Before adjourning at the end of the first year of the 2017-18 biennial session, the Legislature placed 977 bills on the governor’s desk. With an Oct. 15 deadline looming, Gov. Jerry Brown has signed so far 733 bills and vetoed 65 bills. There are 179 measures left for him to sign or veto by Sunday night.
Following is a brief rundown of the bills that the governor has already acted upon and which, unless otherwise noted, become effective on Jan. 1, 2018.
Bills signed into law by the governor
AB 459 by Assemblyman Ed Chau recognizes the disclosability of video or audio recordings but exempts from disclosure a video or audio recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident in the recording.
The bill requires an agency to justify withholding a video or audio recording by demonstrating that on the facts of the particular case, the public interest served by not disclosing the recording clearly outweighs the public interest served by disclosure of the recording. A victim who is a subject of such a recording, the parent or legal guardian of a minor subject, a deceased subject’s next of kin, or a subject’s legally authorized designee, is authorized to be able to inspect and obtain a copy of the recording.
SB 393 by Senator Ricardo Lara (D-South Gate) authorizes a person who has been arrested but not convicted to petition the court to have his or her arrest sealed. Under the bill, a person would be ineligible for this relief if he or she may still be charged with any offense upon which the arrest was based.
AB 168 by Assemblymember Susan Eggman (D-Stockton) prohibits employers from asking a prospective employee about his or her salary history. Additionally, the employer is required to provide the pay scale for a position to an applicant applying for employment in response to a reasonable request for that information. This measure applies to all employers in California and effectively bans the box that seeks salary information from a job applicant. The measure does, however, contain an exception for salary history information disclosable to the public pursuant to federal or state law, including the California Public Records Act.
SB 54 by Senator President pro Tem Kevin de Leon (D-Los Angeles), also known as the “Sanctuary State bill,” prohibits state and local law enforcement agencies from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.
The measure contains two provisions that would prohibit the disclosure of aggregate information about the immigration status of individuals who are arrested and reported to the attorney general.
CNPA objected to the provisions that were added to the bill right at the 72- hour deadline for bills to be in print before final action could be taken. The author provided assurances to CNPA, the chair of the Assembly Judiciary Committee and the Assembly Speaker’s Office that the prohibitions would be removed in cleanup legislation introduced next year to address several other problems identified in the bill.
AB 660 by Assemblywoman Blanca Rubio (D-West Covina) amends existing law to make it unlawful for a person to interfere with those attempting to transact business with a government agency and refusing to leave. The bill was introduced to help address a growing problem arising at several county clerks’ offices in Southern California where individuals offering to “assist” those who are required to file a fictitious business name (FBN) statement with the County Clerk’s Office have exhibited threatening behavior toward the potential filers.
AB 1455 by Assembly member Raul Bocanegra (D-San Fernando), amends existing Government Code Sec. 6254 (p) to allow local agencies, in addition to state agencies, to withhold documents that reveal an agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories or strategy that are used by the agency in labor negotiations.
CNPA and a coalition of opponents were able to negotiate amendments to the bill that provide businesses offering free gifts or trials are required to include “a clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription would change upon conclusion at the trial.”
SB 313 also requires businesses that make automatic renewal offers online to allow a consumer to terminate the auto renewal agreement online. This may include a termination email formatted and provided by the business that a consumer can send to the business without adding additional information.
AB 1542 by Assemblymember Matt Dababneh (D-Encino), dubbed Jordan’s Law, was a response to an incident that occurred in Southern California, where a gang of teenagers sucker-punched 14-year-old Jordan Peisner, filmed the incident and posted it online.
The initial language of the bill was so broad that it potentially made any recording of a felony a crime, including news-gathering activity. CNPA worked with the Motion Picture Association of America, the California Broadcasters Association and the author to narrow the language of the bill to protect legitimate recordings and the distribution of those recordings to comport with the First Amendment.
The new law states that a court may consider as a factor in aggravation the fact that an individual recorded the commission of a violent felony as part of a conspiracy to commit that crime with the other perpetrators. A prosecutor would need to show that the individual was already guilty of committing or conspiring to commit the underlying violent felony before she could seek a factor in aggravation for the recording activity. It is highly unlikely that this law could ever be applied to a journalist.
SB 63 by Senator Hannah Beth-Jackson (D-Santa Barbara), eliminates the exemption for small employers and enacts new parental leave requirements for employers of 20 or more workers. Approximately 16 percent of the state’s workers qualify for this new protection.
The New Parent Leave Act provides up to 12 weeks of job-protected maternity and paternity leave for employees, a protection that already exists at businesses with over 50 workers. The governor vetoed a similar measure last year that provided only six weeks of protected leave.
Bills vetoed by the governor
SB 784 by Senator Kathleen Galgiani (D-Stockton) was vetoed by the governor, who wrote in his veto message that the measure to increase the financial penalty when a person distributes photographs or video footage taken unlawfully was not likely to have an impact because the underlying activity is already unlawful.
The bill, sponsored by the Los Angeles city attorney, was a legislative response to a “body-shaming” incident at an L.A. Fitness facility, where a woman surreptitiously photographed a nude 71-year-old woman inside a locker room and posted it to Snapchat where it went viral.
Initial versions of the bill were much broader, and would have criminalized the distribution of materials by any person, not just the person who unlawfully recorded the footage. This failed to square with First Amendment jurisprudence, and CNPA, along with the MPAA, worked to narrow the bill to ensure that only the person who acted unlawfully would be criminally or civilly liable.
In vetoing the bill, the governor emphasized that the underlying conduct of unlawfully recording is a sufficient deterrent to the behavior. In fact, the city attorney of Los Angeles successfully prosecuted the woman who took the unlawful Snapchat for misdemeanor invasion of privacy, under existing law, in May 2017.
Bills passed by the Legislature awaiting action by the governor
AB 1479 by Assemblyman Rob Bonta (D-Alameda) would have allowed a judge to impose civil penalties on an agency that fails to comply with the California Public Records Act. This provision was stripped out of the bill in the last weeks of the session after being severely weakened. The bill now requires every state and local agency to designate a person or office to act as the agency’s custodian of records who is responsible for responding to any CPRA requests and any inquiry from the public about a decision by the agency to deny a request for records.
CNPA had earlier removed its support of the bill based on a previous amendment that weakened the bill. Thus far the governor has taken no action on the measure.
SB 345 by Senator Steve Bradford (D-Compton) would require, on and after Jan. 1, 2019, each state and local law enforcement agency to conspicuously post on its internet website current standards, policies, practices, operating procedures, and education and training materials not prohibited from disclosure under the CPRA.
SB 345 is supported by CNPA, but the governor has not indicated whether he will sign the bill.