OA537: Why CA Prop 22 Was Ruled Unconstitutional

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 537. I'm Thomas, being finally flooded away in what they call a bomb cyclone. It's really bomb. It has a weird language for the weather people to use, but apparently it's really a bomb. How are you doing?

0:01:32 Andrew: All right. We have dope cyclones out here on the East Coast, so, you know.

0:01:36 Thomas: Yeah, that's smart. For people on the East Coast, you'd refer to it as a dope cyclone, It's wicked cyclone maybe in some some places and yeah, Minnesota will have like one specific word they use that nobody else does, do you know about that duck duck gray duck thing? I'm sure I brought it up before because it blows my mind, it's the weirdest thing, do you know about that? It is a real thing, literally a hundred percent, I'm not making this up, in just in the state of Minnesota and nowhere else they say duck duck grey duck instead of duck duck goose, how, how would

0:01:43 Andrew: Yeah. Got it. Northeast.

0:02:01 Andrew: That's not a real thing, is it? No. Now,

0:02:16 Thomas: That have happened? Like, I hope, I hope people are studying this, I just want to know how in one state they'd come up with something so absurd, yeah yeah

0:02:22 Andrew: You know, we often suggest topics to, you know, potential law students who were looking to write law review articles. The etymology, the etymological roots of duck, duck, gray duck, I think would be would be amazing. So

0:02:35 Thomas: Or study it like a mind virus and how it's been contained, only maybe a lot of implications for COVID somehow, it's been contained to only to Minnesota, well

0:02:38 Andrew: I am just reading. I got on the, on the plane back from end of my, my vacation, uh, Michael Lewis's, uh, Premonition, uh, the back cover blurb, I forget who wrote it, like the back clever blurb is like, I would read 800 pages by Michael Lewis on the history of the stapler, uh, which is 100 true, like that's the best endorsement for Michael Louis ever, uh, and this is on, you know, um, telling the story of folks involved in uh health care pandemic prevention, so yeah

0:03:00 Thomas: True I think that one's on my reading list, I haven't gotten to it yet, but I'm looking forward to it. So, you are, big announcement, you are not on a boat, okay

0:03:16 Andrew: Yeah, I'm not on a boat. I'm I'm in a house.

0:03:23 Thomas: I need to be on a boat over here, that's an arc You might say, "I hope that everybody, every Californian, we should be by like governor's executive order required to collect this rain in like a plastic bag or something," you know, like everybody collect a few jugs full of this rain because it's coming once a decade now, and this is just a world, state record shattering rainfall fault today. So anyway, all that fun stuff aside, we've got a good old fashioned Tuesday deep dive for you. I can't wait to get to it.

0:03:25 Andrew: Yes, you do.

0:03:54 Clip: Down the law, down the law.

0:03:58 Thomas: So, Andrew, Prop 22 in California was declared unconstitutional. I'm excited about this because that was a tough deal. That was a frustrating one. I don't know if people will remember what that is. Uber It's and an Lyft driver thing that you would think progressive, liberal California. I was hoping that my fellow Californians were going to... Well, now I already forget. This could be part of the problem. Vote against it? Vote for it? I don't remember.

0:04:23 Thomas: I voted I voted the correct way at the time, but now I already forget which way it was.

0:04:23 Andrew: Yeah, it's against. Look, really this illustrative of the way in which ballot initiatives can work, right? This Proposition 22 had the pro side, which was financed obviously by Uber and Lyft and DoorDash, spent $220 million. That makes this the most heavily funded ballot measure in California history, according to Ballotpedia. And it was designed to overturn a California Assembly Bill No. 5, which had passed the year before. So basically, Uber, Lyft, gig economy, you know, ride share are classifying their employees as independent contractors. The Right. Question is, are you really? Yes, it's your own car, but it doesn't really seem to fit the classic definition of independent contractor.

0:04:28 Thomas: Okay. Mm-hmm. Yeah.

0:05:31 Thomas: Yeah, it's not like you just go, pick up someone you feel like on your own time. It's like the apps run their lives down to the minute, right? I mean, they have to really be under the direction of the apps, and that seems like something that's less like an independent contractor, more like an employee, right.

0:05:32 Andrew: Yeah, that's right. And look, that is already in the standard IRS definition of employee versus independent contractor. But one of the things we've talked about on the show is whenever you have kind of a multi-factor test, right, you don't have a bright line, right? Right. That says, oh, you're definitely in or you're definitely out. So matter of control is certainly one of the characteristics that the IRS looks to. It is not an implausible claim to say without any additional clarification. Yeah, these are independent contract. They they set their own hours. They get to decide whether they're going to work or not. They, you know, have substantial autonomy and, you know, they're not in an office. They're out on the road. Here's the real issue. The real issue is if you were classified as an independent contractor, then you are not eligible for workers' compensation if you're injured while in the performance of your, I keep wanting to say job, your independent contract. Right.

0:06:06 Thomas: Hmm. Yeah. Yeah. While in the execution of your contract, I don't know the fulfillment of Yeah.

0:07:01 Andrew: While in the execution of your contract. That's

0:07:03 Thomas: Makes them sound like a contract killer.

0:07:03 Andrew: Exactly right. As we've talked about before, right, workers' compensation is not a fantastic, you know, I've just won the lottery, right? Right. Like it it covers kind of the bare minimum of your medical bills. It is a huge on the whole. It is A huge advantage and giveaway to to employers in terms of immunizing them from liability for tort suits, which typically, you know, would would go well beyond just your ability to recover, you know, to recover medical damages. Right. So now in these cases, if an employee is deemed to be an independent contractor and there is no line of responsibility from Uber, Lyft, DoorDash to those drivers, then making the claims against their unemployment insurance compensation Right.

Is slightly worse. But again, we're not talking about this is not hugely onerous from from that's my editorializing. But my editorialising is this is Not Hugely Onerous on on Uber, Lyft and DoorDash and the like. So they've been classifying their drivers as independent contractors, in 2019, California passed Assembly Bill 5, and that was meant to clarify the status of gig economy drivers. And it says, we're going to use, in this state, a three-part test to determine whether a worker is an independent contractor or not. That is, one, the worker is free from the hiring company's control and direction in the performance of work. Two, the work is free. Doing work that is outside the company's usual course of business.

0:08:09 Thomas: Right.

0:08:55 Andrew: And three, that the worker is engaged in an established trade occupation or business of the same nature as the work performed.

0:09:02 Thomas: Uh, was this just like for state taxes, and then the IRS is still whatever the Iris is, um, or was this meant to somehow control both of that?

0:09:12 Andrew: It's a great question that sort of gets to the questions on preemption and interstate commerce that we've talked about. California can only regulate how you classify your employees in California, but you certainly could be open to an investigation from the IRS if you've called somebody an independent contractor at the federal level, but an employee at the state level. Right. And and we will not know how those two would have interacted, because the way in which Uber, Lyft, et cetera, decided to retaliate was by organizing a grassroots campaign. And look, there do seem to be real activists in favor of it. Helps when when they get nine figures worth of cash and they put on the ballot Proposition 22. And the terms of this, as we're to talk about the result of the lawsuit, are way harsher than you remember. Right. And it was clearly designed and explicitly for the purpose of overturning AB5 and

0:09:16 Thomas: Mm-hmm. Yeah.

0:09:42 Thomas: Well, Well, also, I do remember that at the time, and I guess still now, um, a lot of people were worried about AB5, like that that was too broad, you know, that that it was gonna harm a lot, you know even though it was going after this, this cause, which I think is a good cause, which is trying to get, you know, people classified as employees in these giant corporations there are a lot theater companies that I know that were like, "Oh wow, are we not allowed to, you know, are we gonna have to have employees now?" There are a lot of those questions that it seemed like maybe that language was too broad, um, and I imagine that's still ongoing. Do you know anything about that?

0:11:00 Andrew: Yeah, and mean, we'll kind of have to bracket and sidebar this, but I agree with that particular debate, right? And in particular, the second prong that the worker is doing work outside the company's usual course of business, right, because a classic example of where, you know, my clients hire independent contractors all the time is, Oh, hey, I am a small software company. This is a real, real example of a real contract I drafted up just last month. Right. I'm a small hardware company. I am trying to expand and I'd like to hire a salesperson with a territory to go out and market the software. Right. Well, they're engaged in the same course of business. Right. They're selling my software. That's what I'm doing. Selling

0:11:14 Thomas: Yeah. I Guess how,

0:11:50 Andrew: My software,

0:11:50 Thomas: Do you define that? It could are you able I don't know how granular you can get. I think that was that was something I wondered too, because it's like, all know, we have a lot theater friends, and it was like, well, it you hire actors for like one show and you pay them a little bit, know, you because there's no money in theater, especially at a Small level, and it's like, well, that is the normal course of business, like you're doing shows, but then again, is the theater company like the producer of shows? That can you go so granular? So it's not, well, actor, the normal source of business isn't acting or something like that, you know, like how, how, how much can you zoom in? So that's a a different, uh, course of business or whatever.

0:12:02 Andrew: Right? Right.

0:12:21 Andrew: Yeah, that's right. And again, I think this illustrates, you know, this is a real world example, number 87 billion of, you know, how stupid originalism is. Right. Like it there's no plain definition of usual course of business that can neutrally get you to a a result, the right? Broader you define usual course of business, right, the better that is for the individual involved. The more narrowly you define it, the besser it is for the company that's involved. And if you want to figure out what that means, the best way to do that is not to go look in, you know, a dictionary or, right. The best way to do that is to look at the debates around AB5.

0:12:29 Thomas: Yeah.

0:13:01 Thomas: Way back in 2018. What were people in California How, okay,

0:13:07 Andrew: Yeah. What did, what was the, this word Uzzawal, right? Yeah. No, but, but seriously, right. Like think about how, if you were just a normal person and not a lawyer, right, an aspiring lawyer, I

0:13:21 Thomas: I'll try to try to imagine that. Yeah.

0:13:22 Andrew: Try, try real hard to remember back to, to the olden days. And you wanted to figure out what the law meant by usual course. Right. Wouldn't one of the things you want to do would be to go, like, listen to the testimony for and against, and the witnesses who were called, and look at drafts, and really, like, try and figure out, like, "Oh, what was the legislature thinking at the time," in terms of the principles that were guiding this bill? Right. And if the principles that were guiding this bill were, "Are we don't want gig economy workers you to be abused?" Right. Well, then that would tell you it probably isn't meant to cover your theater company employees. Right. But again, who knows?

0:14:05 Thomas: Yeah. And It's not a bad that's the thing, is like, it makes sense, because it seems like they're going for, you the big company, corporation X, that like fires all their employees and hires, uh, contract employees to do the same, same job. And like, it's trying to stop that kind of thing. And that makes total sense. And also allowing for, you let's say, for opening arguments, media, or something, let's say we need someone to do a thing that we, you and I just don't do, which is a lot of things, you know, uh, we wanted someone to, I don't know, build a website, for example. Then it's like, oh, that's clear cut that you're hiring. You're just contracting with someone to to do something that, you Andrew and I don't really want to do or know how to do or want to, you whatever. That distinction, right.

0:14:09 Andrew: Right.

0:14:47 Andrew: That is definitely true.

0:14:51 Thomas: That distinction makes sense. I almost wonder if it's just like, maybe there's a threshold employee level or threshold size level that, that might also be able to factor in. So you could genuinely separate like, okay, this is a legitimate small business that just doesn't, have you the resources to Have like, or, or they don't have the amount of work. That's the other thing, like you don't really need a full employee to do this, but you just need a few jobs done kind of thing. Yeah.

0:15:17 Andrew: Yeah, no, that's exactly right. And so I can use as an example. Right. The law offices of Pietro Torres. In the Right? Beginning. Right before we hired Morgan full time, we hired her as an independent contractor. Right, because I didn't have 40 hours worth of week, you know, 40 hours a week worth of additional law stuff that needed doing. I had some amount. Right. And so, you under the standard IRS guidelines. Right, like she got to set her hours. She got to decide whether she wanted to take, you know, right, like that. That's a perfectly reasonable use of the independent contractor provision under SB five under AB five. Excuse me. That would would potentially be prohibited, right? Like it's I'm hiring her for law stuff. My business is law stuff, right.

0:16:01 Thomas: I don't think you could do that, huh? Definitely. Yeah.

0:16:07 Andrew: It's it's kind of hard to say that that's not the usual course of business of the law firm. So, yeah. So I all of that is a way of saying I certainly agree. And I think there is a discussion to be had on that definition. I don't think Proposition 22 was the way to go about it. And by the way, Proposition 22 sidestepped this debate by defining a term, app-based drivers, right? And so it said, app based drivers are workers who, A, provide delivery service on an on demand basis through businesses, online enabled application or platform, or B, use a personal vehicle to provide prearranged transportation services for compensation via businesses, Businesses online enabled application or platform. And that's defined pretty narrowly to include Uber, Lyft, DoorDash, Grubhub, what have you.

0:16:11 Thomas: Interesting.

0:17:04 Andrew: Drizzly. And it just is silent with respect to other workers.

0:17:18 Andrew: And California Business and Professions Code Section 7451. And it says, notwithstanding any other provision of law, including but not limited to the labor code, an app-based driver is an independent contractor and not an employer agent with respect to the app-base driver's relationship with a network company if certain conditions are met. That means that notwithstanding any other provision of law, that means ineligible for workers' compensation, right? So immediately after Proposition 22 passed, it was challenged in court. And the end of August, it was declared unconstitutional. That mandate was just entered in on September 13th, So right, the period by which the defendants have to appeal that that time has not yet run. They have said that they will appeal this. So this is this will go all the way up to the California Supreme Court. Obviously, it will go no higher than that.

0:18:02 Thomas: Yeah.

0:18:20 Thomas: I So, because it's just a California question, that's the highest it'll go. Okay, makes sense.

0:18:25 Andrew: Right. Yeah. Yeah. So here were the arguments that that were made. And but by by parsing through the court's treatment of the argument, you will also get to see how invasive Proposition 22 actually was and is. So the first one is, I think, pretty straightforward. And it is to me, if you asked me to, you know, like bet the spread on the table like that, this part seems to be determinative. And and it is this 14, Section four of the California Constitution grants to the legislature, quote, plenary power, comma, unlimited by any provision of this constitution, end of quote, to So the Constitution says the legislature has unlimited. I mean, that's as strong a language as can get. Plenary power means without limitation. And then just to be sure, in case you don't you didn't know that word, it says unlimited by any provision of this Constitution. So nothing can constrain the legislature's ability to establish a system of workers' compensation.

0:18:27 Thomas: Hmm. Okay.

0:19:32 Andrew: Proposition 22 constrains the legislature'S ability to established a system of workers' compensation. That the legislature wanted to classify economy, right, drivers as being eligible for workers' competition as employees, and this bill prohibits them from doing that, right?

0:19:37 Thomas: Well, I get it. It's, it's interesting. I don't know, I wouldn't have thought of it that way. It feels like the, the, the legislature's, it sounds like they have, are maintaining a system of workers' comp, but it's just a question of like counting people in or out of it, right? I don't know, that just seems like a separate thing. Like, if I am counted either, uh, as an employee or as a independent contractor, it doesn't feel like I've infringed the legislator's right to have a systemof workers' comp. But I don't know, maybe I'm not understanding. Yeah.

0:20:23 Andrew: Well, let's play this out sort of to the extreme and ignore the bill of attainder question that you might raise here. Suppose there was a ballot initiative put forth by, you know, Steve Johnson of Irvine, California. Right. And it passes and it says the only person eligible for workers compensation in the state of California is Steve Johnson. Johnson.

0:20:46 Thomas: Not, okay, did I misunderstand AB5, because like, that's that's my issue, is that AB5 doesn't mention workers' comp, does it? I thought, just, it was about classifying

0:20:49 Andrew: Nope. It it does not mention workers cop, but it mentions the threshold classification that is necessary to qualify for workers cop.

0:21:01 Thomas: Right, I don't know, I mean, that's weird, it just strikes me as not infringing on that, but I guess, I, yeah, maybe I'm wrong.

0:21:07 Andrew: I'm glad we're kicking the arguments around. There's another provision that I think is going to make that even more clear. But but the first way that I would respond to the argument is and actually the argument that I thought you might raise, which is it seems a little weird to say. Right. Like if I'm going to play devil's advocate for Prop 22 to say, wait a minute, you're saying that that something could be a ballot initiative could pass 95 percent of the of the state. State. Right. Everybody could be in favor of it, but it would be invalid because it restrains what the legislature can.

That seems wrong. And Right? The court actually responded to that argument and said, look, there are two mechanisms by which you can undertake a ballot initiative in the state. You can undertake an initiative statute or a ballot administrative constitutional amendment. If you want to amend the Constitution to get rid of the plenary power language, great, more power to you. Bring it as a constitutional amendment. You can't just bring it as an initiative statute because the Constitution governs those statutes and constrains the range of permissible statutes. So, yeah, we're not saying you have no power to stop this, but we're saying that

0:21:12 Thomas: Yeah.

0:21:43 Thomas: Fair.

0:22:29 Andrew: You are constrained by a previous constitutional provision that was then presumably, you know, put into place by a super majority and and deserves greater respect than just sort of your run of the mill, you know, what you want a lot of it

0:22:43 Thomas: Enough, but then so hypothetically, wouldn't this have applied the other way as well? Like, let's say, I guess, if a to b5 didn't happen and the people were just like, "we want these workers you know classified as employees," if we had done that, would the same argument hold that we couldn't do that?

0:22:57 Andrew: To say that that is I'm glad you put the exact same argument would hold.

0:23:02 Thomas: Interesting.

0:23:02 Andrew: Right. This this this argument swings both ways. It says the legislature gets to do whatever they want with respect to workers comp. And you cannot constrain that by another act of the legislature or by a ballot initiative that doesn't amend that provision of the Constitution.

0:23:21 Thomas: All Right, I'll try one more time to say why this doesn't make sense. Maybe, maybe I'll just move on. But workers' comp is just like one of several things that matter in being an employee versus a independent contractor, right? So it just feels weird to be like, the, the, measure that was passed, you, well, okay, am I, misunderstanding? Did, did the Prop 22 mention workers' comp? And that's why I'm getting thrown off.

0:23:25 Andrew: Yes.

0:23:46 Andrew: Yes. And, and, this gets into the second provision that that came up, and that is Section 7465. 1965. And when I tell you I have never seen anything like this, amicus brief was filed on behalf of prominent law professors in the state of California. And basically, that's what that amicus grief says as well. It's like, "yeah, we've been teaching law a long time and I've never seen anything like this before.

Seems real weird." So this was, and again, this was word for word part of Prop 22, but again, buried in, because it was super long, you know, so, right, buried in, uh, or sorry, 14 sections in is, uh, is this provision which says, "the effective date of this chapter," right, now that is, that the law is enacted, the legislature may amend this chapter by a statute passed in each house of the legislature by roll call vote, yep, entered entered into the journal, seven eighths of the membership concurring, provided that the statute is consistent with and furthers the purpose of this bill. What that says is, in order to amend this statute, right, in order to amend this section of the code, you need a seven-eighths majority in

0:24:39 Thomas: Yeah.

0:25:01 Andrew: Each house of the legislature.

0:25:01 Thomas: What in the world they, they got a little greedy, I feel like, however, is however Andrew, is this one of those things where they could be, like, severability, they could, you say, "well, the whole, the other part of the law could still go into effect without this part," where they got real greedy with

0:25:03 Andrew: Yeah. I I, I think you are correct with respect to that. I I that Yep. And, and in fact, most laws are written with a severability clause. And this has one. It is Section 7467. The first part, it has an A and a B. The A is what you would expect. It says, subject to subsection B, the provisions of this chapter are severable. If any portion, section, subdivision, paragraph, clause, sentence, phrase, word, or application is held unconstitutional, that decision shall not affect the validity of the remaining portions of this chapter.

However, subsection B says, "notwithstanding subdivision A, if any portion, section, subdivision, paragraph, clause, sentence, phase, word or application of Section 7451 is for any reason held to be invalid by a a decision of a court of competent jurisdiction, that decision shall apply to the entirety of the remaining provisions of this chapter and no provision shall be deemed valid or given force of law." So in other words, if it affects 7451, it becomes inseverable. The whole thing either rises or falls. And what is 7452? That is, the "an app based driver is an independent contractor and not an employee or agent," period.

0:25:53 Thomas: Still, Didn't hear anything about workman's comp in there.

0:26:38 Andrew: You're about to write it's in it's in 7465, right? The one that the seven eighths. So the first part says you need seven eighth to amend, and it has to be consistent with and further the purpose of this chapter. And then it says statute that amends 7451 does not further the purposes of this. You get the sense that they really, really did not want employees classified, independent contractors classified as employees. And then says, any statute that authorizes any entity or organization to represent the interests of app-based drivers in connection with drivers' contractual relationships with network companies or drivers' compensation benefits or working conditions constitutes an amendment of this chapter and must be enacted in compliance with the procedures governing amendments consistent with the purposes of this This chapter, that is the whole seven eighths thing. So, so, yes, what this says is if there is any statutory authorization that allows any labor union to represent Uber, Lyft, any gig economy worker, that would constitute an amendment of this chapter and would require seven eighth's of the legislature to approve it. Um,

0:26:40 Thomas: Yeah. Yeah. Okay. Well, that seems, yeah.

0:27:56 Andrew: That was struck down, um, rather unsurprisingly, um, and then finally the last argument that was raised here, um, is something called the single subject rule, and it works like this: it says, since you're sticking this on a ballot and people are reading, but, like, people aren't lawyers, um, we're not going to let you stick a 200 page thing on the ballot that's, you know, an omnibus bill that, you know, contains all these kind of weird riders in the middle of, like, you know, "hey, this is a bill to, like, stop, you know, child sex trafficking,"

0:27:56 Thomas: Okay, I get that, yeah. Yeah.

0:28:35 Andrew: And, Yeah.

0:28:35 Thomas: And and and let me echo, as a California voter, like, the Californian ballot is, uh, it's a lot, and I did want to say, somewhere in here I want to mention, people were really mad at Californians and and calling us hypocrites for, like, "well, you, you, you say you're liberal, but then you pass this ballot measure," kind of thing, and, like, yeah, I voted against it, by the way, but, um, also I I think you got to have a little more understanding, like, you know, as you said, 230 40 million dollars was put into this, there were a bunch of ads that went everywhere that were like, just Uber and Lyft drivers saying, like, "hey, please vote no, you know, I got kids to feed," or whatever, vote yes, I don't know, whatever, forget this, could be part of the problem. No, but they're, you know, sympathetic ads, they're like, "I, you vote this way on this," and it, there the ballots have a bunch of these, they're not just one of these friggin' measures on California ballots. Yeah.

0:29:23 Andrew: Well, this is Prop 22.

0:29:25 Thomas: Exactly, there's lots of them and they're all complicated and I can't even remember them day and day and uh, so I dollar it's I effective to spend hundreds of millions of dollars and run nice looking ads, you make it look like you're doing the right thing by voting a certain way. And I maybe give California voters a little bit of a break. Although, again, it was the wrong results. But yeah, it's a long ballot is the point. Oh,

0:29:45 Andrew: Plea, fair plea for charity. And so and you are correct in describing the ballot is ridiculous in length. And so anticipating that one of the protections. Right. It could be worse without Article two, Section eight of the California Constitution. You would not have the single subject rule. You would be able to put in a. Yeah, this stops child sex trafficking and also gives, you know, a billion dollars in tax breaks to, you Know, of course it would happen. Of course it would happen. Right.

0:30:04 Thomas: Man, that would absolutely happen to the anti-human trafficking law. It would just be like tax breaks for corporations. Okay.

0:30:17 Andrew: Right, Right. So provision is that all of the provisions of a proposed ballot measure must be, quote, reasonably germane to one another and to the general purpose or object of the initiative. Each provision of a measure does not need to interlock in a functional relationship, but all of the provisions must reasonably relate to a common theme or purpose. They must fairly disclose a reasonable and common sense relationship among the various components in furtherance of a common purpose. I read a couple of different case holdings to you there. So this judge determined the common theme, purpose or subject of Proposition 22 is protecting the opportunity for Californians who drive their cars on an independent contract basis to provide those drivers with certain minimum standards and to set minimum consumer protection and safety standards to protect the public.

0:31:11 Andrew: And then it says, so what the hell is this collective bargaining thing in Section 7465? Right. No other part of Proposition 22 deals with collective bargaining rights. It does so only obliquely and indirectly as a side effect of a contested construction of certain antitrust laws as barring independent contractors from bargaining collectively. This is related to Proposition 22's subject, but utterly unrelated to its common stated purpose. A prohibition on legislation authorizing collective bargaining by app-based drivers does not promote the right to work as an independent contractor, nor does it protect work flexibility, nor does it provide minimum workplace safety and pay standards for those workers. It appears only to protect the economic interests of the network companies and having a divided, un-unionized workforce, which is not a stated goal of the legislation.

0:32:00 Andrew: So so there you have it. This is a trial court opinion. And as we've worked through this. Right. The seventy four sixty five, I think, is a knockdown. Right? Like that that will not survive. But that portion is severable. Other two arguments. Right and the single subject rule. Right it validates the entire provision. Right like that. That that does not you do not.

0:32:20 Thomas: It's like you've done a boo-boo, so you didn't get to even do this ballot measure because it was misleading kind of yeah yeah well it was like you misled the voters, right?

0:32:24 Andrew: Yeah. Because how would you figure it out? Right. Because, yeah, you're

0:32:29 Thomas: Kind of thing.

0:32:30 Andrew: Right. But we don't know which way they were misled. Right. Like, yeah. Exactly. So, you know, it could be. Could you imagine? Yeah. You've misled the voters. So we're to sever out all the child trafficking provisions of this and just keep the tax cuts. Yeah.

0:32:32 Thomas: Exactly. Yeah. Right, right. No. Yeah. I was agreeing. It makes Yeah. It makes sense that if you've, if you're done something like that, it should, the whole thing should be a wash, really.

0:32:48 Andrew: Right. So in my view, you have you have the the single subject rule, I think, is a pretty strong argument. And then you havethe the constraint on the power to legislate, which, you know, as you pointed out, that was not a knockdown for you. And I don't think it's going to be a knock down for the appellate court for for the for the reasons that you've described.

0:32:48 Thomas: Hmm. Okay. Honestly, I'm not sure. If it's just that Prop 22 is so long and I don't know everything in it, I so-

0:33:14 Andrew: Yeah. So this is going to stay on appeal. The court has not enjoined the act from from going into. So it is in effect right now and will remain in effect while this is being appealed. That is by agreement of the litigants, because, again, the the amendment essentially Essentially preserve the status quo in California. And so you can see why, even though, you know, if you are pro gig economy workers and pro the ability of folks who drive for Uber and Lyft to be able to unionize, which I think we are. And I think our listeners are you would want this this law to be enjoined. It's not going to be enjoyed, but we are going to follow it.

0:34:04 Andrew: And it inevitably will wind up in the California Supreme Court. So so there you go. That is California Prop 322.

0:34:12 Thomas: Fact about the California Supreme Court. Um, it doesn't have Amy Coney Barrett in it. That's just a factoid. I don't know, I actually don't know anything else about the California Supreme Court, but I'm pretty sure, I'm like 95 percent, that it doesn't have Amy Coney Barrett or Clarence Thomas in it, and I just, already it's miles ahead of whatever the stupid U.S. Supreme Court is doing.

0:34:18 Andrew: That's that makes it better than so many other Supreme Courts.

0:34:32 Andrew: There you go. No, argument there, so.

0:34:37 Thomas: Um, you're saying it's not gonna get it in joy or whatever, like it'll, because it's been already how things are going, it's, they're not gonna stop the the Prop 22 from from being in effect, but long term sounds like maybe this could be a successful case. Hmm.

0:34:55 Andrew: And and look, California and the Californian Supreme Court in particular is, uh, no stranger to upsetting the apple cart when it comes to, you know, overturning you long-standing, uh, practices to the other way. Right. And I'm thinking in particular about the decision in the mid 90s that invalidated pretty much all non-compete clauses in the state of California. And their reasoning was, we looked at the law and the law says that these are invalid. And all of our previous opinions have kind of been like, well, you know, in most of the other states, it's valid. Yeah, fine. But this is California. That's what the law say. You want to change the law. There are lots of different ways to change the law. But until you do that, we're going to uphold the law the way it, you know, as it as it reads. And that greatly altered the trajectory of that industry. And the California Supreme Court was like, well, that, our you job is not to protect a particular industry. Our job is to interpret the law as we see it. So

0:35:06 Thomas: Yeah. Yeah. Yeah. Yeah. But how and how frustrating is this whole thing that, you they passed AB5 specifically to try to help these these people and then corporations spend zillions of dollars to, you the to only exempt themselves from it, like to only like get out so that the big corporations get out. And then what's left is like what I was saying earlier, the theater companies, they're like, OK, so I still have to have employees. But like Uber and Lyft got to spend three, two hundred something million dollars and get out of it, the the very corporations, the very entities that we're trying to police here. Uh, so that, that, that's it's been very frustrating, Andrew. It's benna, it's not a great time. Yeah.

0:36:35 Andrew: I am I am with you. So all I can tell you is, you know, you'd rather win at the trial court level than lose. And, you Know, on our side one. So there you go.

0:36:42 Thomas: All This episode is brought to you by ExpressVPN. So, have you ever browsed in incognito mode? I definitely never do that. It's probably not as incognita as you think. And why would it be? Incognito Mode, like the Chrome browser itself, is a Google product. And Google has made its fortune by tracking your movements online. There's even a $5 billion class action lawsuit against the company in California where it's accused of secretly collecting user data. Google's defense? Incognito does not mean invisible. That's a quote. So how do you actually make yourself as invisible as possible online? You use ExpressVPN like I do. Turns out that even in incognito mode, your online activity still gets tracked and data brokers still get to buy and sell your data.

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0:38:25 Thomas: That's e-x-p-r-e-s-s v-p-n dot com slash OA. OA. So go to express vpn dot com slash OA to learn more. This episode is brought to you by X chair has always my favorite time when I tell you about Extra while sitting in my amazingly comfortable X chair From the moment I sat in my X chair, I immediately felt like, oh, yeah, okay. So this is what an office chair is supposed to be like. I previously had a different brand of office chair, a very overpriced brand of office chair, and it wasn't nearly as comfortable as my X chair.

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0:40:04 Clip: He who questions training, only trains himself at asking questions. What?

0:40:13 Thomas: Alright, time for a listener question. Here's a fun one, Andrew.

0:40:17 Thomas: Andrew and OA, I guess that would be the OA part, that's fine. I hope you are all happy and healthy. I have a question regarding the 22nd Amendment and whether Trump's continued claim that he won the 2020 election could possibly disqualify him from appearing on the ballot in 2024. Already Thomas is going to say no, but that's fine, whatever, this is, is no, we'll continue, continue.

The first sentence of the amendment simply says no person shall be elected to the office of the president more than twice. The rest of the amendment seems to deal with the person holding the office after the departure or death of their predecessor. The wording only references being elected, not having the vote certified, not being sworn in, and not serving in the office, just being elected. So my question is, could Trump's claim to have been elected twice be used to bar him from appearing on state ballots? Could an entity, a person, or state purport to take him at his word and, as such, declare him ineligible to run again and sue to keep his name off the ballot? If so, it would seem that all Trump would have to do is admit that he didn't win in 2020 and is therefore eligible to run against, him of course would be a major victory for the country. Well, he wouldn't do that. It's pretty thin, rule I know, but I thought it was worth some of your time. Thanks, guys, from Uncle Doug. Oh,

0:41:34 Andrew: Yeah, that's our buddy Doug Hofling from the uh How to Heretic podcast. Thomas, I mean, you know, you kind of spoiled the answer there that I think the answer is going to be no, but but but we're going to talk about it a little bit because I thought it was, I thought it was interesting. One of the things that was really interesting to me about this is when you go on Westlaw, when I go on Westlaw and you search the 22nd Amendment, apparently, this is another goofball, like sovereign citizen thing. Right. You pull up a ton of cases where people will say, know, plaintiff alludes to violations of his rights under the 22nd Amendment and the Declaration of Independence. This is this is from a California case called Parks versus Chakano, which when his 22nd Amendment right was violated through excessive a C.C.S.S., I.V.E.

0:41:38 Thomas: All

0:42:37 Andrew: Brutal force and his right to life, liberty and property under the Declaration of Independence was abused. And the court says the 22nd Amendment limits an elected president to two terms in office. Neither it nor the Declaration of Independence creates rights cognizable in a Section 1983 action.

0:42:58 Andrew: So, yeah, I had not realized that that certain nut jobs were out there claiming that they have special rights under the 22nd Amendment. Here's why I think that the the argument isn't going to work. Number Right. One, first sentence says no person shall be elected to the office more than twice. Right? Right. And in legal terms, right, that is an objective standard, not a subjective standard. So it is, to me, akin to no person shall be elected president who has not yet attained 35 years of age. If I'm right, 18 and delusional and, you know, or actually, let's do it the other way around. If I'm 40 and delusional and I think I'm 17, right, the courts are not going to declare that I am an invalid president because I think they would say, no, you have Obtained 35 years.

Right. Now it may be worth bringing the lawsuit just to have a court declare as a matter of fact that Donald Trump was not elected to the office of the president more than twice. He was not elected twice. But would, I think, you not, I mean, we have 61 separate lawsuits. Right. We already have a lot of courts that have said the same thing. The real right issue, I think, that you are trying to get at in this question is to force Trump to admit that he didn't win in 2020. And this would not do that. Right. Like, because, again, you cannot alter a material fact based on your perception of it.

0:43:48 Thomas: Yeah. I like

0:44:41 Andrew: And I think and I agree with you, by the way, that that, Trump would he he would just he's done this a dozen times. Right. Say one thing in the litigation and then come out and go, I didn't say that. Right. I the problem really are is is alternative facts. So

0:44:57 Thomas: Your sentence earlier, that you can't alter a material fact by your mindset about it, that's a good, that's, that should be an intro quote. Uh, what? Oh.

0:45:05 Andrew: All right. So how about how about we give we take we take one more listener question.

0:45:10 Thomas: Okay, right, this one's from individual two. I was once. Yeah.

0:45:13 Andrew: Unindicted. That's good. That'S good to know.

0:45:15 Thomas: Yeah. I was once a juror for a serious criminal hearing and there were many, any critically important questions that were left unanswered because of the terrible lawyers on both sides. Can judges or jurors ask questions in any jurisdiction known to you? Do you think they should be able to? Okay, well, I'll field this one. No, I don't remember, can't the jury, if I remember from our Law'd Awful Movies that we usually correct, you know, and you tell me what the real law is, they can ask the judge for clarifications on laws, right? Can't they, like, like, passing, you know, pass a note to the judge and ask like, okay, what's the standard for something here? Um, that kind of thing. But I guess maybe individual two might be talking about like actually asking more, I don't know, fact-based or whatever questions about the trial itself and about the evidence maybe.

0:46:05 Andrew: Yeah, so you are absolutely correct, on I think, on both halves of that, right? So there is the procedure in place whereby the jury can send send a note to the judge and ask whatever questions they want from.

0:46:17 Thomas: She's like, how are you doing? How's it? Hey, hey.

0:46:20 Andrew: Hey, judge, what you wearing?

0:46:22 Thomas: Do they, do they fold it like we did in grade school? You know, that like weird, all the, all of the girls in grade school could do amazing things with pieces of paper that they were like origami people, you know, like they were able to just make these notes that folded in cool ways and made envelopes out of themselves and stuff. Now I picture that, that would be fun, put some glitter on it, send it over the judge strategy

0:46:25 Andrew: Yeah. Oh, with the little way you can put your fingers in it.

0:46:42 Andrew: I'm I'm totally with you now. So the answer you get right may certainly depend. But I, I read this question as individual to saying I'd like jurors to be able to, you know, ask questions of the witnesses or even of the opposing lawyers. And and the reason I wanted to tackle this question is because I want to dispute the premise. OK. And that is, I do not think you can tell as a juror whether questions are being left unanswered because of terrible lawyering or we don't know what's been moved in limine. Right. And has been excluded.

0:47:22 Thomas: Yeah.

0:47:22 Andrew: So, you know, let's I mean, start with a start with the criminal case. Right. Right. Suppose you have an illegally obtained the murder weapon. Right. Was illegally obtained. And there was a motion to suppress that piece of evidence. And it was granted. Right. And the judge decides, hey, you can go forward on the rest of the trial, but you can't introduce the murder weapon because you seized that in violation of his Fifth Amendment rights. Well, the trial is going to seem incredibly weird to anybody on the jury. And right? You're to sit there and go, is this the dumbest prosecutor on earth?

Why won't they tell us what, you know, what she was murdered with? Where's the, where's the weapon? Right. Why aren't you talking about this? And the answer is they can't talk about it because the presentation that goes to the jury is carefully constructed so as to avoid things that would be unfairly prejudicial. And, you know, we actually talked about this just a couple of weeks ago in connection with the T3BE question, right? Like, I can't get up at the end of an auto insurance case and say, come on, this guy's got plenty of insurance. Just, you you know, vote, vote. Fine. Find the defendant responsible.

0:47:56 Thomas: Most of my imagined legal strategies as a lawyer involved the first word, come on. You know, like, go ladies and gentlemen the jury, come on, different, different ways.

0:48:45 Andrew: Yeah, exactly. So so I love the question because I don't think we do this enough in media. Right. Like when you watch, you know. Even good law shows or even good law movies. Right, we always see it from the perspective of, you know, what happened and then you see the trial, but but uh but we should be more upfront about the fact that, um, juries are by design, uh, not exposed to all of the facts. And, and that's why, you know, we just talked about in, uh, in the most recent lawdawful movies, you know, your honor, sidebar, why? Because I want a sidebar. Right. And a side bar means, they, they turn on the little white, noisy thingy and the jury and the witness can't hear. And so, you know, there are a lot of things that are kind of carefully kept out of view of the jury. So, you might have seen bad lawyering or you might've seen a case where there was a motion in limine.

0:49:22 Thomas: That's an excellent point, I, yeah. I thought you were gonna say for like strategy purposes, but no. Yeah, totally. I, wow, as a non-lawyer, that's something you just wouldn't think about, especially if you've never listened to our show. Like if you're just a random juror, you're probably just like, what the hell, what are these people thinking?

0:49:47 Andrew: Yeah. Yeah. Love that and I love being able to kind of jump in there. So no, again, I do think while we're talking about things that are permitted in some areas and not in others, I am a big fan. Some jurisdictions allow the jurors to take notes. It will not surprise you that think jurors ought to be able to take notes.

0:50:21 Andrew: My style of litigating lends itself much better to people who are taking notes than not. Uh, so, and, and again, I, you know, you're allowed to ask questions, um, from deliberations, uh, but but but that's intermediated. Right. So, could you have a situation, so let me explore that for a second, could you have a situation where the jury is allowed to pass a question to the judge after a witness, right, after a witness finishes testifying but before they step down?

0:50:21 Thomas: Do you think they're lying or not judge you're you're like the teacher in this situation just give us the answers, yeah, yeah, do you have the answer key up there, who's telling the truth yeah

0:50:57 Andrew: Judge, do you like me check check one for yes can we have court outside, um, but yeah, so you, you might be able to make, to make that kind of a system work, um, and I don't know what I would think about that, that, that's that is interesting, I, I think anything that increases the potential for a, a question that comes up, uh, that might allow one side to exploit, um, a piece of evidence that is, that is otherwise excluded, uh, would, would potentially shift the balance. Right. So, again, let's go back to the murder weapon has been suppressed case.

Like a note comes up to the judge and the, I guess the judge would have to read that note in chambers and then have a sidebar with the lawyers as to whether, because you wouldn't even want the judge to read it out loud and say, now, I'm not going, going to tell you why you can't ask the witness where the murder weapon is. So, yeah. So it I don't want to be too much of a traditionalist, but I but I think that that that protecting those interests are worth maintaining the system. But So an awesome question.

0:51:07 Thomas: Yeah that's I mean it's a very good point, I, I, am glad we answered that question because don't go think, yeah, I'm sure there are incompetent lawyers out there, we know there are, we've covered a lot of them on the show, but, uh, also don't assume that they are, that just because of, you a trial being a little weird. Who knows what lemonade you weren't privy to. Emotions and...

0:52:30 Andrew: Tall glass of motion and lemonade. But thank you, individual, too. And may you remain not a person of interest.

0:52:32 Thomas: Yep. Nice.

0:52:39 Clip: And thank you, Let's go!

0:52:41 Thomas: All right, Andrew, no T3BE this week because it was just too, it was so much. You squeezed so much into that Thursday, Friday episode that it was, was unbelievable, it was like five different amazing things, so we have to skip right to, uh, thanking our amazing Hall of Fame patrons and this is the fourth quartile, uh, I think we, everybody knows this, our favorite quartile of of the five, naturally.

0:52:59 Andrew: All right. Right. Obviously the best quartile.

0:53:09 Thomas: Start us off

0:53:09 Andrew: Yeah. And thank you, to welcome back to the Hall of Fame, to the impossible Hamburglar. I like that. I like the idea of there being an impossible Hamburglar, right? Like he looks kind of exactly like the real Hamburglar only, you know, he's in better shape and, you know.

0:53:20 Thomas: Yeah. Well once they come up with the impossible, like, whopper, sorry, uh, possible Big Big Macers, which I think they will, although it'll be the McDonald's brand cardboard meat, but it's fine.

0:53:32 Andrew: Oh, obviously. Yeah. Right.

0:53:35 Thomas: I'll still eat it. It'll be great.

0:53:36 Andrew: Oh, wait, wait. Wait. Did you just diss McDonald's? Like, I.

0:53:39 Thomas: Oh yeah. No, I, so McDonald's is fantastic. I don't eat it cause it makes me sick and I throw up, but it'S, I still worship at the altar of McDonald's. You know what I mean? Like it's not real meat. It's delicious. It'S fantastic. I can't eat It. My stomach can't handle It. Still 10 out of 10.

0:53:49 Andrew: No. All right. All right, Jason Copas. Hey, Arizona, support Aaron Lieberman for governor. Ian Hamilton, jurisprudence fetishist, gets off on technicality. Stop calling him Uncle Frank. Nate Drex has to call him dad. Another Minneapolis waiting for our live show in Minneapolis. Well, you know, if you can solve this duck, duck, gray duck mystery, then that that that gets us closer to a live show in Minneapolis. I think I think that's right.

0:54:21 Thomas: There's no mystery. Oh, Oh, you mean like how it happened? Because I hope you're not doubting me. I have a friend from Minnesota who literally, yeah.

0:54:23 Andrew: Yeah, right. Yeah. No, I'm not. I'm saying what's a gray duck yet? That would be good. Medicon seven enjoys their four minutes, 59 seconds of legally allowed evil. Not sure what that means, but OK. Knock, knock. Who's there? HIPAA? HIPAA who? I can't tell you. Definitely not an MSNBC spy. My Fully Stocked Basement Bar is your fully stocked basement bar for a fully live show platinum event. You pick what's on tap. Jeff Gelbach. CivilPoliticsRadio.com. Fridays at 7 p.m. Eastern on Valley Free Radio. Jennifer Kratch. My name is a joke from another podcast from like three weeks ago. I hear our jokes on other podcasts and It just warms my heart. It really is the best one. Like, you know, the Knowledge Fight guys or like Tom and Cecil have to figure out like what the hell two fabulous lesbians means. Like, it's great. Uh, John Bilderbeck, my stepdaughter is a fabulous lesbian and all I got was this Patreon name.

0:54:29 Thomas: Okay, yeah, that's the best. Yep,

0:55:20 Andrew: My my friend's cousin mixed coke with cop rocks and he died. And Steven Balticate, Sandoval, Thomas, I think you have a a pretty good run of patrons coming up here, so take it away. Oh, okay.

0:55:20 Thomas: There you go. All right, thank you to Next Law'd Awful Movies should be the Congressional Baseball Game. Philip Kizer, Andrew the Arbitrary and Capricious, give to modestneeds.org, then visit deepfakestop.com. Hmm. Geyer Sergith. That's not even close. Sergisith. Sorry. Why would a lobbyist buy a small house in D.C. when they could buy a mansion in West Virginia? Fair enough. Abseon.

0:55:56 Andrew: That's good.

0:55:58 Thomas: Not that Chris Wallace. Five years of never saying snowmobile, then 50 times in one episode. I'm dying. Okay. Yeah. Jonathan. Lord Kinbote. No, your honor. I am not a cat nor am I a potted plant, but I am a karaoke legend if that helps. Edit Wikipedia. Yes, you too can contribute to the world's foremost source of free knowledge and maybe get sued by a quack. Milo Mead song wishes all Stephen Briars a happy retire. Now, yeah, absolutely, please retire. Um, and stop singing the praises of how the court isn't political and all this is just nonsense. Briar just get, I'm done with you. Okay,

0:56:28 Andrew: Yeah, it really is and, and by the way, I'm on team like Ruth Bader Ginsburg should have known in 2013 is ridiculous. Right? Like, that's, that's totally insane. But like Stephen Breyer's 105, he knows. Exactly what's going on.

0:56:45 Thomas: We can take our debate off the air.

0:56:47 Andrew: Yeah, we'll take that off the air. But but there's no but

0:56:47 Thomas: I mean, uh, after after her ninth cancer, sir. She could have maybe, like, uh, maybe retired in 2014 at the age of like 90, already 87, or something, so absolutely none

0:56:56 Andrew: there'S no argument for Stephen Breyer. Let's just agree. Let'S agree on that one. Yeah.

0:57:00 Thomas: Yeah, absolutely whatever you think of Ruth Bader Ginsburg's decision, uh, Briars is way more obvious, way simpler, and he's not doing it. So, uh, F that guy, at least for now. We'll see if maybe he squeezes in retirement. Yeah, I don't know. Join your labor union together. We bargain alone. We beg. Dude, freedom menu, I'll order item 1A, extra speech, hold the religion. The ratio of a jack-o'-lantern circumference to its diameter is called a pumpkin pie. Nice, love it. Alfred Wallace, and and justice for Sergeant Javi Escuada, indicted for felonies in retaliation for whistleblowing police misconduct. Oh geez, yeah. Don't we, uh, isn't there such thing as whistleblower protection, protection, Andrew, or is that just something, a pie in the sky thinking, yeah,

0:57:12 Andrew: At least for now.

0:57:47 Andrew: There there is such a thing. But again, I know nothing about the case. And there are a tremendous amount of holes in it. So, yeah.

0:57:53 Thomas: Well, to use your patron name for good there, and thank you to all our Hall of Famers, next week will be the final, final the quintile, yeah that's close, so

0:57:54 Andrew: Yeah.

0:58:04 Andrew: That's an excellent acapella version of the final countdown, by the way. So, yeah.

0:58:10 Thomas: Thanks so much, patrons, Hall of Farmers, we love you, and yeah, we'll do the last shout out, and then we'll reset, go back to the beginning in the in the month of November. So it should be fun, and that's our show. Ah, looking forward to getting back on the T3BE saddle, uh, next week. I needed that time off, you know, it's like my bye week, you know, I just gotta

0:58:28 Andrew: Yeah. Everybody needs a little bit to, you know, go to the weight room and just, you know, reset. Yeah.

0:58:28 Thomas: Yeah hit the books by that, I mean, do absolutely nothing. Thanks as always for the deep dive, Andrew, and we'll be back for our first rapid response where you are not on a boat for quite a while. I can't wait. See you then.

0:58:47 Clip: Until then. I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:59:22 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.