Congratulations to White Brenner LLP Partner, Barbara A. Brenner in her recognition by Best Lawyers® for the 7th year in a row! Her dedication has earned her a selection in The Best Lawyers in America®, 30th edition, for her exceptional work in Environmental Law and Natural Resources Law.

Learn more about Best Lawyers® methodology at bestlawyers.com and view Barbara’s work at whitebrennerllp.com.

Proposition 64 was passed by Californians in 2016 for the legalization of adult-use cannabis. Among the regulations contained in Proposition 64 is a prohibition of licensed cannabis businesses from “advertis[ing] or market[ing] on a billboard or similar advertising device located on an Interstate Highway or on a State Highway which crosses the California border.”

The Bureau of Cannabis Control (“BCC”), the lead agency in charge of enforcing the law, was given the challenge of interpreting this provision. In light of First Amendment protections for commercial speech, coupled with the federal ban on cannabis, the BCC chose to ban cannabis advertising only on limited portions of highways. Specifically, Section 5040(b)(3) of the California Code of Regulations broadly prevents advertising the sale of cannabis or cannabis products “within a 15-mile radius of the California border on an Interstate Highway or on a State Highway that crosses the California border.”

This regulation was challenged by Matthew Farmer (“Farmer”), arguing that the interpretation by BCC was in conflict with the language of Proposition 64. Farmer argued that the current regulations unnecessarily expose him and his teenage daughter to cannabis advertising. The San Luis Obispo Superior Court granted the petition and ordered the BCC to meet and confer with Farmer to propose an order to withdraw the regulation. This will result in a stricter ban on all cannabis advertising on California Highways.

However, there is an open question regarding how strict the ban will be. The terms “Interstate Highway” and “State Highway” are not defined in the statute, so it is not clear which portions of the highway the updated regulations will encompass. In addition, the term “advertising” is expansive and includes speech that is not commercial in nature, which other states have made carve outs for. These provisions will likely be given more specific meanings after the Farmer decision, while maintaining compliance with the First Amendment.

The BCC was ordered to notify licensees to stop selling space for cannabis advertising and to take down existing ads on roads that cross state borders. As of now, this obligation only affects licensees and does not apply to cities. However, cities should be aware of the BCC’s directive in the event there are any enforcement obligations imposed on them.

For any questions regarding the BCC’s directive and its implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

Congratulations to White Brenner LLP Partner Barbara A. Brenner! For the sixth year in a row, Barbara has been recognized by Best Lawyers® for her work in Environmental Law and Natural Resources Law with a selection in The Best Lawyers in America® 2023 Edition.

Best Lawyers is a guide to reviewed and recommended attorneys located in 78 countries around the world and is considered to be one of the oldest and most respected peer review publications in the legal industry. Their purely peer review methodology guarantees that attorneys are selected for this honor based upon confidential surveys conducted by their peers.

To learn more about the Best Lawyers® methodology, visit bestlawyers.com.

Any change can be nerve-wracking, especially in the current climate of uncertainty and upheaval. However, even during this time, we’re reminded that not all change is bad and some changes deserve to be celebrated.

We’re pleased to announce that in addition to Partner Barbara Brenner’s continued recognition by Best Lawyers^®, Managing Partner Douglas White has also been selected for inclusion in The Best Lawyers in America© 2021 Edition.

In addition to Barbara and Doug’s accolades, Churchwell White LLP has also been named a Tier 1 Metropolitan firm in Natural Resources Law by U.S. News – Best Lawyers^® in their 2021 “Best Law Firms.”

Best Lawyers is a guide to reviewed and recommended attorneys located in 78 countries around the world, and is considered to be one of the oldest and most respected peer review publications in the legal industry. Their purely peer review methodology guarantees that attorneys are selected for this honor based upon confidential surveys conducted by their peers.

Congratulations to Douglas and Barbara! To learn more about their work and other accomplishments, visit our People page.

The Brown Act (the “Act”) generally requires meetings of legislative bodies to be open and public. The Act strictly prohibits serial meetings, which are communications that each involve less than a quorum of the legislative body, but taken as a whole involve a majority of the members. It likewise prohibits a majority of members meeting without following notice, agenda, and accessibility requirements. The growing influence of social media in recent years left an area of ambiguity for members of legislative bodies communicating on such platforms.

On September 18, 2020, Governor Newsom signed into law Assembly Bill 992 (“AB 992”), providing some guidance on this issue. The new law amends the Government Code to extend the Act’s requirements to certain types of communications for legislative body members using platforms such as Snapchat, Instagram, Facebook, Twitter, TikTok, and Reddit.

Government Code section 54952.2 is now amended to specify which types of online communications legislative body members may engage in, and which they may not. AB 992 applies to any “Internet-based social media platform,” meaning an online service that is open and accessible to the public, and includes only services which are accessible to the public free of charge and without online barriers. AB 992 allows public officials to communicate freely with members of the public on these platforms. For example, legislative body members may answer questions, provide information, or solicit information from the public on issues within their jurisdiction.

However, AB 992 contains two important prohibitions. First, a majority of members may not use social media to “discuss among themselves” matters of business within their jurisdiction. “Discuss among themselves” refers to all types of communications, including “digital icons that express reactions to communications,” such as emoji or “liking” a post. This is similar to other provisions of the Act which prohibit a majority of members meeting without notice, agenda, and accessibility requirements.

Next, AB 992 includes a communication restriction that goes beyond the previous limits on serial communications. Specifically, AB 992 now prohibits members from responding directly to something made, posted, or shared by another member of the legislative body on a social media platform within their subject matter jurisdiction. For example, commenting on a Facebook post by another city councilmember regarding a city matter would now be a violation of the Act, regardless if a majority of members ultimately participate in the communication.

Legislative body members should already be very careful about their activity on social media, something AB 992 further emphasizes. These new provisions will sunset on January 1, 2026, when Section 54952.2 of the Government Code will return to the prior language. However, regulation of social media communications is likely to only increase in the coming years.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

In light of the violent events taking place around the country involving firearms, various states’ “open carry” restrictions are facing Second Amendment challenges. A new ruling last week from a federal court in Sacramento found that while California’s strict open carry requirements can withstand a Constitutional challenge for now, these laws may face additional challenges in light of a Ninth Circuit decision that is expected later this year.

In Baird v. Becerra (“Baird”), the two plaintiffs, who reside in Siskiyou and Shasta County respectively, alleged that they were unable to obtain an open carry license, in violation of their Constitutional rights. Under California law, a Sheriff of a county with a population under 200,000 is authorized to issue an open carry permit using the same criteria as concealed carry applications. A concealed carry permit may be issued if an applicant demonstrates: (1) good moral character; (2) “good cause” to issue the license; (3) residency in the county or city where the permit is sought; and (4) completion of the necessary training. An open carry license may be obtained only in the county where the applicant resides.

The Baird plaintiffs allege that they were wrongfully denied a permit to openly carry firearms in public for self-defense, citing District of Columbia v. Heller (“Heller”) in which the U.S. Supreme Court declared that the Second Amendment’s main purpose is to protect “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The plaintiffs sought an injunction to prevent the state from enforcing its open carry statutes, arguing that under Heller, the need for self-defense is sufficient “good cause” for a permit.

U.S. District Judge Kimberly Mueller denied the requested injunction, citing a California case that interpreted Heller to mean the Second Amendment does not extend a right to carry firearms in public. Judge Mueller also wrote that despite this precedent, the plaintiffs nonetheless raise “serious questions” regarding the Second Amendment, which are currently before the Ninth Circuit as it considers a similar challenge to Hawaii’s open carry ban.

In the pending Ninth Circuit case, Young v. Hawaii (“Young”), the Court will be rehearing the decision of a three-judge panel, which held that “the Second Amendment encompasses a right to carry a firearm openly in public for self-defense,” and that right is at the “core” of the Amendment. The Young decision, which will be binding in California, is expected to clarify the Constitutional scope of California’s open carry laws, especially in light of another challenge to California’s open carry laws currently before the Ninth Circuit, Nichols v. Newsom, which is currently stayed pending the Young decision. Young is scheduled for oral argument on September 24, 2020.

We will continue to monitor this changing legal landscape and report on further developments as they arise. A link to the Baird v. Becerra decision can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Doug White at Doug@whitebrennerllp.com, Nubia Goldstein at Nubia@whitebrennerllp.com, or Scott Miller at Scott@whitebrennerllp.com.

Los Angeles County has entered into a stipulated settlement with the state’s Fair Political Practices Commission (“FPPC”) for using taxpayer dollars to support a ballot measure and failing to report the expenditures.

In 2017, the County’s Board of Supervisors voted to put Measure H on the County’s March 2017 Special Election ballot. Measure H increased the County’s sales tax by a quarter-cent to fund homeless services.

The County authorized a $1 million budget in support of Measure H. The expenditures included paid media advertisements and a contract with a private consultant to promote the measure. The advertisements ran on television and radio and were far from impartial, always including the slogan: “Measure H, Real Help, Lasting Change, Vote March 7.”

The Howard Jarvis Taxpayers Association (“HJTA”) filed a lawsuit against the County for “gross misconduct,” alleging that the County “illegally spent” close to $1 million in taxpayer funds on political advertising and failed to report the expenditures. The civil action prompted the FPPC to pursue an enforcement action against the County.

According to the FPPC, the County’s expenditures were a violation of the law regarding campaign-related communications at public expense. Government Code Section 54964 prohibits any “officer, employee, or consultant of a local agency” from spending “any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure.” While California law allows public funds to be spent providing voters impartial information regarding a proposed ballot measure, it does not allow agencies to take sides in election contests. Any payment of local agency funds that is used for communications that expressly advocate the approval or rejection of a ballot measure is prohibited under the law.

The penalty for the County’s violation could have exceeded $2.4 million. Under the terms of the settlement, the County will pay a $600,000 penalty to the state and $600,000 to HJTA. The settlement also includes a dismissal of the civil suit filed by HJTA and $150,000 in attorneys’ fees.

The FPPC has indicated that it is increasing its enforcement focus on public agency spending in connection with political campaigns and ballot measures. In an August 20, 2020 press release, FPPC Chair Richard C. Miadich called the County’s expenditure a “clear violation of the public trust” and warned that the FPPC “will not sit idly by when public officials illegally use taxpayer money for political purposes,” and that “officials will continue to be a focus and priority for the FPPC.”

Local agencies routinely place measures on their local ballots. Local officials must take caution not to spend taxpayer dollars on communications and campaigns that support or oppose those measures.

For further information about public agency funding of political activities, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Steve Churchwell at Steve@whitebrennerllp.com, Doug White at Doug@whitebrennerllp.com, and Nubia Goldstein at Nubia@Churchwellwhite.com.

Like most, we started 2020 with excitement and big plans for a new year and decade. Now, eight months later, it feels like we’re still just getting started. While it would be easy to get bogged down in what would have and could have been, we instead choose to take this opportunity to think about what we can still accomplish.

To kick off this restart, we would like to congratulate our 2020 Top Lawyers as named by Sacramento Magazine. Their hard work and achievements remind us of the milestones still worth celebrating and infuse us with new energy to tackle whatever the rest of 2020 brings. To learn more about these talented and inspiring attorneys, visit the People page of our website.

Steve Churchwell, selected to Sacramento Magazine’s 2020 Top Lawyers list in the area of Government Contracts.

Douglas L. White, selected to Sacramento Magazine’s 2020 Top Lawyers list in the area of State, Local & Municipal.

Barbara A. Brenner, selected to Sacramento Magazine’s 2020 Top Lawyers list in the areas of Energy & Natural Resources and Environmental.

Nubia Goldstein, selected to Sacramento Magazine’s 2020 Top Lawyers list in the area of State, Local & Municipal.

Thomas P. Hallinan, selected to Sacramento Magazine’s 2020 Top Lawyers list in the area of State, Local & Municipal.

While the last few months have produced continually evolving challenges, setbacks, and hardships that few could have imagined, they’ve also taught us to value what we may sometimes take for granted. We’ve learned that open communication and a collaborative workplace are more important than ever, especially when we’re apart. We’ve thought a lot about the coworkers, clients, friends, and family that we’re used to seeing on a daily basis. Perhaps most significantly, we’ve also noticed the people who stepped up to lead our office through this difficult time.

It’s probably not a coincidence that our Super Lawyers and Rising Stars are the ones that embody this dedication to our clients and coworkers, providing unwavering advice and support, legal and otherwise. To learn more about these talented attorneys, visit the People page of our website.

Super Lawyers

Steve Churchwell, selected to the 2020 Northern California Super Lawyers list in the areas of Government Relations, Administrative Law, and Government Contracts.

Douglas L. White, selected to the 2020 Northern California Super Lawyers list in the areas of State, Local & Municipal, Land Use/Zoning, and Real Estate: Business.

Barbara A. Brenner, selected to the 2020 Northern California Super Lawyers list in the areas of State, Local & Municipal, Environmental, Energy & Natural Resources, and Environmental Litigation.

Randy Pollack, selected to the 2020 Northern California Super Lawyers list in the areas of Government Relations and Administrative Law.

Tom Hallinan, selected to the 2020 Northern California Super Lawyers list in the area of State, Local & Municipal.

Debra Hinshaw Vierra, selected to the 2020 Northern California Super Lawyers list in the area of Employment & Labor: Employer.

Rising Stars

Nubia Goldstein, selected to the 2020 Northern California Rising Stars list in the areas of State, Local & Municipal, General Litigation, and Lobbying.

Kerry Fuller, selected to the 2020 Northern California Rising Stars list in the area of Environmental.

On June 15, 2020, in what some have called a landmark decision, the United States Supreme Court ruled that discrimination in the workplace based on sexual orientation or gender is illegal. Three cases were consolidated into the Bostock v. Clayton County case (590 U.S. _____ (2020))—two involved employees who had been fired for being gay and one involved an employee who was fired after she announced her intent to transition from male to female. All three plaintiffs were long-term employees who were terminated shortly after the employee revealed that he or she was gay or transgender and all three employers conceded that the sexual orientation or gender was the deciding factor in the terminations.

In Title VII of the Civil Rights Act of 1964, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. The Court, in these cases, was tasked with deciding whether an employer can fire someone simply for being homosexual or transgender.

The only statutorily protected characteristic at issue in the cases was “sex”—and that is also the primary term in Title VII, the meaning of which the parties disputed. The employees conceded, for argument’s sake, that the term “sex” in 1964 referred to “status as either male or female as determined by reproductive biology.”

Ultimately, the Court held that, by any definition, the employers were taking action because of biological distinctions between male and female. Stating that a statutory violation occurs when an employer relies, at least in part, on the employee’s sex in deciding on adverse employment action, the Court explained that the plain language of the statute—prohibiting discrimination “because of” sex—incorporates discrimination based on sexual orientation or transgender status. If an employer fires a male employee for dating a man—but does not fire a female employee for the same conduct—the employer treats the male employee differently for traits or actions it tolerates in his female colleague. If an employer fires a transgender employee who identified as a male at birth and now identifies as female, but retained an employee who identified as female at birth and continues to do so, the transgender employee is being penalized for traits that the employer tolerates in the female employee. Thus, the employee’s sex plays an unmistakable role in the adverse employment decision, and the decision would not have been made “but for” the employee’s sex.

As such, the majority held that treating individual employees adversely because of their sexual orientation or gender identity is inherently discrimination “because of sex” and violates the precepts of Title VII.

Recent prior decisions from the Supreme Court on LGBTQ rights relating to such things as marriage equality, have been based on concepts of dignity, privacy, and constitutional law. In contrast, recent Supreme Court appointee Justice Neil Gorsuch, in authoring the majority’s decision in Bostock, relies on a textual analysis of Title VII—a strictly statutory interpretation. For Gorsuch, known as a “strict constructionist” in his time on the federal bench, the text of the law is the only thing that matters. In writing for the 6-3 majority, he states, “ours is a society of written laws,” and that means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court had to hold that anti-LGBTQ discrimination in the workplace is illegal.

The timing of the Supreme Court’s decision in Bostock is strangely coincidental given President Trump’s issuance of an executive order on June 12, 2020, with the stated goal of “restor(ing) the rule of law” by conforming portions of the Affordable Care Act to the text of Title VII of the Civil Rights Act of 1964. Trump’s proffering of a regulation through the Health and Human Services Agency operates to roll back previous protections enacted by Congress during the Obama administration related to sex and gender identity. Stating that Title VII makes no reference to sexual orientation or gender identity, Trump’s HHS found that Obama’s HHS interpreted protections “on the basis of sex” in an overly broad manner when they included the right of homosexual or transgendered Americans to protection and equal opportunity in seeking or obtaining medical treatment. It is one of many rules and regulations put forward by the Trump administration that defines “sex discrimination” as only applying when someone faces discrimination for being female or male, and does not protect people from discrimination on the basis of sexual orientation or gender identity. Such an action seems guaranteed to be challenged based on the Bostock analysis of the exact same provision of, and definitions within, the Civil Rights Act of 1964.

The Bostock decision will directly impact workplaces in many states. Most states do not have statutes prohibiting discrimination on the basis of sexual orientation or gender identity. Thus, before Bostock, discrimination on those bases was legal. It is now expressly prohibited in all jurisdictions under federal law. However, the decision will likely not have a significant impact on day-to-day operations for California employers, who, since 2012, have been subject to state laws prohibiting discrimination based on sexual orientation and gender identity and expression. The decision will, however, expand California employees’ rights to sue in federal court.

The takeaway from the Bostock case is that employment decisions that are in any way influenced by sex are prohibited and will now subject California employers to potential liability under federal law, as well as existing state statutes.

If you have questions on labor or employment issues, please contact Debra Hinshaw Vierra at (916) 468-4243 debra@whitebrennerllp.com or Erin Dervin at (916) 468-0623 erin@whitebrennerllp.com.