Fifteen of 21 CCBA Bills on Track for Enactment at Mid-Point of 2013 Legislative Year

The first half of the 2013 legislative year is behind us, and bills on the Conference of California Bar Association's (CCBA) 2013 Legislative Program are faring well.  Of the 21 bills introduced so far this year, 15 have been approved by their house of introduction. Six will have to wait until next year.

The CCBA's 71% passage rate for legislation is well above the legislative average for the year so far.
Of the 2,255 bills introduced in 2013, only 1,269 (56%) were approved by their houses of origin by last week's Friday, May 31, deadline for bills to move from one house to the other, and thus.remain on track to be enacted this year.

Speaker Pérez

Several of the measures sponsored or supported by the CCBA barely made that deadline.  Most of those bills were held up because they were placed on the Suspense File in the Appropriations of Committees of the two houses.  The Suspense File is where the Legislature's fiscal committees send bills that are projected to have fiscal impact in any single fiscal year of $50,000 from the state's General Fund, or of $150,000 from any other funds, and it has been the killing ground for hundreds of bills in the recent years of fiscal austerity.  With a bit more money available this year, more Suspense measures were approved, including four CCBA-sponsored bills - three of which went on to obtain unanimous floor votes. Those included:

• AB 16 by Assembly Speaker John A. Pérez (D-Los Angeles), which would extend the protections of California's felony domestic violence law to persons in a dating or engagement relationship.  The measure, based on CCBA Resolution 06-05-2009, was approved on a vote of 78-0.  
• SB 249 by Senator Mark Leno (D-San Francisco), which would amend HIV confidentiality laws to allow the sharing of HIV information for the limited purpose of coordination of care during the transition to a new health care option, and would extend the protections that now apply to only HIV blood tests to all types of HIV tests.  The bill, which includes CCBA Resolution 08-01-2012, was approved by the Senate 39-0.
• SB 669 by Senate Republican Leader Bob Huff (R-Diamond Bar), which would create a training program and standards for the safe and proper use of epinephrine auto-injectors, make epinephrine auto-injectors available to trained first responders and group leaders, and allow these trained individuals to use the prescribed epinephrine auto-injectors on persons suffering from a potentially fatal anaphylaxis, without facing civil liability for trying save a life. SB 669, based on CCBA Resolution 08-05-2012, was approved by the Senate on a 38-0 vote. 

Assm. Lowenthal

A fourth CCBA-sponsored bill that cleared Suspense was also approved by its house of origin, but by a less  substantial margin.  AB 994 by Assemblymember Bonnie Lowenthal (D-Long Beach), which would require all California counties to establish misdemeanor diversion programs, was approved on a vote of 47-29. The bill is the outgrowth of several CCBA Resolutions, most recently 12-04-2012.

For two other bills, the suspense of the last week was based on policy concerns, not fiscal. AB 604 by Assemblymember Tom Ammiano (D-San Francisco), a CCBA-backed bill based in part on Resolution 01-13-2010 to enact statutory policies and procedures regarding the collection and handling of eyewitness evidence in criminal investigations, and to create a jury instruction informing juries of the relative accuracy of eyewitness identification procedures, was approved Thursday by a bare-minimum vote of 41-34.

Assm. Wagner

And AB 788 by Assemblymember Don Wagner (R-Irvine), a CCBA-sponsored bill (Resolution 01-06-2012) to codify custom and practice by specifically authorizing attorneys to  make copies of purchased copies of official deposition or court transcripts for internal office use, to respond to subpoenas, and pursuant to court order or rule - but not to sell for a profit - was approved on the final day pre-deadline by a deceptively-wide 57-11 margin, after becoming a target of the politically powerful court reporters and their allies in organized labor.

Of course, there will be no time to savor the victories.  The Legislature shifts immediately this week to second-house policy committee hearings, which must be concluded by the beginning of July.  Three CCBA-sponsored measures are scheduled to be heard this week, with many more in the weeks ahead.

Many Victories, One Well-Publicized Defeat for CCBA in Legislative Committees

The past two week have been extremely busy for the Conference of California Bar Association's 2013 Legislative Program, with several successes and one high-profile defeat.

Assemblymember Wagner

The defeat came in the Assembly Judiciary Committee on Tuesday, April 9, where the court reporters and organized labor beat back a CCBA proposal (AB 251 by Assemblymember Don Wagner) to permit electronic recording in family law cases if (and only if) an official court reporter was not available. The bill, which is based on CCBA Resolution 07-03-2012 developed by Bar Association of San Francisco delegate Michelene Insalaco, responds to the alarming fact that cutbacks in court funding over recent years have resulted no court reporters being provided in family law proceedings, meaning that no record is being made of the proceedings, meaning nothing on which to base an appeal.

Michelene Insalaco

Thanks largely to the efforts of Insalaco and San Diego certified family law specialist Michele Brown Graser, AB 251 was strongly supported by a statewide network of family law attorneys, legal services organizations and judicial officers who had actual experience in using electronic recording (including former Contra Costa Country Probate Commissioner and CCBA delegate Don E. Green).  Although the strong and diverse base of support wasn't sufficient to overcome the powerful historic court reporter/labor connection, it did highlight (including press coverage) significant access to justice issues and, for that reason, and has set the stage for further dialogue as to how to protect the interests of the great mass of (often self-represented) family law litigants.

AB 251 did receive unanimous reconsideration following its defeat in the Judiciary Committee, so it can be considered again in January 2014, possibly in amended form.  And, ironically, the Judiciary Committee hearing at which AB 251 was heard was one of the few hearings the Assembly elected not to record electronically.

Ciarán O'Sullivan

The same Assembly Judiciary Committee hearing also saw two CCBA successes, however.  First, the committee  unanimously approved another Wagner bill, AB 1160, which seeks to protect probate estates from having resources drained by self-interested personal representatives by restoring the requirement that they receive prior court approval before they can join in an heirship determination proceeding at estate expense. The proposal is the legislative embodiment of CCBA resolution 01-04-2011 developed by Bar Association of San Francisco delegate Ciarán O'Sullivan.

Lilys McCoy

The committee also approved on the Consent Calendar AB 1183 by Assemblymember Brian Jones, which improves discovery law by clarifying that verified responses are required to start the clock running on the time in which to file a motion to compel further response.  The bill is based on three CCBA resolutions (02-06-2011, 02-08-2011 and 02-09-2011) developed by San Diego County Bar Association Delegate and former CCBA Chair Lilys McCoy.

Darin Wessel

The following week saw more committee action on CCBA-sponsored proposals.  On Tuesday, April 16, the Assembly Judiciary Committee gave unanimous approval to AB 788 by Assemblymember Don Wagner - but only after the bill was substantially amended to render it effectively a vehicle to continue moving through the legislative process.  The bill, based on CCBA Resolution 01-06-2012 developed by San Diego County Bar Association Delegate Darin Wessel, seeks to clarify the circumstances under which purchasers of official deposition and trial transcripts can make copies for litigation-related purposes without being required to purchase another official copy from the court reporter who transcribed the original. (Not surprisingly, the hearing on this bill also wasn't recorded.)

And finally, the Senate Health Committee on Wednesday, April 17, gave unanimous approval to SB 669 by Senate Republican Leader Bob Huff, which would enable California to join a growing group of states that provide training in the proper use and administration of epinephrine auto-injectors, and which make these auto-injectors available by prescription to individuals who have successfully completed the training.  The bill, which now goes to the Senate Judiciary Committee, is based on CCBA Resolution 08-05-2012 developed by Los Angeles County Bar Association delegate Joel Douglas. See video clip of hearing to right.

Three CCBA-Sponsored Bills Pass First Policy Committee Test

Three bills sponsored by the Conference of California Bar Associations had their first legislative policy committee hearings last Tuesday (April 2), and all three were approved overwhelmingly and moved on to their next test.

Assemblymember Chau

Two of the measures, both authored by first-year Assemblymember Ed Chau (D-Monterey Park), a long-time practicing attorney, were heard in and approved by the Assembly Judiciary Committee.  The first bill, AB 267, would establish a new evidentiary privilege to protect the confidentiality of communications between a lawyer referral service (LRS) and its clients, the people it serves.

As noted in the official committee analysis, "Because prospective clients consult a LRS for the same reason they would consult a lawyer -- namely, to obtain legal advice or to seek legal representation -- the author reasonably contends that the prospective client in both cases should be able to speak completely candidly about the legal matter, free from fear that any embarrassing or self-incriminating information will be subject to discovery in litigation."

Stephen Steinberg

AB 267 is based on CCBA Resolution 08-12-2012, out of the Contra Costa County Bar Association.  CCCBA delegate (and president-elect) Stephen Steinberg, who developed the original resolution, actively participated in developing amendments to address Judiciary Committee concerns by making the privilege more closely parallel the existing statutory attorney-client privilege. Steinberg also testified in support of the bill, which was approved on a bipartisan 8-1 vote.

Mallory Lass

The second CCBA-sponsored bill by Assemblymember Chau was AB 381, which extends existing double damage provisions in the Probate Code to a person who misappropriates property through undue influence in bad faith, or through acts of financial elder abuse, and provides that the person may also be held liable for attorney's fees and costs in addition to those double damages. The bill is based on CCBA Resolutions 04-08-2012 and 04-09-2012, both developed by Sacramento County Bar Association delegate Mallory Lass, and has won the support of  the the California Association for Nursing Home Reform, California Commission on Aging, California Police Chiefs Association, and others.  Lass was also actively involved in developing amendments to AB 381 and testified in support of the bill, which passed the committee unanimously, 9-0.

Senator Berryhill

The final CCBA-sponsored bill to win approval last Tuesday was SB 504 by Senator Tom Berryhill (R-Modesto), which would authorize county agricultural commissioners, after exhaustion of the appeal and review process, to obtain judgments from a superior court to expedite recovery of civil penalties levied on violators of the Fruit, Nut, and Vegetable Standards Law. The bill is based on CCBA Resolution 08-08-2012, developed by San Diego County Bar Association delegate Sally Lorang, and was approved by the Senate Agriculture Committee on a bipartisan 4-0 vote.