The California Constitution

• Supreme Court Grants Review in Jury Trial Case

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  Yesterday the California Supreme Court granted review in Franchise Tax Board v. Superior Court, which raises the issue of when a jury trial is required in tax refund cases. Our earlier post on the Court of Appeal's decision (which had held in favor of a jury trial) is here.[...]
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  Posted: December 03, 2009, 3:07pm EST
  by Steve Mayer

• Filing Foreign Lawsuit Not Protected By Anti-SLAPP Statute

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  In Geussous v. Chrome Hearts (here), the court held that filing a lawsuit in a foreign country does not constitute protected conduct under the anti-SLAPP statute, Code of Civil Procedure Section 425.16. The constitution protects the right to petition one's own government, said the court, not a foreign government.[...]
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  Posted: December 02, 2009, 1:22pm EST
  by Steve Mayer

• Why Is A Part-Time Legislature A Bad Idea?

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  Let me count the ways, says Steve Maviglio, the leader of the opposition committee, here in Calitics. If you want California governed like Texas, it seems like a great idea. [...]
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  Posted: December 02, 2009, 8:38am EST
  by Steve Mayer

• Want To Protect Marriage?

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  A proposed initiative takes the logical next step. The Los Angeles Times reports here. [...]
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  Posted: December 02, 2009, 8:34am EST
  by Steve Mayer

• "Pay First" Rule Does Not Apply To Local Taxes

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  In City of Anaheim v. Superior Court, the Court of Appeal ruled that the "pay first" rule embodied in Article XIII, Section 32 does not apply to local taxes. That rule requires a taxpayer seeking to challenge a tax to pay the tax first and file a lawsuit second. The [...]
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  Posted: November 29, 2009, 2:37pm EST
  by Steve Mayer

• Court Commissioner Can Summarily Deny Habeas Petition

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  Article VI, Section 22 of the Constitution authorizes the Legislature to authorize superior courts to appoint commissioners to perform "subordinate judicial duties." Does this extend to summarily denying petitions for habeas corpus filed by state prisoners? The Court of Appeal for the Third Appellate District has said "yes," in Gomez [...]
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  Posted: November 24, 2009, 8:45am EST
  by Steve Mayer

• Is California Forward Targeting Sinclair Paint

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  In 1997, the Supreme Court decided, in a case called Sinclair Paint v. Board of Equalization, that the Legislature can raise fees without the two-third vote required for raising taxes. A proposed initiative constitutional amendment sponsored by California Forward seeks to circumscribe that authority, at least where the Legislature is [...]
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  Posted: November 23, 2009, 10:03am EST
  by Steve Mayer

• AG Rejects Legislature's Effort re Pay Cut

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  The Los Angeles Times reports here and here. The end result: lawmakers will have their salaries cut by $20,917 annually while California's 12 top state officials will see reductions of at least $28,644 apiece. And here is the article from the Sacramento Bee. [...]
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  Posted: November 20, 2009, 10:52am EST
  by Steve Mayer

• California Constitution Does Not Offer Broader Protection For Public Employee Speech

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  In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no' [...]
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  Posted: November 12, 2009, 9:27pm EST
  by Steve Mayer

• Legislature's Attempt To Amend Prop. 36 Held Invalid

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  Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure:" [...]
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  Posted: November 11, 2009, 8:58pm EST
  by Steve Mayer

• The Claremont Institute On The Con-Con

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  Patrick Collins of the Claremont Institute has written this interesting op-ed on the con-con. His message: the con-con is unlikely to paper over deep divisions over the reasons for California's ongoing budget problems and the proposed solutions. Hard to disagree with that. And a new poll, reported here,' [...]
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  Posted: November 09, 2009, 10:18am EST
  by Steve Mayer

• Who Has Authority Over Legislative Pay And Perks?

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  The Los Angeles Times reports here on an impending controversy between the Citizens Compensation Commission and the Legislature. The Attorney General has been asked to weigh in. Here is an article on the same subject from the Sacramento Bee. [...]
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  Posted: November 06, 2009, 10:20am EST
  by Steve Mayer

• Legal Questions on the Con-Con

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  Professor Karl Mannheim of Loyola and two of his colleagues raise some interesting issues on the con-con initiatives in this op-ed from the Los Angeles Times. Among them: whether the measure's limits on the con-con's scope are constitutional and whether permitting the voters to call a convention is a [...]
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  Posted: November 04, 2009, 8:48am EST
  by Steve Mayer

• Judgment Awarding Too mUch Post-Judgment Interest Against State Is Void

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  In 311 South Spring Street Co. v. Department of General Services (here), a judgment was awarded against the state carrying post-judgment interest at 10%. The state raised no issue concerning the interest in the first appeal. Then, on remand, the state woke up and contended that the permissible rate [...]
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  Posted: November 03, 2009, 6:34pm EST
  by Steve Mayer

• Court Construes Proposition 60

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  In Wunderlich v County of Santa Cruz (here), the court asked and answered the following question: "When an applicant for Proposition 60 tax relief builds a new residence on land purchased years earlier, is the value of the replacement dwelling calculated using the land’s current value (its fair market" [...]
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  Posted: November 03, 2009, 6:19pm EST
  by Steve Mayer

• Will A Criminal Justice Initiative Ever Fail To Satisfy The Single-Subject Rule?

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  Probably not, under Manduley v. Superior Court, 27 Cal. 4th 537 (2002), which upheld the constitutionality of Prop. 21. (I filed an amicus brief on behalf of the ACLU in Manduley.) It certainly won't be Proposition 83, which was upheld against a single-subject challenge in People v. Rotroff (here).' [...]
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  Posted: November 03, 2009, 6:06pm EST
  by Steve Mayer

• Court Upholds Constitutionality of Prop. 63

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  In Jensen v. Franchise Tax Board (here), the Court of Appeal upheld the constitutionality of Proposition 63, a statutory initiative passed in 2004 that imposes a tax on incomes over $1 million to pay for expanding mental health services. The court held, not surprisingly, that "[a]n income tax may" [...]
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  Posted: November 03, 2009, 5:41pm EST
  by Steve Mayer

• The Battle Over The Con-Con Starts

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  Here is an editorial from the Orange County Register attacking the con-con as a "sneaky" way to amend Prop. 13. It's right in one respect: there are no painless, bipartisan ways to solve California's budget crisis or its structural problems of governance. [...]
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  Posted: November 03, 2009, 8:44am EST
  by Steve Mayer

• Con-Con Measures Submitted to Attorney General

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  Here they are! The first (here) gives the voters power to call a constitutional convention; the second (here) actually calls one. More analysis to follow. Here is an editorial from the Los Angeles Times on the filing, and here is the news story from the Times [...]
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  Posted: October 30, 2009, 10:29pm EDT
  by Steve Mayer

• The Chief Justice on California's Government

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  It's not just you or me calling our state government "dysfunctional." it's our Chief Justice. Here's the Los Angeles Times article.' [...]
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  Posted: October 13, 2009, 4:17pm EDT
  by Steve Mayer

• Constitutional Conventions in New York and California

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  Professor Thad Kousser has this interesting article, from the Los Angeles Times, comparing New York's experience with constitutional conventions to that of California. It seems some people in New York actually like the most controversial features of California's government: limits on raising taxes, the initiative, etc. [...]
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  Posted: October 13, 2009, 4:12pm EDT
  by Steve Mayer

• More on the Part-Time Legislature

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  Should California be more like Texas? That's one of the questions explored in this Sacramento Bee article on the part-time Legislature initiative. It turns out, by the way, that the per capita amount Texans spend on their legislature is more than in California, even though it meets only every' [...]
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  Posted: September 29, 2009, 8:21am EDT
  by Steve Mayer

• State and Local Residency Requirements

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  Here is an interesting article from the Los Angeles Times concerning an investigation of Sen Roderick Wright and the interplay of state and local residency requirements for public office. [...]
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  Posted: September 28, 2009, 10:37am EDT
  by Steve Mayer

• Privacy Interest Doesn't Trump Disclosure of Medical Records

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  In Manela v. Superior Court (here), the Court of Appeal has held that the State's interest in protecting the children of divorcing parents trumps the privacy interest of a father in his own, non-privileged medical records. In this divorce proceeding, the wife contended that the husband suffered from seizures' [...]
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  Posted: September 27, 2009, 3:42pm EDT
  by Steve Mayer

• Con-Con Backers Delay Initiatives

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  So says this report from the Sacramento Bee. [...]
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  Posted: September 24, 2009, 8:48am EDT
  by Steve Mayer

• More Briefs in Line Item Veto Case

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  Here are more briefs in the line item veto case: the petition in intervention filed by the legislative intervenors (here) and the amicus brief filed by Children Now(here). [...]
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  Posted: September 23, 2009, 10:05am EDT
  by Steve Mayer

• Court Issues OSC in Line-Item Veto Case

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  The Court of Appeal in San Francisco has issued an order to show cause in the line item veto case, setting a briefing schedule and stating that the case will be set for oral argument. Here is a link to the docket, which contains the text of the order. [...]
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  Posted: September 22, 2009, 7:29pm EDT
  by Steve Mayer

• Tax Like Libertarians, Spend Like Socialists

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  That's the message of this article from the Sacramento Bee describing the effects of ballot box budgeting. Nothing new, but a useful summary. Meanwhile this article from the Bee catalogs various proposed solutions to California's recurrent fiscal woes, and this article, also from the Bee, focuses on [...]
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  Posted: September 22, 2009, 8:07am EDT
  by Steve Mayer

• No Procedural Due Process For Disappointed Landowner

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  In Las Lomas Land Company v. City of Los Angeles (here), a city decided not to proceed with a project before completing environmental review. The developer sued, contending (among other things) that the city had violated its right to procedural due process under the California Constitution. The court rejected [...]
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  Posted: September 21, 2009, 7:08pm EDT
  by Steve Mayer

• Opposition to Part-Time Legislature Initiative

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  The same populist backlash that brought us term limits now want to give California a part-time Legislature. But an opposition group is forming, says the Sacramento Bee (here). To improve the measure's chances, the initiative now includes an always-popular legislative pay cut. It probably passes the single-subject rule, but' [...]
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  Posted: September 18, 2009, 8:36am EDT
  by Steve Mayer

• Sweeping Tax Changes?

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  The Sacramento Bee reports here on the "Commission on the 21st Century Economy," another attempt to escape the messiness and difficulty of political change. The majority seems willing to sacrifice tax progressivity in exchange for decreasing volatility. No mention in the article of a "split roll" that would eliminate [...]
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  Posted: September 15, 2009, 7:21am EDT
  by Steve Mayer

• Little Support For "Major" Constitutional Changes

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  That's what the PPIC reports, according to this story from the Los Angeles Times. There's more support for lowering the number of legislative votes necessary to pass a budget and for the creation of a property tax "split roll." Here is a link to the PPIC report itself.[...]
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  Posted: September 14, 2009, 9:25am EDT
  by Steve Mayer

• HJTA Seeks To Change Assessment Ballot Procedures

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  Here is a link to an article by the Howard Jarvis Taxpayers Association on SB 321, a bill it has sponsored to "increase transparency" in assessment elections. It has been approved by the Legislature. Here is a link to the bill. [...]
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  Posted: September 12, 2009, 2:17pm EDT
  by Steve Mayer

• Another Los Angeles Times Article On The Con-Con

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  This one (here) focuses on Repair California. The convention process is long and complicated. What else is new? [...]
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  Posted: August 31, 2009, 12:22pm EDT
  by Steve Mayer

• Insurance Commissioner Sues To Halt Sale Of SCIF Assets

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  One of the ways in which the State is attempting to raise funds for this year's budget is the sale or other disposition of assets belonging to the State Compensation Insurance Fund (SCIF), the workers' compensation insurer of last resort in California. Believing that these assets may only be used' [...]
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  Posted: August 31, 2009, 8:56am EDT
  by Steve Mayer

• Right To A Jury In Tax Refund Actions

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  In Franchise Tax Board v. Superior Court (here), the Court of Appeal held that a taxpayer in a tax refund action has the right to a jury trial. Under the California Constitution, whether a party in a particular action has a right to a jury depends on whether an [...]
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  Posted: August 30, 2009, 6:05pm EDT
  by Steve Mayer

• MICRA and Mortality

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  The malpractice reform statute, MICRA, generally provides for the enforceability of agreements to arbitrate medical malpractice claims, provided that the patient has a thirty-day period to rescind. But what happens if the patient dies allegedly due to the physician's malpractice before the 30-day period expires? In Rodriguez v. Superior Court [...]
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  Posted: August 30, 2009, 4:45pm EDT
  by Steve Mayer

• Another Cell Phone Plaintiff Bites Tne Dust

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  Weren't you irritated when you bought a fancy new cell phone free, or at a discount, because you signed up for a two-year plan, and then discovered that you were paying sales tax figured on the undiscounted sales price that you didn't pay? Me too. But it's all perfectly legal, [...]
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  Posted: August 30, 2009, 4:21pm EDT
  by Steve Mayer

• Does The MMPA Amend The CUA?

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  No, says the Court of Appeal in People v. Hochanadel (here). The "CUA" is another term for Prop. 215, the medical marijuana initiative. The "MMPA" is the "Medical Marijuana Program Act." Under Article II, Section 10(c) a statutory initiative can only be amended by another initiative, unless the initiative [...]
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  Posted: August 30, 2009, 3:39pm EDT
  by Steve Mayer

• A Charge To Collect A Tax Is, Guess What? (A Tax)

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  Ever since the enactment of Prop. 13 there have been dozens of cases demarcating the boundary line between taxes, which at the local level now require voter approval, and fees, which sometimes do not require such approval (even under Prop. 218). The latest battle in this saga is Weisblat v. [...]
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  Posted: August 30, 2009, 3:15pm EDT
  by Steve Mayer

• Is The Con-Con Like "Magic Beans"?

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  That's what the Howard Jarvis Taxpayers Association thinks (here). You can see why they might be leery of the idea--some of their sacred cows are in the line of fire. But I didn't remember what "Magic Beans" were. Perhaps I've forgotten my Grimm's Fairy Tales. [...]
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  Posted: August 28, 2009, 8:22am EDT
  by Steve Mayer

• Does The Constitution Prohibit The Legislature From Drafting Ballot Arguments?

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  That;s what the Howard Jarvis Taxpayers Association claims. The case is now pending in the Third Appellate District. Here is the HJTA's Opening Brief; here is the Legislature's Respondent's Brief; and here is the HJTA's Reply. Thanks, Tim Bittle, for sending these along. [...]
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  Posted: August 26, 2009, 6:25pm EDT
  by Steve Mayer

• The Convention Requires Compromise

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  So says the Los Angeles Times (here). But what kind of compromise? Ending "fees that are actually taxes"? That's what's "buzzing" in Sacramento, according to this report. RIP, Sinclair Paint. [...]
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  Posted: August 24, 2009, 9:31am EDT
  by Steve Mayer

• The Con-Con Makes The New Yorker

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  Here is Hendrik Hertzberg's "Talk of the Town" piece about our ungovernable state and the proposals for a constitutional convention. [...]
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  Posted: August 21, 2009, 9:02am EDT
  by Steve Mayer

• Court of Appeal Issues Palma Notice in Line Item Veto Case

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  The Court of Appeal has issued a "Palma notice" in the line item veto case (here). This is a formal indication that the court (but need not) issue a formal ruling in the case. [...]
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  Posted: August 20, 2009, 1:07pm EDT
  by Steve Mayer

• The Governor Meets With Proponents Of A Part-Time Legislature

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  The San Francisco Chronicle reports here. Here is a link to the text of the initiative. [...]
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  Posted: August 20, 2009, 10:04am EDT
  by Steve Mayer

• The Los Angeles Times On Reform Proposals

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  This article from the Los Angeles Times summarizes the competing proposals to reform California government. It also mentions a circulating initiative to return California to a part-time Legislature. Would the cure be worse than the disease? [...]
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  Posted: August 19, 2009, 8:46am EDT
  by Steve Mayer

• California Forward's Proposals To Revise The California Constitution

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  Here's a different approach than the con-con, a set of proposals from a business-backed group called California Forward to revise the California Constitution. The proposals are discussed in this article from the Sacramento Bee. Other than a requirement that new funding sources be identified for new programs, and perhaps [...]
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  Posted: August 16, 2009, 8:29pm EDT
  by Steve Mayer

• Steinberg Files Line-Item Veto Lawsuit

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  Here is the story from the Sacramento Bee. Here is the San Francisco Chronicle story, by Bob Egelko, which adds that the case has been assigned to Judge Peter Busch, a former partner of mine who is now one of the two law and motion judges in the [...]
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  Posted: August 11, 2009, 8:30am EDT
  by Steve Mayer

• The Administration Defends The Line Item Vetoes

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  The Los Angeles Times has posted this article by Andrea Hoch, the Governor's Legal Affairs Director, and Jennifer Rockwell, the chief counsel for DOF. And, more generally, the Times also reports on the recent rise in budget-related litigation here. [...]
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  Posted: August 10, 2009, 9:34am EDT
  by Steve Mayer