February, 2021 | Dolan Law Firm

What is the Filibuster? Here’s What You Need to Know

Written By: Christopher B. Dolan and Kimberly E. Levy

Jacob from San Francisco asks: What is the filibuster? Where did it come from? And how do we get rid of it?

Dear Jacob: Good questions. The filibuster is a form of political obstruction with a sordid past. Essentially, a filibuster is a procedure by which the U.S Senate minority blocks the Senate majority from voting on a bill and thereby prevents its passage. The Senate filibuster was created accidentally in 1806 when a Senate rule allowing the majority to initiate a vote on a bill was deemed to be redundant and written out of the rules. In the absence of a mechanism for ending debate and initiating a vote, use of the filibuster became possible.

As a result, in 1917 the Senate adopted a cloture rule to bring debates to a quick end. If a two-thirds Senate majority voted to end the filibuster, then the debate was closed. However, it remained exceedingly difficult to end a filibuster even with cloture — super majority support was required before a vote on any bill. Rarely able to invoke cloture, the Senate eventually reduced the cloture threshold from 2/3 votes to 3/5, which is where it stands today. To this day, the filibuster still permits a minority of senators to keep debate open in the Senate and indefinitely delay a vote; this effectively allows any legislation to be “killed” by a minority of senators who simply refuse to bring the bill to a vote, even though most bills require only a simple majority to pass.

The filibuster has been used with increasing frequency by the Senate minority to prevent passage of anything but non-controversial legislation and has been used to further institutionalized racism. Southern segregationist Senators infamously used the filibuster to prevent passage of landmark civil rights legislation including hundreds of bills to combat lynching, the 1957 Civil Rights Bill, and the 1964 Civil Rights Bill which was eventually passed regardless of the filibuster. Historically, the filibuster has been used as a tool to advance a minority agenda and proliferate systemic racism in the United States. The filibuster continues to aid in the suppression of civil rights progress to this day. In fact, the very make-up of the Senate chamber, two-senators-per-state, favors less populated states which are disproportionately white states; these less populous states have a disparate amount of power in the Senate. This disproportionate representation, combined with the requirement for a 60-vote threshold to bring a bill to vote, has stalled racial justice in the United States.

Moreover, the filibuster is not required by the Constitution, nor is it even contemplated within the Constitution. To the contrary, the filibuster undermines the system of legislature envisioned by the framers by replacing legislative decision-making based upon the will of a simple majority with the requirement to obtain a super majority in the Senate to pass legislation. Only specific acts were meant to be governed by a super majority, i.e., impeachment conviction, overriding presidential veto, ratifying treaties, etc.

In the Federalist Papers, framers James Madison and Alexander Hamilton both expressly point out that to require anything more than a simple majority to pass legislation would be to place undue power and influence with the minority. Madison states, “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.” Disproportionate power and influence from the minority, as embodied by the filibuster, was a major problem with the Articles of Confederation.

There are some ways to bypass the filibuster. Provisions of law that set time limits for debate are not subject to the 60-vote requirement to initiate a vote and are therefore unaffected by the filibuster. Such provisions include trade authority, congressional review of Presidential acts, in cases of national emergency, and when invoking war powers.

Another way around filibuster is a process called budget reconciliation. The annual budget process circumvents the 60-vote requirement with a simple majority in both the house and senate. The budget resolution is then followed by a Senate reconciliation bill which brings the budget into line with any funding amounts in annual appropriations bills by simple majority.

The filibuster may be limited or eliminated altogether by a simple majority vote to change the Senate rules. Ironically, the decision to change the Senate rules is itself subject to filibuster. The rules of the Senate do provide for a “nuclear option” which allows any Senator to challenge a rule’s Constitutionality or simply assert that the rule should not be followed. The presiding Senate officer will typically uphold the Senate rules — a ruling which may be immediately appealed and put to vote without debate requiring only a simple majority. The nuclear option has been used to eliminate the filibuster for presidential appointments.

The Senate filibuster has and continues to stymy lawmakers, preventing meaningful policy change in the United States. It is time for the legislature to be liberated from the will of the minority and eliminate the filibuster.

FOR IMMEDIATE RELEASE
CALIFORNIA COURT OF APPEALS TO HEAR ARGUMENT ON AMAZON’S LIABILITY FOR SALES OF DEFECTIVE PRODUCTS WHICH INJURE AMAZON CUSTOMERS TUESDAY FEBRUARY 23

San Francisco – February 22, 2021 – The California Court of Appeals will hear oral argument on Tuesday, February 23rd, 2021, on the question of whether Amazon can be held liable for injuries caused by defective products made by “3rd Party Sellers” who list and sell their products on Amazon and ship direct to customers.

Kisha Loomis was burned and her house caught fire when a hoverboard she bought for her son for Christmas 2015 blew up in her home. The hoverboard was manufactured in China by a Chinese company “Smileto” and sold under the alias “TurnUpUp” on Amazon as a Smart Balance Wheel. Smileto sold over 380,000 hoverboards on Amazon in the 4th Quarter leading up to Christmas. On November 28, 2015, Ms. Loomis bought the hoverboard on Amazon who placed the order with Smileto/TurnUpUp which directly shipped the product to Ms. Loomis who received it on December 16, 2015. Amazon collected and processed payment receiving 15% of the $370.00 sales price ($55.00) plus a listing fee and other related fees.

In November 2015, Amazon became aware of hoverboards spontaneously bursting into white-hot flames. On November 20, 2015, Costco had recalled the same Smart Balance Wheel product. On December 4th, 2015, Amazon UK pulled all hoverboard listings, including Smileto’s, down because of fire danger. On December 10, 2015, Amazon acknowledged it was aware of at least 17 reports of hoverboards sold on Amazon spontaneously bursting into flames and stated they were concerned that there were fire safety issues from “Chinese hoverboards.” Only then did the Amazon “Product Safety Team” take down tens of thousands of hoverboard listings. AMAZON did not inform Ms. Loomis about the danger associated with the hoverboard she had purchased. Amazon did not tell the sellers to stop shipping the hoverboards already purchased and the dangerous hoverboard was shipped and arrived on December 16, 2015 and was placed under the Loomis family’s tree. It was opened on December 25th and, on December 31st, while plugged into an outlet, it spontaneously burst into intense, flare-like flames. Ms. Loomis was burned, and her home was heavily damaged.

The Chinese manufacturer had “gone out of business” and Amazon was sued as a retailer under California Law that holds manufacturers, distributors, retailers and others in the chain of marketing, sale, and distribution liable for damages caused by defective products they sell.

A Los Angeles Trial Court sided with Amazon saying it was not in the chain of distribution and not a seller of products but, instead, a platform where buyers and sellers are put together and, further, that they were protected by the Computer Decency Act, Section 230 as their posting was protected speech.

Christopher Dolan, Appellant Loomis’ attorney, stated, “This is one of the most important cases before the courts. A mom-and-pop toy store which sold the same product would be held liable as a retailer but Amazon, the biggest online retailer with 46% of online sales, valued at over a trillion dollars, will go scot-free? This is a crime. First, they drive retailers out of business and then claim that they can’t be held liable as a retailer even though they control the whole transaction. As they take over the world of sales, they must also assume the responsibility those brick and mortar stores they put out of business had. Let’s face it, Amazon is selling products, making a huge profit, and not making an effort to assure that the foreign and domestic goods they sell are safe. They want all of the money but none of the responsibility. They have to be stopped.”

The 1:00 p.m. hearing may be viewed remotely at https://primetime.bluejeans.com/a2m/live-event/yxpekfyh.

Written By: Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jim C. in Bernal Heights who asks: I’m currently working on a job site in the city. We are building a subterranean parking garage and we use heavy equipment every day. The guy that drives the excavator is not the most reliable and occasionally he doesn’t show up to work. On these occasions, my supervisor, the foreman, who I am fairly certain has not been trained on the equipment, hops in and operates it in his place. I have also noticed that the lights and the back-up alarm aren’t working. The foreman almost backed up into the cement mixer yesterday, which would have been disastrous. Having worked on job sites for over a decade, I know this isn’t safe, but I am afraid I’ll be fired if I bring this up to the foreman’s supervisor. No accidents have occurred yet, but I’m worried. How should I address these safety risks?

Dear Jim C.: Thank you for your question, Jim. You are right to be concerned. Work environments, especially construction sites, are often rife with safety hazards that must be closely monitored. Certainly, if your foreman is operating heavy equipment and is not trained on the equipment, this not only exposes your company to liability should anything go wrong, but also poses a significant risk to you and others on the job site. This, compounded with some of the excavator controls not operating properly, causes serious safety risks. There are a number of steps you can take to ensure the safety issues are addressed.

The key is your initial complaint must be either verbal or written to someone in a position of authority, preferably the foreman’s supervisor, and must be framed in the context of work safety. If you told the foreman supervisor, for instance, that you thought it was unprofessional and unfair that the person actually trained on the excavator was permitted to skip work without repercussions, this would not be enough in itself to alert your employer you are making a workplace safety complaint. The best course of action is to put your concerns in writing, preferably in an email which affixes a date and time stamp, and share them with the foreman’s supervisor. Be specific, citing examples of the unsafe conditions or conduct you observed and when you observed it.

You may have some further hesitancy, as you aren’t positive the foreman isn’t trained on the excavator. Don’t let this deter you from making a complaint if you have reason to believe he is not trained or if it appears he is operating the excavator in an unsafe manner (i.e. using heavy equipment without functioning back-up warnings, failing to wear proper safety equipment or follow proper protocols concerning the equipment.) You may not have all the information necessary to make a definitive determination whether or not the conduct is actually safe, but the law encourages employees like yourself to speak up if you have reason to believe it is unsafe. In other words, if you see something, say something.

While construction zones are typically the most common work environment where safety hazards arise, the law on unsafe work conditions is certainly not confined to any one kind work environment. Unsafe conditions can arise in many different contexts in many different environments. Unsafe conditions can range from poor lighting conditions in a staff parking lot located in a high crime area, to exposure to toxic chemicals in a confined space, to a co-worker displaying violent tendencies or bringing a firearm to work.

Your fear of making complaints is understood. If you are hesitant to tell your employer, you have the option to make an anonymous complaint to Cal/OSHA. They are the government entity tasked with making sure workplace safety and health regulations are properly observed.

However, California law protects workers who complain of safety issues. Under the California Labor Code, employees who come forward and voice good faith safety concerns about their workplace are protected from retaliation. Specifically, CA Labor Code §6310 prohibits an employer from discharging or otherwise discriminating against any employee because the employee has made any oral or written complaint about workplace safety. Three elements are required to support a retaliation claim for raising workplace safety complaints:

(1) the employee must have made complaints about workplace safety to his employer;

(2) the employer must have then subjected him to an adverse employment action; and

(3) there must be a causal link between the workplace safety complaint and the employer’s action.

Once you make the complaint, if you find that you are suddenly being treated differently, such as your hours being cut, you are disciplined for minor issues, or you are treated with aggression or hostility, you may be experiencing retaliation related to your complaint. This is prohibited by law and you should report the retaliation to the foreman supervisor immediately. If you are experiencing harassment or have suffered a demotion or termination following a workplace safety complaint, you should reach out to an attorney for assistance as soon as possible.

Written By: Christopher Dolan and Lourdes De Armas

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.” This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets.

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health.

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

“Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
“Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government.

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned. The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties.

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.