With this year’s November election fast approaching, attorneys at Olson Remcho have been representing local governments on a wide range of election issues, including matters for Los Angeles County, the City of Redwood City, the City of Berkeley, and the City of Oakland. 

Partner Tom Willis, who advises a number of municipalities on redistricting, election law, conflicts of interest, and initiatives and referenda, notes that the gradual consolidation of what were previously off-year local elections into the every-two-year statewide cycle has led to a jam-packed ballot including numerous local and state races and initiatives. 

“It’s a hectic, but interesting time for election lawyers,” said Willis.  “The issues are all over the map from fairly straightforward issues like bringing city charters into compliance with current state law, such as California Voting Rights Act, to litigated matters like granting the vote in school board elections to non-citizens – a case we’re currently handling for the City of Oakland.”

In that case, an Alameda County Superior Court judge ruled on August 30, 2022 that a City of Oakland ballot measure that would allow the Oakland City Council to authorize non-citizens to vote in school board elections can be put before voters in November. 

In January 2022 the Oakland City Council voted to place a measure on this November’s ballot that would amend the Oakland Charter to allow the Council, by ordinance, to authorize non-citizens, who make up 14% of Oakland’s population, to vote in school board elections, giving them “representation in key decisions that impact their education and their lives.”  The City was sued to keep the measure off the ballot, with opponents arguing that such a measure would conflict with the state Constitution that declares, “A United States citizen 18 years of age and resident in this State may vote.”  A similar law in San Francisco was ruled unconstitutional by a state judge earlier this year; that decision is on appeal.

In his ruling, Judge Michael Markman stated, “There’s a strong presumption under California law that the constitutionality of ballot initiatives is determined after the election is over.” According to a San Francisco Chronicle article on the case,  Olson Remcho’s Karen Getman argued that “the right to speak on ballot measures is one of the most precious rights in our state.”  Getman told the Chronicle after the hearing, “We are very pleased that Judge Markman understood the importance of allowing the voters to decide on the measure in the first instance.”

An Alameda County Superior Court judge ruled on August 30, 2022 that a City of Oakland ballot measure that would allow the Oakland City Council to authorize non-citizens to vote in school board elections can be put before voters in November.  Olson Remcho represents longtime client City of Oakland on the matter.

In January 2022 the Oakland City Council voted to place a measure on this November’s ballot that would amend the Oakland Charter to allow the Council, by ordinance, to authorize non-citizens, who make up 14% of Oakland’s population, to vote in school board elections, giving them “representation in key decisions that impact their education and their lives.”  The City was sued to keep the measure off the ballot, with opponents arguing that such a measure would conflict with the state Constitution that declares, “A United States citizen 18 years of age and resident in this State may vote.”  A similar law in San Francisco was ruled unconstitutional by a state judge earlier this year; that decision is on appeal.

In his ruling, Judge Michael Markman stated, “There’s a strong presumption under California law that the constitutionality of ballot initiatives is determined after the election is over.” According to a San Francisco Chronicle article on the case,  Olson Remcho’s Karen Getman argued that “the right to speak on ballot measures is one of the most precious rights in our state.”  Getman told the Chronicle after the hearing, “We are very pleased that Judge Markman understood the importance of allowing the voters to decide on the measure in the first instance.”

Olson Remcho is very pleased and proud to report that Managing Partner Karen Getman has been named to Capitol Weekly’s Top 100 for 2022.  Olson Remcho’s Robin Johansen and Lance Olson were previously named to the Top 100 list.

According to Capitol Weekly, “Karen Getman is a political attorney whose clientele is a veritable Who’s Who of Democratic political power in California. She has deep knowledge of the arcane intricacies of political and campaign finance law, including the quagmire of regulations originating in the 1974 Political Reform Act, which created the state’s campaign finance “watchdog,” the California Fair Political Practices Commission. Named by Gov. Gray Davis as the first woman chair of the FPPC in 1999, she had been an attorney in the legendary Democratic political law firm founded by one of  her mentors, Joe Remcho, a prominent legal adviser to top Democratic politicians, who died tragically in a helicopter accident in 2003. She returned to the Remcho firm as a partner after a four-year term as FPPC chair – during which she toughened enforcement of campaign disclosure laws and worked to simplify some of the byzantine FPPC rules. In 2020, the Remcho firm merged with another powerhouse Democratic political law firm, with Getman as the first managing partner of Olson Remcho.”

Every ten years following the U.S. Census, most California local jurisdictions are required to redraw district boundaries to reflect new population counts and ensure compliance with state and federal law.  The 2022 redistricting cycle has been uniquely fast-paced and challenging due to new substantive and procedural laws governing the California redistricting process and pandemic-related census delays, which required jurisdictions to redistrict under tight timelines to ensure that the new maps could be implemented for the 2022 elections.

Attorneys at Olson Remcho, including Robin Johansen, Tom Willis and Kristen Rogers, provide practical advice to California public officials and line-drawers about all aspects of the redistricting process, including the hiring of experts and line-drawers, the appropriate use of data, conducting public hearings and fact-gathering, applying redistricting criteria to line-drawing, drafting redistricting plans, working with public officials to pass legislation, and defending the plan in any subsequent challenges. 

The firm’s ongoing representation of the Orange County Committee on School District Organization (OCCSDO) is a case in point.  In the weeks leading up to the final redistricting deadlines for the June 2022 primary election, OR attorneys successfully defended the OCCSDO against repeated attempts by the Orange County Board of Education and an incumbent Board of Education Trustee to wrest control over the Board of Education’s trustee area boundaries redistricting from the OCCSDO. 

In the five weeks the case played out in Orange County Superior Court in January and February 2022, two different judges sided with OR’s clients and denied Temporary Restraining Orders (TROs) sought by the Orange County Board of Education that would have replaced the OCCSDO’s adopted redistricting map with the Board’s own preferred redistricting map.  At this time, OCCSO’s redistricting plan remains in place for the June 2022 election. 

 “A majority of the members of the Orange County Board of Education went to extraordinary lengths to put their own redistricting lines in place despite the County Committee’s clear statutory authority to draw the lines,” according to Johansen. “We are very pleased we were able to defeat their TROs so that the lines drawn by the County Committee would be used for this year’s election instead.”

With the June 7, 2022 California primary election fast-approaching, Olson Remcho’s Compliance Reporting Unit is hard at work filing numerous disclosure reports on behalf of the firm’s clients. Lead by our Director of Compliance Michelle Wixom, our Compliance Reporting Unit manages filings for over 400 filers, including PACs, major donors and lobby filers.

Below are our top five tips to ensure compliance during election season.

1. Verify contributions limits before making a contribution. Contribution limits vary at the federal, state and local levels and are also periodically adjusted for inflation. In addition, certain jurisdictions place restrictions on the sources permitted to contribute, including a federal prohibition on contributions from corporations and labor organizations to federal candidates and certain types of federal PACs. Finally, many local jurisdictions in California that did not previously have a contribution limit are now subject to state contribution limits as of January 1, 2021.
2. Ensure compliance with federal, state and local disclaimer requirements for all advertisements. Almost any type of political advertisement will require some kind of “paid for by” disclaimer. The language, font size, and other specifications vary depending on the type of advertisement and the jurisdiction. Under state law, the Fair Political Practices Commission is authorized to impose penalties up to three times the cost of an advertisement for an inaccurate disclaimer. Disclaimers are an area of risk and we recommend seeking legal review before disseminating political advertisements to ensure compliance with all disclaimer requirements.
3. Calendar all reporting deadlines. Whether you are responsible for preparing your PAC’s filings or our firm is responsible for doing so, calendaring applicable reporting deadlines is important to ensure your availability to review, sign and file all required reports on time. Unlike tax returns, extensions are generally not available for campaign finance reports.
4. Ensure treasurer availability and add an assistant treasurer as backup. Once you calendar the deadlines, ensure that the PAC treasurer or responsible officer for a Major Donor filer is available to sign the required reports. Adding an assistant PAC treasurer to your Statement of Organization can ensure that a backup signer is available if the treasurer is unavailable to sign.
5. If you make contributions in another state, first verify the limits and any applicable reporting requirements. Different states impose different limits and restrictions on who can contribute, and how much. In addition, different states have different thresholds at which registration and disclosure is required by contributors.

If you have any questions regarding your filing obligations, we encourage you to contact your Olson Remcho attorney.

Attorneys in the public retirement law practice at Olson Remcho provide cutting edge legal advice, representation, and consulting services to California’s state and local public retirement systems. 

Chris Waddell, former General Counsel of the California State Teachers’ Retirement System (CalSTRS), established and heads the practice.  Chris, now senior attorney at Olson Remcho, joined Olson, Hagel & Fishburn, LLP in 2008.  He previously served as General Counsel for two California public retirement systems; first at CalSTRS, the second largest public pension fund in the country, and later at the San Diego City Employees’ Retirement System (SDCERS). 

“California’s state and local public retirement systems, charged with protecting the retirement savings of millions of Californians, have often led the way for retirement systems across the country,” said Chris.  “I enjoy working with my clients on the day-to-day challenges of administering their systems and assisting them with resolving complex fiduciary law and governance issues.  It’s been exciting and satisfying to me to have been able to play a role in their continuing development and strengthening over the last 24 years.” 

The public retirement law team at Olson Remcho also includes partner Kristen Rogers, as  well as other senior firm attorneys with exceptional expertise in government law issues and litigation.  Several firm attorneys, including Chris, serve as outside general or special counsel to state and local public agencies.

Chris currently serves as the outside General Counsel to the San Luis Obispo County Pension Trust, the Imperial County Employees’ Retirement System, and the San Joaquin Regional Transit District Retirement Board.  He also serves  as the outside counsel for the CalSTRS Appeals Committee, and as fiduciary counsel the Los Angeles County Employees Retirement Association and  two City of Los Angeles retirement systems.  He has also worked with SDCERS, the San Diego County Employees’ Retirement Association and the City of Oakland Police and Fire Retirement System.  In addition, he has provided advice on fiduciary law issues to the state public retirement systems in Pennsylvania and Maine.  Working with Funston Advisory Services, he has assisted with comprehensive governance reviews for the City of New York’s retirement systems and the Texas Teachers’ Retirement System.

While at CalSTRS, Chris worked with Olson, Hagel and Fishburn’s litigation team led by Deborah Caplan and oversaw the strategy that recovered $700 million in unpaid pension contributions plus interest from the State of California in the Teachers Retirement Board v. Genest case.  He also developed and administered an innovative securities litigation policy that recouped approximately $200 million in CalSTRS investment losses and worked with the CalSTRS Board in its adoption of significant enhancements to its governance and conflicts of interest policies, including “pay to play” policies and regulations that received national attention.

With the help of a legal team including Olson Remcho associate Rachael Rutkowski, a lesbian woman, who fled from Russia with her partner because she feared for her life after being subjected to multiple instances of violent persecution because of her sexual orientation, was granted asylum in the United States in December 2021.  The couple, who married in San Francisco after coming to the U.S., now have a young child and with the December ruling are assured of being able to remain in the U.S. and pursue a path to citizenship.

The legal team, including Rachael, OR partner Margaret Prinzing and Rachael’s former colleagues at Perkins Coie LLP, successfully had their client placed on a short list after five years of waiting for a credibility interview and, in November 2021, persuaded to the U.S. Citizenship and Immigration Services adjudicating officer that the woman should obtain asylum. 

Rachael and her co-counsel were able to show that it was likely that the woman would be subject to further persecution if forced to return to Russia where her government employer had joined in persecuting her and the police were unwilling to protect her against the increasingly violent physical attacks to which she was being subjected.  Russia continues to be a dangerous place for the LGBTQ+ community.

Olson Remcho’s Richard Rios and Chris Micheli, an attorney and lobbyist with the governmental relations firm of Aprea & Micheli, co-authored an opinion piece in Capitol Weekly on March 3, 2022, FPPC’s rule-making needs a dose of transparency.  

According to the op-ed:

“The Legislature should enact legislation to require the Fair Political Practices Commission (FPPC) to fully comply with the current California Administrative Procedure Act (APA).

While the FPPC takes the position that it is only bound by the version of the APA that was in existing in 1974 (when the FPPC was created by the voters in their adoption of Proposition 9 that also enacted the Political Reform Act), we believe the FPPC should be bound by the current version of the APA.

The FPPC, after all, is focused on transparency in the political and election processes. However, without compliance with the entire APA, the FPPC’s rulemaking procedures are not conforming with contemporary standards that most other state agencies and departments follow.”

Read the entire article here.

In an order issued on February 2, 2022, Sacramento County Superior Court Judge James Arguelles ruled that California suppliers, restaurants and retailers would not be subject to enforcement of Proposition 12 passed by voters in 2018, which imposed new restrictions on whole pork meat sales, until 180 days after the state enacts final regulations. Olson Remcho’s Tom Willis, Karen Getman, Deborah Caplan, and Aaron Silva represent plaintiffs in the case.

The case is California Hispanic Chamber of Commerce vs. Ross. Plaintiffs include California Grocers Association, California Restaurant Association, California Hispanic Chambers of Commerce, California Retailers Association and Kruse & Sons, a meat processor. The order is available here.

Proposition 12 makes distributors and sellers in California liable for criminal and civil sanctions if they knowingly distribute or sell pork raised in a manner that is not in compliance with Prop 12, whether or not the pork was raised in state. The firm represents a group of restaurants, groceries, butchers and other retailers who are seeking to stop the law from being enforced until the state has finalized regulations and implements a system by which farmers can be certified for complying with Prop 12 and that certification can pass through the distribution chain, giving those end users a good faith defense against prosecution. Proposition 12 required those regulations to be completed by September 2019, anticipating the state and the pork industry would need time to set up such a system and adapt practices before the measure became effective on January 1, 2022. However, those regulations are still undergoing agency review and have not yet been finalized.

Olson Remcho partner Tom Willis, who argued the case, said “This comes down to fundamental fairness. It is impossible for the industry to comply with rules that are not yet in place and impossible for retailers to assert the good faith defense that the voters provided for in Proposition 12 until the state and industry have had time to put those rules into practice.”

The California Grocers Association issued a statement after the judge’s ruling, “The court’s decision to ensure regulations are finalized before the enforcement provisions of Proposition 12 take effect was the correct one. California restaurants and families are already struggling with rising food costs and the haphazard implementation of Proposition 12 without any clear rules or certification process in place would have only made it worse.”

A California appeals court in San Francisco ruled on December 30, 2021 that an Oakland parcel tax to fund early education and college readiness that was passed in 2018 could be reinstated, allowing the city to collect $30 million annually in new revenue.

James Harrison and Tom Willis of Olson Remcho drafted Measure AA and Karen Getman and Harrison filed an amicus brief in the trial court and the Court of Appeal on behalf of two of the proponents of the measure. The opinion is here.

According to Harrison, “The case marks another victory for the voters’ exercise of the initiative power and will generate $30 million annually to help ensure that all of Oakland’s children have the opportunity to succeed and pursue the career of their choice.”

Measure AA, which received more than 62% of the vote in November 2018, authorized the city to collect $30 million annually in supplemental property tax to fund education for young children and boost college preparedness among high schoolers. Opponents argued that a two-thirds vote was required. Court of Appeal Presiding Justice James Humes wrote in the court’s opinion that Measure AA “cannot be invalidated on the basis of the ballot materials’ voting-threshold statements because the statements did not concern the measure’s substantive features, were not alleged to be intentionally misleading, and cannot override the law governing the applicable voting threshold.”

Oakland Mayor Libby Schaaf commented for the press: “I am proud we did not give up on our kids in this fight, and the court’s ruling today vindicates our determination. This marks a major victory for our kids, who now have a commitment from their city to fund early education for the next 30 years. It’s also a victory for the overwhelming majority of our voters, who made our children’s future their priority.”