Existing law, the Government Claims Act, requires the Department of General Services to designate the fund from which a claim is to be paid and requires the state agency concerned to pay the claim from that fund if, among other things, the Director of Finance certifies that a sufficient appropriation for the payment of the claim exists. If sufficient appropriations are not available for the payment of certain claims, settlements, or judgments, existing law requires the Attorney General to report the claims, settlements, and judgments to the chairperson of either the Senate Committee on Appropriations or the Assembly Committee on Appropriations, who is then required to cause introduction of legislation appropriating the funds necessary for payment.

This bill would appropriate $523,000 from the General Fund to the Attorney General for the payment of claims, settlements, or judgments against the state arising from 3 specified actions.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the Government Claims Act, requires the Department of General Services to designate the fund from which a claim is to be paid and requires the state agency concerned to pay the claim from that fund if, among other things, the Director of Finance certifies that a sufficient appropriation for the payment of the claim exists. If sufficient appropriations are not available for the payment of certain claims, settlements, or judgments, existing law requires the Attorney General to report the claims, settlements, and judgments to the chairperson of either the Senate Committee on Appropriations or the Assembly Committee on Appropriations, who is then required to cause introduction of legislation appropriating the funds necessary for payment.

This bill would appropriate $523,000 from the General Fund to the Attorney General for the payment of claims, settlements, or judgments against the state arising from 3 specified actions.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the Government Claims Act, requires the Department of General Services to designate the fund from which a claim is to be paid and requires the state agency concerned to pay the claim from that fund if, among other things, the Director of Finance certifies that a sufficient appropriation for the payment of the claim exists. If sufficient appropriations are not available for the payment of certain claims, settlements, or judgments, existing law requires the Attorney General to report the claims, settlements, and judgments to the chairperson of either the Senate Committee on Appropriations or the Assembly Committee on Appropriations, who is then required to cause introduction of legislation appropriating the funds necessary for payment.

This bill would appropriate $523,000 from the General Fund to the Attorney General for the payment of claims, settlements, or judgments against the state arising from 3 specified actions.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, under the Government Claims Act, requires the Department of General Services to designate the fund from which a claim is to be paid and requires the state agency concerned to pay the claim from that fund if, among other things, the Director of Finance certifies that a sufficient appropriation for the payment of the claim exists. If sufficient appropriations are not available for the payment of certain claims, settlements, or judgments, existing law requires the Attorney General to report the claims, settlements, and judgments to the chairperson of either the Senate Committee on Appropriations or the Assembly Committee on Appropriations, who is then required to cause introduction of legislation appropriating the funds necessary for payment.

Existing law, under the Government Claims Act, requires the Department of General Services to designate the fund from which a claim is to be paid and requires the state agency concerned to pay the claim from that fund if, among other things, the Director of Finance certifies that a sufficient appropriation for the payment of the claim exists. If sufficient appropriations are not available for the payment of certain claims, settlements, or judgments, existing law requires the Attorney General to report the claims, settlements, and judgments to the chairperson of either the Senate Committee on Appropriations or the Assembly Committee on Appropriations, who is then required to cause introduction of legislation appropriating the funds necessary for payment.

This bill would state the intent of the Legislature to enact subsequent legislation relating to the payment of claims against the state.

 THIRD READING  

Bill No: AB 2755

Author: Wicks (D)

Amended: 4/25/24 in Assembly

Vote: 27 - Urgency

SENATE APPROPRIATIONS COMMITTEE: 5-0, 6/10/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NO VOTE RECORDED: Jones, Seyarto

ASSEMBLY FLOOR: 73-0, 5/20/24 - See last page for vote

SUBJECT: Claims against the state: appropriation

SOURCE: Author

DIGEST:

This bill, an urgency measure, appropriates $523,000 from the General Fund to the Department of Justice (DOJ) for the payment of three specified claims against the state. Any funds appropriated in excess of the amounts required for payment of the claims will revert to the General Fund.

ANALYSIS: This bill is one of several annual bills carried by the chairs of the Appropriations Committees to provide appropriation authority for legal settlements approved by DOJ and the Department of Finance (DOF). These settlements were entered into lawfully by the state upon advice of counsel (DOJ). They are binding state obligations.

This bill appropriates General Fund revenues to DOJ to pay the following legal settlements:

1. Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512) and Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045). $193,000 and $150,000 settlements, respectively, payable from the General Fund.
   
   These claims involve a constitutional challenge to SB 742 (Pan), Chap. 737/2021, which was enacted following the rollout of vaccines for COVID-19 in 2021. This measure was intended to help ensure access to vaccine clinics and the distribution of vaccines in the context of numerous protests in the summer and fall of 2021 that blocked access to vaccination sites. The statute made it unlawful to knowingly approach within 30 feet of any person entering or exiting a vaccination site for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person. It adopted a broad definition of “harassing” that encompassed approaching someone, without consent, to pass a leaflet or handbill, display a sign, or engage in oral protest, education, or counseling with that person. The statute also stated that lawful labor picketing was not a violation of its provisions.
   
   On October 12, 2021, Rajan Gupta (Gupta), a pro-vaccine activist at local CVS stores, brought suit against Attorney General Rob Bonta, in his official capacity, challenging the constitutionality of SB 742. On October 13, 2021, Right to Life of Central California (Right to Life), a pro-life group that engaged in activism activities at a neighboring Planned Parenthood that offered the HPV vaccine, brought a similar suit against Attorney General Rob Bonta, in his official capacity. Both Gupta and Right to Life contended that SB 742 violated their First Amendment rights by infringing on their ability to engage in protest or outreach activities outside vaccine clinics. They also alleged that SB 742 was unconstitutionally vague.
   
   On October 20, 2021, Right to Life filed a motion for a temporary restraining order enjoining enforcement of SB 742, which was granted by the court on October 30, 2021, holding that Right to Life was likely to succeed on its First Amendment challenge. However, it limited its order to enjoining only the prohibition on approaching for the purpose of harassing. Right to Life subsequently moved for a preliminary injunction, which was granted within the same scope as the restraining order on July 6, 2022. On December 16, 2021, Gupta filed a similar motion for a preliminary injunction, which was held in abeyance in light of the orders granted in the other challenges to SB 742.
   
   A third matter challenging SB 742, Aubin v. Bonta (No. 21-cv-07938), was brought in the U.S. District Court for the Northern District of California. The court in that matter granted a temporary restraining order on December 23, 2021, and the parties proceeded straight to summary judgment. The court granted judgment in part to the plaintiff on March 29, 2023, and held that SB 742 violated the First Amendment with its prohibition on approaching for purposes of harassing, struck down that portion of the law, and severed the remainder. The court’s ruling was consistent with U.S. Supreme Court cases that had struck down similar buffers around abortion clinics as First Amendment violations, namely McCullen v. Coakley (2014) 573 U.S. 464, which struck down a 30-foot buffer around abortion clinic entrances, and Schenck v. Pro-Choice Network of Western New York (1997) 519 U.S. 357, which struck down a 12-foot buffer around abortion clinic entrances and those entering or exiting abortion clinics. The Attorney General did not appeal the judgment in Aubin.
   
   Following the entry of judgment in the Aubin matter, to avoid further litigation costs, settlements were entered into in both Gupta and Right to Life. The parties in both matters agreed to entry of a permanent injunction of SB 742 with the same scope as the judgment entered in the Aubin matter—specifically, enjoining only the “harassing” prohibition in SB 742. The parties also entered into a settlement for attorneys’ fees and costs following negotiations.
   
   On January 10, 2024, Department of Finance approved the settlement payment of $193,000 from the General Fund for the Right to Life matter and $150,000 from the General Fund for the Gupta matter.
2. Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875). $180,000 settlement, payable from the General Fund.
   
   This claim involves a First Amendment challenge to a California statute, Government Code Section 3205 (a), which prohibited employees of local area government agencies from soliciting political donations from fellow employees. An exception to this prohibition, included in Government Code Section 3205 (c), permitted such solicitations if they were part of solicitation made to a significant segment of the public which may have included officers and employees of the same agency. The statute, however, did not prohibit employees of state government agencies from soliciting political donations from their fellow employees.
   
   On May 24, 2021, two Santa Clara County Deputy Public Defenders, Krista Henneman and Carlie Ware, and their political club, Progressive Democrats for Social Justice, filed a complaint in the Northern District of California challenging the constitutionality of Government Code section 3205. Plaintiffs asserted a First Amendment and an Equal Protection challenge to the statute that relied, in large part, on the fact that state employees were treated differently under California law, as there was no identical prohibition barring state employees from soliciting political contributions from employees within the same agency. Plaintiffs sought a temporary restraining order and a preliminary injunction prohibiting the Attorney General from enforcing the state law, which the District Court denied while subsequently granting summary judgment in favor of the Attorney General on March 1, 2022.
   
   Plaintiffs appealed to the Ninth Circuit Court of Appeals, which on July 19, 2023 issued a published opinion reversing the judgment of the district court, holding that section 3205 violated the First Amendment rights to political speech of local agency area employees. All members of the panel voted to find section 3205 unconstitutional, but split on their reasoning. A majority of the panel found that under either the so-called Pickering standard or the more “closely drawn” McCutcheon standard the State could not justify the differential ban on local agency area employees. The panel majority concluded that the legislative history did not justify the distinction between state and local agency area employees, there was no evidence that intra-governmental solicitations have coerced government employees into supporting political candidates, and section 3205 was underinclusive as a means to limit the actuality and appearance of partisan behavior in public employees. The panel did not reach the Equal Protection challenge. In a concurring opinion, one panel member opined that strict scrutiny should be applied and that the State had demonstrated neither a compelling state interest nor that the statute was narrowly tailored to accomplish a compelling state interest.
   
   On remand, on August 30, 2023, the District Court entered judgment and a permanent injunction in favor of the Plaintiffs. Under the judgment, the Attorney General was directed to notify all District Attorneys in the state of the judgment and the Ninth Circuit decision. The Attorney General has complied with the judgment. The Plaintiffs’ made a demand, pursuant to 42 U.S.C. § 1988(b), for attorney fees and costs incurred in the action, including the fees and costs for the appeal to the Ninth Circuit. To avoid further litigation, the parties agreed to a settlement in the amount of $180,000 for attorney fees and costs, and further agreed that no interest will accrue on the payment. The agreement stipulates that if the payment is not made by April 1, 2024, the Plaintiffs retain the right to file a motion with the District Court seeking an award of attorney fees and costs.
   
   On January 10, 2024, the Department of Finance approved the settlement payment of $180,000 from the General Fund.

FISCAL EFFECT: Appropriation: Yes Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• One-time General Fund appropriation of $193,000 to DOJ to pay the settlement arising from Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512).
• One-time General Fund appropriation of $150,000 to DOJ to pay the settlement arising from Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045).
• One-time General Fund appropriation of $180,000 to DOJ to pay the settlement arising from Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875).

SUPPORT: (Verified 6/10/24)

None received

OPPOSITION: (Verified 6/10/24)

None received

ASSEMBLY FLOOR: 73-0, 5/20/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Arambula, Cervantes, Megan Dahle, Gabriel, Mathis, Stephanie Nguyen, Luz Rivas

Prepared by: Mark McKenzie / APPR. / (916) 651-4101

6/11/24 13:15:54

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2755 (Wicks) - Claims against the state: appropriation

Pursuant to the committee’s rules, the Suspense File rule does not apply to the provisions of this bill as judgments and settlement are considered valid obligations of the state. Additionally, judgments and settlements may have time sensitivity.

Bill Summary:

AB 2755, an urgency measure, would appropriate $523,000 from the General Fund to the Department of Justice (DOJ) for the payment of three specified claims against the state. Any funds appropriated in excess of the amounts required for payment of the claims would revert to the General Fund.

Fiscal Impact:

• One-time General Fund appropriation of $193,000 to DOJ to pay the settlement arising from Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512).
  
• One-time General Fund appropriation of $150,000 to DOJ to pay the settlement arising from Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045).
  
• One-time General Fund appropriation of $180,000 to DOJ to pay the settlement arising from Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875).

Background:

This bill is one of several annual bills carried by the chairs of the Appropriations Committees to provide appropriation authority for legal settlements approved by DOJ and the Department of Finance (DOF). These settlements were entered into lawfully by the state upon advice of counsel (DOJ). They are binding state obligations.

Proposed Law:

AB 2755, an urgency measure, would appropriate $523,000 from the General Fund to pay the following settlements:

1. Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512) and Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045). $193,000 and $150,000 settlements, respectively, payable from the General Fund.
   
   These claims involve a constitutional challenge to SB 742 (Pan), Chap. 737/2021. This statute was enacted against the backdrop of the rollout of vaccines for COVID-19 in 2021. This measure was enacted to help ensure access to vaccine clinics and the vaccines distributed there in the context of numerous protests in the summer and fall of 2021 that blocked access to vaccination sites. The statute made it unlawful to knowingly approach within 30 feet of any person entering or exiting a vaccination site for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person. It adopted a broad definition of “harassing” that encompassed approaching someone without consent to pass a leaflet or handbill, display a sign, or engage in oral protest, education, or counseling with that person. The statute also stated that lawful labor picketing was not a violation of its provisions.
   
   On October 12, 2021, Rajan Gupta (Gupta)—a pro-vaccine activist at local CVS stores—brought suit against Attorney General Rob Bonta, in his official capacity, challenging the constitutionality of SB 742. On October 13, 2021, Right to Life of Central California (Right to Life)—a pro-life group that engaged in activism activities at a neighboring Planned Parenthood that offered the HPV vaccine—brought a similar suit against Attorney General Rob Bonta, in his official capacity. Both Gupta and Right to Life contended that SB 742 violated their First Amendment rights by infringing their ability to engage in protest or outreach activities outside vaccine clinics. They also alleged that SB 742 was unconstitutionally vague.
   
   On October 20, 2021, Right to Life filed a motion for a temporary restraining order enjoining enforcement of SB 742, which was granted by the court on October 30, 2021, holding Right to Life was likely to succeed on its First Amendment challenge. However, it limited its order to enjoining only the prohibition on approaching for the purpose of harassing. Right to Life subsequently moved for a preliminary injunction, which was granted within the same scope as the restraining order on July 6, 2022. On December 16, 2021, Gupta filed a similar motion for a preliminary injunction, which was held in abeyance in light of the orders granted in the other challenges to SB 742.
   
   A third matter challenging SB 742, Aubin v. Bonta (No. 21-cv-07938), was brought in the U.S. District Court for the Northern District of California. The court in that matter granted a temporary restraining order on December 23, 2021, and the parties proceeded straight to summary judgment. The court granted judgment in part to the plaintiff on March 29, 2023, and held that SB 742 violated the First Amendment with its prohibition on approaching for purposes of harassing, struck down that portion of the law, and severed the remainder. The court’s ruling was consistent with U.S. Supreme Court cases that had struck down similar buffers around abortion clinics as First Amendment violations, namely McCullen v. Coakley (2014) 573 U.S. 464, which struck down 30-foot buffer around abortion clinic entrances, and Schenck v. Pro-Choice Network of Western New York (1997) 519 U.S. 357, which struck down a 12-foot buffer around abortion clinic entrances and those entering or exiting abortion clinics. The Attorney General did not appeal the judgment in Aubin.
   
   Following the entry of judgment in the Aubin matter, to avoid further litigation costs, settlements were entered into in both Gupta and Right to Life. The parties in both matters agreed to entry of a permanent injunction of SB 742 with the same scope as the judgment entered in the Aubin matter—specifically, enjoining only the “harassing” prohibition in SB 742. The parties also entered into a settlement for attorneys’ fees and costs following negotiations.
   
   On January 10, 2024, Department of Finance approved the settlement payment of $193,000 from the General Fund for the Right to Life matter and $150,000 from the General Fund for the Gupta matter.
2. Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875). $180,000 settlement, payable from the General Fund.
   
   This claim involves a First Amendment challenge to a California statute, Government Code Section 3205 (a), which prohibited employees of local area government agencies from soliciting political donations from fellow employees. An exception to this prohibition, included in Government Code Section 3205 (c), permitted such solicitations if they were part of solicitation made to a significant segment of the public which may have included officers and employees of the same agency. The statute, however, did not prohibit employees of state government agencies from soliciting political donations from their fellow employees.
   
   On May 24, 2021, two Santa Clara County Deputy Public Defenders, Krista Henneman and Carlie Ware, and their political club, Progressive Democrats for Social Justice, filed a complaint in the Northern District of California challenging the constitutionality of Government Code section 3205. Plaintiffs asserted a First Amendment and an Equal Protection challenge to the statute that relied, in large part, on the fact that state employees were treated differently under California law, as there was no identical prohibition barring state employees from soliciting political contributions from employees within the same agency. Plaintiffs sought a temporary restraining order and a preliminary injunction prohibiting the Attorney General from enforcing the state law, which the District Court denied while subsequently granting summary judgment in favor of the Attorney General on March 1, 2022.
   
   Plaintiffs appealed to the Ninth Circuit Court of Appeals, which on July 19, 2023 issued a published opinion reversing the judgment of the district court, holding that section 3205 violated the First Amendment rights to political speech of local agency area employees. All members of the panel voted to find section 3205 unconstitutional, but split on their reasoning. A majority of the panel found that under either the so-called Pickering standard or the more “closely drawn” McCutcheon standard the State could not justify the differential ban on local agency area employees. The panel majority concluded that the legislative history did not justify the distinction between state and local agency area employees, there was no evidence that intra-governmental solicitations have coerced government employees into supporting political candidates, and section 3205 was underinclusive as a means to limit the actuality and appearance of partisan behavior in public employees. The panel did not reach the Equal Protection challenge. In a concurring opinion, one panel member opined that strict scrutiny should be applied and that the State had demonstrated neither a compelling state interest nor that the statute was narrowly tailored to accomplish a compelling state interest.
   
   On remand, on August 30, 2023, the District Court entered judgment and a permanent injunction in favor of the Plaintiffs. Under the judgment, the Attorney General was directed to notify all District Attorneys in the state of the judgment and the Ninth Circuit decision. The Attorney General has complied with the judgment. The Plaintiffs’ made a demand, pursuant to 42 U.S.C. § 1988(b), for attorney fees and costs incurred in the action, including the fees and costs for the appeal to the Ninth Circuit. To avoid further litigation, the parties agreed to a settlement in the amount of $180,000 for attorney fees and costs, and further agreed that no interest will accrue on the payment. The agreement stipulates that if the payment is not made by April 1, 2024, the Plaintiffs retain the right to file a motion with the District Court seeking an award of attorney fees and costs.
   
   On January 10, 2024, the Department of Finance approved the settlement payment of $180,000 from the General Fund.

Related Legislation:

SB 1481 (Caballero), which is currently pending in this Committee, would appropriate approximately $19.3 million from the General Fund to DOJ to pay five specified claims against the state.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2755

Author:(Wicks)

As Amended Ver:April 25, 2024

2/3 vote. Urgency

SUMMARY

This bill appropriates $523,000 from the General Fund to the Attorney General for the payment of three specified claims against the state. The bill specifies that any funds appropriated in excess of the amounts required for payment of the claims revert to the General Fund within 45 days after payment is made.

Specifically, this bill appropriates:

1. $193,000 for the payment of claims, settlements or judgments against the state arising from Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512).
2. $180,000 for the payment of claims, settlements or judgments against the state arising from Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875).
3. $150,000 for the payment of claims, settlements or judgments against the state arising from Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045).

Major Provisions

None.

COMMENTS

Purpose. This bill is one of several annual bills, authored by chair of either the Senate Appropriations Committee or the Assembly Appropriations Committee, to provide appropriation authority for legal settlements approved by Department of Justice (DOJ) and the Department of Finance (DOF). These settlements were entered into lawfully by the state upon advice of counsel (DOJ). They are binding state obligations.

According to the Author

Arguments in Support

None on file.

Arguments in Opposition

None on file.

FISCAL COMMENTS

1. One-time General Fund appropriation of $193,000 in fiscal year (FY) 2023-24 to the Attorney General to pay the settlement arising from Right to Life of Central California v. Bonta.
2. One-time General Fund appropriation of $180,000 in FY 2023-24 to the Attorney General to pay the settlement arising from Progressive Democrats for Social Justice v. Bonta.
3. One-time General Fund appropriation of $150,000 in FY 2023-24 to the Attorney General to pay the settlement arising from Gupta v. Bonta.

VOTES

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: April 25, 2024

CONSULTANT: Jay Dickenson / APPR. / (916) 319-2081 FN: 0002789

Date of Hearing: April 24, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2755

Author:(Wicks) – As Amended Ver:March 21, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill appropriates $523,000 from the General Fund to the Attorney General for the payment of three specified claims against the state. The bill specifies that any funds appropriated in excess of the amounts required for payment of the claims revert to the General Fund within 45 days after payment is made.

Specifically, this bill appropriates:

1. $193,000 for the payment of claims, settlements or judgments against the state arising from Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512).
2. $180,000 for the payment of claims, settlements or judgments against the state arising from Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875).
3. $150,000 for the payment of claims, settlements or judgments against the state arising from Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045).

Proposed amendments to the bill would add an urgency clause.

FISCAL EFFECT:

1. One-time General Fund appropriation of $193,000 in fiscal year (FY) 2023-24 to the Attorney General to pay the settlement arising from Right to Life of Central California v. Bonta.
2. One-time General Fund appropriation of $180,000 in FY 2023-24 to the Attorney General to pay the settlement arising from Progressive Democrats for Social Justice v. Bonta.
3. One-time General Fund appropriation of $150,000 in FY 2023-24 to the Attorney General to pay the settlement arising from Gupta v. Bonta.

COMMENTS:

1. Purpose. This bill is one of several annual bills, authored by chair of either the Senate Appropriations Committee or the Assembly Appropriations Committee, to provide appropriation authority for legal settlements approved by Department of Justice (DOJ) and the Department of Finance (DOF). These settlements were entered into lawfully by the state upon advice of counsel (DOJ). They are binding state obligations.
2. Background.
   1. Right to Life of Central California v. Bonta (United States District Court, Eastern District of California, September 5, 2023, No. 21-cv-1512) and Gupta v. Bonta (United States District Court, Northern District of California, September 6, 2023, No. 21-cv-9045). According to the DOJ:

These claims involve a constitutional challenge to SB 742 (2021). This statute was enacted against the backdrop of the rollout of vaccines for COVID-19 in 2021. These vaccines were developed in early-2021, and thereafter were distributed for wider use. The vaccines, however, were controversial, leading to well-publicized protests in 2021’s summer and fall that blocked access to vaccination sites. SB 742 was enacted to help ensure access to vaccine clinics and the vaccines distributed there. The statute made it unlawful to knowingly approach within 30 feet of any person entering or exiting a vaccination site for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person. It adopted a broad definition of “harassing” that encompassed approaching someone without consent to pass a leaflet or handbill, display a sign, or engage in oral protest, education, or counseling with that person. The statute also stated that lawful labor picketing was not a violation of its provisions.

On October 12, 2021, Rajan Gupta (Gupta)—a pro-vaccine activist at local CVS stores—brought suit against Attorney General Rob Bonta, in his official capacity, challenging the constitutionality of SB 742. On October 13, 2021, Right to Life of Central California (Right to Life)—a pro-life group that engaged in activism activities at a neighboring Planned Parenthood that offered the HPV vaccine—brought a similar suit against Attorney General Rob Bonta, in his official capacity. Both Gupta and Right to Life contended that SB 742 violated their First Amendment rights by infringing their ability to engage in protest or outreach activities outside vaccine clinics. They also alleged that SB 742 was unconstitutionally vague.

On October 20, 2021, Right to Life filed a motion for a temporary restraining order enjoining enforcement of SB 742. The court granted a temporary restraining order on October 30, 2021, holding Right to Life was likely to succeed on its First Amendment challenge. However, it limited its order to enjoining only the prohibition on approaching for the purpose of harassing. Right to Life subsequently moved for a preliminary injunction, and the court granted a preliminary injunction with the same scope as the restraining order on July 6, 2022. On December 16, 2021, Gupta filed a similar motion for a preliminary injunction, which was held in abeyance in light of the orders granted in the other challenges to SB 742.

A third matter challenging SB 742, Aubin v. Bonta (No. 21-cv-07938), was brought in the U.S. District Court for the Northern District of California. The court in that matter granted a temporary restraining order on December 23, 2021, and the parties proceeded straight to summary judgment. The court granted judgment in part to the plaintiff on March 29, 2023. It held that SB 742 violated the First Amendment with its prohibition on approaching for purposes of harassing, struck down that portion of the law, and severed the remainder. The court’s ruling was consistent with U.S. Supreme Court cases that had struck down similar buffers around abortion clinics as First Amendment violations, namely McCullen v. Coakley (2014) 573 U.S. 464, which struck down 30-foot buffer around abortion clinic entrances, and Schenck v. Pro-Choice Network of Western New York (1997) 519 U.S. 357, which struck down a 12-foot buffer around abortion clinic entrances and those entering or exiting abortion clinics. The Attorney General did not appeal the judgment in Aubin.

Following the entry of judgment in the Aubin matter, to avoid further litigation costs, settlements were entered into in both Gupta and Right to Life. The parties in both matters agreed to entry of a permanent injunction of SB 742 with the same scope as the judgment entered in the Aubin matter—specifically, enjoining only the “harassing” prohibition in SB 742. The parties also entered into a settlement for attorneys’ fees and costs following negotiations.

On January 10, 2024, Department of Finance approved the settlement payment of $192,706 from the General Fund for the Right to Life matter and $149,667.55 from the General Fund for the Gupta matter.

• 1. Progressive Democrats for Social Justice, et al. v. Bonta (United State District Court, Northern District of California, August 30, 2023, No. 21-cv-03875). According to the DOJ:

This claim involves a First Amendment challenge to a California statute, Government Code Section 3205 (a), which prohibited employees of local area government agencies from soliciting political donations from fellow employees. An exception to this prohibition, included in Government Code Section 3205 (c), permitted such solicitations if they were part of solicitation made to a significant segment of the public which may have included officers and employees of the same agency. The statute, however, did not prohibit employees of state government agencies from soliciting political donations from their fellow employees.

On May 24, 2021, two Santa Clara County Deputy Public Defenders, Krista Henneman and Carlie Ware, and their political club, Progressive Democrats for Social Justice, filed a complaint in the Northern District of California challenging the constitutionality of Government Code section 3205. Plaintiffs asserted a First Amendment and an Equal Protection challenge to the statute. They relied, in large part, on the fact that state employees were treated differently under California law, as there was no identical prohibition barring state employees from soliciting political contributions from employees within the same agency. Plaintiffs sought a temporary restraining order and a preliminary injunction prohibiting the Attorney General from enforcing the state law. The District Court denied the TRO and subsequently granted summary judgment in favor of the Attorney General on March 1, 2022.

Plaintiffs appealed to the Ninth Circuit Court of Appeals, which on July 19, 2023 issued a published opinion reversing the judgment of the district court, holding that section 3205 violated the First Amendment rights to political speech of local agency area employees. All members of the panel voted to find section 3205 unconstitutional, but split on their reasoning. A majority of the panel found that under either the so-called Pickering standard or the more “closely drawn” McCutcheon standard the State could not justify the differential ban on local agency area employees. The panel majority concluded that the legislative history did not justify the distinction between state and local agency area employees, there was no evidence that intra-governmental solicitations have coerced government employees into supporting political candidates, and section 3205 was underinclusive as a means to limit the actuality and appearance of partisan behavior in public employees. The panel did not reach the Equal Protection challenge. In a concurring opinion, one panel member opined that strict scrutiny should be applied and that the State had demonstrated neither a compelling state interest nor that the statute was narrowly tailored to accomplish a compelling state interest.

On remand, on August 30, 2023, the District Court entered judgment and a permanent injunction in favor of the Plaintiffs. Under the judgment, the Attorney General was directed to notify all District Attorneys in the state of the judgment and the Ninth Circuit decision. The Attorney General has complied with the judgment.

The Plaintiffs’ made a demand, pursuant to 42 U.S.C. § 1988(b), for attorney fees and costs incurred in the action, including the fees and costs for the appeal to the Ninth Circuit. To avoid further litigation, the parties agreed to a settlement in the amount of $180,000 for attorney fees and costs, and further agreed that no interest will accrue on the payment. The agreement stipulates that if the payment is not made by April 1, 2024, the Plaintiffs retain the right to file a motion with the District Court seeking an award of attorney fees and costs.

On January 10, 2024, the Department of Finance approved the settlement payment of $180,000 from the General Fund.

Analysis Prepared by: Jay Dickenson / APPR. / (916) 319-2081