November 2020 Ballot Measures Explained

Hello, this is Professor Tim Greaney from UC Hastings College of Law. I’ve been asked to provide a brief analysis of Proposition 14 on California’s November ballot. Prop 14 would increase funding for stem cell research by enabling California to issue general obligation bonds in the amount of $5.5 billion. The money received through these bonds would fund grants to universities, hospitals, and research institutions through a state agency, the California Institute of Regenerative Medicine (CIRM). Approximately a quarter of the total funds will be dedicated for research on therapies and treatments for brain and nervous system diseases. Upwards of .5% of the total funds would be spent on the Shared Labs program, which are state funded facilities dedicated to research on human embryo stem cells. Prop 14 restricts CIRM from spending more than 7.5% of the bond funds on operation costs. The proposition also adds requirements on how the institution distributes its funds: mandating improved patient access to stem cell treatments, prioritizing projects that use matching funds from outside sources, and increasing public oversight.

By way of background, let me explain what general obligation bonds are. These are debt obligations the state takes on secured by the state’s pledge to use all available resources, including state tax revenues, to repay holders of the bond. While estimates vary, the total cost to California, when we add interest the state would have to pay on the bonds, is estimated to be over $7.5 billion. Second, a word on stem cell research. Stem cells have been described as a kind of wild card for the human body, or they are blank cells that can develop into cells with a specific purpose. Scientists are seeking to find ways to use them to find cures for cancer, fix failing organs, develop drugs, and, more recently, find treatments and vaccines for the coronavirus pandemic. If Prop 14 passes, almost a quarter of the money raised must be used to fix brain and nervous system diseases like Parkinson’s and Alzheimer’s.

There’s some history behind Prop 14. In 2004, California approved a $3 billion bond fund for stem cell research and established the institute. That money has been almost entirely used up as CIRM has distributed millions in grants and established a large infrastructure of research institutes. A major impetus for the 2004 proposition was concern about restrictions on stem cell research by the George W. Bush administration. Those restrictions have been removed. Supporters of Prop 14 stress that prior funding has established a strong infrastructure for stem cell research in the state and has served to initiate dozens of experimental treatments into human trials. The institute has also provided $5 million dollars to support projects dedicated to combating COVID-19, including research dedicated to developing vaccines. Proponents explain the need for government funding by arguing that private investment often lags for basic research. They also note that the proposal spreads investments over 30 years, over which period significant savings in the cost of care may be realized by Californians. It has the support of many major health care institutions and patient advocacy groups around California.

Opponents criticized Prop 14 on a number of grounds. They argue that the program was oversold with promises of cures and major breakthroughs that have not occurred. On this score, they questioned whether the hoped for benefits can be justified by the costs, especially in this time of enormous burdens on the state as a result of the pandemic. Another line of criticism focuses on the governance of the institute, asserting there are significant conflicts of interest on its governing board and that although it is a state agency, it lacks effective oversight from the legislature. Finally, some opponents also oppose on moral grounds any research that involves what they claim is the creation by cloning and destruction of human embryos. At bottom, voters will need to decide whether the long term benefits both in gaining important advances in medicine and in potential long term cost savings justify California taking on additional debt at a time when it faces enormous financial challenges.

This is Professor Manoj Viswanathan of UC Hastings Law, to provide a brief analysis of Proposition 15 on California’s November ballot. Proposition 15 is a property tax measure that would require some commercial real estate to be taxed at fair market value, and not purchase price. Proposition 13, which went into effect in 1978, amended California’s Constitution such that property taxes could only be levied on the real property’s acquisition value, rather than its fair market value. Proposition 13 applied to both residential and commercial real estate. Proposition 15 which is on the ballot in November, aims to remove some commercial real estate from the Prop 13 regime.

So what exactly would Prop 15 do? Well, the tax rate for commercial property would stay at one percent, but there would be periodic fair market value assessments, no more than three years apart, to determine the taxable base. Proposition 15 notably does not change how residential property is taxed. Residential property would stay subject to Proposition 13.

Proposition 15 would also affect how a business’s tangible personal property is taxed. Tangible personal property is business property that isn’t real estate. That is, property that can be moved, such as machinery and office equipment. This property is commonly known as business equipment. Business equipment is currently taxed at one percent, but under Prop 15, all businesses can exempt $500,000 dollars of business equipment from the tangible personal property tax. Also under Prop 15, small businesses can exempt all of their business equipment. So small business is defined here to mean having fewer than 50 full-time employees. So Prop 15 would reduce tax revenues from the business equipment tax, but increase revenues for commercial real estate. Prop 15 has some additional exclusions for small business owners. If a single owner owns just one piece of commercial property that’s worth $3 million or less, Prop 15 does not apply.

Prop 15 also has rules for property owned by multiple owners. If the aggregate fair market value of all commercial property owned by a single owner exceeds $3 million, all of that owner’s property is subject to Proposition 15’s fair market value system of taxation. The proposal, as currently written, implies that someone who is invested in, say, five small businesses, each of which owns, say, $1 million in real estate, would cause all the properties to be reassessed at fair market value, for all the owners. This may not be what was intended, but that’s how the proposition currently reads. This $3 million rule for multiple owners also applies to indirect owners, which I assume means ownership through business entities like S-Corps and LLCs. This makes sense in principle, but it also seems like it would be hard to enforce.

There are some 501c3 organizations that might be affected by Prop 15. Lots of 501c3 organizations pay California property tax. If they happen to own real estate worth more than $3 million, this could trigger increased property tax bills. These 501c3 organizations might also get caught up in the multiple owner, $3 million limit I discussed previously, if they happen to be partial owners in properties that also have other owners that have lots of other real estate holdings.

So Proposition 15 may economically burden people other than the folks responsible for paying the higher taxes. The entity paying the increased property taxes under Proposition 15 may not be the ones bearing the economic burden of these taxes. Consider commercial tenants renting from a landlord with multiple properties. These tenants might have a triple net lease, which obligates them (the tenants) to pay any property taxes that are due. The owner of the property is the landlord, and the landlord could be subject to Prop 15. The tenant would then be responsible for paying the higher property taxes, even though the landlord is officially the one that’s sending the check to the government.

So all in all, Proposition 15 is estimated to raise about $10 billion to $12 billion in revenue. More revenue would be raised in counties that have more valuable property. In San Francisco, for instance, estimates are about $600 million to $800 million of additional revenue would be generated. So how would this $10 billion to $12 billion be allocated? Proposition 15 will result in slightly less income tax being collected by California, since it will increase the cost of doing business. So the first chunk of Proposition 15 revenue will go to refilling these losses from California’s general fund.

The next chunk of Prop 15 revenue will reimburse counties for increased administrative expenses. Of the remaining funds, 60 percent of what’s left will go to cities, counties and special districts. 40 percent goes to something called the Local School and Community College Property Tax Fund. 11 percent of this fund goes to community colleges. 89 percent of this fund goes to school districts. The exact funding scheme is complicated because school funding is complicated. Every community, college and school district is guaranteed some amount of additional funding—$100 per unit of average daily attendance. But the big change with Prop 15 is that not all property taxes raised in a county would go to that county, because rich districts that already have property tax revenues that exceed state minimum funding allocations would see their allocations from this new fund reduced. In other words, there is some profit-sharing amongst the counties and the school districts for this Prop 15 money.

So supporters of Prop 15 include Kamala Harris, Elizabeth Warren, Bernie Sanders at the national level; more locally, the mayors of Oakland, San Francisco and L.A.; Unified School Districts of Oakland, San Francisco and Santa Clara. Opponents of Prop 15 include Ted Gaines, a member of the California State Board of Equalization, various Chambers of Commerce and the Howard Jarvis Taxpayers Association.

So Proposition 19 is another proposition concerning property tax that’s on the ballot in November. Prop 19 concerns property tax valuations and exemptions for certain property transfers. Proposition 19 might conflict in some ways with Proposition 15. For example, for expensive rental properties that are inherited. I’ll just state that this overlap could get messy and leave it at that. So to conclude, there are lots of little details in Proposition 15 so it’s difficult to make broad normative generalizations because how you feel about Prop 15 might depend on how some specific group of taxpayers is affected. I encourage you all to read the actual text of the proposed constitutional amendments and vote in November. Thank you.

Hi. I’m UC Hastings Law emeritus clinical professor Michael Salerno and I will provide a brief explanation of Proposition 16. To understand proposition 16, it is necessary to know a bit of state history. At the November 1996 general election, the voters approved Proposition 209 by 54.55% percent of the vote, making California the first state to adopt a state constitutional ban on race based, gender based affirmative action. The measure was championed by Ward Connerly, who at the time was a member of the UC Board of Regents. Connerly argued affirmative action was meant to be temporary, that it was no longer needed, but affirmative action had become permanent and firmly entrenched as a matter of public policy.

Proposition 209 added Section 31 to Article 1 of the state constitution, generally banning the consideration of race, sex, color, ethnicity or national origin in public employment, public education, public contracting in California, with some exceptions, when it is a necessary as part of normal operations, for example, soliciting only males for position of correctional officers in men’s prisons. As the nonpartisan legislative analyst explained in the official Voter Information Guide, “before Prop 209, state and local entities had policies and programs intended to increase opportunities and representation for people who faced inequities as a result of their race, sex, color, ethnicity or national origin.” These type of programs often were called affirmative action programs. For example, some of the state’s public universities considered race and ethnicity as factors when making admissions decisions and offered programs to support the academic achievement of those students. At that time today, and if Prop 16 is approved, use of these programs must ultimately comply with the guarantee of equal protection required by the federal constitution as well as by the state constitution. Again, according to the legislative analyst, under federal law, universities may consider these characteristics as one of several factors when making admissions decisions in an effort to make their campuses more diverse. To ensure compliance with federal law, which would not be affected if Prop 16 is approved, these policies and programs must meet certain conditions that limit the consideration of these characteristics. These conditions are intended to prevent discrimination that violates equal protection. State law also has a number of anti-discrimination provisions that are similar to those in federal law.

A 2020 assembly member, Shirley Weber, introduced Assembly Constitutional Amendment Number 5, which was adopted by the legislature and became Proposition 16. In proposing the measure, Weber stated, “The ongoing Corona virus pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep seated inequity of far reaching institutional failures that show race and gender still matter.” Prop 16 would simply repeal Section 31 of Article 1 of the state constitution that was enacted by Proposition 209, thus eliminating this ban on the consideration of race, sex, color, ethnicity or national origin in public education, public employment and public contracting would allow state and local entities to establish a wider range of policies and programs to offset historical discrimination based on race and gender. So long as these policies and programs are consistent with state and federal equal protection.

Finally, considering a measure, it is instructive to look to the voter guide published by the secretary of state for arguments supporting and opposing and measure and that the fair political practices to determine who is financially supporting and opposing the measure. Supporting the yes vote on Prop 16 is the Opportunity for All Coalition sponsored by civil rights organizations. The ballot arguments are signed by the President of the League of Women Voters of California and the California Teachers Association, among others. Opposing the measure is the person responsible for Proposition 209 and the organization he established, Californians for Equal Rights. The ballot arguments are signed by him as president of that organization and the former dean of the Hass School of Business at UC Berkeley, among others. According to the Fair Political Practices Commission’s top contributor list as of September 1, 2020, the Yes on Prop 16 campaign had raised a bit over nine million dollars. Over five million dollars of that money was contributed by the founder and chairman of the Akonadi Foundation, self-described as an organization that supports the development of powerful social change movements to eliminate structural racism and create a racially just society. $1.5 milllion from the Kaiser Foundation Health Plan, Inc and hospitals, $1 million from philanthropist Patricia Cohen. $300,000 from California Nurses Associations Initiative Political Action Committee. A bit over $250,000 from the ACLU of Northern California’s Issues Committee to and $250,000 from the PG&E Corporation and their affiliated entities. No committee opposing this ballot measure has raised enough money to reach the reporting thresholds. I hope this explanation of Prop 16 has been helpful.

Hi, this is Professor Hadar Aviram of UC Hastings Law, providing you a brief analysis of Proposition 17 on California’s November ballot. Currently, the California Constitution, in Article II, Section 4, provides that the legislature “shall provide for the disqualification of electors while in prison or on parole for the conviction of a felony.” Accordingly, people who are serving a sentence in a state or federal prison, or have been released and are on parole, cannot be registered to vote. By contrast, people serving time for a felony or a misdemeanor in a county jail as well as people on probation or community supervision, can vote. Prop 17 would change that. It would amend the California Constitution to grant the fifty thousand people who have completed their federal or state prison sentence the right to vote. Not all of these people will necessarily register to vote, and the impact of this proposition, if it passes, will depend on how effectively state officials and nonprofits will notify people of the right to vote when they’re released from prison. If Prop 17 passes, California will join the following states which allow parolees to vote: Hawaii, Illinois, Indiana, Maine, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont and D.C.

Supporters of Prop 17 point to its role in expanding democracy and in orienting people who return home to their communities from a prison sentence toward civic re-engagement. There is evidence that restoring the right to vote reduces recidivism—reoffending–especially in the first few months after release. Because people of color are overrepresented in prison, this proposition would also mitigate racial injustices, as well as bring more perspectives of people who experienced firsthand the criminal justice system into our democratic process.

Opponents of Prop 17 consider the mandatory parole period after release part of the person sentence for disenfranchisement purposes, especially for people sentenced for serious crimes, and mentionthe feelings of victims of crime.

The expense involved in the proposition is a onetime cost of updating the secretary of state’s computer system to allow people on parole to vote, as well as the expense of sending the new voters the same materials you and I received before the election: voter brochures and ballots.

Hello, this is David Levine, a professor at the University of California Hastings College of the Law. I’m going to talk to you about  California Proposition 18, primary voting for 17 year olds, which would be an amendment to the California constitution. This is on the ballot in November. Right now,  California law allows 18 year olds who are U.S. citizens to vote if they are going to be 18 at the time of the election and they’re a resident of the state as well as a citizen. What this constitutional amendment would do would be to allow U.S. citizens who are 17 years of age and also a resident of the state, and will be at least 18 at the time of the next general election, to vote in any primary or special election occurring prior to that point. So it would allow 17 year olds to vote in primaries where they could not before. This was put on the ballot by the California legislature, which passed overwhelmingly, but it must be said largely with Democratic votes, with a very few number of Republican votes. This is supported by Alex Padilla, who is our California secretary of state, and there are a number of arguments for and against this.

One argument in favor, which captures the arguments, I think, is by the California Association of Student Councils. And they say the young people whose birthdays would fall between the primary and the general election would be at a disadvantage to those who are permitted to vote in primaries because they can’t help select the candidates who they will be ultimately voting for in the general election. Also, the idea is that because we do have a problem that not enough people who are eligible actually vote, and in particular that’s true for young people, that allowing 17 year olds to get involved a little bit early might encourage them to vote. And we know that once people started voting, they do tend to continue to vote. The argument against –there’s really two major ones, the two groups against– the Election Integrity Project of California and the Howard Jarvis Taxpayers Association. The Election Integrity Project is primarily behind the argument that 17 year olds are minors and they’re still, legally speaking, children. Almost all are living at home and under the strong influence of their parents and teachers and so they won’t vote independently, they will really just be voting according to the influence or wishes of their teachers or parents. The Howard Jarvis association also makes the point that California, fairly uniquely, doesn’t just include primaries on their elections picking the candidates for office, but  also includes ballot propositions like this one, tax measures, bond measures, etc.. And the argument against allowing 17 year olds is that they won’t appreciate the complexity of those arguments and the full weight of them, especially since they really are not significant tax payers. And so the Howard Jarvis association and the Election Integrity Project think that they should wait until they are fully 18 years old, fully adults, legally speaking, until they vote.

So if you think it’s a good idea to increase the franchise, allow people to vote a little bit earlier, then you should vote yes on this. California would be joining 18 states, as well as the District of Columbia, allowing 17 year olds to vote if they will be 18 at the time of the general election. Or if you don’t think it’s a good idea, then you should vote no, so that we will stay as we are, which is joining the majority of the states so far, continuing to prohibit 17 year olds, even if they will be 18 at the next election. Prohibit them being able to vote in the primary and in special elections.

So I hope that you will take a careful look at the ballot propositions, the arguments pro and con in full in the ballot pamphlet, and that you will think about this proposition with care. Make a decision and vote when you when you choose to vote in the general election. Thank you for your attention today.

Hello. I’m UC Hastings clinical law professor emeritus Michael Salerno, and I will provide a brief analysis of Proposition 19. You should listen to my colleagues explanation of Proposition 15 first, because these complex measures both concerning real property taxation, which may have conflicts, as I will discuss.

In 1978, the voters approved what is generally considered historic Proposition 13, that measure and its subsequent amendment raised California constitutional limits on real property taxes. This limit is 1% of the full cash value of the property inititally based on the 1975-76 tax bill and thereafter on the sales price of a dwelling, with provisions for some adjustments to that amount based on inflation and prudence to the property. This rate continues until a change of ownership occurs. Under Proposition 13, a transfer of a principal residence between parents and their children, or between grandparents and their grandchildren if all parents of those grandchildren are deceased, is not considered a change of ownership for the purposes of determining the full cash value of the property. Under these circumstances, although ownership is transferred, the property tax remains the same. Prop 19 would limit this tax treatment for homes and farms by imposing additional requirements. To transfer the Proposition 13 full cash value of the property, the property must continue as a family home of the transferee and the transferee must claim the home or disabled veterans exemption within one year of the the transfer. The property transfer would be appraised at the time of the transfer. If the property has a value of more than a million dollars out, over a million dollars would be taxed at the current property tax rate.

An amendment to Proposition 13, approved by the voters at a much earlier election, authorized the legislature to allow a person who resides in property eligible for a homeowner’s exemption and who is over 55 years of age or severely and permanently disabled to transfer the full cash value of that property to a replacement dwelling of equal or lesser value, if located in the same county, or in another county- if that county adopted an ordinance allowing transfers. Prop 19 would add victims of wildfire or natural disaster to those who may transfer Prop 13 full cash value of their primary residence to the replacement residents. Thus, it would allow a transfer by a person at 55 years of age, a person severely or permanently disabled or a victim of a wildfire or natural disaster, regardless of the value of the replacement property. It would no longer require the acquiescence of the recipient county and will allow this to take place anywhere in the state. The transaction must occur within two years of the sale of the original primary residence. An eligible person would be allowed to make these transfers up to three times. Prop 19 would generate additional revenue from increased county property taxation with additional local revenue to relieve the state’s obligation to appropriate the same level of state support to schools.

The revenue generated by the measure would be allocated to two funds, first to a California fire response fund. The measure would require the legislature to appropriate moneys in the funds solely for the purpose of funding fire suppression by staff of the Department of Forestry and Fire Protection in underfunded special districts that provide fire protection services. Second is The County Revenue Protection Fund. Each county would be required to annually determine the gain or loss to the county resulting from the implementation of the measure. If that amount in the aggregate over a three year period is negative, eligible local agencies receive a reimbursement from the fund, which has continuously appropriated for this purpose. At the end of the three year periods, any remaining balance in the fund would be transferred to the general fund available for appropriation by the legislature for any purpose.

In achieving its goals, Prop 19 uses three disfavored practices. First, it adds political arguments favoring its adoption to the text of the California Constitution, which is already the longest constitution in the world. Second, like proposed Prop 15, it adds its provisions to the Constitution rather than working within the relevant provisions determining which need to be repealed. The measure is at variance with the existings text of the Constitution and its effects can only be determined by implication. If passed, its meaning will depend on litigation construction.

Additionally, it is the second measure on the ballot that affects historic Proposition 13 without taking cognizance of the other measure, and some provisions may be in conflict. For example, Proposition 15 imposes a split role and by inference, continues the existing definitions of purchase and change of ownership for the purpose of determining full cash value or inherited property. It does not require that property be used by the transferee as the transferee’s home. Prop 19 requires property be maintained as a residence by the transferee. What is the result if both measures pass? What if Prop 15 is approved by a greater number of votes than Prop 19, or vice versa? Can they be harmonized? Because both measures place their provisions in the Constitution, these provisions may only be amended by a subsequent constitutional amendment and voter approval. Errors, conflicts or ambiguities may not be resolved by the legislature. These issues will be the subject of litigation, with the court making the final determination.

Third, the measure appropriates funds through the Constitution. Prop 15 and Prop 19 both raise taxes and direct how those funds must be expended. Prop 15 allocates increased revenues to administrative costs to local school and community colleges. As already discussed, Prop 19 allocates the increases to fire suppression to backfill local property tax losses. Notwithstanding these laudable purposes, when the state enters one of its periodic years of revenue shortfall, budgeting ties the hands of the Legislature. As more and more revenue is appropriated by the Constitution, protecting specific programs, the budget shortfalls must be offset by programs without this protection. Consequently, when a financial downturn results in, for example, a 20% reduction in tax revenues, the legislature is forced to reduce support of non protected programs by far greater percentages because there’s a limited ability to spread the payment.

Finally, it is instructive to look to who is financially supporting the measure of official voter guide published by the secretary of state for argument supporting and opposing the measure.

According to the Fair Political Practices Commission top contributor list, as of September 1st, 2020, the California Association of Realtors has contributed fifty one million dollars in support of the measure. The realtors, however, do not sign the ballot arguments. The California Professional Firefighters Ballot Measure Committee contributed a hundred thousand dollars and the California professional fire fighters, among others, do sign the ballot arguments. Their argument asserts the measure protection of vulnerable Californians closes unfair tax loopholes and generates needed revenue for fire protection for emergency medical resources. The opponents of Prop 19 did not raise enough money to reach the reporting threshold for the top contributor list. The ballot argument is signed by the president of the Howard Jarvis Taxpayer Association, among others. It asserts the measure is an attempt by Sacramento politicians to raise property taxes by removing two voter approved taxpayer protections from the state constitution and pointing out that some of the benefits Prop 19 limits or benefits approved by 75.7% of the voters.

As I did mentioned earlier, the measure is complex. I hope this explanation has been instructive.

Hi, this is Professor Hadar Avriam of UC Hastings Law, providing you a brief analysis of Proposition 20 on California’s November ballot. Proposition 20 is a bundle of four different issues, which means that your “yes” vote approves all four and your “no” vote rejects all four.

The first part of Proposition 20 is the creation of two new crimes. In 2014, California voters approved Prop 47, which changed the designation of several theft related offenses from felonies to misdemeanors. This proposition would reverse that trend by creating two new theft related offenses: serial theft and organized retail theft. Serial theft would be shoplifting or petty theft for someone with two prior theft convictions. Organized retail theft would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes would be punishable either as felonies or as misdemeanors. The second part of the proposition would reverse Prop 57, which California voters approved in 2016. Under Prop 57, people convicted of nonviolent offenses with enhancements (special provisions that add years to their basic sentences, for example, because of prior convictions) come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Prop 20 would change the designation of some offenses from nonviolent to violent, and make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under Prop 57 can come up before the board again. The third part of the proposition would expand our DNA collection practices. Currently, California collects DNA samples from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors also. The fourth part of Prop 20 involves various changes to community supervision of people released from prison or jail. Currently, people released from jail or from prison for nonviolent or nonserious crimes are supervised in their counties. If Prop 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise.

Because Prop 20 encompasses four different issues, but expects you to vote on them as a bundle, it is difficult to offer a simple list of pros and cons. Generally speaking, the proposition is billed as a tough-on-crime package, which reverses some reforms introduced in California in the last decade. Proponents of Prop 20 argue that it is necessary to increase penalties for property crime and that some of the current designations of offenses as nonviolent for parole purposes are too lenient. They also argue that the new categories they introduce include habitual and repeat offenders. Opponents of Prop 20 see it as a prison spending bill that will reverse the savings and progress made in the last decade and deny people an opportunity to obtain parole if they pose no risk to the community. They also argue that our low crime rates do not justify reverting back to more punishment for theft offenses. The complicated structure of Prop 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration, more severe crimes, less opportunity for parole, there would be cost increases associated with it. However, it is possible that courts may find some aspects of the proposition unconstitutional and thus unenforceable, which will mitigate the expense.

This is Professor Marsha Cohen of UC Hastings Law to provide a brief analysis of Prop 21 on the November California ballot. Proposition 21 is called the Rental Affordability Act and is about rent control law. Proponents and opponents agree it would have an impact on two critical public policy issues: homelessness and the availability and thus affordability of rental housing. But they disagree on whether that impact would be positive or negative. To understand this measure, it’s important to know the legal context. More than a dozen California cities currently have rent control laws, including San Francisco and L.A.. A California law that passed in 1995 called Costa Hawkins put limits on rent control restrictions, including exempting single-family residences and residences built after 1995, or earlier in cities that already had rent control in place. It also prohibited retaining rent caps after a tenant vacates an apartment so vacant units can be re-leased at market rates. Just last year, however, the legislature passed another law that limits rent increases statewide to 5% plus the rate of inflation for most rental units that are more than 15 years old, while it also included some statewide protections against evictions without cause. There are also now in place some pandemic-related state and federal eviction protections, albeit those are temporary. Prop 21 would reverse some Costa Hawkins limits and allow localities to apply rent control limitations to a greater range of rental properties, including all properties more than fifteen years old before the rent limitations are imposed, and to single family homes and condos, unless their owner is a person (rather than a business entity) who owns no more than two such dwelling units. It would give localities the right to control residential rental rates while limiting the rent when a unit has been vacated to no more than 50 percent above the prior rent, plus other increases allowed by local law and that rate must be maintained for three years.

There are other changes of less magnitude in the Proposition. One that is possibly very significant, though, would adopt as statute a principle that has been developed in case law, that a landlord’s right to a fair rate of return on property shall not be abridged by law. Fair rate of return is not otherwise defined. Significantly, as with a number of other measures on the ballot this year, Prop 21 prohibits any legislative amendments to the law it enacts unless they’re passed by a supermajority, in this case, a two thirds vote of both houses of the legislature. It also prohibits any statute that restricts or eliminates the local right to establish residential rent control — as the Costa Hawkins law it reverses did — from becoming effective without approval of another ballot measure to that effect.

Proponents argue that passage of Prop 21 will prevent evictions and thus the high cost to taxpayers of homelessness, while protecting owners of single-family dwellings who wish to rent them and guaranteeing landlords a fair rate of return, a profit. Opponents, who point out that a similar measure was rejected by the voters in 2018, argue that it will discourage the construction of needed new rental housing units while doing nothing to reduce current rents and undermining the statewide rent control law that passed just last year. The single biggest financial supporter of Prop 21 is a nonprofit called the AIDS Healthcare Foundation, which was also behind the 2018 ballot measure. The biggest financial supporter of the opposition is called Californians for Responsible Housing, which states it is a coalition of groups not unlike those among the proponents, but it is sponsored by the California Apartment Association. While the support/oppose lineup appears predictable, it is interesting that the state’s three largest newspapers split their perspective of the benefits and burdens of this measure. You might find it useful to read all three. The L.A. Times urges a “yes” vote and the San Francisco Chronicle and Sacramento Bee urge a “no” vote, while all similarly expressed concern for our state housing crisis. The state legislative analyst’s analysis of the fiscal effects of the measure also reflects the uncertainties involved. The most important questions this analysis raises are: 1) If rent controls are expanded will landlords sell their rental properties to those who would live in the units, thus removing rental properties from the market and thereby adding to their shortage? And 2) Will rental property values overall decline and thus lead to reduced property tax revenues and diminish government’s ability to solve our myriad problems?

I wish I had answers. I hope this explanation of Prop 21 is nevertheless helpful.

Hello, I’m Professor Reuel Schiller of the UC Hastings College of the Law. I will now provide a brief analysis of Proposition 22 on California’s November ballot. This proposition is entitled “Exempts app based transportation and delivery companies from providing employee benefits to certain drivers.” This proposition stems from an ongoing dispute within the state as to whether drivers who use apps developed by companies such as Uber, Lyft and Door Dash to connect with customers are employees of these companies or independent contractors. To understand this issue, it’s helpful to learn some background information about the California laws that regulate the employment relationship.

When you work for someone, the law may consider you to be an employee, or it may consider you to be an independent contractor. I’ll discuss in a moment the specific definitions the California law uses to define these categories. But I’m sure you have a general sense of the difference. An employee is a person who, generally speaking, works for a single business at any one time, has regular hours, is paid a salary at regular intervals, and has the tasks they do at work defined by their employer. For example, a person who works stocking shelves at a grocery store or a young associate at a law firm.

An independent contractor, on the other hand, is a person who has their own businessthat provides a specific service to others. They probably set their own hours, are paid a lump sum by the task they complete, and retain control over how they complete that task. For example, an independent contractor might be a plumber or a house painter who is hired by a company or a private individual to complete a particular task: to install a hot water heater or paint the exterior of a building. The distinction between an employee and an independent contractor is legally significant because the employer/employee relationship comes with obligations for the employer and benefits for the employee. And these obligations and benefits do not attach when a person or business hires an independent contractor.

Some of these benefits and obligations are particularly significant. Minimum wage and overtime laws apply to employees, but not independent contractors. Employees get unemployment insurance and workers compensation insurance for on the job injuries, while independent contractors do not. Employees have the right to be reimbursed for work related expenses, while independent contractors do not. When an employer treats a worker as if she were an independent contractor (not paying for unemployment insurance, for example) when the law defines her as an employee, it is known as misclassification and that’s a violation of California’s employment laws. California law draws the distinction between employees and independent contractors by using something called the ABC test. Under this test, a business that hires a person must demonstrate three things in order for that person to be considered an independent contractor. A) The worker performs their work free from the control and direction of the business that hired them. B) The worker performs work that is different from the hiring business’s usual course of business. And C), the worker is customarily engaged in an independently established trade, occupation, or business. This test was first articulated by the California Supreme Court in 2018 and was codified last year with the passage of Assembly Bill 5 or AB5. It was the passage of AB5 that led to Proposition 22 in anticipation of the fact that AB5 would prevent app based rideshare and delivery companies from classifying the drivers using their apps as independent contractors. Consequently, if approved, Proposition 22 would declare app based drivers to be independent contractors, regardless of how they would otherwise be classified under the ABC test. However, the proposition would not treat app based drivers as typical independent contractors. Instead, it would mandate that the companies that create the apps that these drivers use provide them with certain benefits that a company would not normally provide to independent contractors that it hired. For example, the proposition creates an earning minimum where the companies will provide drivers with one hundred and twenty percent of the local minimum wage for the time they spend driving passengers, though not for the time they spend waiting. Similarly, the proposition provides that the companies will provide a healthcare subsidy to drivers depending on how many hours they are driving. The proposition also provides for occupational accident insurance, limited expense reimbursements, mandatory rest periods, anti-discrimination protections, sex harassment policies, background checks, and safety training.

Not surprisingly, people in favor of and opposed to the proposition have differing views on whether these benefits come close to reproducing the benefits that the law mandates for workers classified as employee. That said, these benefits are necessarily less than what workers would be entitled to if they were classified as employees. For example, the proposition does not provide for unemployment insurance, sick leave, family leave, or permanent disability insurance. The earning minimum and health care subsidies are dependent on driving time, a fraction of the time that drivers might be working. The proposition’s proponent have explicitly argued that many such benefits are simply inconsistent with the primary advantage of independent contractor status, the flexibility that app based drivers have in setting their own schedule.

Finally, the proposition has some procedural components designed to make it particularly difficult to amend. First, it prohibits cities and counties from passing local laws that regulate the work of app based drivers. Second, it requires any legislative amendments to the proposition to pass each house of the California Legislature by a seven-eighths majority. And the proposition explicitly forbids amending the section of the proposition that declares app based drivers to be independent contractors. This prohibition and the unusual supermajority requirement suggest that any further regulation in this area of public policy will have to happen through the proposition process, rather than by the Legislature.

I hope you found this explanation of Proposition 22 to be useful. Thank you for listening.

Hello, this is Professor Gregg Cochran of UC Hastings Law to provide a brief analysis of Proposition 23 on California’s November ballot. Prop 23 is known as the Protect the Lives of Dialysis Patients Act, and it is a measure designed to increase regulatory mechanism over chronic dialysis clinics, or CDCs. There are about 600 licensed CDCs in California and they provide care to about 80,000 patients every month. Dialysis is a treatment that patients get whose kidneys have failed and they go in several times a week in order to have their blood cleaned through a dialysis machine. The Department of Public Health licenses and certifies dialysis clinics and patients who are taken care of will receive their treatment based on their own physician’s orders. In addition, the regulations currently require a physician to be a medical director, or they require each CDC to have a physician medical director who’s responsible for the overall care of the patients and the overall running and efficiency of the clinic from a clinical medical perspective. Group health insurance and individual private health plans pay for dialysis care, and the reimbursement by those health plans and insurance companies is quite a bit higher than it is for Medicare and Medicaid, which is why some people are concerned that there could be discrimination against Medicare and Medicaid beneficiaries, because the clinics are looking to get more patients who are from private payers. CDCs are required now to report to the federal government in a national data network, infection-related information, but not a great deal of detail and currently no requirements for them to report any infection-related data to the state.

So what the new regulation would do, or the new statute would do, is that it would require at least one licensed physician to be physically present on site during whenever there is a patient being treated for dialysis. The California Department of Public Health might exempt clinics who are in high need physician areas with a bona fide shortage of doctors. In those cases, they can hire a physician assistant or nurse practitioner, at least on a temporary basis. The new statute would require dialysis-related infection data to be reported to the state and federal government. And the measure would also prohibit clinics from closing or reducing their services without state approval. Lastly, the new measure would prohibit clinics from refusing to treat patients based on the source of the payment for their care. So the idea is to prevent clinics from discriminating against those who are Medicare or Medicaid beneficiaries because of lower reimbursement rates.

So proponents of the measure will argue that it combats poor hygiene in dialysis clinics. They say that a number of clinics have been reported to the Department of Public Health for infection-related reasons, and therefore not only is a physician needed to be on site at all times, but the clinic should be required to report their infection control data so that they can be more carefully overseen by the government. They say that the anti-discrimination provision will apply to all clinics, whether they’re in wealthy neighborhoods or in poor, rural or Black or Brown communities, and therefore we’ll make sure that the care is more equitably provided to everyone. They also argue that because two multinational for-profit corporations operate or manage almost three quarters of dialysis clinics in California and treat more than 75 percent of dialysis patients, that the profit motive for those for profit companies could get in the way of their desire to provide safer care, and that the measures under Prop 23 would help prevent that.

Those who are against Proposition 23 say that it would force many community dialysis clinics to shut down, threatening the lives of 80,000 California patients who need dialysis to survive. They also argue that Prop 23 would increase the health care costs by hundreds of millions of dollars annually. The proponents argue that the only costs that the clinics themselves would incur would be the costs of hiring the medical director and whatever administrative costs might be required in reporting the infection-control data. And they also argued that this would be a budget neutral measure in terms of the federal government’s expenditure.

So, there are lots of arguments on both sides. You should take a look at more written information, if you like, on the website. And we’re happy to provide this information for you. Please let us know if you have any questions.

Hello, my name is Joe Grodin, I’m a professor at UC Hastings Law School, and I’m going to try to provide you with a brief analysis of Proposition 24, which will appear on the November 2020 ballot. In order to have an understanding of what that’s all about, I have to tell you very briefly about the existing law. A year and a half ago, the California Legislature adopted a statute called the California Consumer Privacy Act, or CCPA. The CCPA was a product of compromise. It was supported unanimously in both the Assembly and the Senate. Basically, the CCPA, our existing law, gives consumers the right to direct businesses not to share their personal information with others, and it provides fines for violation. It went into effect in January of last year, so it’s only been on the books for a year and a half. Proposition 24, which will appear on the November ballot, is an initiative measure which, if it passes, would replace the CCPA with a new statute.

The new statute would look very much like the CCPA, but with a number of changes. One significant change would put enforcement of the statute in the hands of a new state agency called the California Privacy Protection Agency, with power to conduct hearings and impose fines. It would make enforcement more effective, according to the proponents of Prop 24. The opponents deny that this is true, and they decry the estimated 10 million dollars a year that the agency would cost. Another significant change would have the effect of permitting consumers to sell their privacy protection in exchange for obtaining a discount from the price of the goods or services that they’re buying. Proponents say that this is a desirable change because it permits consumers to place a value on their privacy. Opponents say it would be a dangerous step in the direction of monetizing the right to privacy.

Prop 24 would also make a number of minor changes. Some of these would arguably advance protections for privacy. For example, the existing statute gives businesses 30 days after receiving notices of violations to fix them. The initiative measure would eliminate this 30 day grace period. On the other hand, the initiative measure would create certain exemptions for types of information for certain purposes that are not available under the current statute and that opponents say would make privacy protection weaker. Arguably the most significant change resulting from passage of Prop 24 would be to make it more difficult for the Legislature to modify the statute in the future. The existing statute, like most statutes, is subject to modification by a majority of the Legislature at any time, whereas a statute adopted through the initiative process can only be modified by another initiative measure or as provided in the initiative. Prop 24 would allow the Legislature to modify its terms, provided that the amendments do not compromise or weaken consumer privacy while giving attention to the impact on business and innovation. Supporters of Prop 24 argue that the effect of making it more difficult for the Legislature to amend the law is an important and desirable goal and a principal motivation behind the initiative. Reform opponents argue that the amendment language is vague and likely to give rise to litigation and that it may prove to be an obstacle to pro- privacy changes, such as insisting that consumers give their affirmative consent before their private information can be used or sold. Opponents also argue that reasonable time should be allowed to assess the operation of the existing statute before addressing the need for change.

The battle over Prop 24 has produced an unusual lineup. Principal financial support comes from Californians for Consumer Privacy, an organization formed and funded by Alastair MacAdam, a real estate developer who also funded a previous initiative measure that gave rise to the CCPA compromise. Andrew Yang, recent contender for the Democratic presidential nomination, is a supporter of Prop 24, along with an organizations called Common Sense ad Consumer Watchdog. The opposition includes the ACLU, the Consumer Federation of California, California Alliance for Retired Americans, and the San Jose Mercury, which has editorialized against Prop 24, arguing that the existing statute should be given a chance before changes are considered. The initiative measure is more than 50 pages long. I provided only a very brief summary,  If you have the time and motivation for further exploration. I congratulate you and wish you luck.

Hi, this is Professor Hadar Aviram of UC Hastings Law, providing you a brief analysis of Proposition 25 on California’s November ballot. Before every criminal trial, the judge has to determine whether or not to release the defendant pending the trial, and under which conditions. Currently, the decisions on pretrial release are made primarily through a cash bail system, in which judges use bail schedules based on the severity of the offense to decide how much each person should put up for release.

The cash bail system is primarily managed through the bail bonds industry. People charged with criminal offenses, or their families, might deposit a nonrefundable amount–usually a tenth of the amount the judge imposed–and the bail bondsman assumes the risk that the person might abscond (“jump bail”) or reoffend. In 2018, the California legislature reformed this system by introducing a new law that eliminates cash bail. The new law, which is not yet in effect, will replace the cash bail price list with an algorithm that will use existing data to predict the risk that a particular defendant might abscond or reoffend during the trial. The judge will use this algorithm to make decisions about release, detention or conditional release, including ankle monitors and other limitations. Under this law, the decision whether and how to release someone pretrial will be a function of risk rather than of bail amount. Prop 25 is a referendum on the new law. A “yes” vote approves the law and supports the reform to end cash bail. A “no” vote rejects the new law and retains the cash bail system. Supporters of Prop 25 point to the unfairness and expense that is associated with cash bail because not everyone can afford to pay a bail bondsman. The cash bail system has been shown to discriminate against poor people. This discrimination also disproportionately hurts poor people’s chances of trial, because pretrial detention makes it more difficult to consult with your lawyer, organize your defense and receive support from your family. Opponents of Prop 25 raise concerns about the risk assessment algorithm that will be used, arguing that racial profiling might be baked into the algorithm. They’re also worried about overburdening the courts with deciding the risk factors of release, as opposed to simply prescribing a bail amount from a list. The fiscal impact of Prop 25 is unclear. If the proposition passes, there will be expenses associated with implementing the new algorithm, but there will also be savings, because low risk people who can’t afford cash bail will not be held in jail.