November 6, 2015
McGeorge School of Law students are making their mark on legislation and public policy in California. One of the Legislative and Public Policy Clinic student projects this year contributed to Gov. Jerry Brown signing the controversial AB-15 "End of Life Act" into law in October.
During the 2013-2014 school year, Prof. Rex Frazier, '00, launched the Legislative and Public Policy Clinic. Of the five bills that students developed in the first year, Gov. Brown signed four into law. This past year's students developed four bills, helped build support for the SB-128/AB-15 "End of Life Act," and worked on adopting municipal-level reform. Two of the four bills passed out of their house of origin.
Frazier expected most of the students' bills to struggle. Their success, he says, shows that identifying a real problem, coupled with quality legislative advocacy and strong public policy and legal research, can accomplish a lot.
"The goal is for students to have a working knowledge of the legislative process by the time they're done with the Clinic and be practice-ready as a public policy advocate," Frazier says. "If their bill gets through, that's amazing. Most legislation doesn't make it through both houses, let alone to the governor's desk, on its first try."
Frazier, an adjunct professor who is president of the Personal Insurance Federation of California, chose 13 students for the 2014-2015 Clinic that ended in May. During the fall semester, students conduct research, define the problem they see in law or policy, and draft legislative, regulatory or policy language to address the problem. They develop strategies for a media campaign and for building community support. During the second semester, students seek out a legislator to sponsor their bill. They also testify in committee hearings and help build a support coalition.
Mary McCune, '15, and Elizabeth Kim, '15, drafted language for a bill that would allow terminally ill patients the right to secure medication to end their lives. In January 2015, Sens. Lois Wolk and Bill Monning released their own legislation, SB 128, to allow physicians to prescribe medication for their patients to aid in dying. Rather than seeking a sponsor for a rival bill, the students actively participated in grassroots organizing in support of SB 128. They partnered with the unofficial bill sponsor, the nonprofit Compassion & Choices, reached out to hundreds of bill supporters, and coordinated testimony in support of the bill before committee hearings.
To help foster a community dialogue as SB-128 made its way through the legislative process, the McGeorge Capital Center Lecture Series presented a panel on April 20, 2015. Sponsored and organized by Stacey Westerlund, '16, the president of the McGeorge Health Law Association, and Dustin Kirby, '15, the president of the McGeorge Federalist Society, along with the McGeorge Elder and Health Law Clinic, the discussion was moderated by Melissa Brown, director of Legal Clinics. Speakers were Nathan Fairman, M.D., Psychiatry and Palliative Medicine at UC Davis School of Medicine; Catherine Glenn Foster, Esq., Alliance Defending Freedom; Bill Pieper, Compassion & Choices Sacramento co-chair; and Kathy Smith, senior legislative consultant for Senator Bill Monning. Although the speakers had different perspectives on the bill, the discussion enriched the understanding of the deeply personal, philosophical and policy concerns around aid in dying legislation.
Senators approved the highly controversial bill in June, but SB-128 stalled in July in the Assembly. In August, the "End of Life Act" re-appeared in a special legislative session. ABX15 was signed into law by Gov. Brown on Oct. 5, 2015.
McCune says even if the bill had not reached the governor's desk, it accomplished what she hoped for — to jumpstart conversation about dying.
"Nobody wants to talk about death," McCune says. "But I can't tell you how many times I've talked about it with my friends who now ask 'What would you want to happen?' (which is) making it less taboo."
Eyewitness Identification Reform
Another project has contributed to a change in how eyewitness testimony is relied upon by the Los Angeles Police Department, establishing a model for other law enforcement agencies. In addition to SB 128, Kim and McCune worked on eyewitness identification reform after hearing Jennifer Thompson-Cannino and Ronald Cotton, the authors of "Picking Cotton: Our Memoir of Injustice and Redemption," speak on the McGeorge campus about the need to eliminate bias and for eyewitness identification reform. Thompson was raped at knifepoint as a college student in North Carolina in the 1980s, and identified Cotton as her rapist in a police lineup and again when shown a group of mug shots. He was innocent, but her courtroom testimony helped convict him. He served 11 years in prison.
Kim was so taken with this story and wanting to help those who have been wrongfully convicted, she reached out to the authors. She partnered with them, classmate McCune and the Innocence Project to push for eyewitness identification reform. The Innocence Project had been working on this issue for many years, and its lawyers concluded that a bill would alienate law enforcement.
The nonprofit worked with Kim and McCune to contact Assemblyman Reginald Jones-Sawyer, Sr., chair of the California Legislative Black Caucus and former assistant deputy mayor for the city of Los Angeles. Jones-Sawyer agreed to talk with the Los Angeles Police Department to persuade it to voluntarily make changes to eyewitness identification procedures. Change in the Los Angeles Police Department would set a precedent for other metropolitan areas, Kim and McCune say.
Kim says that the Clinic taught her the importance of being respectful of past work. "I learned through this Clinic that sometimes a bill is not an answer. Sometimes it just takes effective communicating with important leaders on a given issue. It can get discouraging if you feel like you're not making the kind of impact that you hoped for, but at the end of the day I feel like every little bit we did was important."
Referencing the work on eyewitness witness reform, the Los Angeles Times published a story, "Legal clinic immerses aspiring lawyers in the political process," on Feb. 8, 2015. On Friday, Feb. 20, 2015, KVIE Channel 6's Studio Sacramento show aired an interview with Rex Frazier and Elizabeth Kim, '15, where they talk about examples of injustice when laws and legal matters are unfair or biased and how they can be changed.
AB 291: Streamlining Multicounty Water Transfers.
Stephen J. Guichard, who started his fourth year as an evening student in August, worked on AB 291 with classmates Adam Borchard, '15, and Caroline Soto, '15, to draft legislation to streamline the California Environmental Quality Act (CEQA) process for multicounty water transfers. The students got their idea for the legislation from the Association of California Water Agencies (ACWA), whose attorneys tapped the Legislative and Public Policy Clinic for assistance.
The bill establishes a single statute of limitations and standardizes the filing process for project notices. The notices name the entities transferring and buying the water, and the start date.
Under current state law, when an entity wants to transfer water from one entity to another, the proponent must file a notice with each county the water touches. Counties have different requirements for the notice format — for example, one color copy with a blue signature, or three black and white copies. The 30-day statute of limitations period for filing a CEQA lawsuit against the project starts with the filing of each notice. If notices aren't filed on the same day, separate clocks run. Project proponents typically hire drivers to attempt to deliver the notices on the same day, sometimes in dozens of counties. The students found that lawsuits rarely targeted the statute of limitations as an independent claim, but are often used as an additional claim to lengthen the litigation process.
Under the proposed bill, project notices could be filed electronically with the state Office of Planning and Research. A second copy must be mailed priority mail within five days to each affected county. There would be one 30-day statute of limitations period for each project running from the electronic filing date.
Guichard says the ultimate goal is to save money for local water agencies and ratepayers by reducing litigation costs and eliminating delivery costs.
"It's an incremental, small change that I think makes things better, reduces consumption of environmental resources and reduces cost in the long run. My hope is that this change improves the actual day-to-day process for water agencies to transfer water."
Although AB 291 passed out of the Assembly, it did not advance in the Senate. Nonetheless, groundwork has been laid for a simple fix that may be addressed in future legislation. In addition, the law students gained in-depth experience in the role of lawyers in public policy and legislative advocacy.
AB 1200: Lobbying Reforms
Another Clinic-generated bill, AB 1200, did pass out of its house of origin. Class of 2015 students Robert Nash, Robert Binning and Alex Khan developed this bill to expand the definition of lobbying to include payments made to those seeking to influence the award of state contracts for goods and services.
"We're saying, it looks like lobbying, smells like lobbying and to everyone it is lobbying, except on paper in the statute," says Nash, who graduated in May. "We view this as a transparency issue. ... It's been a very hot topic in Sacramento for the past couple of years with the public having a growing distrust of what's going on."
Khan and Nash wrote an op-ed in the Sacramento Bee about their experience with AB 1200 on Aug. 26, 2015, "Students get an education on power of Capitol lobbyists." The Los Angeles Times ran a story about the students' work on AB 1200 on June 2, "Law students propose bill to close lucrative Capitol lobbying loophole."
One of the Clinic's lessons is that it often can take years to turn proposed legislation into state law. All but one of the bills had appeared in some iteration in the past, as recently as last year and as long as several decades ago.
"One of the things Professor Frazier stresses is that persistence is as important as perfect policy in that you might have a great solution to a public policy problem but passing it through the legislative process might require multiple attempts," says Charles Deyoe, '15, who worked on AB 791. Students in the first Clinic pushed a different version, which died in the Assembly last year.
AB 791: Electronic Registry for Advance Health Care Directives
AB 791, carried by McGeorge Alumnus Assembly Member Steve Cooley, '84, died in an Assembly committee but is a two-year bill that can be reconsidered in January 2016. It aims to digitize advance health care directives, which are now mostly in paper form housed in a filing cabinet by the Secretary of State or in an attorney's office, doctor's office or with the individual making the directive.
The system is slow and underused, Deyoe says. When a patient is in acute distress, doctors need to make immediate life-and-death decisions and don't have the luxury of waiting for the paper version. The students found in their research that 30 percent of patients at end-of-life are receiving care that is unwanted if they could speak for themselves. Making these documents immediately available would give patients a stronger voice in their medical care.
Instead of requiring that advance health care directives be digitized in a separate system, the bill would integrate the forms into existing electronic medical records. The bill would have required hospitals that accept Medi-Cal patients to digitize advance health care directives as part of their overall electronic records system. Most major hospital systems in California accept Medi-Cal, according to Deyoe, "It's a practical way to address a large majority of the patients in the state efficiently and effectively."
AB 100: Legal Fellowships
In the Clinic, students learn about the complexity and fast-paced nature of developing legislation; that five minutes is a legitimate amount of time for a scheduled meeting; that sometimes trying to get a legislator to take on your bill means pitching a staffer in the hallway with an elevator speech.
Raihane Dalvi, who expects to graduate in December 2015, says she was impressed how staffers listened to her and her classmates. The bill she worked on with students Ernesto Falcon, '15, and Amanda Kelly, 16, AB 100, also became a two-year bill. Since there is another year left of the session, its author, Assemblyman Luis Alejo, will take it up again in January. The students reworked AB 100 from a bill Alejo proposed during the last legislative session.
"We picked up the ropes from Assembly member Alejo's original bill, reinforced the language, applied our research based on other similar programs, promoted the bill as much as possible with legislators and outside organizations, and worked closely with Alejo's office throughout the process," said Dalvi.
The bill would establish a legal fellowship program for existing attorneys or law school graduates by creating privately funded short-term state-government jobs. Fellows would be encouraged to seek public-sector employment afterward. An academic component and loan-forgiveness program would be included.
More than 36 percent of the state's attorneys are age 55 and over, Dalvi said. "There is a pool of people who are going to retire soon. I think that's great if we can help fill that gap and open the door for people who are passionate and want to work in public service."
The experience and success of McGeorge students in the legislative and public policy area demonstrate the role lawyers have in the future of California. The Clinic experience combines statutory interpretation, writing, persuasion, negotiation, public speaking and grassroots organizing; each an important skill for law students wherever their paths may lead.
AB 291, "California Environmental Quality Act: local agencies: notice of determination:
Author: Assemblyman Jose Medina, D-Riverside
Summary: Proposes to streamline the CEQA process for multicounty water transfers by setting a single statute of limitations and standardizing the notice filing process.
Status: Passed out of the Assembly, 77-0. Stalled in the Senate Environmental Quality Committee.
Student authors: Stephen J. Guichard, Adam Borchard and Caroline Soto
AB 1200, "Political Reform Act of 1974: lobbying: procurement contracts"
Author: Assemblyman Richard S. Gordon, D-Menlo Park
Summary: Would expand the definition of lobbying to include payments made to influence the awarding of state contracts for goods and services.
Status: Passed out of the Assembly, 79-0. Stalled in the Senate Elections and Constitutional Amendments Committee.
Student authors: Robert Nash, Robert Binning and Alex Khan
AB 100, "California Law Fellowship Program"
Author: Assemblyman Luis Alejo, D-Salinas
Summary: Would create a fellowship program with an academic component and loan forgiveness program for existing attorneys and law school graduates by establishing short-term privately funded state-government jobs. Fellows would be encouraged to seek public-sector employment upon completion. This is a two-year bill that is eligible for reconsideration in January.
Status: Failed to come up for a vote in the Assembly Committee on Rules.
Student authors: Raihane Dalvi, Ernesto Falcon and Amanda Kelly
AB 791, "Electronic Health Records"
Author: Assemblyman Ken Cooley, D-Rancho Cordova
Summary: Requires hospitals that accept Medi-Cal reimbursements to digitize advance health care directives and add them to the hospitals' existing electronic records system. This is a two-year bill that is eligible for reconsideration in January.
Status: Bill was held and never voted on in the Assembly Committee on Health.
Student authors: Charles Deyoe and Jason Miller