Latin is still used to describe legal doctrines.
The term "de novo" is commonly used to describe the right to a new trial of an administrative hearing officer's decision if appealed. This is an important right that can effect disability payments, permit and license revocations, and property rights. Without the right to a traditional "de novo" review of an administrative hearing officer's decision property and civil rights are at risk. An administrative hearing officer is someone the Government pays to determine the rights of its residents. Sometimes these hearing officers are unqualified, bias, or conflicted so California law allows their decisions to be reviewed by judges "de novo" or "anew."
Two Humboldt Superior Court Judges Kelly Neel, and Gregory Elvine-Kreis have determined the term "de novo" means the exact opposite of it's Latin origin. Both judges have held that a "de novo" review of an administrative hearing officer's decision is limited to the record at the administrative hearing meaning the review is not "anew" but is the opposite. Our judges have decided nothing "anew" is allowed to be presented on appeal to challenge the hearing officer's decision. This is an astonishing holding (postmodernism?)which appears to contravene the findings of every other Judge in the State who has pondered the issue. Will the Court of appeals agree with our Humboldt Court by turning Latin on it's head and disposing of due process?
- “The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use them.” Philip K. Dick
Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)
Ms. Knick bought 90-acres of land in 1970 in Pennsylvania. In 2008, rumors started to circulate a dead body was buried on her land. A relative of the dead body convinced (probably bought) the City Counsel to designate the land as a cemetery which forced Ms. Knick to allow visitors on her land. Ms. Knick sued in State court where her case was dismissed because the City had not filed an enforcement action against her.
Ms. Knick petitioned the US Supreme Court to overturn a catch-22 for property owners. She claimed the City turning her property into a cemetery was an illegal taking (without just compensation) under the 5th amendment. Prior to this decision property owners were barred from seeking relief in Federal Court until they had sued and appealed all the way to the State Supreme Court.
The US Supreme Court overturned this rule and now property owners can sue directly in Federal Court when a locality takes property without just compensation. This decision may bring an end to our local bureaucracy.
Humboldt Planning and Building Department, Director John Ford on bottom right
I've been grounded from driving since Mother's day due to a medical condition giving me an opportunity to review Eureka's public transit system. On average public transit in Eureka is as fast as walking.
Assembly Bill 286, dubbed the Temporary Cannabis Tax Reduction bill, would temporarily cut state excise taxes for legal marijuana retailers from 15 percent to 11 percent and also suspend cultivation taxes altogether through 2022. The proposed legislation, which is sponsored by state Treasurer Fiona Ma. “The whole aim of legalization is to compete with the illicit market and to get people to buy from the regulated establishments,” he said. “You can’t do that if the taxes are so high and onerous that people are driven out of that market.”
This is at odds with the taxing scheme in Humboldt were the black market is estimated to be 1,500% larger than the white market. Yesterday, the Court refused to dismiss the Measure S lawsuit attorney Eugene Denson and I filed. The lawsuit seeks to return the tax to a crop tax as approved by the voters. The suit challenges the constitutionality of an amendment our county supervisors made to impose the tax whether or not plants are grown.
January 29, 2019
Judge, Haywood S. Gilliam Jr. of the US District Court in Oakland, on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives.
Saul Loeb/AFP/Getty Images
Farm Employee Overtime
In 2016, California became the first state in the U.S. to require employers to pay overtime for farmworkers who work more than eight hours. The first phase of the new rules will begin in January, when agricultural employees will earn overtime after working 9 1/2 hours in a day or 55 hours in a week. Currently, California farmworkers can get overtime after working 60 hours in a week or 10 hours in a day. The change only applies to businesses that employ at least 26 people. The rules do not apply to smaller agricultural employers until 2022. Discloser, our office consults with agricultural employers on compliance matters and we represent employees on wage and labor claims. Aside from wage and hour claims, sexual harassment and discrimination are constant concerns on the farm.
Street Vendor Permits
A law going into effect in January will allow local governments to design permit programs for vendors and limits when they can be criminally prosecuted. It pertains to anyone selling food or other merchandise from a pushcart, stand or “non-motorized conveyance.” I anticipate the City of Eureka will embrace this new law and its economic benefits. I predict the County will ignore this law until the County is forced to follow it by a judge.
Home Kitchen Businesses
A new law encourages Counties (like Humboldt) to permit home kitchens for the purpose of selling food products. California Assembly member Eduardo Garcia, who authored the bill, says that homemade food sales are a vital part of self-reliant communities. “Legitimizing these home businesses will offer a means of economic empowerment and pathways for many to achieve the ‘American dream,’” Garcia said when the bill was signed. Humboldt historically resists new opportunities which provide residents access to residual income. Perhaps after the County Supervisors election in 2020 progress will be made on this front.
January 17, 2019
Measure S is the cannabis cultivation tax the voters passed. We are challenging the County Supervisor's decision to amend Measure S as passed by the voters. The Supervisors amended the tax to apply to the property owner, not the farmer, and regardless of whether any crop is grown.
Yesterday, we filed our response to the County's demurrer to the Measure S lawsuit. (Set to be heard January 28, 2019.) The County hired a large Sacramento Firm (founded the year I was born) to defend the lawsuit. They argue it's impossible to tax farmers for the actual crop grown because the County can't verify how much was grown. We informed the Court, governments since the beginning of governments have taxed farmers for crops actually grown, and we cited the Book of Genesis as our evidence.
The amendments by the Supervisors have been misreported. The Supervisors amended Measure S to tax the permitted area regardless of the amount of crop grown. As such, the supervisors have amended the tax to be assessed against fallow land, without regard to crop grown. We provided the Court authority that Measure S as amended is a property tax and is unconstitutional. We ask the Court to return Measure S to its original state which acted as an excise tax on legal crop actually grown.
We will update this one.
January 15, 2019
In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her “Chair Phyllis J. Randall” facebook page.
Last election my office received a few complaints from citizens who were censored for making comments critical of politicians, on the left and right (somehow our local politics are becoming politically polarized). Now these citizens may have recourse. This First Amendment decision could impact local elections nationwide by allowing the public to be heard.
January 8, 2019
This lawsuit challenges HUD's rule which forces subsidized apartments to evict medical cannabis users. Plaintiff was evicted from her HUD apartment on July 10, 2018 when a maintenance man discovered some medical cannabis in her bedroom. She remains homeless and is not alone.
The lawsuit not only challenges HUD's rule but relies upon Murphy v NCAA (decided May 2018) to challenge the constitutionality of the Controlled Substance Act itself relative to medical marijuana in the State of California. The Supreme Court in Murphy v NCAA resurrected from near death the anti-commandeering doctrine, which in laymen's terms means the Congress cannot make orders directly to the States.
We are optimistic this lawsuit will prevail. If the District Court issues an order in our favor appealing the decision would pose a political pitfall for the Trump administration.
I will update this one.
January 3, 2019
We filed an action in Butte County on May 17, 2018 with the intent of having a jury decide punitive damages. We would be the first party to bring the defeat device case to jury trial. Peer reviewed studies proved thousands of people with lung diseases died from the fraud.
SACRAMENTO — California would levy a new 15 percent tax on medical marijuana sales to enforce new regulations and pay for state programs, rehabilitation and parks under a bill introduced Wednesday.
The Marijuana Value Tax Act could bring the state more than $100 million in new revenue. The tax was anticipated after the state passed historic regulations last year that require state and local licenses for medical marijuana businesses under the new Bureau of Medical Marijuana Regulations.
“Now that there is a long overdue regulatory framework put into place, it’s time to help fund the areas that are most affected by the cultivation — those communities that have long been paying the price of the negative effects of cultivation brought on by the ‘bad actors’ who destroy the environment and bring in crime,” state Sen. Mike McGuire, D-Healdsburg, who authored SB987 and parts of last year’s marijuana regulations, said in a statement.
California became the first state in the nation to allow for medicinal use of marijuana two decades ago. Until last year’s regulations were signed into law, the billion-dollar industry remained largely unregulated.
The Board of Equalization said it anticipates medical marijuana sales to increase with the new laws. In 2014, the state took in $50 million in sales taxes from 1,623 dispensaries that registered with the Board of Equalization and filed taxes.
Marijuana taxes could eventually be higher than 15 percent if the bill becomes law. As with sales taxes, cities and counties would be able to enact their own local taxes or fees on top of the state’s 15 percent tax.
Under SB987, 30 percent of revenue from the new tax would go to the Bureau of Medical Marijuana Regulation, which would then award grants to local agencies — such as cities and law enforcement — that provide oversight on the cultivation, processing, manufacturing, distribution and sale of marijuana.
Another 30 percent of the new tax would go to the state’s general fund, and 20 percent would go to state parks to help alleviate a $1 billion deferred maintenance backlog. The state Natural Resources Agency would get 10 percent of the marijuana tax to restore public and private lands and waterways damaged by marijuana grows. The final 10 percent would go to counties for drug and alcohol treatment programs.
“I won’t say it’s not excessive — it is excessive, but it really provides a budget for the state to make it a legitimate industry like alcohol, tobacco or even gambling,” said Eddie Miller, chief strategy officer of GreenRush.com, a San Mateo online platform that connects patients with local medical marijuana dispensaries. “These are the steps necessary to have a quality industry and a safe industry for the consumer.”
The tax mirrors what is being proposed in one of several ballot initiatives aimed at legalizing recreational marijuana use for adults. Proponents of recreational marijuana are collecting signatures for initiatives they hope to put on the November ballot.
The tax bill needs support from two-thirds of lawmakers in the Assembly and state Senate in order to pass, meaning Republicans leery of new taxes would have to sign on. Last year’s marijuana regulations earned bipartisan support.
Former Republican state Sen. George Runner, who is now vice chair of the Board of Equalization, has called on the Legislature to create an excise tax on medical marijuana sales.
“I’m the first to admit that government is too bloated and that Californians are overtaxed,” Runner said in a statement last year. “But the fundamental question here is who should pay the steep costs of marijuana-related activities that include trespass on public lands, water theft and unregulated use of pesticides.”
Melody Gutierrez is a San Francisco Chronicle staff writer. E-mail: firstname.lastname@example.org Twitter: @MelodyGutierrez
In : Marijuana Regulation