OC Political

A right-of-center blog covering local, statewide, and national politics

Posts Tagged ‘sacramento’

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.  

Posted in California | Tagged: , , , | 1 Comment »

Recall Certified

Posted by Brenda Higgins on January 5, 2018

Secretary of State Alex Padilla today, certified enough signatures such that the recall of Senator Josh Newman may proceed.

Josh Newman was elected in a nail biter of a race against Ling Ling Chang in the 29th State Senate district in November 2016. Josh Newman voted with his party, the Democrat super majority, in pushing forward a new gas and vehicle licensing tax that has prompted voter outrage.

Republican activist Carl DeMaio form San Diego, rallied that anger into a move to recall the Freshman senator from Orange County. The recall of Senator Newman will not make any affirmative change to the gas tax, and that has been a large part of the Newman opposition messaging. People who signed the recall petitions have said that they were not aware it was for the recall of the Senator but believed that the petition they were signing would in fact repeal the gas tax. In spite of some disgruntled signers of those petitions, still, today, according to the California Secretary of State, there are enough valid signatures for it to proceed.
The governor will need to schedule a Special Election to determine 1) if Josh Newman will be recalled and 2) If recalled, whom will replace him. Thus far, Newman has had his campaign in motion for many months to combat the recall and fight for re-election. So far, Fullerton Mayor, Bruce Whitaker and Newman’s former opponent, Ling Ling Chang, are the prominent Republicans poised to challenge him. The election could proceed as early as March, but will likely be consolidated with the primary in June.

 

Posted in 29th Senate District, Fullerton, La Habra, Orange County, Placentia, State Senate, Yorba Linda | Tagged: , | 2 Comments »

Sacramento Saga Continues: U.S. Attorney subpoenas Senator de León

Posted by Allen Wilson on June 7, 2013

OC Political reported breaking news on Tuesday regarding Senator Ron Calderon (D-Whittier) office was raided by the FBI.

My colleague Chris Nguyen elaborated with an article following up the breaking news about Senator Calderon and the FBI raid.

Now, it is reported by the Sacramento Bee that U.S. Attorney has subpoena Senator Kevin de León (D-Los Angeles).

In a statement, Senator de León said he received a subpoena on Thursday.

The Sacramento Bee reports that Senator de León intended “to cooperate fully” and will be interviewed by a grand jury in July.

As the saga coming out of Sacramento continues OC Political will be on top of the story to bring you the latest updates.

Posted in California, State Senate, Uncategorized | Tagged: , , , , , | 3 Comments »

Mayoral Candidate Brags About Endorsement from Serial Killer on Death Row

Posted by Chris Nguyen on May 14, 2012

Leonard Padilla

Sacramento Mayoral Candidate Leonard Padilla,
Proudly Endorsed by Death Row’s Speed Freak Killer, Wesley Shermantine

A strange tale from over the weekend…

Sacramento Mayoral Candidate Leonard Padilla, who is one of three candidates challenging Mayor Kevin Johnson‘s re-election bid, is proudly announcing his endorsement by Wesley Shermantine, who is half of the serial killer duo known as the Speed Freak Killers and currently sits on death row.

Padilla told Sacramento’s Fox40: “When you have a guy on death row endorsing you, you have to be somewhat proud of that.”

Why does he think that?  Well, he stated, “If I go out here to the unions, or if I go to the firemen, and ask for their endorsement, they’re going to want something in return.  I mean, this man, he cannot ask for anything in return.”

Well, I guess technically, he’s right that he won’t be beholden to any special interests.

On the potential drawback of the serial killer endorsement, he said, “I don’t think it’ll have any backlash because there’s nothing about the man that’s a secret.”

That’s ridiculous.  The backlash is because of what’s known about him.

Padilla even told Fox 40 he was considering making a commercial about Serial Killer Shermantine’s endorsement.

I’m going to name the Padilla for Mayor 2012 campaign the winner of my “Dumbest Campaign Strategy Ever” award.

This is clearly a publicity stunt, but the “Any press is good press” expression has its limits.  He will definitely lose many of what few votes he had, and I’m not sure if this will attract any new business for his bail bondsman or bounty hunter operations.  I would think a bounty hunter wouldn’t want publicity.  I would also think even those seeking the services of a bail bondsman would hesitate at using someone backed by a serial killer.

(Readers, feel free to insert a bad Sacramento joke here.)

Padilla came in 58th out of 135 candidates for Governor in the 2003 recall.  Padilla came in 4th out of 4 in the 2004 Sacramento mayoral primary and came in 3rd out of 5 in the 2008 Sacramento mayoral primary (behind only Johnson and then-Mayor Heather Fargo).

I’m still waiting for the Association of Ketchup Thieves to Endorse Steve Rocco for Supervisor and the appropriate independent expenditure on behalf of Janet Nguyen by Heinz, Hunt’s, and other ketchup manufacturers.

Posted in California | Tagged: , , , , , , , , , | Leave a Comment »

State Water Resources Control Board Study on Hydroelectric Power Along Delta Tributaries Ignores Key Information

Posted by Cicero on February 23, 2012

In this drier than average year, water continues to be a point of major contention for Californians; decisions on water policy should be made with all of the stakeholders at the table, which includes northern and southern California, the valley, water districts that manage the water and many others. However, this basic principle seems to have been ignored once again in the State Water Resources Control Board’s latest report related to the impacts of hydroelectric power generation.

According to a press release from the newly formed San Joaquin Tributary Association, the group consisting of water districts along the San Joaquin River, the SWRCB never even contacted a single water operator along to river for its analysis. These are the organizations who are currently operating the existing hydroelectric power facilities along the river, but the SWRCB did not  bother to consult them.

As a result, the release further claims the results of the report cannot be trusted and raises serious doubts about the thoroughness and overall quality of the report and its conclusions since it does not include any information from the people who understand the dynamics of hydrogenenation in the region best.

This appears to be yet another case of the State ignoring information it does not want to hear in order to obtain the results it wants to find.  The report is part of mandatory proceedings leading up to the state board’s adoption of new flow standards on the Stanislaus, Tuolomne and Merced rivers, which feed the Sacramento-San Joaquin Delta. So obviously the State is not going to consult the people that it is planning to take the water from later on down the line.

As Allen Short, the Manager of the Modesto Irrigation District and member of the San Joaquin Tributary Association said in the release, “You cannot conduct a vital analysis like this without gathering accurate information from the sources on the front lines. Decisions with implications of this magnitude need to be made with all of the information on the table. This process demands real science, not abstract predictions, because in the end, it will be California ratepayers who suffer the consequences.”

You can read the whole press release from the San Joaquin Tributary Association here.

Posted in Uncategorized | Tagged: , , , , , | 1 Comment »