Thursday! You are almost there! Yesterday was just a plainly strange day. We woke up with the President saying strange things, well stranger things than before. Then we had the shove outside Frank Fat's of Senator Richard Pan by an anti-Vaxx opponent of Pan's SB 276. The hashtag "#25thAmmendmentNow" was a trending topic on Twitter as we approach the grammatical abyss. Then the breaking news took us to Governor Gavin Newsom's childhood pet--Potter the Otter.
The day ended with two hours of frivolity playing with Newsom's pet on Twitter, with at least four mock Potter the Otter Twitter accounts, none of which were created or used by me. Participants of the tongue-in-cheek tweetfest included Assemblymembers Laura Friedman and Buffy Wicks, and Gavin himself. Actually, I said "two hours" but there are still remnant tweets coming out this morning and woke up at 5am with a dozen more notifications that came in between 11:30pm and when I got up. This morning, it has continued otterifically.
It all started when the LAT's Taryn Luna wrote about the otter, which the guv recounted with a second-grade class in Paradise Ridge. Frankly, we needed the fun after the day we had. Well played, ladies and gents.
Okay, let's break on through to the otter side with the gnus of the day.
VAXX-ATTACK: Everybody probably already has read about the assault on Senator Richard Pan that happened on L Street shortly after noon yesterday, but here's an article by Hannah Wiley in the Bee. Let's face it, things have gotten scary about SB 276, which provides state monitoring of physicians who are the biggest writers of vaccination medical exemptions following examples of "drive-through" operations by unscrupulous docs. There have been death threats and other warnings of violence. The organized anti-vaxx community jumped forward to disavow the attack, including from comedian Rob Schneider.
Many legislators who voted against SB 276 also denounced Bennett's actions.
The controversy after the attack was why Sacramento Police cited and released Austin Bennett immediately after the attack, which Bennett filmed himself live on Facebook and, after shoving Pan, he records himself saying he shouldn't have done it. Bennett is no stranger to Pan, having run against the senator and leading several recall campaigns against him. He also has--in his words--accosted Pan in the Capitol previously.
As of 10:30am, Facebook has not removed the videos from his account.
The issue is that the shove is something that happens daily in downtown Sac and particularly when the Lakers are in town. It's the kind of action that police just tells the two parties to move along from each other.
However, assault against a public official--from police officers to legislators to the governor--is legally different if the assault occurs in the conduct of the official's public duties. If I punched you in the face and you fell down, that's likely a misdemeanor with a fine and up to 6 months in jail should it be prosecuted, which would be unlikely. However, if it's against most public officials in the conduct of their duties, it can be charged as a felony and carries a fine of up to $2,000 and up to a year in jail.
The rationale is that assaulting a public official conducting their official business can serve as a scare tactic that dissuades them from doing their job. Have I wanted to punch a legislator over 25 years around the Capitol? Sure, but I haven't because it's simply wrong. Well, that, and I'd likely get my ass kicked.
I wasn't there and have only seen the video. Do I want to may to pay for this idiot to be in Sacramento County Jail? No.
I do believe, though, that a restraining order should be obtained against him that keeps him out of the Capitol as the threats have not only been against Pan. It's not a violation of his First Amendment rights and he can still register his opposition to SB 276 via letter/online submission.
SacPD probably shouldn't have released him immediately and should have taken him in instead of issuing a citation. I believe if this were a Black Lives Matter incident against a legislator for their votes on AB 392 (before support was withdrawn), a young black or brown person would likely have spent the night in jail for time to think. Instead, Bennett was free to go home and continue posting videos on his Facebook page, saying "I was charged with assaulting Richard Pan, but also had the chance to further expose the corrupt politician."
Through much of the SB 276 debate (and SB 277 before in 2015), we've joked about fear of the Capitol because unvaccinated rugrats were running around, often in diapers and without shoes on. Most of us have just decided to watch the hearings on the teevee, often not out of real fear but rather because the Capitol was hotter and stinkier than normal when the crowds converged.
This is different and it's not limited to the Capitol or Sacramento. On the day of the El Paso and Dayton shootings, anti-vaxxers had tweets that could be read as threatening physical harm. On that Saturday, I actually went to the Capitol for air conditioning and metal detectors and spent the afternoon looking at the exhibits.
I don't fear when I'm inside the Capitol. There is a team of security screeners who do their job, and armed sergeants who are sworn peace officers in committee rooms. However, we can't protect everyone in the legislative process outside of the Capitol. I've talked to Republican and Democratic staffers who differ on the bill but have a shared concern for their safety.
As they say, if you see something, say something. That is not limited to an abandoned bag outside the too-small sixth floor bathrooms but should include threats made on social media.
You otter know these numbers:
Be safe, folks.
Lots more after the jump...
TRUMP TAX RETURNS: Yesterday, the Supreme Court of California ordered the Secretary of State to show cause why the emergency writ of mandate to block SB 27 requested by the California Republican Party (CRP) and its chair Jessica Patterson should not be granted. The court asked attorneys from both sides to brief on a 1972 ballot measure, which added the "recognized" candidates, discussed below.
The timeline set forth by the court closes out briefings the week of September 16, so don't anticipate a ruling before then. The federal Eastern District of California is scheduled for a hearing that Thursday, September 19 at 2pm.
I've written extensively that I believe that SB 27 violates the Qualifications Clause of Article II, Section 1 ¶5 and the First and Fourteenth Amendments of the United States Constitution. I between thinking of otter jokes yesterday, I read the CRP lawsuit and the state's response to it. I do not expect a Supreme Court of California to grant the CRP's motion for writ of mandate because of the language of Article II, Section 5(c) of the state constitution, which provides:
"The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy."
I believe the Eastern District will throw out SB 27 solely on the Qualifications Clause and withhold opening the stickier First and Fourteenth Amendments. Qualifications Clause is a once-in-four-years issue that rarely comes into legal play--age 35, natural born citizen, and resident of the United States in the 14 preceding years.
Here is the Qualifications Clause:
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."
Some people argue that the fact that state Secretaries of State have the authority to decide who is a "recognized" national candidate and can require signatures (or fees) shows that states can add items to the Qualifications Clause.
However, in law we talk about procedural and substantive rights, usually in Due Process analysis. I would put the items in the preceding paragraph in the category of procedural. In contrast, tax returns are substantive. Indeed, active candidates for President (and Veep and Congress) are required to file a financial interest disclosure under 5 U.S.C. app. § 101(c), which is a substantive requirement, but it's far less intrusive than disclosure of five years of tax returns that pre-date their candidacies or current conflicts of interest, which is the rationale for the federal requirement.
Failure to comply with the mandated federal financial disclosure is a civil penalty of up to $50,000 should the Attorney General bring a case and a federal court has considered facts (5 U.S.C. app. § 104(a)(1)).
Contrast that federal potential civil penalty with SB 27, which is a bar on appearing on the ballot of the nation's largest state. That's a big difference in the constitutional rights of a candidate who otherwise meets the Qualifications Clause. Thus, California seeks to exceed federal statutory law in both substance and penalty/procedure, which I believe the federal courts will find violates the Qualifications Clause.
I do believe POTUS should declare that his "audit" is over and release the damn returns. Journalists can't wait to go through hundreds of pages of confusing documents.
FAITHFUL ELECTORS: Yesterday, a three-judge panel in the 10th Circuit Court of Appeals held that presidential electors cannot constitutionally be required to vote for the candidate for whom they were elected in the presidential general election. The 10th Circuit could still review the decision en banc or it could be appealed to the Supreme Court of the United States.
AB 1639 (Gray): Tobacco products. I was inelegant in my writing yesterday on the tobacco bill--let me edit with changes in bolded italics. As expected, Assembly Health approved AB 1639 with no nay votes. Committee Chair Jim Wood clearly felt slighted by Adam Gray (Merced) who refused to set a hearing for AB 739 (McCarty and Wood), keeping the bill from reaching Wood's Health Committee, which was the second committee it was referred to. Gray then huddled with other members for a "working group" on tobacco bills, which included McCarty and not Wood. Senator Jerry Hill was invited and he had a bill identical to AB 739 (SB 38).
Speaking of JUUL, there was an awkward moment yesterday when House Speaker Nancy Pelosi (D-San Francisco) blasted JUUL and urged a "no" vote on the company's Measure C on the November San Francisco ballot. This is after $100,000 was taken by Assembly Democrats for voter registration and several Democrats taking contributions from JUUL. The California Democratic Party convention was also prominently sponsored by JUUL but the party refused the contribution after the convention was over amid outcry from attendees.
ACA 1 (Aguiar-Curry): Local government financing: affordable housing and public infrastructure: voter approval.: The measure to place a constitutional amendment on the March ballot to allow cities and counties to raise ad valorem taxes with 55% of the vote (instead of 2/3) for affordable housing projects and public infrastructure received 44 votes on the Assembly Floor yesterday, far fewer than the 54 required. 15 members took a quack quack on the measure by not casting a vote and that included several Democrats in safe districts.
It was a disappointment for local governments who, after the elimination of redevelopment, want the same 55% requirement available to school and community college districts.
GUNS: For CalMatters, Ben Christopher looks at the legal challenges to California's gun laws, even while the Legislature is considering more. Interesting, one legislative family is taking on that legal fight, with the son Senator Brian Jones (R-Santee) filing the lawsuit challenging the new law limiting purchase of long guns to persons 21 or over.
Meanwhile, Dan Walters asks if "red flag" laws save lives.
WILDFIRES: For the LAT, Joseph Serna reports on the slow start of the California wildfire system. Is it because of Mother Nature, better preparedness, or a combination of both?
Remember, after the Legislature approved SB 901 on August 31 (the last night of session last year) the two biggest fires (Camp and Woolsey) occurred over two months later--beginning on November 8. When legislators voted on SB 901, many believed that fire season was over for 2018 and thus the bill didn't apply to them.
PG&E: The AP's Adam Beam looks at Assemblyman Chad Mayes's proposed AB 235, which would authorize the California Infrastructure and Economic Development Bank to issue tax-exempt bonds to be repaid by shareholders that would be used to repay wildfire victims. The bill is now in the Senate and the language is not in the bill yet.
"Pacific Gas & Electric is facing up to $30 billion in potential damages from lawsuits stemming from recent wildfires, including one last year that killed 86 people and destroyed much of the town of Paradise.
But the proposal has stalled in the Democratic-controlled Legislature, where lawmakers are wary of any perception of helping the utility company blamed for starting last year’s deadly fire.
Lawmakers have about three weeks left to pass legislation before adjourning for the year. Because the bill was filed so late, it could not come up for a vote without permission from the Senate’s Democratic leadership. A spokeswoman for Senate President Pro Tem Toni Atkins said the Senate Rules Committee has not decided if the bill will move forward.
PG&E CEO Bill Johnson was at the state Capitol on Wednesday to discuss the proposal with lawmakers. Johnson later characterized the bill as “a pay up bill,” according to comments provided by the company.
“This is PG&E saying we’re accountable for this, we want to resolve these claims and we want to pay up,” he said. “So I think it ought to be viewed as the PG&E accountability bill.”
PG&E argues that this is the best avenue for an expeditious departure from bankruptcy proceedings, address outstanding claims, and provide safe and reliable electricity to its service area, without shifting costs to ratepayers or taxpayers.
Opponents of the legislation argue that Johnson could earn up to $110 million in bonuses if the beleagured utility's stock recovers. The opposition to the proposal includes the state's large agricultural electricity users and bondholders. The bondholders fear they will get cents on the dollar coming out of bankruptcy while equity holders, some who bought the stock in short sales as it plunged, will fare better.
I don't know what will happen, but my conversations with legislators reflect a great deal of unease following the August 31, 2018 vote on SB 901. These legislators at minimum feel they were deceived and some believe they were outright lied to.
DUNCAN HUNTER: The delay in the campaign finance fraud trial of Duncan Hunter from September 10 until January 14 has created a problem for the voters in eastern San Diego County, reports Charles T. Clark in the SDUT. Clark writes:
"The January trial is expected to last four weeks, ending shortly before the March 3 primary. Depending on the fate of Hunter’s appeal to dismiss the indictment, the trial could be further delayed.
Regardless, the new January trial date may force the Republican Party and potential candidates to start making tough decisions."
MUNI MATTERS. CAKEDAY, and CLASSIFIEDS after the jump...
SACTOWN: For the Bee, Phillip Reese and Sawsan Morrar write up the impact of child care costs on Sacramento families.
CAKEDAY: Happy birthday to Stephanie Burri, Assemblywoman Cristina Garcia, Bismarck Obando, Aaron Read, and Lisa Maytorena Schmidt!