A Message from Olson Remcho Regarding COVID-19 (UPDATED 3/17/20)

Dear Clients and Friends,

As the coronavirus (COVID-19) continues to disrupt daily life, we want to assure you that Olson Remcho will be working diligently to address our clients’ needs during this period while ensuring that our employees remain safe.  As of close of business Tuesday, March 17, 2020, our lawyers and staff in Oakland, Sacramento and Long Beach will be working remotely.  Our IT systems will allow us to continue to provide our full range of services to our clients throughout. Please do not hesitate to continue to email or call us about your legal or reporting needs. 

We hope all of you remain safe and healthy, and we thank you for your trust in us. 

Olson Remcho

Challenge to Constitutionality of Proposition 22 – Castellanos v. State of California

Olson Remcho is co-counsel for the SEIU and other plaintiffs in this case.  Set out below are links to the court documents filed on January 12, 2021 and the SEIU press release.

Castellanos v. State Of California – Request for Judicial Notice and Memorandum of Points and Authorities

Prop 22 will live in infamy alongside unconstitutional ballot measures like Prop 8 and Prop 187

Castellanos v. State Of California – Emergency Petition for Writ of Mandate & Request for Expedited Review

Service Employees International Union
FOR IMMEDIATE RELEASE: January 12, 2021
Contact: Matt Lopez, [email protected], 805-377-2950

California Rideshare Drivers File Suit Charging Proposition 22 Violates State Constitution
Ballot measure pushed by gig-economy giants unconstitutionally limits state’s power to protect basic rights of rideshare drivers
Plaintiff: ‘Prop 22 will live in infamy alongside unconstitutional ballot measures like Prop 8 and Prop 187’

SAN FRANCISCO — California app-based drivers, rideshare consumers and labor unions filed a lawsuit Tuesday alleging Proposition 22 violates the state’s constitution and should be struck down.  The suit, filed in California Supreme Court, alleges Prop 22 unconstitutionally limits the power of elected officials to govern, including by stripping the legislature’s ability to grant workers the right to organize for improvements to their pay and working conditions as well as by illegally excluding them from the state workers’ compensation program. The suit also asserts Prop 22 violates a provision in the State Constitution requiring ballot initiatives address only a single subject.

Plaintiffs include rideshare drivers Hector Castellanos, Saori Okawa, Michael Robinson; Joseph Delgado, a user of app-based rideshare services; and the Service Employees International Union (SEIU) and SEIU California State Council.

“Every day, rideshare drivers like me struggle to make ends meet because companies like Uber and Lyft prioritize corporate profits over our wellbeing,” said plaintiff Saori Okawa. “ With Prop 22, they’re not just ignoring our health and safety — they’re discarding our state’s constitution. I’m joining this lawsuit because I know it’s up to the people we elect to make our laws, not wealthy executives who profit from our labor. I’m confident the court will see Prop 22 for the corporate power grab that it is, and that Prop 22 will live in infamy along with unconstitutional ballot measures like Prop 8 and Prop 187.”

There is a long history in California of attempts to circumvent the California Constitution and deny people their rights, including Prop 187, which attacked immigrant communities, and Prop 8, which attacked the LGBTQ+ community. Both were ultimately ruled unconstitutional. Prop 22, which took effect last month, defines “App-Based Drivers” as independent contractors rather than as employees, and thereby withdraws basic employment protections from them, including workers’ compensation coverage. It also goes further than that, precluding the legislature from passing various types of legislation not directly related to the measure’s classification of App-Based Drivers as independent contractors.

The measure has left rideshare drivers in a precarious position as California experiences a dangerous spike in COVID-19 infections. Prop 22 stripped California gig workers of basic rights like overtime pay, paid family leave, sick days, unemployment insurance and a voice on the job through a union. Instead, Prop 22 places the power to protect drivers in the hands of rideshare companies like Uber and Lyft — the very same companies who wrote the unconstitutional law, spent over $200 million to pass it last November and who have proven time and again to prioritize profits over the safety and well-being of their drivers.

“Although titled the “Protect App-Based Drivers and Services Act,” Proposition 22 actually withdraws minimum employment protections from hundreds of thousands of California workers,” the suit alleges. “That result would be profoundly harmful to many workers, but not necessarily unconstitutional, if the measure had not overreached in several significant ways.”

THREE STRIKES AGAINST CALIFORNIA’S CONSTITUTION

The lawsuit alleges Proposition 22, as written by Uber and Lyft, denies drivers rights under the law in California and makes it nearly impossible for lawmakers to fix these problems. The suitcharges the measure violates the California Constitution in at least three specific ways:

● Prop 22 unconstitutionally limits the ability of the California legislature to establish and enforce a system of workers’ compensation for gig workers. The California Constitution gives the Legislature “unlimited” authority to provide for a worker’s compensation
system, so that authority cannot be limited by a statutory initiative.
● Prop 22 unconstitutionally defines an amendment as any legislation that authorizes any entity to collectively bargain on drivers’ behalf or that treats rideshare drivers differently from other workers. In California, it is the constitutional authority of the legislature to enact legislation so long as it does not impermissibly amend a ballot measure, and of the judiciary to decide what constitutes an amendment to a ballot measure.
● Prop 22 unconstitutionally violates the “single subject rule” governing ballot measures in California, which requires initiative statutes to only address a single subject addressed in the measure’s substance.

“We look forward to the court affirming that gig companies cannot strip workers of their fundamental right to bargain for better pay and working conditions — and that corporations alone should not dictate the laws in our state,” said Bob Schoonover, President of SEIU Local 721 and SEIU California State Council. “Like Prop 187 and Prop 8, Prop 22 is an unconstitutional attack on Californians’ rights that if left unchecked will grant permission to companies like Uber and Lyft to dismantle workers’ rights across the country. SEIU is proud to support drivers’ fight to stop this unconstitutional law.”

“Just like every other worker, rideshare drivers should have a right to join together in a union and bargain for better pay and working conditions,” said SEIU President Mary Kay Henry. “SEIU has always stood with working Californians when their basic rights have been threatened, and we’ll continue to support their fight against the unconstitutional Prop 22 and companies like Uber and Lyft that prioritize corporate profit over worker safety. We won’t rest until rideshare drivers have the same opportunities other workers have to have a seat at the table with their employer.”

“We stand with the hard-working drivers whose exploitation by Uber and Lyft will only deepen as a direct result of Prop 22,” said California Labor Federation Executive Secretary-Treasurer Art Pulaski. “This unconstitutional law, which gig companies bought with hundreds of millions of dollars in political spending, is an affront to the fundamental protections and rights all workers deserve and should be expeditiously struck down by the courts.”

Today at noon, rideshare drivers in Los Angeles will take to the streets to support the plaintiffs in their fight against the unconstitutional Prop 22. Drivers will organize car caravans, honking their horns and holding signs as they wind through the streets to raise awareness of the drivers’ fight.

Olson Remcho Elevates Kristen Mah Rogers to Partnership

Olson Remcho is pleased to announce that Kristen Mah Rogers has become a partner of the firm effective January 1, 2021. 

Rogers represents public and private clients in litigation over election law, education funding, public policy, and constitutional issues with a focus on federal litigation.  She also advises clients on political and government law matters, including conflict of interest and ethics regulations, and redistricting. 

Kristen came to us as an experienced federal litigator and quickly became a key player on our litigation team.

“Kristen came to us as an experienced federal litigator and quickly became a key player on our litigation team,” said Managing Partner Karen Getman.  “Her sharp mind and great communication skills make her a valuable part of our advice and initiative practices as well, where she helps solve complex legal problems for clients in all areas of our practice.”

Prior to joining the firm, Rogers represented clients in high-stakes litigation in civil and criminal matters at Farella Braun + Martel LLP.  From 2014 until mid-2015, she clerked for the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California.  She started her legal career in the Washington, D.C. working on redistricting and voting rights cases at Jenner & Block LLP.  Rogers is a graduate of University of California, Berkeley (B.A. with honors; Phi Beta Kappa), Pace University (M.S.T.), and Harvard Law School (J.D., cum laude). 

Throughout her career, Rogers has been committed to public service and pro bono work, including representing clients seeking asylum and parole, and successfully challenging a statewide voter purge.  During law school, she interned at the San Francisco City Attorney’s Office, participated in Harvard’s Trauma and Learning Policy Initiative, and was an editor for the Harvard Civil Rights-Civil Liberties Law Review and Harvard Law and Policy Review.  Prior to law school, she taught middle school American history and English language arts as part of Teach for America. 

Compliance Reporting Unit Overcomes COVID-Imposed Obstacles in a Busy Election Year

Olson Remcho assists a wide range of clients, including candidates, political action committees, non-profit organizations, labor unions,  individuals, lobbying organizations and others in complying with complex campaign and lobbying reporting requirements and limitations under federal, state and local laws.

The firm’s Compliance Reporting Unit,  staffed by a trained and experienced team of political reports specialists based in the Sacramento and Long Beach offices and overseen by firm attorneys, ensures that all funds raised to support or oppose candidates or initiatives are reported in a timely way and used in compliance with local, state and federal laws.  The Compliance Reporting Unit also ensures that its clients which engage in state and local legislative and administrative lobbying are disclosing their activity in compliance with complex state and local lobbying ordinances.

We took what had been a 100% paper-based operation and moved it to an electronic system staffed by team members working from home,

The Compliance Reporting team was faced with an unprecedented challenge when COVID-19 hit at the start of a busy election year.  Led by Partner Lacey Keys and Director of Compliance and Operations Michelle Wixom, the firm’s Compliance Reporting team had to adapt quickly to the challenges of working remotely in the midst of the pandemic.  “We took what had been a 100% paper-based operation and moved it to an electronic system staffed by team members working from home,” said Keys.  “We made the switch while serving clients who were going through their own disruptions;  I can’t say there weren’t a few hiccups and points where we wondered if we could actually pull it off, but Michelle and her team never wavered and ultimately knocked it out of the park.”

Wixom echoed Keys praise: “I’m so proud of our team’s ability to adjust and pivot given the adversity.  They exhibited so much creativity in responding to unexpected challenges.  We had talked for years about making the switch to an online system, but COVID  was the catalyst.  We fulfilled our commitment to get client work done and protect their money, while taking care of the health and safety of clients and staff.”

Keys notes that 2020 was an exceptionally busy year with the Compliance Reporting team filing thousands of reports for clients in addition to cutting thousands of checks.  “The volume was higher than we’ve ever seen,” she said.  “We’re proud that we played a part in helping clients achieve their political objectives.”

Keys and Wixom both talk about the amazing job their team members did balancing client and family concerns given the challenges of working at home – from caring for young children and/or elderly family members to helping school age children with their homework and keeping them productively occupied when not in class.  “Everyone had to be flexible when it came to work schedules,” said Wixom, “but we found it more than paid off in the end. We realized that  by moving our systems online and working remotely, we can be available in more ways and help clients more quickly and efficiently than we could before.”

Olson Remcho Litigation Team Ends 2020 on a High Note

The attorneys at Olson Remcho are known for their California trial and appellate work on complex cases raising novel issues of political, governmental and constitutional importance.  Clients have included political candidates, city and county governments, state government agencies, ballot measure committees, nonprofit organizations and associations, the California Legislature, the Governor and other constitutional officers. 

“2020 was another busy and interesting year for our litigation practice, which ended the year with a high impact appellate win,” said Margaret Prinzing, a litigation partner in the firm’s Oakland office.  “Our litigators were in the middle of the fight over ballot measures, county and state tax issues, and California’s compliance with 2020 U.S. Census requirements, among a number of other important cases.”

Our litigators were in the middle of the fight over ballot measures, county and state tax issues, and compliance with U.S. Census requirements.

On December 17, 2020, a California Court of Appeal panel ruled unanimously for a Fresno community organization represented by Olson Remcho, reversing a lower court decision and finding that voter initiative measures proposing special taxes need only simple majorities for passage.  Tom Willis argued  the case before the appellate panel, appearing with Karen Getman and Ben GevercerDeborah Caplan and Lance Olson were the trial court team on the case.

Earlier in the year Willis and Robin Johansen successfully represented the California State Legislature in seeking relief from census certification deadlines from the California Supreme Court, which the Court granted on July 17.  As noted in the Court’s opinion, “As a result of the current COVID-19 pandemic . . . the federal Census Bureau has announced that census data collection and processing will be delayed. Under the Census Bureau’s modified timeline, the data required to draw new district maps will not be released to the states in time for the Commission to meet the redistricting deadlines set forth in California law. In view of the anticipated delay and to ensure that the Commission will be able to perform its redistricting function in time for the 2022 elections, the Legislature has filed an emergency petition for a peremptory writ of mandate seeking relief from the deadlines set by California law.”

The firm was also involved in a number of high-profile tax cases.  Johansen, Willis and Prinzing successfully defended the validity of a San Francisco Bay Area bridge toll increase imposed by the Legislature, with voter approval, against charges that the toll increase was an invalid tax under article XIII A, section 3 of the California Constitution. Howard Jarvis Taxpayers Assn. v. Bay Area Toll Authority, 51 Cal. App. 5th 435 (2020). The case is currently on hold in the California Supreme Court while the Court reviews a decision in a different related case.

Prinzing and Johansen are representing several California counties in two challenges to the unitary tax rate under state and federal law.  In AT&T Mobility v. County of Riverside, the firm is defending the constitutionality of tax rates required under the California Revenue & Taxation Code in Riverside County Superior Court.  In November, the court denied plaintiffs’ motion for judgment on the pleadings.  In BNSF Railway Company v. County of Alameda et al., a group of counties are appealing a lower court ruling to the Ninth Circuit, arguing that California’s unitary tax rate does not violate a federal statute prohibiting tax discrimination against railroads. 

As usual in an election year, firm attorneys played a leading role in drafting of a number of ballot measures and then addressing legal issues relating to those initiatives in court.  Olson, Caplan and Gevercer successfully challenged several ballot pamphlet statements by opponents of Proposition 15 (Split Roll Measure) in one action in Sacramento Superior Court and defended Proposition 15 proponents’ statements in another.   Harrison, Getman and Kristen Rogers represented proponents of Proposition 14 (Stem Cell Funding) in an action challenging statements made by opponents in ballot pamphlet arguments and obtained a favorable settlement for proponents of Proposition 14.

Finally, Harrison and Rogers successfully defended the California Coastal Commission in Spotlight on Coastal Corruption v. California Coastal Commission, which alleged claims based on conflicts of interest, California’s Public Records Act, and open meetings laws.

Olson Remcho at Center of 2020 California Voter Initiative Process

In virtually every statewide election cycle over the last forty years, Olson Remcho attorneys have drafted or advised on some of the most important statewide initiatives to appear on the ballot. 2020 was no exception.  In a remarkably active election year, Olson Remcho attorneys had a hand in 10 of the 12 statewide initiatives on the ballot in 2020.

“We launched Olson Remcho in 2020 as the combination of two of the most powerful and influential political and election law firms in California,” said founding partner Lance Olson.  “Our involvement in all but two of this year’s initiatives demonstrates just how deep the firm’s experience goes.”

Our involvement in all but two of this year’s initiatives demonstrates just how deep the firm’s experience goes.

Olson and Managing Partner Karen Getman played a leading role in the drafting of Proposition 15 (Split Roll Measure) that would have amended California’s property tax structure.  Partner James Harrison drafted and advised on two other high profile measures– Propositions 14 (Stem Cell Funding) and Proposition 24 (California Privacy Rights Act)  – both of which were passed by California voters.  

The firm also supported proponents of two of these three measures in court.  Olson, Deborah Caplan, and Ben Gevercer of the Sacramento office successfully challenged several ballot pamphlet statements by opponents of Proposition 15 in one action in Sacramento Superior Court and defended Prop 15 proponents’ language in another.   Harrison, Getman and Kristen Rogers of the Oakland office represented proponents of Proposition 14 in an action challenging statements made by opponents in ballot pamphlet arguments against the initiative and negotiated a favorable settlement of the matter that  obtained a favorable settlement for proponents of Proposition 14.

The firm’s Compliance Reporting Unit, which ensures that all funds raised to support or oppose candidates or initiatives are reported in a timely way and used in compliance with local, state and federal laws, was also extremely active on 2020 ballot measures.  Led by Partner Lacey Keys and Director of Compliance and Operations Michelle Wixom, the firm’s compliance team provided full support for five California initiative campaigns, including Yes on 15, Yes on 16, No on 22, Yes on 24, and Yes on 25 – filing thousands of reports for clients in the process. 

“It was shaping up to be an intense and challenging election year even before COVID hit,” said Keys.  “I’m so proud of Michelle and her compliance team for skillfully handling the myriad of challenges posed by COVID-19 without losing their focus on providing timely and accurate service to clients.”

Harrison notes that the COVID-19 pandemic also impacted the initiative process itself.  Because of COVID-19, the ability of initiative proponents to collect a sufficient number of signatures was drastically curtailed.  This collection issue affected three of the firm’s clients.  The proponents of Prop 24 were able to collect signatures and timely submit them, but because one county submitted its raw count after 5 p.m., the Secretary of State notified the counties that they had until June 26, one day after the deadline for certification to submit their signature verification.  On behalf of the proponents, the firm sued the Secretary of State and obtained a ruling requiring the SOS to order the counties to submit by June 25 to ensure that the measure could qualify for the November ballot. 

Two other clients – the proponents of a single use plastics measure and a sports wagering measure – were further behind, and because of COVID-19, were unable to collect a sufficient number of signatures within the 180 days allowed by the Elections Code.  On behalf of the proponents of these measures, the firm sued the SOS and obtained rulings extending their time to gather signatures.  Both clients have now turned in their signatures in an effort to qualify for the next statewide ballot.

Appeals Court Rules That Initiatives Proposing Special Taxes Need Only a Simple Majority for Passage

On December 17, 2020 a California Court of Appeal panel ruled unanimously for a Fresno community organization represented by Olson Remcho, reversing a lower court decision and finding that voter initiative measures proposing special taxes need only simple majorities for passage.  The published opinion in City of Fresno v. Fresno Building Healthy Communities is here.   

The firm handled the case at both the trial and appellate levels.  Tom Willis argued in the case before the appellate panel, appearing with Karen Getman and Ben GevercerDeborah Caplan and Lance Olson were the trial court team on the case.

California Court of Appeal panel rules unanimously for a Fresno community organization represented by Olson Remcho

According to the court’s opinion, “In the November 2018 general election, 52.17% of Fresno voters voted for Measure P, a voter initiative measure entitled the ‘Fresno Clean and Safe Neighborhood Parks Tax Ordinance.’ . . .After FBHC filed its opening brief, the First District Court of Appeal filed its opinion in City and County of San Francisco v. All Persons, 51 Cal.App.5th 703. There, the First District was presented exactly the same questions presented here, namely, whether Proposition 13 and Proposition 218 require a two-thirds vote of the electorate for passage of a voter initiative that imposes a special tax. In that case, the City and County of San Francisco filed a petition for declaratory relief asking for a determination that a special tax initiative that received 61 percent of the vote be declared passed. (All Persons, supra, 51 Cal.App.5that p. 708.) The trial court granted the City and County of San Francisco’s motion for judgment on the pleadings, and the First District affirmed. (Id. at pp. 708-709.) The First District ultimately concluded neither Proposition 13 nor Proposition 218 affects the voters’ initiative power, and therefore neither imposes a two-thirds voting requirement on the passage of voter initiatives that impose special taxes. (Ibid.) We fully agree with and endorse the holdings and reasoning of All Persons, and find that case controls the outcome here. We reverse.”

Olson Remcho’s Harrison Plays a Key Role in Drafting and Adoption of Landmark California Privacy Legislation

James C. Harrison,  a founding partner of Olson Remcho, is widely recognized as one of California’s leading experts on the drafting and defense of complex ballot measures at both the state and local level.  In 2020 he drafted and advised on several statewide measures, including the California Privacy Rights Act (“CPRA”), a landmark consumer privacy measure, that was approved by Californians as Proposition 24 in November 2020. 

Harrison’s work on California’s privacy laws began in 2017 when he was retained by Alastair Mactaggart and his advocacy group Californians for Consumer Privacy (“CCP”) to draft a ballot measure that would give Californians new privacy rights and more control over the personal data that they share online.  Mactaggart had become alarmed about the way that the major tech and social media companies were exploiting users’ location, spending habits, political views and other personal information to sell targeted advertising.

After CCP collected enough signatures to qualify the initiative for the November 2018 election, the California legislature jumped into the picture with their own bill.  On behalf of Mactaggart and CCP, Harrison participated in an intense two-week drafting and reconciliation session with legislators in June 2018 that married the two pieces of legislation and ultimately resulted in the groundbreaking California Consumer Privacy Act (“CCPA”).  At the time it was passed the CCPA was the strictest privacy law in the U.S. and immediately became a model for similar legislation in other states.

“The passage of the CCPA in 2018 shows how policy issues can get a head of steam when the circumstances are right,” said Harrison.  “In the case of privacy and the misuse of personal data, the Cambridge Analytica scandal and numerous high profile data breeches had created a public  uproar and awakened legislators to the importance of privacy issues to their constituents. Being there when the legislature unanimously adopted the legislation was one of the most remarkable moments in my life.”

But the new legislation wasn’t perfect.  Harrison notes that Mactaggart and CCP came back to him in 2019 to help protect the original legislation against efforts by various business groups to water it down.  Because of the unique legislative process by which the CCPA was created, Mactaggart and his group had no ability to control future amendments and were thus constantly fighting off attempts to amend the law, including from major tech companies seeking to lessen its impact.  For that reason they turned to Harrison for help drafting and qualifying Proposition 24, the CPRA, which made important changes to their original initiative.

The new privacy law, which will go into effect in 2023, lets consumers limit businesses’ use of their sensitive personal information and to opt out of to the sharing of their data, which will mean users are no longer at the mercy of tech companies that have been using their personal data to create targeted ads.  The CPRA also creates a new state agency to enforce the law – a responsibility that had previously been lodged with the California Attorney General.

“These are complex issues and Alastair and the CCP are in the fight for the long term,” added Harrison.  According to Mactaggart, “We are at the beginning of a journey that will profoundly shape the fabric of our society by redefining who is in control of our most personal information and putting consumers back in charge of their own data.”

Robin Johansen and Tom Willis to speak at MLI Symposium

Robin Johansen and Tom Willis of Olson Remcho will be speakers at the MLI Symposium 2020 in San Francisco on Friday, March 6, 2020. They will take part in the Voting Rights Litigation and Strategy session from 10:30am-12pm. For more information or to register for this event, please visit here.