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IN TODAY'S NOONER:
BREAKING (as you have undoubtedly heard by now): Senator Kamala Harris is dropping her presidential bid. This came after a couple of days of poor national polling, a decline in Iowa after publicly going "all in," and internal campaign staff dissent that made it into the media.
She is not up for re-election, so this Friday's deadline wasn't essential, but December 26 is the last date generally recognized candidates can remove their names from the California March 3 ballot.
I wrote the below before the news and will write more tomorrow and already have plentiful thoughts about what her timing means.
Happy Taco Tuesday (can we return to civil society from the days. "Travel Tuesday," ugh, is tomorrow "Workless Wednesday"?). It's so nice to be back "home" in this window and have the server back up again. Aside from writing here and updating the district pages, it's easy to forget how much I rely on the server for constant reference.
Anyway, I did get a lot of great feedback through the period. Immediately, I've eliminated the server redirect that was applied to links. I was never tracking what any individual user was doing but when headlines were a thing on AroundTheCapitol, the redirect was used to push the most interesting articles to the top on the site. If you've been around our little community here for awhile, you've seen the evolution away from that.
Newspaper paywalls made such a site and any automatic gathering of headlines impossible (same thing happened with sites like tech-heavy Digg.com. By eliminating the redirect, it should cut back on some of the lag that occurs right after The Nooner goes out each day since 8,000 people aren't "bouncing" off the server to connect to a linked article.
Secondly, I've received the feedback and am looking at a hybrid between this version and that used over the last week. It'll likely be a bottom-up rewrite of the programming behind The Nooner and will take a few weeks. Because of the many different ways readers consume The Nooner in different programs and on different devices, it's not simple, but we'll figure it out! (Quick answer is that no, I can't easily do both the "duct tape" solution of the last week and this version, as the formatting is completely different.)
I will also be redesigning the home page of AroundTheCapitol since the headlines feed is useless these days. I'm still envisioning what AroundTheCapitol.com 6.0 will look like. Just for fun, let's jump back to the first capture of the site on The Wayback Machine from February 2004.
MONDAY'S LIVE PODCAST - TICKET GLITCH FIXED: I wrote yesterday about next Monday's live podcast recording (yes, oxymoron) where we'll be talking to UC Davis constitutional law professor Carlton F.W. Larson about major ConLaw issues, such as impeachment and the guns cases. Late yesterday, I learned that there was a glitch on the eventbrite page to reserve the free tickets. It's been fixed and we hope to see you at Capital Books and have you as part of the recorded discussion including audience Q&A.
Still looking for sponsors to join Churchwell White, Perry Communications Group, and Bell McAndrews & Hiltachk! Contact me for details on how we make it worth your while!
SAC PRESS CLUB - THIS THURSDAY: On Thursday, campaign strategist Bill Burton, a veteran of many campaigns including Obama's and public service working in the Obama White House, will be at the Sacramento Press Club luncheon. While he consulted on former Starbuck CEO Howard Schultz's possible independent bid for 2020, he can now provide a candid take on the 2020 campaign. Tickets are $29 for Press Club members and $40 for non-members. The lunch is from 11:30am to 1pm at the CADA Courtyard at 1322 O Street -- advance registration is required.
ALSO THURSDAY: In case you missed it, the Capitol Holiday Tree Lighting is Thursday at 5pm on the West Steps. While the giant white tarps will still be over the Capitol as the balcony tile cures amid wet weather, it should be the usual beautiful event. Here's the release from the Governor's Office with the programming information.
News after the jump...
CA50 (East San Diego): One of the things I couldn't do over the last week was send out Nooner Premium alerts. Fortunately, the server was back up just in time to let subscribers know that Duncan D. Hunter (R-Alpine) would be changing his not guilty plea today in the United States District Court for the Southern District of California and would likely be resigning from Congress. Of course, by now it's in the national news cycle.
From what we know, the six-term representative who succeeded his father in the seat will plead guilty at 10am to one federal campaign finance allegation and announce his resignation from the House of Representatives. He's hoping that the plea and agreement to serve time (likely less than a year) will keep his estranged wife out of prison. Margaret previously pleaded guilty and agreed to testify that while she was complicit, Duncan had plenty of fault on his hands. Of course, the plea deal also avoids a trial that would have had Margaret testifying against him as well as likely his mistresses, including a staff member.
I'm not going to criticize anyone who jumps up and down screaming "White man privilege." Somebody hasn't gotten off this easily since Marlo Stanfield in The Wire and he had to give up all his lieutenants and catch the cops with an illegal wire for that.
Republicans wanted Duncan to go away. The accusation of the relationship with his congressional staffer likely made the accusations of the same against Katie Hill (D) minor, which while against House rules, likely didn't involve spending campaign money in furtherance thereof in violation of federal law. The last thing House Republican Leader Kevin McCarthy and the Trump Administration wanted happening in 2020 was a federal trial with a sitting member having a parade of witnesses taking the stand. And, after a couple of delays in 2019, there was no indication that U.S. District Court Judge Thomas Whelan would grant another delay until after next November's election.
Republicans also didn't want a special election. CA50 stretches from the suburbs east of San Diego out into the desert and is a Republican district. Yes, I know former Obama Administration official Ammar Campa-Najjar (D) came within 3.4% of Hunter last year. However, in the same election, Republican John Cox defeated Gavin Newsom in the district by 18.2%. In 2016, Trump beat Clinton there by 15% and it would have been closer to the Cox-Newsom numbers if presidential elections were subject to California's top-two primary. At 39.13% Republican registration, it is in the top five GOP congressional districts by registration in the state.
I know that Campa-Najjar is a great candidate and has money and energy behind him. But, you don't read The Nooner for rah-rah partisan messages.
But why would federal prosecutors, already taking on a Trump ally, cave and give and agree to a plea that will likely lead to less than a year in easy federal custody? After all, it is patently embarrassing in a legal system where the poor and less-connected would be sent away for a long time. Was it because Trump (technically, Attorney General William Barr, who is over the US Attorneys) intervened?
I don't think so. To say that Barr has bigger fish to fry is a huge understatement. That said, there are reasons for the plea and the timing.
On the plea, there is that Article II, Section 2, Clause 1 provision of the United States Constitution. The President of the United States could have provided an absolute pardon to Hunter since the charges are all federal. And while that was unlikely to happen between the end of a trial (likely ending over the summer with fall sentencing), there would be no reason to doubt that he would do so after November 3, 2020, whether he wins re-election or not.
As we remember from The West Wing and Bartlet's pardon of Toby Ziegler, a President can pardon until the time a successor is sworn in.
The federal prosecutors didn't need to be told that even if sentenced for several years to the federal pokey, Hunter likely wouldn't be in prison much after next November. There's a reason that the language the congressman used up until yesterday was very similar to that used by President Trump, from "witch hunt" to accusations of attorneys in the US Attorney's Office having ties to Hillary Clinton.
So, we get that part. But why today?
While the pardon power is federal law, the timing is state law. Specifically, Elections Code §10701(a), which provides:
10701. (a) When a vacancy occurs in a congressional office after the close of the nomination period in the final year of the term of office, the Governor may decline to issue an election proclamation at his discretion.
Now, there are some problems with the language now because of the early primary since the close of the nomination period is not in the "final year of the term of office." Because of the March 3 primary, it s Friday or next Wednesday if an eligible incumbent doesn't file by Friday. So, it is both in a different calendar year than the final year of the term and also more than 365 days before the end of the current term of office, which is January 3, 2021 when new members are sworn in.
In contrast, the close of nominations in 2018 before an early primary was March 9.
Because of this glitch in the law, it's legally debatable whether Governor Gavin Newsom must call a special election for CA50 or has the discretion provided in Elections 10701. From a plain reading of the law, where we always start in statutory construction, the Legislature screwed up, didn't change this provision and the governor doesn't have discretion.
That said, I think he infers the discretion and I don't know if anyone would sue to force a special election that would be a very long shot for a seat Democrats are not likely to hold in the 117th Congress. But I expect Hunter's resignation to be some time after Friday and I think the timing of the plea agreement was based on the general understanding of the law under the old schedule.
As of the list posted yesterday before the news of Hunter's resignation came out, eleven candidates had begun the filing process for CA50. Regardless of whether or not there is a special election (which would have a filing close in January), the regular 117th Congress filing period will close Wednesday, December 11. New people may jump in with the latest developments and, as always with filings, some won't complete the process.
Aside from Democrat Campa-Najjar, the major candidates are former congressman Darrell Issa (R-Vista), former San Diego councilmember Carl DeMaio (R-San Diego), and State Senator Brian Jones (R-Santee). Neither Issa nor DeMaio live in the district but of course that's not required for the House.
As things shake out the next couple of days, I'll be updating the analysis for Nooner Premium. Issa is a self-funding former "member of the club" who was also a Trump appointee so, in short, I'm guessing that the invisible hands in DC are pulling for him.
They wanted Hunter out of the way among a developing murky situation in CA50. And that explains the plea deal and the timing today.
While what appears as a privileged white guy getting off and indeed is, he will likely be paying restitution for the rest of his life, already lost his house, and probably is agreeing to a lifetime ban from public office. It's a huge fall from personal and professional grace for the veteran officer of the United States Marine Corps who served in both Afghanistan and Iraq.
CA08 (San Bernardino High Desert): In the race for the seat opening up as Rep. Paul Cook returns home to run for San Bernardino County supervisor, Sam Metz looks at the race landscape for the Desert Sun. Despite numbers from previous cycles, Democrats note shifting voter registration and a strong candidate in Christine Bubser as a serious shot at the race. On the Republican side is Assemblyman Jay Obernolte (R-Big Bear Lake) and, of course, former Assembly firebrand Tim Donnelly.
MICRA: Yesterday, the Attorney General's Office issued the title and summary for the initiative to again try to increase the caps on non-monetary damages in medical malpractice cases written into law by the 1975 "napkin deal" crafted at Frank Fat's. If you're new to the topic, it will likely be one of the biggest ballot showdowns next November. Let's start by looking at the title and summary:
ADJUSTS LIMITATIONS IN MEDICAL NEGLIGENCE CASES. INITIATIVE STATUTE. In medical negligence cases, adjusts for inflation: (1) $250,000 limit established in 1975 on quality-of-life and survivor damages (which include pain and suffering); and (2) contingent attorney’s fees limits established in 1987. In cases involving death or permanent injury, allows judge or jury to exceed these limits and requires judge to award attorney’s fees. Requires attorneys filing medical negligence cases to certify reasonable basis for claims or goodfaith attempt to obtain medical opinion; attorneys who file meritless lawsuits must pay defendant’s expenses. Extends deadlines for filing medical negligence lawsuits. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Increased state and local government health care costs predominantly from raising or removing the cap on noneconomic damages in medical malpractice cases, likely ranging from the low tens of millions of dollars to the high hundreds of millions of dollars annually. (19-0018.)
I'm sure both sides have something to argue about the title and summary or LAO fiscal analysis, but objectively it's a pretty objective work product.
If you're not familiar with the "napkin deal," read chapter 24 of Willie Brown: A Biography by James Richardson (don't pay $52 for it--borrow it from a friend or the library). If you want one for your bookshelf and want to order one, do so through Capital Books or your local indie bookseller.
In short, there was a deal when I was three years old that, among other things, capped medical malpractice non-monetary damages and categorized tobacco as "inherently dangerous" and thus not subject to state product liability laws. As for the medical malpractice caps ("MICRA"), they were fixed and not adjusted for inflation.
Plaintiffs groups including victims, consumers groups, and of course lawyers argue that $250,000 in 1975 is worth less than one-quarter today than it was agreed to. A child with a lifelong injury caused by medical malpractice creates huge costs for the family and public services that are not measurable at the time of a jury award in a malpractice case.
Physicians groups and their insurers argue that the limitation on awards for such things as "pain and suffering" and "loss of consortium" that are not measurable leads to runaway juries appealing to their emotions rather than actual cost. This leads to a huge award that simply makes medical care more expensive for everyone else, including the government.
Both sides are right and I have friends on both sides.
The measure is just going out for signatures now that there is a title of summary and we'll have plenty of time to talk about this. The Legislature also has plenty of time to do something to avoid a repeat the 2014 showdown, when a similar effort failed 33.2%-66.8%--but only after the proponents spent $12.2 million and the opponents spent $57.9 million. In a presidential year of 2020 with a crowded ballot, we could be talking about $100 million combined campaign.
(Some believe that the proponents tried to get too cute in 2014 by adding drug and alcohol testing of physicians and thus creating the debate about the invasion of privacy, but we'll never know.)
Anyway, consider that the syllabus overview of a "course" that we may be in enrolled in on a complicated topic full of passion on both sides over the next year.
HOUSING DISCRIMINATION: For the LAT, Maura Dolan and Richard Winton report that the United States Department of Justice yesterday sued the City of Hesperia and the San Bernardino County Sheriff's Office for unlawful evictions of black and Latino residents. They write:
The lawsuit cited a 2016 Hesperia rental ordinance that required landlords to evict tenants identified by the Sheriff’s Department as having committed transgressions on or near the property. The suit said the city passed the law to target Latino and African American tenants, many of whom were disproportionately evicted.
Hesperia, a Mojave Desert city of just under 100,000 people, passed the ordinance at a time when its African American and Latino populations were growing.
The ordinance led to the evictions of entire families, including children, during a year and a half in which the city forced landlords to comply, the suit said.
It was filed after an investigation by the Department of Housing and Urban Development found that black renters were nearly four times as likely to be evicted as non-Hispanic whites and Latino tenants were 29% more likely to be evicted than non-Hispanic whites.
Renters were evicted in violation of the Fair Housing Act even if they had not committed any crimes, the suit said. The Sheriff’s Department determined which tenants should be ousted.
It's no secret that, like western San Joaquin Valley, such discrimination has been pervasive in many parts of San Bernardino. In San Bernardino, many believe this has gotten worse as more blacks and Latinos leave Los Angeles County and move further out to become middle class homeowners.
CAGOP: For the Bee, Bryan Anderson reports that the California Republican Party has endorsed both active recall campaign efforts against Governor Gavin Newsom, and while the two attempts are not expected to go anywhere, it could be a good grassroots fundraising opportunity for the party. I'd do the same.
KING CORN: Governor Gavin Newsom is [NOW NOT] heading to Iowa to stump for Senator Kamala Harris December 14-15, her presidential campaign announced yesterday. It's not lost on many of us that state employees are forbidden from traveling on public funds with few exceptions to The Hawkeye State as one of the eleven states on the travel ban list compiled under AB 1887 because of their laws discriminating against "lesbian, gay, bisexual, and transgender people."
Obviously, he won't be using public funds, but it shows that as much as many of us hate the laws of many of those states, the law is absurd. Exceptions for big college games and politics (both using non-public funds), but in most cases a state scientist can't go to a conference at UT Austin on advances to benefit Californians.
Okay, I wrote these grafs before word came out the Kamala is dropping her bid. But the policy issue needs to stay in today's Nooner...
COME TOGETHER: From the inbox this morning "California's Two Leading Political Law Firms Merge to Form Olson Remcho." I've worked with both professionally over the years, have friends who have worked there, and they are two solid firms. From the release:
California’s two leading political and government law firms – Olson, Hagel & Fishburn (“OHF”) and Remcho, Johansen & Purcell (“RJP”) – announced today that they are merging on January 1, 2020 to form the new law firm of Olson Remcho LLP.
The new firm will be a political powerhouse in California. Among numerous other clients, Olson Remcho will represent the Governor, the Speaker of the Assembly, the Senate President pro Tempore, the California Democratic Party, dozens of labor organizations, and several members of the California Congressional Delegation.
With attorneys located in offices in Sacramento, Oakland and Long Beach, the new firm will include 22 attorneys when launched on January 1. Olson Remcho attorneys will advise government agencies, nonprofits, unions, ballot measure committees, lobbyists, candidates, public officials, corporations, and political action committees regarding their participation in elections and government decision-making at the federal, state, and local levels.
Cakeday and new classifieds after the jump...
CAKEDAY: Happy birthday to Vanessa Cajina, Assemblywoman Laura Friedman, Sarah Kate Levy, Mike Mendez, Steve Meng, and Brian Micek!
GHOST OF CAKEDAYS PAST: During the server issues, I missed the birthday of Don Lowrie, which was on November 21, the first day of the Great Server Failure. Happy belated my friend!