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.
SAN FRANCISCO (AP) — A blue-ribbon panel says curtailing the illegal marijuana market in California should be the primary goal of legalizing the drug's recreational use in the state, and not developing another tax source.
In a 93-page report released Wednesday, the panel chaired by Lt. Gov. Gavin Newsom presents a wide range of choices and competing interests involved as advocates work to bring a recreational use initiative to voters next year.
Chief among the issues will be to determine how to structure licenses that growers and others in the industry will need. The panel indicated it wants that done in a way that both allows existing small suppliers to participate as well as leading to legitimate jobs without creating an unwieldy system.
The group said it was also important to develop a regulatory system that doesn't make it easier for children to obtain the drug and doesn't encourage exports by producing more pot than Californians use.
The country's most populous state already has a well-established medical marijuana industry as well as a thriving black market with ties to Mexico.
"This industry should not be California's next Gold Rush," the report states.
The Blue Ribbon Commission on Marijuana Policy was convened by Newsom with the American Civil Liberties Union of Northern California. The work of the 24-member panel, which includes law enforcement representatives, tax experts, legal scholars, addiction doctors and a former White House drug policy advisor, is expected to influence several groups of marijuana activists and entrepreneurs that are trying to qualify a November 2016 ballot proposal that would legalize marijuana use for adults 21 and older.
Newsom, a declared Democratic candidate for governor in the 2018 race who supports legalization, said in an interview Tuesday that presenting the report as a series of options rather than detailed recommendations reflected both the difficulty of getting the group to agree on some of the thornier issues and the consensus that any law put before voters would ideally allow future fine-tuning.
"Perhaps the most important message from the report is what we are not recommending. We are not recommending maximizing the amount of tax revenue, we are not recommending that we promote and create a large industry, and we are not promoting and recommending that the price of marijuana drop significantly," he said. "And the reason is all of those goals would depend on and encourage heavy use."
Setting the right sales tax rate for different segments of the industry was a subject the commission singled out as integral to the overall objective of minimizing illegal activity.
If pot were taxed too highly, it would encourage sellers to stay in the illicit market, while taxes that were too low could spark a price drop that would make it easier for minors to score, said Stanford University psychiatry professor Keith Humphreys, a former adviser to the White House Office of National Drug Control.
"High prices, which you can induce by putting a minimum price on or setting high taxes, are good for deterring use, especially by kids, but if they are too high the illicit market can still continue," Humphreys said. "So that's a balancing act and that's why one of the other things we emphasize is the importance of some flexibility in the process."
At the same time, the commissioners agreed that money raised from licensing fees, taxes and fines should be funneled back into drug education programs, treatment programs for youth and policing over unlicensed growers who divert water from streams and foul public lands.
"The only regulatory tool we have over the illicit market now is to arrest people and put them in jail," said Abdi Soltani, the ACLU's executive director in Northern California. "When you switch to a legal market, you can test the product for safety, you can inspect the farms for their water use, and you can make sure the workers are paid a wage and not abused."
In : Marijuana Regulation