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Tuesday
Sep112012

November Propositions | California Ballot Initiatives' Pros & Cons Part 1 of 2

Los Angeles Environmental AttorneyLos Angeles Environmental LawyerStephen T. Holzer
September 11, 2012

Los Angeles Environmental Attorney

 

Eleven Propositions will appear on the ballot in November. Though the Secretary of State's (SOS's) office has them all listed on their website, we thought it would be a good time to take a look at the pros and cons of each measure.

In this blog, we'll examine the first six of the 11 propositions we'll see on the 2012 ballot. We'll tackle the remaining five, Props 36-40, next week.

To read the Official Title and Summary prepared by the Attorney General, simply click on each numbered Proposition – you'll be hyperlinked to the appropriate page on the SOS website. We also provided links to the main groups opposing and supporting each proposition, where you may find more than the three reasons we listed to vote either for, or against, a particular proposition.

Proposition 30Temporary Taxes to Fund Education. Guaranteed Local Public Safety Funding. Initiative Constitutional Amendment.

 

This is the Governor's proposal to increase income taxes on taxpayers earning over $250,000/year and to increase the State sales tax by ¼ cent for four years.  Eighty-nine percent of revenue raised would go to K-12 education and the remaining 11 percent would go to community colleges.  According to the Secretary of State's summary, the Proposition would also guarantee funding for public safety services which are being realigned from the State to local governments. 

Prop 30 Opposition:

Primarily sponsored by the National Federation of Independent Business California, the Small Business Action Committee, and various Chambers of Commerce and Taxpayers Associations, the naysayers to this proposition claim:

1. The Prop raises sales and income taxes on ALL Californians.

2. It won't generate new funding for schools.

3. Prop 30 destroys small business and kills jobs.

Prop 30 Support:

The Yes on 30 movement is primarily sponsored by California university organizations, state law enforcement associations, and various community and business groups. They say Prop 30 will:

1. Prevent about $6 billion in school cuts, and provides additional funding.

2. Constitutionally guarantee local public safety funding.

3. Help balance the budget.

Proposition 31State Budget. State and Local Government. Initiative Constitutional Amendment and Statute.

 

This measure proposes a number of intriguing budget tweaks.  Proposition 31 prohibits the Legislature from creating expenditures of more than $25 million without either also creating equivalent revenues or identifying equivalent spending cuts. 

The Proposition also gives the Governor the authority unilaterally to cut the Budget during fiscal emergencies, provided that the Legislature has been given a chance to act but fails to do so.  Further, the measure requires that all bills be publicized at least three days prior to any vote.  Finally, the Proposition gives Counties the authority to alter State statues and regulations dealing with spending unless the Counties' alterations are vetoed by the Legislature within a two-month period. 

Prop 31 Opposition:

The No on 31 faction includes the California Labor Federation, California Federation of Teachers, the League of Women Voters, and other organizations. They complain that Prop 31:

1. Is poorly written, leading to lawsuits instead of reform.

2. Shifts $200 million from education and other vital services to fund experimental programs.

3. Leads to a more cumbersome, slower government.

Prop 31 Support:

This measure is supported by the California Republican Party, and a group called California Forward, which claims to transform government through citizen-driven solutions. Prop 31 Supporters say the ballot measure:

1. Forces politicians to be accountable by giving lawmakers and the public time to review legislative proposals.

2. Makes State and Municipal governments clearly identify the benefits of new and existing spending.

3. Benefits business by stabilizing the budget and requiring government at every level to set goals and measure progress.

 

Proposition 32Political Contributions by Payroll Deduction. Contributions to Candidates. Initiative Statute.

 

If passed, Proposition 32 would restrict the unions' political fundraising by prohibiting the use for political advocacy of monies deducted for union purposes from employee paychecks.  Such use would be permitted only if the employee consents in writing on an annual basis. 

The Proposition imposes a similar restriction on corporations' use of payroll deductions.  However, even in the absence of voluntary payroll contributions, corporations would still be free to spend money on political advocacy so long as the expenditures come from other sources of revenue.

Prop 32 Opposition:

Labor unions, particularly those for public employees, constitute the key groups leading the opposition. Among other charges, they claim the proposition will:

1. Place restrictions on union workers while creating special exemptions for corporate interests.

2. Give corporations and lobbyists greater influence.

3. Empower insurance companies, real estate investors and other wealthy supporters to contribute directly to political candidates.

Prop 32 Support:

Supporters of this ballot say Prop 32 reduces the influence of special interest groups because it will:

1. Stop special interest from taking automatic wage deductions from employee paychecks for political purposes..

2. End special treatment by politicians awarding government contracts to companies who make financial contributions to their campaigns.

3. Break the union hold on politicians and government.

 

Proposition 33Auto Insurance Companies. Prices Based on Driver's History of Insurance Coverage. Initiative Statute.

 

Proposition 33 if enacted, would permit insurance companies to set premiums based on whether the insured previously carried auto coverage with any insurance company. Also, premiums could be raised where the driver did not previously carry continuous insurance (except for lapses of 90 days or less, lapses caused by military service and lapses due to employment loss). 

Prop 33 Opposition:

The biggest opponents to Prop 33 are from Consumer Watchdog, an organization billing itself as a nonprofit dedicated to providing a voice for taxpayers and consumers, and the California Democratic Party. They claim the measure will:

1. Unfairly punish people who stop driving for legitimate reasons, such as unemployment.

2. Hurt drivers who drop coverage while in college, or who temporarily explore other means of transportation (public transit, bicycling to work, etc.).

3. Lead to higher uninsured motorist premiums for all insured drivers.

Prop 33 Support:

According to Drew Joseph of the San Francisco Chronicle, 99 percent of the funding for Prop 33 comes from the chairman of Mercury Insurance, George Joseph. Vocal proponents include the American Agents Alliance and the California Republican Party, who say Prop 33:

1. Rewards California drivers who are always insured by offering them discounts for continuous coverage, even when they switch insurance companies.

2. Empowers continuously covered drivers to shop for better insurance rates.

3. Does not, as the Prop 33 opponents claim, punish drivers who discontinue insurance due to layoffs, for up to 18 months.

 

Proposition 34Death Penalty. Initiative Statute.

 

Proposition 34 aims to abolish the death penalty and substitute life imprisonment as the harshest criminal penalty meted out by the State.  The measure would apply retroactively to any prisoner already sentenced to death, and would require those sentenced to life in prison to work in their prison facility, with wages going to the victims’ families. Prop 34's initiators estimate state savings of over $100 million a year as a result of not having to prosecute expensive trials and defend against appeals.

Prop 34 Opposition:

Not surprisingly, a number of victims' families and district attorneys are against Prop 34. They attest that:

1. Studies regarding cost savings to the state are misleading and inflated, as the data was written or collected by the writers of Prop 34.

2. The people on Death Row are serial killers, cop killers and rapists, who may find their way out again if Prop 34 passes.

3. The Death Penalty system should be fixed, not abolished – they recommend using a single drug for executions as well as mending the Appeals Process.

Prop 34 Support:

Those in favor of this proposition carry some weight, including the American Civil Liberties Union, the California Democratic Party, the California Catholic Conference of Bishops – and individuals such as Gil Garcetti and Antonio Villaraigosa. They say:

1. California tax payers will save $130 million per year by imprisoning criminals for life rather than executing them.

2. Convicted criminals will be required to work and pay restitution to a victims' fund.

3. Innocent people are sometimes wrongfully convicted of, and executed for, serious crimes.

 

Proposition 35 – Human Trafficking. Penalties. Initiative Statute.

 

This Proposition would increase penalties for human sex trafficking.  Prison would be for 15-years-to-life and fines could be up to $1.5 million per offense. The measure would prohibit the sex trafficking victim’s consensual sexual history to be used against that person in legal proceedings and would also require the police to undergo human-trafficking training.  Cost to State and local governments would total several million dollars a year. 

Prop 35 Opposition:

Believe it or not, there are a few voices raised against this Proposition, including the California Coalition for Women Prisoners. The CCWP says:

1. The measure can be used as a pretext to label sex workers as pimps and traffickers, which will deter these workers from seeking help when subjected to violence.

2. Prop 35 increases police power to detain and interrogate people under a pretext of looking for trafficked individuals.

3. The Prop gives a vested financial interest to victims' services and non-profit agencies that work with law enforcement, in the form of fines charged to convicted traffickers.

Prop 35 Support:

Several attorneys general and district attorneys are in favor of Prop 35, and are backed by both California's Democratic and Republican Parties. Also on board are actress Jada Pinkett Smith, former Privacy Chief of Facebook, Chris Kelly, and the president of the California Police Chiefs Association. Supporters claim the Prop will:

1. Deter traffickers with higher penalties and fines.

2. Use fines to fund services for victims.

3. Require convicted traffickers to register as sex offenders.

That wraps up the first six of the 11 Propositions California voters will see on the November ballot. We'll look into the remaining five, Propositions 36-40, next week. We'll also post information about the Los Angeles County ballot measures as we get closer to election day.

 

Stephen T. Holzer is a Business Litigation Attorney, and Chair of our Environmental Practice Group. Contact him via email: sholzer@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jun202012

Tax & Estate Planning - Small Win for Same Sex Couples?

Trusts & Estate Planning

by Kira S. Masteller
818.907.3244

 

The Defense of Marriage Act, or DOMA, was enacted in 1996 to "define and protect the institution of marriage." It defined marriage as a legal union between one man and one woman – and defined spouse as a person of the opposite sex who is a husband or wife.

The Act also says that states, territories, possessions or Indian tribes of the U.S. are not required to recognize public acts and judicial proceedings regarding relationships between persons of the same sex that occur within other states, territories or tribes.

These definitions and directives have been under fire for a long time, but recently, a district court in New York ruled parts of DOMA unconstitutional.

In Edith Schlain Windsor v. The United States of America, the question revolves around tax obligations for estates passing to same-sex spouses.

 

Trust and Estate Planning for Same Sex Couples Under DOMA

 

For context: Windsor and Thea Spyer met in 1963, entered into a committed relationship and lived together. In 1993, Windsor and Spyer registered as domestic partners in New York. They married in Canada in 2007.

Spyer's estate passed to Windsor in 2009 when she died. But Windsor paid over $350k in taxes on the estate because under DOMA, she did not qualify for an unlimited marital deduction.

Windsor sought a refund, claiming DOMA violates the Equal Protection Clause of the Constitution of the United States' Fifth Amendment. Windsor had to prove that:

  1. She suffered an "injury in fact," in this case, her interests were legally unprotected;
  2. There was a causal connection between the injury and the Defendant's actions, not between the injury and a third party; and,
  3. It is "likely" the injury will be remedied with a favorable decision

The defense, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, alleged among other things, that Windsor did not meet the second condition. The group claimed that the State of New York did not recognize Windsor's marriage to Spyer in the year that Spyer died. Defense cited the 2006 decision Hernandez v. Robles, which said "New York Constitution does not compel recognition of marriages between members of the same sex."

The District Court disagreed. According to Justice Barbara S. Jones:

In 2009, all three statewide elected executive officials – the Governor, the Attorney General, and the Comptroller – had endorsed the recognition of Windsor's marriage [Justice Jones cited two other court decisions, Godfrey v. Spano, and Dickerson v. Thompson]. In addition, every New York State appellate court to have addressed the issues in the years following Hernandez has upheld the recognition of same-sex marriages from other jurisdictions.

There were other claims and defenses made. But the Court granted summary judgment for Windsor, and declared Section 3 of DOMA unconstitutional in this case. Though a victory for Windsor and same-sex couples for the moment, we can only wait and see what happens next.

Kira S. Masteller is a Trust & Estate Planning and Probate Attorney. If you have questions about your own estate planning, contact her at kmasteller@lewitthackman.com .

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Jun062012

Municipal Bankruptcies - When Local Governments Go Belly-Up

 

Los Angeles Litigation AttorneyEnvironmental Law & Civil Litigation AttorneyJune 6, 2012
by Stephen T. Holzer

Los Angeles Environmental Attorney

When an individual opts to declare bankruptcy, he or she generally qualifies for either Chapter 7 Bankruptcy, in which the individual's property is sold to pay some, or all of the debts; or Chapter 13 Bankruptcy, in which options for payment of these debts are offered over a fixed period of time.

Creditors may be notified and may contest the process, as they want to recover as much of the loan and interest as possible.

It's much more complex for local governments under Chapter 9 of the Bankruptcy Code because:

  1. Municipal debts are usually much larger.
  2. Local government employees don't want to have their contracts abolished or reduced. They stand to lose their benefits, pensions and other compensation when a municipality files bankruptcy.
  3. Bonds and other means of financing municipal projects completely complicate the process.

State Assemblyman Bob Wieckowsky attempted to alleviate some of the confusion for municipalities, their employees and their creditors by introducing a bill that became law this year. In a compromise between the unions and the governments, AB 506 requires cities, towns, counties and villages to engage in mediation with creditors in an attempt to stave off bankruptcy proceedings.

Though only enacted several months ago, the Assemblyman wants to amend the law to broaden the powers of the mediators.

The new bill, AB 1692, will subject local governments to an evaluation, or force them to declare a state of fiscal emergency before they can declare bankruptcy. Several state organizations such as the California Professional Firefighters, the California Labor Federation and the California Nurses Association back this new bill.

Many local government officials oppose AB 1692 though, citing as a reason that the process gives the mediators too much power and allows more time for financial resources to be drained.

The new bill limits a neutral evaluation to 60 days following the appointment of the evaluator, unless participating interests elect to extend the process by another 90 days (or longer if the parties agree).


Insolvent Cities – A Look at Stockton, Mammoth Lakes and Vallejo


The gold rush city of Stockton currently stands to be the most populous in America to declare bankruptcy. The municipality projects a deficit of $20-38 million over the next fiscal year, due partly to overgenerous pension packages for city employees, an over-aggressive development plan, and the nosedive of the real estate market in the current recession.

The parties involved in the bankruptcy proceedings just recently voted to extend the mediation period another 30 days, giving offices until June 27th to come to an agreement with creditors.

Mammoth Lakes has a different reason for facing Chapter 9 bankruptcy proceedings: A legal judgment of $43 million stemming from a lawsuit first brought six years ago against the town by a developer. The plaintiff refuses to participate in the mediation process.

Before the Stockton financial crisis, and even before ABs 1692 and 506, Vallejo was one of the first and largest cities to go bankrupt.

Vallejo did so in the spring of 2008, and the move gave the city protection from creditors, as well as time to renegotiate employee contracts and find new sources of revenue, according to an article in the San Francisco Chronicle. Last November, the city came out of bankruptcy status, released from the stigma by a federal judge.

The Vallejo's City Manager says bankruptcy should be a last resort option. Whether or not ABs 506 and 1692 provide other means of deliverance, only time will tell.

Stephen T. Holzer is a business litigation attorney and Chair of our Environmental  Law Practice Group. Contact him via e-mail: sholzer@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
May242012

Medical Marijuana Use Not Protected by ADA, 9th Circuit

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

In 2008, the California Supreme Court held in Ross v. Ragingwire that an employer may lawfully terminate an employee (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use is for lawful medical purposes under California law.  Recently, the Ninth Circuit (the federal court with jurisdiction over California) held the Americans with Disabilities Act (“ADA”) similarly does not protect medical marijuana use.

The plaintiffs in the case entitled James v. City of Costa Mesa, were severely disabled California residents, who claimed conventional medicine and treatments failed to alleviate the pain caused by their impairments, but medical marijuana helped. 

Medical marijuana, as we know, is permissible under California law.  The plaintiffs obtained their medical marijuana through collectives located in Lake Forest and Costa Mesa, California. 

Concerned about the possible shut down of the collectives pursuant to various local ordinances excluding medical marijuana dispensaries, the plaintiffs brought suit in federal district court, alleging the cities’ actions violated Title II of the ADA.

The district court sympathized with the plaintiffs, but denied their application for a preliminary injunction on the grounds that the ADA does not protect against discrimination on the basis of marijuana use - even medical marijuana use prescribed by a doctor in accordance with state law - because such use violates federal law.

The Ninth Circuit affirmed the lower court’s decision, holding the ADA does not protect individuals who claim discrimination because of medical marijuana use.  The court reasoned the ADA excludes from coverage disabilities based on illegal drug use, and “illegality” is tied to federal, not state, law.  Because marijuana is still illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of the drug.

Disability Claims Defense LawyerAgain sympathizing with the plaintiffs’ position, the Court held:

We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity.  We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs…Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiff’s medical marijuana use.

While the James v. City of Costa Mesa decision did not arise in the employment context, the court’s holding is still relevant for employers.  Employers should note that while it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons), it is still unlawful to discriminate based on an underlying disability, including those for which the individual may be using the medical marijuana. 

Accordingly, employers should use caution in handling these situations to minimize risk and ensure they can demonstrate that any adverse employment action was based solely on knowledge of illegal marijuana use and not on any underlying disability.

Nicole Kamm is an Employment Defense Lawyer who provides counsel and training for employers to avoid discrimination, harassment and other worker claims. Contact her via e-mail: NKamm@lewitthackman.com

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Aug182011

The 2012 Presidential Election & the Ghosts of Elections Past

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

Two major events affecting the 2012 presidential election occurred last week. One got, and is still getting, national media attention. That would be the August 12 Iowa Straw Poll, in which Reps. Michele Bachmann (Minnesota) and Ron Paul (Texas) emerged as winners in that particular battle for the Republican nomination.

On the other hand, and garnering hardly any media notice at all, Governor Jerry Brown signed Assembly Bill 459 (Assemblyman Jerry Hill, D-San Francisco) into law on August 8.

The law assigns California electoral votes to the candidate winning the national popular vote. The former bill is the result of a movement sparked by the 2000 presidential election, in which George W. Bush won the presidency on the strength of electoral votes, even though Democratic opponent Al Gore won the national popular vote.

Anomalous as the election may seem, it also happened when Rutherford B. Hayes won the White House over Samuel J. Tilden in 1876, and when Benjamin Harrison took the presidency over incumbent Grover Cleveland, in 1888.

But what does Governor Brown’s move mean for the 2012 presidential election?

Probably nothing, for the next year or two, even though California’s endorsement carries quite a bit of weight. First, under AB 459, California’s participation in the measure first requires States with 270 electoral votes also to sign on. So far there are 134:

State

Electoral Votes

California55
Illinois21
New Jersey15
Massachusetts12
Washington11
Maryland10
Hawaii4
Vermont3
District of Columbia3

 

The other reason we probably won’t see a significant move toward a direct national vote is because we can expect a rainstorm of legal wrangling, should the movement attain the 270 necessary votes.

The U.S. Constitution allows individual states to select electors as the States see fit; but some will argue that this does not permit (in this case, mostly larger) States to “conspire” together to reduce the electoral clout of other (smaller) States, as this measure would do (i.e., candidates would probably concentrate on large population areas to rack up the popular vote while ignoring some geographical regions of the country).

If the popular-vote measure ever goes into effect, the debate over its Constitutionality undoubtedly would ultimately be decided by the U.S. Supreme Court.

Stephen T. Holzer is a Los Angeles Civil Litigation Attorney and Chair of our Environmental Law Practice Group.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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