legislative update 9-15
Edelstein Gilbert Robson & Smith
Latest posts by Edelstein Gilbert Robson & Smith (see all)

Tragically, whether you look at fatalities, structures burned, or acres burned, California sets new records every wildfire season.  In 2020, the SCU, LNU, and August Complex fires have all made their way onto the top five list of destructive fires measured by size.  Yet another California community, Berry Creek, has been destroyed by the Bear Fire.  At least three lives have been claimed by that fire which is burning just miles to the South East of the town of Paradise.

We have reported previously that these disasters coupled with COVID-19 and power shut offs will be defining moments for the rest of Governor Newsom’s career.  We won’t belabor that point but it’s worth noting that challenges continue to mount.

Rumors have flown throughout 2020 that a special session might be called to allow the time strapped Legislature to return to the Capitol and finish its work.  The Governor, who has to call a special session, was asked this week whether one was needed to respond to COVID-19 or wildfires.  We weren’t surprised to hear him dismiss the idea.  Governor Newsom noted that infection rates were falling, the state was receiving mutual aid to fight fires, and there was nothing the Legislature could do to address the 14,000 lightning strikes, high temperatures, or high winds that have driven wildfires.

While those are all valid points, we suspect that the Legislature’s behavior in 2020 might have even more to do with the Governor’s reluctance.

Quick Recap

Senate Republicans were able to grind the Senate to a halt in the final hours of session after being helped along by mismanagement on the part of Democratic leadership.  However, the Legislature has been heading this direction for months.  Assembly and Senate leadership have been at each other’s throats all year.  It started when the Senate strong armed the Assembly into an unexpected recess on March 16 due to the pandemic.  Since then, leaders have argued over everything from whether or not remote voting should be allowed, how many bills the Legislature should hear, and what topics should be covered.  Consequently, by August 31, tensions were high.  As the Senate failed to work through Assembly bills, Senate priorities were “held hostage” in the Assembly.

At the same time, Assembly Speaker Anthony Rendon landed himself in hot water with his management of his colleagues.  As noted above, the Assembly has never seen eye to eye with the Senate on remote voting.  The Speaker questions the legality of bills passed with remote votes.  Assemblymember Buffy Wicks, who has a newborn daughter and is on maternity leave, requested permission from the Speaker to vote by proxy.  When her vote was needed to pass several 2/3 vote bills on the final night of session, Assembly member Wicks was not allowed to vote by proxy and chose to return to the Capitol with her newborn baby to cast her vote.  This incident has become a major embarrassment for the Speaker and has garnered national attention.

What Didn’t Get Done?

Many priority bills failed to pass by midnight on August 31st.

Three police reform bills didn’t make the deadline.  Collectively, these bills would have banned the use of some “less-lethal” force options against protesters, de-certified police officers with criminal records consistent with the state’s treatment of doctors and lawyers, and opened police conduct records to public scrutiny.  One of the authors of these bills has stated publicly that his bill, which was not taken up by the Assembly, would have had the votes to pass.

SB 1120, authored by Senate Pro Tem Toni Atkins, was another casualty of the end of session gamesmanship.  The bill was a hard fought measure which would have overturned local zoning rules and allowed construction of duplexes in single family residential zones.  The bill had the votes to pass out of the Assembly, but it wasn’t taken up there until very late and wasn’t transmitted to the Senate until 11:57.  The Senate was not able to take the bill up in time to send it to the Governor and the Pro Tem has publicly accused the Speaker of holding the bill up in the Assembly.

Packaging reform measures designed to cut down on plastic waste also stalled.  Split between two companion measures, the Senate passed the Assembly’s vehicle but never transmitted it back to the Assembly so it could be voted on and sent to the Governor.  Meanwhile the Assembly chose not to take up the Senate’s bill until late into the night, and did not leave themselves enough time to marshal the votes they needed to pass it.

So Why Call a Special Session?

The above bills are just a few examples of many proposals that fell victim to the Legislature’s mismanagement in 2020.  While both houses are quick to point fingers at each other the truth is there was plenty of time to get work done if leadership was willing to negotiate and horse trade with each other and the Governor.

Governor Newsom accomplished his major goals including relief for renters, a budget, and enhanced protections for employees.  There is no reason he cannot govern via executive order for the remainder of 2020.  Even if he called the Legislature back, the end of session bitterness will not have worn off and it’s questionable how much could get done.  It’s entirely possible that the Assembly and Senate will continue to take shots at each other even once they return in 2021.