Vetoing Liberties: Davis Signed Some Major Civil Liberties Bills But Turned Away Others

October 24, 2002 by Francisco Lobaco, The Daily Journal

As the ink dries on the last of the 264 bills Governor Gray Davis vetoed in 2002, a review of some of the important civil liberties victories and defeats of the 2002 California legislative session is in order.

The legislative year began with the Governor and Legislature’s attention focused not only on ever-escalating Budget deficits, but also on developing the state’s response to September 11th. More than 80 terrorism-related bills were introduced. However, unlike Congress’s hurried passage of the USA Patriot Act, the Legislature’s process was more deliberate and primarily focused on the training and fiscal needs of police, firefighter and other “first responders.” Most terrorist-related bills that raised serious civil liberties implications were not passed by the Democratically- controlled legislature.

One bill that did obtain legislative approval was AB 74 (Washington-D), the Governors’ wiretap bill. Promoted by the Governor as necessary to track down terrorists, the state wiretap law is instead primarily utilized by state law enforcement to investigate drug crimes. An investigative tool that is highly intrusive of innocent person’ privacy – over 90% of intercepted calls are innocent conversations - the Governor sought to broaden the statute through the use of “roving taps” of telephones and intercepts of e-mails and other internet communications. These amendments were quickly defeated.

The compromise version signed into law makes various modest expansions, including an expedited process to add new phone numbers to the original wiretap application, expands the list of crimes eligible for a wiretap to include weapons of mass destruction, and allows officers to use information on any violent felony which is overheard. An important new amendment will impose clear statutory requirements on prosecutors to notify defendants who are identified as a result of a wiretap prior to the entry of a plea or trial. (Penal Code section 629.70)

The Governor, however, remains unwilling to sign bills that could be construed as soft on crime or otherwise do not have the support of the law enforcement community. When the rare bill is signed expanding the rights of criminal defendants, it is often tied to something the law enforcement and/or the Governor desires.

For example, in 2000 the bill creating a process for inmates to prove their innocence through DNA testing was tied to the passage of a bill expanding the statute of limitations for sex crimes – a law strongly supported by law enforcement.

This year President Pro Tem John Burton used similar legislative maneuverings to obtain a signature on the one significant bill benefiting criminal defendants. SB 1391, as enacted, creates a process for attorneys in death penalty or life without the possibility of parole cases to obtain access to discovery materials from prosecutors to which a defendant would have been entitled at the time of trial. In addition, it permits a defendant to vacate a judgment based on fraud or false evidence presented by government officials. While the Governor may have otherwise signed the bill, Senator Burton made enactment of the Governor’s wiretap bill (AB 74) contingent on the enactment of SB 1391 – and the Governor was not about to veto his own bill.

More typical of the Governor’s refusal to sign legislation benefiting criminal defendants was his veto of SB 1796 (Polanco-D). Intended to respond to instances of excessive punishment of political activists, some receiving jail sentences of six months and fines as high as $500,000, the bill would have lowered penalties for non-violent acts committed for purposes of political expression to 2 days in jail or $100. The bill recognized the importance of non-violent political protest in our democracy and the chilling impact harsh penalties has on this right. The Governor did not agree.

AB 1947 (Washington-D) was also another casualty of the Governor’s veto pen. The bill would have permitted individuals enrolled in Proposition 36 drug treatment programs for non-violent drug possession to receive Food Stamp benefits if they otherwise would be eligible. Federal law imposes a lifetime ban on welfare benefits on any person convicted of a controlled substance-related felony. However, a state may opt out and permit eligibility for these benefits. Thirty states have opted out of the federal rule in some manner. Not California.

The Governor’s civil liberties record is more mixed when we move away from the criminal justice arena. With respect to those constituencies that have more political muscle than criminal defendants, the Governor generally likes to give a little here, and withhold a little there. This year was no different.

A major victory for women’s reproductive freedom was achieved with the signature of SB 1301 (Kuehl –D). The Reproductive Privacy Act brings California abortion laws into compliance with the Constitution by codifying Roe v. Wade. The new statute deletes language in current state law that had been found unconstitutional. The new law will allow health care providers, acting within scope of their licenses, to assist with surgical abortions and to provide non-surgical abortions under the general supervision of doctors. This will expand the pool of qualified abortion providers in California, fulfill the promise of new abortion technologies, and grant women throughout the state greater ability to control their childbearing.

Two other bills met with mixed results from the Governor. The Governor signed AB 2216 (Keeley-D) expanding the legal rights of a registered domestic partner to include the right to inherit property if one partner dies without a will. The Governor had demanded the same provision be taken out of domestic partnership legislation last year. This year he did the right thing. The governor vetoed AB 2651 (Chu-D) which required that the Department of Social Services adopt clear anti-discrimination protecting foster children against sexual orientation and gender identity discrimination.

The Governor sent mixed messages in his response to a number of important bills impacting the immigrant community. His signature on the much publicized bill SB 1156 (Burton-D) providing for binding mediation on contract negotiations between farm worker unions and growers, was tempered by his surprising vetoes of AB 60 (Cedillo-D) and companion bill, SB 804 (Polanco-D).

These two bills would have allowed immigrants who had applied for a lawful immigration status to receive a driver's license once they complete a criminal background check and submit proof of employment in California. The background check and proof of employment provisions demanded by the Governor were strongly opposed by numerous civil rights and immigrant rights groups because they were unrelated to the ability to drive and did not address the public safety concerns.

However, the Governor did sign SB 1818 (Romero-D) that mitigates the adverse impact of the Supreme Court's recent decision in Hoffman Plastic Compounds Inc. v. NLRB precluding back pay awards to undocumented workers, by ensuring that all protections, rights, and remedies available under state law extend to all workers, regardless of their immigration status.

A couple of additional bills concerning employment discrimination protections are worthy of note.

On the positive side the Governor signed AB 1599 (Negrete-McLeod-D). The new amendments to the Fair Employment and Housing Act (FEHA) will fully protect employees over 40 years of age from discrimination in training programs and other terms, conditions, and privileges of employment, in the same way that discrimination on the basis of sex, race, and other forms of discrimination is prohibited. The bill specifically overrules Esberg v. UNOCAL that allowed employers to discriminate against older employees in training programs.

A very disappointing end to the session was the Governor’s veto of other bills including AB 1309 (Goldberg-D). The bill would have codified existing state regulations requiring employers of over 100 employees to annually file reports on the gender and ethnic composition of their workforce. It would have permitted public access to these reports prior to the filing of litigation. The sponsors argued that the public has a right to know whether an employer has non-discriminatory employment practices that are fair to all job applicants and employees. The Governor did not agree.

Francisco Lobaco is the Director of the ACLU CA Legislative Office