California

For Nanny-Statism, California’s Supreme Court Might Be Worse Than the State Legislature

Unlike lawmakers, who are usually are fairly forthright about their goals and intent, the justices have left Californians befuddled with several recent rulings.

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There's Big Government, Big Labor, Big Business and now—drum-roll please—something called Big Soda. At a news conference Wednesday at the state Capitol, five lawmakers introduced a package of bills to ban the sale of Big-Gulp-style soft drinks and impose a state tax on sugary drinks.

"Big Soda has profited off of life-threatening disease and suffering for too long," intoned Assemblyman David Chiu (D-San Francisco).

These Nanny State efforts are commonplace, and provide fodder for people living in more-sensible locales. Look, they say, at how Sacramento politicians want to tax anything—and pose a constant threat to California's business climate. That largely is true. Highly publicized limits on the use of everything from plastic bags to straws gain much-deserved ridicule, but obscure some of the biggest threats to Californians' ability to live free and prosper.

Consider something we might call Big Justice. The term doesn't have the same ring as Big Soda, but the California Supreme Court, in recent months, has proven itself more nettlesome than the Legislature. That takes some doing. Unlike lawmakers, who are usually are fairly forthright about their goals and intent, the justices have left most of us befuddled.

The most obvious recent example involves a decision known as Dynamex Operations West v. Superior Court of Los Angeles. This ruling is wreaking havoc on California companies and especially on the growing gig economy. Dynamex is a same-day delivery service that had shifted its delivery drivers from employees to independent contractors. A driver sued and the court imposed a strict new "ABC test" to determine whether employers could classify their workers as employees or contractors.

Now, the court considers a worker to be an employee unless that company can prove that it a) does not direct the employee's performance; b) the employee's work is outside of the scope of the company's business; and c) workers have made a decision to go into business for themselves. A delivery business can hire, say, a plumber as a contractor to fix a sink in its headquarters, but it cannot consider drivers—who provide a core function in that business—as contractors. Lower courts still are hashing out when and how the state will apply this standard.

In the meantime, the decision has thrown myriad industries into a tizzy given the new rules could increase labor costs by a third. They reduce employee choice, also, given the vast majority of contractors prefer the flexibility of independent contracting to regular shift work. The ruling targets not only delivery drivers, but also ride-sharing companies such as Uber, barbers, landscapers, home healthcare workers and others. (Stormy Daniels penned an op-ed explaining how it can hamstring strippers, too.)

The California Legislature could provide a solution, but lawmakers are too busy banning Big Gulps, I suppose. Nevertheless, the state high court—not the Legislature—is the source of this Big Problem. This is not the only example of the court creating a mess by not being precise about its edicts.

Recently, CALmatters reminded us that the court has complicated a matter that had been relatively easy to understand since voters approved Proposition 218 in 1996. That initiative, writer Ben Christopher explained, "Clarified that any tax designated for a specific purpose—say, to fund affordable housing—needs two-thirds of the vote to pass."

Simple. But in the 2017 California Cannabis Coalition v. City of Upland case, the state Supreme Court ruled that a local citizen-derived initiative was not a local-government action. "If citizen initiatives aren't acts of 'local government' when it comes the timing of an election," Christopher asked, "does that mean they aren't subject to Prop. 218's other rules—namely, that tax measures need two-thirds of the vote to pass?" That's a good question, but one the court didn't clearly answer.

The decision seems to mean that when city officials place tax-increase measures on the ballot, those measures are subject to two-thirds voter approval—but when local citizens do the same thing these measures only require a simple-majority vote. That would circumvent local tax protections as interest groups gather signatures and place simple-majority tax measures on the ballot early and often. Cities don't know how to handle the murky situation.

Now, we're awaiting the court's decision on a matter that could—without exaggeration—determine the long-term fiscal health of California cities. It involves the so-called "California Rule," which forbids governments from rolling back future pension benefits for current employees. Even the Brown administration asked the court to reconsider the rule. If they can't change formulas, municipalities have few options to control their pension liabilities other than raising taxes and cutting services.

Based on recent history, the court probably will create yet another unresolved mess. As bad as it is to have a Legislature laser-focused on combating Big Soda and other nonsense, it may be worse to have a Big Court that isn't clear about what it's doing.

This column was first published by the Orange County Register.

Steven Greenhut is Western region director for the R Street Institute. He was a Register editorial writer from 1998-2009. Write to him at sgreenhut@rstreet.org.

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41 responses to “For Nanny-Statism, California’s Supreme Court Might Be Worse Than the State Legislature

  1. I’ve often felt that one of the biggest omissions of the Constitution is the lack of oversight by the people. I don’t mean majority rule trumps constitutional rights or can pass any law it desires. But people ought to be able to sue to overturn laws for defects: inconsistent text, inconsistent enforcement, lack of clarity. Every law should define expected consequences; failure to meet those consequences, or having unexpected consequences, are defects. A law banning payday lenders, for instance, should state clearly that it will result in poor people turning to loan sharks.

    State legislatures should be able to vote to overturn federal laws by a simple majority.

    Laws should sunset every year. And when a law is found defective in any way, the entire law should be voided, with no appeal; if it is so unclear that an appeal could disagree with the trial court, that itself proves the law is too vague to be allowed.

    Like Heinlein said in Moon is a Harsh Mistress, there need to be more ways to repeal laws than enact them.

    While this doesn’t directly address Big Justice, it would give it fewer chances of going batty.

    1. “State legislatures should be able to vote to overturn federal laws by a simple majority.”

      I’ve long supported the repeal the 17th Amendment. State governments have very little say in what happens at the federal level. Really, the courts and constitutional amendments are the only means by which the original sovereign entities can control what the fedgov does.

      Whatever problems accompanied the original system are miniscule compared to the shitshow we have today.

      1. +10

        The fact that Congress changed how Senators are selected shows how effective the Senate was in slowing down government growth. The Senators had an allegiance to the states. Now the allegiance is to keeping the federal government growing.

        1. This was done by Constitutional amendment (17th)

          1. Constitutional amendment initiated by congress…yes.

            Some senators allowed the change under the 17A for themselves and future Senators.

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    2. Standing laws needs a major revision. Courts need to be disallowed to dismiss on standing unless they clearly articulate the class who can push the lawsuit.

    3. Punishment for those who create unconstitutional laws or statutes. As such they are sometimes overturned but there’s more punishment for lying in court than breaking oath to protect and defend the constitution.

  2. “the justices have left most of us befuddled”

    Living Constitution. They rule to get the result they want.

  3. Haha.

    What a joke state.

    These bureaucrats that work as judges cannot even do their jobs and follow the US Constitution and CA state constitution.

    What possible clause in the constitution does it give government the authority to decide whether a person paid for work is an employee or a contractor?

    The simplest definitions would be for businesses to call non-contract workers “employees” and contract workers “contractors” but Commifornia will continue to drive business out-of-state.

    1. ” What possible clause in the constitution does it give government the authority to decide ”
      Genreal welfare – interstate commerce
      QED

      1. Interstate commerce would make sense except for small companies that dont have interstate reach. The feds would zero authority over them. The CA constitution would have authority over CA companies but not companies that dont do business in Commifornia.

        Ultimately, that and the general welfare clause are not a signed check for government to do anything.

    2. What possible clause in the constitution does it give government the authority to decide whether a person paid for work is an employee or a contractor?

      The clause that establishes the courts.

      Somebody takes a case to court, the court, i.e. gov’t, has to decide it. Same as deciding whether a couple is married.

      Or you could just abolish courts.

      1. R-
        Or the court could decline to hear the case.

  4. Of course the judiciary are worse than the legislatures in ‘blue’ states: They’re selected by Democrats who know that judges can get away with things elected officials can’t, and select judges who will do those things.

    Don’t think of them as judges, think of them as deniable sock puppets for the legislature.

    1. The Lefties decided to infiltrate the judiciary a long time ago.

      Amending the US Constitution is relatively difficult. Usurping the Constitution via judicial proclamation is less difficult.

      California has been taken over by lefties but that has only been in the last 30 years. Before that California was very Red overall.

  5. communism is an immoral and violent ideology

  6. Good. And. Hard.

  7. “Big Justice” would be a good name for a band.

    1. Sounds too much like Lone Justice.

  8. Under the wonderful world of Federalism, who else but Californian’s care?

    To the people of California, you voted for these people. Enjoy the results, good and hard.

    1. True, but many CA rulings and laws create problems across the country. Gasoline standards, environmental regs, packaging, etc force companies to create special products for CA. Due to its size, CA can’t be ignored like AL or MO might be.

      CA is the asshole wagging the dog.

    2. JeffreyL- A lot of us care, because the lefties keep moving to affordable red or purple states, and vote Socialist. Law schools are pumping out SJWs-coming to all states in the U.S.

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  10. Holy assclown shit. The U.S.- going down the road of moonshine blackmarket big gulps. Imagine blackmarket carbonated beverage cartels, violence and a war on soda cartels (and they always include diet soda without sugar too)? Is this all sugary drinks?- no more Starbucks lattes, Coffee Houses, Designated Driver sodas at bars. What a bunch of fucking social engineering sociopaths, my tonic for vodka tonics? Where does it end, sugar is in all kinds of food items- Marinara sauce, Juice from concentrate,Corn tortillas, BBQ sauce, Teriakyi, ice cream, chocolate, all alcohol.

    Idiots, just Idiots

  11. I would have said that the citizens of California could protest the soda tax by pooping on the front steps of the statehouse, but apparently that’s not really useful as a form of protest anymore since nowadays it’s how people in California relieve themselves on an average day.

  12. Big Nightstick?

  13. given the vast majority of contractors prefer the flexibility of independent contracting to regular shift work.

    Giving employees flexible hours does not turn them into contractors, nor should it. Do you really know which status most workers would prefer? One big problem with being a contractor is that it greatly complicates the tax returns you must file. Fail to file the proper schedules with the IRS (or to have enough saved to pay your taxes, which were not withheld) and you can get into serious trouble, whereas employees can often just file 1040A or 1040 EZ forms and be done with it. If the “gig economy” is going to keep expanding, we need to ease the burden that filing taxes places on contractors.

    1. “Independent contractor” status usually has been of more benefit to the business than to the “contractor”. For example, among the tax example you cite, the “independent contractor” is typically responsible for his (her) own workers’ compensation package because if the employer covered it, the contractor would more likely be deemed an actual employee. As another example, the “contractor” typically has to provide his (her) own medical insurance. My wife paid about $10K per year for her health insurance until the company she worked for was absorbed and she was made a regular employee. The good news? The current company pays her health insurance. The bad news? She was covered by Kaiser (southern California) and now has to go into the medical care lottery here. But, she’s saving $10K a year. So it’s hard to construe this decision as anything other than harmful to business. Nothing new in California.

      1. Didn’t your wife make a lot more as a contractor? As a manager who hired contractors they were paid lavish hourly wages for the right for me to lay them off when they were no longer needed. In fact, though the best contractors stayed on for many months if they were worth it.

        1. The courts are part of the government.
          Independent contractors file and pay their taxes in a lump sum at the end of the year.
          If they are employees, the business deducts taxes, and sends them off to government, on a regular basis.
          The government wants that steady flow of money, instead of a lump sum at the end of the fiscal year.
          Hence, the government doesn’t like independent contractors.
          It will do what it can to limit how many there are.
          The courts oblige.

          1. As an independent contractor, you nailed it. Government wants us all in that box, because we can’t have people being self-sufficient.

            Personally I hate the 9-5 system and enjoy being able to work whenever, AND AS LONG AS, I wish to.

  14. They demonize C6H1206 and the CO2 it’s photosynthesized from in the building of life . When are the going to recognize the tax potential in demonizing the final component of life , the H2O ?

  15. Leftist supporters / sympathizers — Your “dream” is becoming a reality in CA… So STOP running away from it!

    If I have to hear 1-more CA migrant in my conservative state tell me “how great/right” their ideology is right after running full-throttle away from it — I’m gonna scream! Your state SUCKS because your beliefs SUCK. Say hello to the effects of your “cause”.

  16. “The California Legislature could provide a solution, but lawmakers are too busy banning Big Gulps,…”

    C’mon, they are incompetent at everything else. Let them have a win once in awhile to make them feel good.

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  18. California is in such a hurry to follow detroit down the rathole of failed liberal “paradise’s”, its not really all that surprising that they would regulate the gig economy as much as they do.

    Business’ flee the state in droves.
    People flee the state in thousands each day.

    We are the 5,6,7,8th biggest economy in the worst by ourselves. Take all the business’ out that make most or all of their income from government and that number falls very quickly.

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