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Archive for July, 2018

Live from OC GOP Endorsements Committee, Round 1 for November 2018

Posted by Chris Nguyen on July 12, 2018

We are live from the OC GOP Endorsements Committee for the first round of endorsements for the November 2018 general election. The Endorsements Committee will make recommendations tonight to be voted upon at the Central Committee’s July 30 meeting.

On tonight’s agenda are:

  • Garrett Dwyer for Aliso Viejo City Council
  • Patrick Harper for Fountain Valley City Council
  • Erik Peterson for Huntington Beach City Council
  • Mike Posey for Huntington Beach City Council
  • Elaine Gennawey for Laguna Niguel City Council
  • Carlos Rodriguez for Yorba Linda City Council
  • Yes on Prop 6
  • Yes on the Newport Beach Debt Charter Amendment
  • No on the Anaheim Minimum Wage Initiative

Present are Endorsements Committee Chair Peggy Huang and Members Gene Hernandez, Leroy Mills, and Erik Weigand. Absent are Mark Bucher, Laura Davies, and Tyler Diep.

Anaheim Minimum Wage Initiative

First up is the Anaheim Minimum Wage Initiative.

Central Committee Chairman Fred Whitaker discusses the economics of minimum wage and Republican philosophy regarding minimum wage. He warns of the threat to jobs from a minimum wage hike to $18 per hour, as employers cut back jobs due to increased costs.

Whitaker says Democrats will use the measure to increase union turnout in the General Election. He notes Bernie Sanders came to Anaheim to campaign for the measure.

Whitaker warns of the effect of this measure on the 4th Supervisorial District, 65th Assembly District, and 34th Senate District. Democrats will use the measure to try to increase their turnout, but Republicans can use opposition to try to increase their turnout.

Whitaker warns that this measure goes far beyond just the divisive politics of Anaheim. The measure applies to small businesses in the Resort District that did not receive the tax breaks that some hotels did. He says could be a foothold for other minimum wage increase measures.

Todd Ament of the Anaheim Chamber of Commerce states that unions started this measure after businesses refused to accept “card check” union organizing procedures (instead of allowing workers to vote by secret ballot on whether they would have a union). They collected 22,000 signatures in 22 days with the assistance of union households.

Ament highlights the text of the measure that applies the $18 minimum wage to small businesses, not just large hotels.

Ament says 3,000 construction jobs and 1,000 other full-time jobs would be lost if this measure passes.

Committee Chair Peggy Huang says this measure is a feel-good measure that has devastating effects interfering with free market economics.

Committee Member Erik Weigand asks if the measure only applies to the Resort District.

Ament says it does and notes the numerous restaurants and other small businesses in the district, pointing to small retail stores, pizzerias, etc. He notes it is the highest minimum wage ever to make a ballot in the United States.

Huang asks if the measure applies to businesses that are not receiving the subsidies.

Ament says the tax rebate applies to hotels that would otherwise have not been built, but the measure

Leroy Mills moves and Gene Hernandez seconds to recommend the Central Committee oppose the Anaheim Minimum Wage Initiative.

The Endorsements Committee votes 3-0-1 (Weigand abstaining) to recommend the Central Committee oppose the Anaheim Minimum Wage Initiative.

Elaine Gennawey for Laguna Niguel City Council

Elaine Gennawey is a 3-decade resident of Laguna Niguel. Although they have a low pension liability, Gennawey states their City started a pension trust to reduce their pension liability. She speaks of City projects and transparency.

Hernandez asks Gennawey about her leaving blank the question on whether California should be a shall-issue state.

She says she supports shall-issue with stringent policies on who is eligible for it.

The Endorsements Committee votes 4-0 to recommend Gennawey be endorsed by the Central Committee.

Erik Peterson for Huntington Beach City Council

Erik Peterson says he and Mike Posey authored COIN in his city. He proposed greater oversight over City finances with outside people, not just City staff. He and Posey got the City to vote to sue that sanctuary state legislation violated charter city rules. Peterson says no pension-increasing salary increases have been passed in his time on the City Council.

Hernandez asks how many seats are up.

Peterson says there are four incumbents seeking re-election this year.

Weigand asks about the four incumbents and seeking endorsements.

Peterson calls Billy O’Connell a union advocate. He says Barbara Delgleize is good on pensions but wrong on environmental issues, abortion, and issues on “feelings.”

Huang asked about his prior endorsement for a Democrat.

Peterson endorsed a slate for Ocean View School Board in Huntington Beach that included John Briscoe and Gina Clayton-Tarvin. He did not check Clayton-Tarvin’s party affiliation and regrets that endorsement now.

Huang asks about what Peterson sees as challenges facing the City.

Peterson notes financial constraints because 76% of the budget goes to employees and the city charter requires 15% go to infrastructure. He says that maybe increasing the transient occupancy tax from 10% to 11% could generate revenue. He speaks of holding revenue-generating events. He describes various cuts that could be made to the city budget by using newer technology and outsourcing. He opposes a sales tax increase.

Hernandez asks about campaign fundraising.

Peterson has raised $40,000 (he spent $28,000 four years ago).

Mills asks about whether he has taken union money.

Peterson says he has not, and unions do not like him.

Mills asks about Prop 68.

Peterson said he voted No on 68.

Hernandez moves to recommend Peterson.

Huang asks about traffic in Huntington Beach.

Peterson gives a lengthy answer about SCAG problems and working to attract more businesses. He opposes the state’s affordable housing mandates because they are about greenhouse gas emissions rather than housing.

Hernandez asks about RHNA numbers in Huntington Beach.

Peterson says the RHNA number is around 400. He discusses how he supports charity, but government charity is theft from taxpayers. He wants development, but does not want to become Santa Monica.

Hernandez moves and Mills seconds recommending Peterson.

The vote is 4-0 to recommend Peterson for endorsement by the Central Committee.

Carlos Rodriguez for Yorba Linda City Council

Carlos Rodriguez speaks of his family’s prosperity under Ronald Reagan, and his father losing his defense contractor job during Bill Clinton. He speaks of his Republican volunteerism and his career at the Building Industry Association. He opposes increasing fees, regulations, and taxes, and says that is what his job is.

Weigand moves and Mills seconds recommending Rodriguez.

The vote is 4-0 to recommend Rodriguez for endorsement by the Central Committee.

Patrick Harper for Fountain Valley City Council

Patrick Harper is a Planning Commissioner. He speaks of his family and having to leave an all-star Little League game to make this meeting. There are three seats up with only one incumbent seeking re-election. He speaks of the City being conservative with both long term residents and Vietnamese immigrants. He is married to a Vietnamese-American. He wants to fight for conservative values.

Huang asks about party registration.

Harper is a lifelong Republican, and his city is still plurality Republican.

Mills asks about his bond votes, including specifically school bonds.

Harper opposes most bonds. He did vote for a school bond to rehabilitate building that were built decades ago.

Weigand asks about his prior candidacy for Council in 2014 and his current endorsements.

Harper got a late start the last time. He says the incumbents are holding off on endorsements until after filing closes.

Huang asks about the Measure HH sales tax increase.

Harper says it passed in 2016 and expires in 20 years. He says it should not be renewed, so the City needs to grow its revenue base.

Weigand asks if he supported HH.

Harper did not publicly support it, but he did vote for it. He felt it was a higher increase than he wanted, as he wanted a smaller increase but opposed having no increase.

Weigand asks if Harper would be willing to propose repealing HH if the City were flush with cash.

Harper said if after 10 years, the City was flush with cash, he would support repealing HH.

Huang asks about HH revenues and City finances.

Harper rattles off various figures about City finances and notes a structural deficit.

Huang asks about solutions for the structural deficit.

Harper supported rezoning an industrial area as mixed use to generate more property revenue. He notes many residents are on Proposition 13, and as they sell their homes, there would be more revenue. He proposes having greater efficiencies to reduce expenses in City government.

Weigand moves and Mills seconds to recommend Harper to the Central Committee.

The vote is 4-0 to recommend Harper to the Central Committee.

Garrett Dwyer for Aliso Viejo City Council

Garrett Dwyer is a 15-year resident of Aliso Viejo. He speaks of his volunteerism in the community. He speaks of his 7-year-old daughter. Dwyer expressed some interest in running. Councilman Mike Munzing encouraged him to run after Jake Vollebregt was called up to active duty (and was unavailable to run) while a Lincoln Club member decided she did not want to run either. Munzing endorsed him, as did Mayor Dave Harrington and Councilman Bill Phillips. Councilman Phil Tsunoda is retiring. Dwyer says there is a Democrat running for the seat.

Munzing says Tsunoda and Ross Chun are the two Democrats on the Council, but hate each other. Tsunoda is more moderate while Chun is backing an “Elizabeth Warren-Resist type” backed by the Democratic Party for the City Council. Munzing says Dwyer has met with the City Manager and other leading City employees to get an in-depth analysis of items facing the City.

Weigand asks about his party registration.

Dwyer has been a lifelong Republican and moved to Orange County (and Aliso Viejo) in 2003.

Weigand asks what Harper will do to help the Republican Party in Aliso Viejo, which was Senator Pat Bates and Assemblyman Bill Brough’s weakest OC city, and it is in Congressman Dana Rohrabacher’s swing district.

Dwyer says he would work with the entire ticket to ensure they all win.

Munzing says Aliso Viejo Republicans did little in the Primary but would have many volunteers walking in the General Election.

Weigand moves and Hernandez seconds Dwyer.

Huang asks about challenges facing Aliso Viejo.

Dwyer speaks of a ranch project and the development of the Town Center. He says the City must work with these entities to help bring revenue to the City. He wants to encourage work readiness program involvement, like Junior Achievement, from schools in Aliso Viejo.

Huang asks Dwyer about his philosophy of taxpayer subsidies for businesses.

Dwyer wants to incentivize businesses but not necessarily with taxpayers paying for it.

Hernandez asks about homelessness.

Dwyer says there is a small area that the homeless have gathered in Aliso Viejo. He gives a lengthy discussion about regional discussions on homelessness, referencing medical services, facilities, the current County lawsuit, etc. Dwyer says there are no easy answers to the problem.

Munzing says Aliso Viejo refuses to participate in Judge David Carter’s “overreach” in the homelessness lawsuit.

Mills asks about bonds, including school bonds.

Dwyer says he is not a fan of bonds.

The vote is 4-0 to recommend Dwyer for endorsement by the Central Committee.

Mike Posey for Huntington Beach City Council

Mike Posey was late to this meeting because he was hosting a town hall on CalPERS environmental social governance with Senator John Moorlach (R-Costa Mesa) and CalPERS executives. It is his third town hall this year about Sacramento’s impact on local control in Huntington Beach. The first was about housing mandates, and particularly about SB 35 by Senator Scott Weiner (D-San Francisco), seizing control from local cities. Posey has an item to have The City Attorney explore ways around SB 35 and several other related pieces of legislation. The second town hall was about public safety, particularly AB 109, Proposition 47, and Proposition 57.

Hernandez moves to recommend endorsing

Weigand asks about the four endorsements the OC GOP could make in Huntington Beach.

Posey says he agrees with Erik Peterson 90% of the time. He says that 10% includes development. He says Peterson is an intractable opponent of development. Peterson attempted to overturn a development based on parking despite it meeting City parking requirements. He cannot recall a single vote by Peterson in favor of any development project.

Posey feels Billy O’Connell needs mentoring. O’Connell has recused himself on 50 votes, including 26 in one year, despite most of the votes not being conflicts of interest. For example, he even recused himself on a vote ending a business improvement district when the businesses asked for it, but then unrecused himself on the second reading. He recuses himself from all votes on downtown because he has a restaurant down there despite the restaurant being well outside a conflict distance.

Posey plans to endorse Barbara Delgleize. She is not a perfect vote but comes through on important votes. She was the only vote with him to oppose a Peterson-authored moratorium on development. He says she is an effective Councilmember. She is on OCTA. He has been upset with some of her votes, but supports her.

Weigand seconds Hernandez’s earlier motion to recommend supporting Posey.

Weigand asks generally about the field of candidates and wants Posey’s guidance. He expresses hope that Posey will run for higher office.

Posey says there are 12 challengers who can’t win in 2018 but could win in the future.

Posey likes CJ Ray, a 34-year-old attorney, who will probably be appointed to the Huntington Beach Personnel Commission. He thinks Ray has a bright future in 2020 or 2022.

Huang speaks generally about endorsements and Republican values.

Posey says Republicans are for private property rights and moderate development. He expresses his frustration with Sacramento. He says many of the anti-development approaches of his colleagues, like Peterson, could result in Sacramento intervention and greater loss of local control.

Central Committee Member Emily Sanford praises Posey’s record.

The vote is 4-0 to recommend Posey for endorsement by the Central Committee.

Prop 6

Weigand moves and Mills seconds to recommend the Central Committee endorse Proposition 6 to repeal the gas tax.

This passes 4-0 without discussion.

Newport Beach Debt Charter Amendment

Councilman Scott Peotter describes the prior City Council’s funding scheme involvinglease revenues and certificates of participation with a financing authority to get around a vote of the people on borrowing over $120 million for the “Taj Mahal” City Hall. The charter amendment will require 55% voter approval for any debt incurred over $50 million for lease revenues and certificates of participation. He wanted the amount to be $10 million, but he supports the charter amendment. He says the measure is the first of its kind but based in an existing concept. He says the State Constitution requires votes of the people for most high-dollar local government debt but missed lease revenues and certificates of participation.

Hernandez calls the City Hall debt “unconscionable.”

Peotter lists a litany of irresponsible actions by the prior City Council and City staff on debt for the “Taj MaCity Hall.”

Huang asks if the measure has an inflation escalator.

Peotter says that the limit is per-project (not aggregate) and is indexed to the Consumer Price Index. He says it has an “Act of God” exemption for catastrophes that could strike the city with gubernatorial or presidential emergency declarations, like earthquakes or tsunamis.

Mills moves and Hernandez seconds recommending the ballot measure for endorsement by the Central Committee.

The vote is 4-0 to recommend Yes on the Newport Beach Debt Charter Amendment.

The committee adjourns at 7:51 PM.

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Nifla v. Becerra, It’s not an abortion case

Posted by Brenda Higgins on July 9, 2018

The Reproductive FACT act was a boldly unconstitutional law that was signed by Governor Brown in October 2015. 

The Bill, AB 775 (Later codified as H&S 123470) was entitled the Reproductive FACT Act (Freedom, Accountability, Comprehensive Care, and Accountability)  The bill provided that Pro-Life Pregnancy centers, who exist because of their objection to abortion, would be required to provide information about abortion to their clients, in their office, on their internal forms and in all advertising.  The onerous law also mandated exact language, required large font type and required in some counties that the notices would have to be provided in 13 languages.  

The case (NIFLA v. Becerra) decided by the Supreme Court was an appeal brought by NIFLA (National Institute for Life and Family Advocates) after the Ninth Circuit ruled the law to be constitutional and not in violation of the First Amendment.  There was another case brought in Riverside County Superior court, Sharpen v. Harris, challenging the constitutionality of the law.   Judge Gloria Trask  ruled in favor of the pregnancy center, finding that the FACT Act violated Article 1, section 2 of the California Constitution.
The  Riverside Superior court, relied upon U.S. Supreme Court precedent related to the U.S. constitution’s First Amendment. The court stated, “Compelled speech is that which forces a speaker to say that which he or she may or may not believe.  Compelled speech is undoubtedly necessary in many circumstances.  But compelled speech of a political or cultural nature, is not the tool of a free government.”  

The Riverside court applied Strict Scrutiny, the highest level of constitutional scrutiny, and said  that the political speech related to abortion, can not be neutral in nature.  The court found that the state of California failed to show any compelling state interest advanced by the regulation.

The FACT Act mandated two different notices.  One notice was for ‘licensed’ facilities, and another notice for ‘unlicensed’ facilities.  A ‘licensed’ facility was defined by the statute as a clinic whose ‘primary purpose is providing family planning or pregnancy related services’.  The ‘unlicensed’ facility was defined as one ‘whose primary purpose is pregnancy related services’ but who did not have a medical director on staff.

The Ninth Circuit, said that the pregnancy centers “were unable to demonstrate a likelihood of success on the merits of their First Amendment claims.”  The Ninth Circuit court went on to state that  Strict Scrutiny was not warranted and that the “Act is a neutral law of general applicability, which survived rational basis (The lowest level of constitutional scrutiny) review.” As to the notice for licensed facilities, the Ninth Circuit found that it was entitled to only Intermediate scrutiny (Heightened, but not strict) and that the FACT Act survived Intermediate Scrutiny.  The Ninth Circuit  found that the unlicensed notice survived ANY level of scrutiny.  

The Ninth Circuit opinion spent much effort discussing “professional speech”.   One of the first things noted by The Supreme Court in its ruling overturning the Ninth Circuit, is that the Supreme Court has never recognized “professional speech” as a special category of speech giving it some lower “Intermediate” threshold of consideration.  Justice Thomas writing for the majority said, “This Court has been reluctant to mark off new categories of speech for diminished constitutional protection.”

Justice Thomas, also noted,  “The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”  Justice Thomas pointed out the gaping exceptions in the FACT Act, exempting state and federal managed and funded providers.  This regulation, was targeted toward those clinics and resource centers that are largely non-profit, pro-life and Christian.

 

The Supreme Court and the Ninth Circuit both called the FACT Act, “Content Based”.  Content based regulation generally triggers the high level strict scrutiny review for constitutionality.  The Ninth Circuit veered around this standard with its created category of “professional speech”  The Supreme Court rejected that effort to find justification for the FACT Act.

Justice Kennedy’s concurring opinion was clear and direct. 

“The history of the Act’s passage and its underinclusive application suggest a real 

possibility that these individuals were targeted because of their beliefs. ……”

  “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.”

“Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Breyer’s dissent laments that the court should only look to the “reasonableness of the Legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.” With one fell swoop, ignoring the whole body of First Amendment freedoms of speech and religion and dismissing the viewpoint encroachment of the state of California. 

No part of  Breyer’s dissent or the now discredited Ninth Circuit opinion, addressed the obvious and underlying philosophy of California that there is a ‘state interest’, in making sure women know about state funded abortion services. 

Breyer relies heavily upon Planned Parenthood v. Casey (Casey).  Interesting, in that the Ninth Circuit cites Casey as well, but in support of an opposite argument.   Breyer, criticizing Thomas and Kennedy’s majority opinion states, “one might take the majority’s decision to mean that speech about abortion is special”.  The Ninth Circuit, also relying on Casey, said that the high court had not announced a “rule regarding the level of scrutiny to apply in abortion-related disclosure cases”, implying throughout their ruling that abortion-related disclosure is in fact entitled to some yet undefined special scrutiny.  

The problem with the reliance upon Casey by both Breyer and the Ninth Circuit, is that Casey,  reaffirms Roe, which held that the Woman, not the state, has a right of Privacy and thus, a right to an abortion of an unviable fetus.  The state, as held in both of those seminal cases, has a interest in the life of the child, at the point of viability.  

The backwards application of Casey, by both the Ninth Circuit and Breyer, is not insignificant.  In the mental gymnastics they engage in to attempt to find support for this constitutionally offensive law, they attempt to create a new and unrecognized exception, and imagine a state interest in providing abortion.  

The majority and concurring opinions written by Thomas and Kennedy, do not even get to the lack of congruency in those positions of support for the law, because the FACT Act was so blatantly offensive to the First Amendment under proper scrutiny.  Judge Trask in Riverside similarly recognized the inherent flaw in the Act in that in infringed speech in a way it compelled clinics to “speak words with which it profoundly disagrees”.

The case should be an example, and a wake up call.  The fact that such a overtly biased and constitutionally offensive law made its way through the legislature and governors office, only to be defended by not one, but two Attorneys general, should tell us something about either the energy or the arrogance with which the left will go in the current environment, to silence those that it disagrees with.  

Justice Thomas put it like this:

Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities: 

“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted). 

Ultimately, the majority of the Supreme Court saw this power grab for the constitutional overreach that it was, and ruled accordingly.  

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