MOORLACH UPDATE — Sacred Votes — May 26, 2019

With the housing shortage, renewable energy and wildfires, the Democrats are having to initiate the pursuit toward balance. They are the ones who must now swing the pendulum back in the other direction. This past week provided one great example of their plight.

An area that has screamed for reform is the California Environmental Quality Act, known as CEQA. Thursday’s Senate Floor Session provided an excellent debate on CEQA when SB 25 was presented. What made the Floor discussion more interesting is that Republicans did not join in. It was a rare opportunity to remain silent and observe a Democrat-on-Democrat affair.

The high priests of CEQA, Senators Jackson and Wieckowski, strongly defended against any modification of this holy act. As a reminder, it was Senator Wieckowski, as then-Chair of the Senate Environmental Quality Committee, who killed my CEQA reform bill, SB 1248, in 2016 (see MOORLACH UPDATE — SB 1248 — August 28, 2016). These two Senators fought gallantly in defending the indefensible.

If you go to the link on SB 1248, you will see I was way ahead of this subject and its impact on the lack of housing stock — just sayin’. And, I even exhorted our new Governor to pursue CEQA reform after his successful election

(see MOORLACH UPDATE — Working With the Governor-Elect — November 8, 2018). But, let’s get back to the drama.

Fortunately, common sense prevailed and an historic and rare vote occurred, with some of the Democrats either voting against SB 25 or abstaining (which is similar to a vote of opposition). When the dust settled, the high priests had lost. The California Globe covers this epic battle in the first piece below.

After the Floor debate, I asked Senator Jackson what she meant with her reference to Miami Beach, as I have toured South Beach and the renewal there has been amazing. She felt that there was too much development along the Miami coast.

We also dealt with SB 360 by Sen. Hill on Thursday. The last time I discussed this bill, I raised the concern over constitutionality and the costs of litigation

(see MOORLACH UPDATE — Committee Season Has Started — April 3, 2019). Sen. Jackson was more than happy then to litigate.

I recently asked Attorney General Xavier Becerra what it cost his office to take AB 775 to the U.S. Supreme Court. After a few weeks the answer of $870,000 was delivered to my office to this unsuccessful effort. I believe I warned my colleagues on the Senate Floor that this would occur — and I’m not a Harvard Law graduate.

In the Senate Budget & Fiscal Review Sub 5 Committee, we recently had to approve an expense of $2.1 million to reimburse the prevailing parties in this litigation effort. A total of $3 million may seem like budget dust in a $214 billion proposed annual spending plan, but it can feed a lot of hungry children in poverty or who are homeless.

The argument was made that identical laws had been approved in numerous other states and have stood up to legal scrutiny. The East Bay Times, in the second piece below, seems to infer that SB 360 is not identical to those other states and may still be fraught with constitutionality issues.

My frustration is that one’s sins will find them out. The Roman Catholic Church’s inability to immediately extinguish the blight of pedophile priests is now coming back to roost. The reverberations will be long lasting, frequent, and will create a battle over religious liberties for them and many other faiths in our state. Consequently, I abstained (which is similar to a vote of opposition).

All the same, before this bill goes any further, I would like to know if my colleague authoring the bill has spoken with a cross-section of representatives of the tens of millions of adherents in the state like priests, pastors, bishops, ministers, rabbis, and imams about how they will deal with this issue?

Further, is he willing to convene an ecumenical council of sorts to discuss the current practices and procedures and discuss real clergy challenges that have little to do with cover-up, but a lot to do with trust, the repentance process, shepherding a flock, and showing justice and mercy in their congregations?

While the practice of penitence with a priest may not be an active part of my faith tradition, I understand just how complex and sensitive it is, especially for a well-intended legislator who just wants to fix a problem. But I fear if he rushes down this path, he may cause many other problems beyond the legal costs the state will incur. Therefore, I would recommend taking a time out in order to get this right.

Dems Squabble on Bill to Expedite California Environmental Review on Development Projects

The bill would expedite CEQA litigation, when used to delay or slay a project

By Katy Grimes

A bill by Sen. Anna Caballero (D-Salinas) to expedite California Environmental Quality Act provisions and judicial reviews on many types of developments, exposed a divide in the State Senate Thursday.

The idea behind SB 25 is to expedite CEQA litigation, when used to delay or slay a project. “SB 25 is a modest attempt to join forces with a federal tax credit designed to funnel an estimated $6 trillion from capital gains earnings into America’s poorest neighborhoods to create jobs and housing,” Caballero said. “SB 25 creates an incentive for green, sustainable development for critical housing statewide, and for economic development in the 879 Opportunity Zones, which includes California’s poorest census tracts.”

“If the Legislature can deliver CEQA litigation streamlining for billionaire sports team owners, then we can do it for all Californians,” Caballero said in bill analysis. “Many of the recently enacted sports stadium legislation language stems from SB 743 (Steinberg, Chapter 386, Statutes of 2013), which laid out special procedures for expedited judicial and administrative review of an EIR for the Sacramento Kings arena. SB 25 goes further, also applying the expedited judicial review procedures to challenges to NDs and MNDs and to a determination that the project is exempt from CEQA.”

“Designed to protect the environment, CEQA instead has become a bureaucratic monstrosity and NIMBY tool that greatly increases the time and cost of building housing of any kind,” Sen. John Moorlach (R-Costa Mesa) wrote in 2018. “When the will is there, CEQA has been magically modified to expedite construction for sports stadiums and arenas, including exemption bills this fall for the Oakland A’s and Los Angeles Clippers. I did not vote for those bills because I oppose CEQA favoritism.”

“What’s good for millionaire players and billionaire owners should be good for the middle class and the homeless.”

California = Miami Beach

Yet Sen. Hannah Beth Jackson (D-Santa Barbara), who voted against SB 25 warned, “If we’re prepared for the state of California to be turned into Miami Beach, support this bill.”

“Other problems we have established through the courts become secondary,” Jackson said, excoriating the bill. “Medical malpractice, elder abuse, restraining orders and domestic violence orders are all going to get pushed back. Opportunity Zones could be anything – not just a limited housing tract.”

“We are going to ignore or circumvent environmental concerns; to eviscerate CEQA is not the way to go,” Jackson added.

Warnings Rebuked

Sen. Scott Wiener (D-San Francisco), effectively rebuked Jackson’s denunciation of SB 25: “This does not eviscerate CEQA. This is about areas zoned X, Y, or Z, and having expedited review. It’s important not to overstate what the bill does.”

Wiener said he would not support the bill if it eviscerated SB 25.

Sen. Jackson, an attorney, frequently authors legislation for the trial lawyers. Sen. Wiener is also an attorney, as is Sen. Caballero, the author of SB 25.

Conversely, environmental review in Texas takes months, not years, as the chart on the right shows.

CEQA Reform

If CEQA is ever to be reformed, attorney’s fees in CEQA lawsuits need to be limited or eliminated, as legal challenges have become a cottage industry, says Andy Caldwell, executive Director of COLAB in San Luis County, next door to Santa Barbara. “CEQA must be amended to balance its provisions with economic considerations. Economic vitality and job creation must be considered and appropriately valued in the CEQA process and should be considered an overriding consideration in approving projects.”

“Additionally, we also need to set a limit as to what constitutes a resource and what constitutes a significant impact to a resource,” Caldwell wrote. “Currently, there is no limit on what can be construed as a resource to be protected, nor is there any limit as to what can be considered an impact to the same. Any “impact” to any “resource,” no matter how trivial, can be deemed significant.”

Caldwell continues: “For example, some years ago, the tag team of CEQA and the Endangered Species Act (ESA) stalled a hospital project out of concern for eight flies! We now actually have a fly preserve as a result! CEQA doesn’t always need the help of the ESA, it can kill common sense single handily. How about the fungus growing on rocks in a field in Santa Barbara that warranted a lichen restoration program! Flies and fungus! These are resources worthy of stalling projects?”

SB 25 passed the Senate 28-6, with four Democrat Senators abstaining.

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Should California force priests to report child-molestation confessions? Church leaders say it violates religious freedom

By John Woolfolk

The law has long treated confession of sin to a priest as sacred. Even clergy who hear a fellow priest’s confession to sexually abusing a child generally can’t be compelled to report it to authorities.

But should they be?

California lawmakers are considering that fundamental question amid heightened scrutiny of the child sex abuse scandal roiling the Roman Catholic Church. The state Senate resoundingly approved a bill last week that would force clergy who hear confessions of child sex abuse from another priest to report it. Church leaders say it is an unconstitutional government intrusion and violation of religious freedom.

“Faith leaders have been the only exception to this rule,” the bill’s author, Sen. Jerry Hill, D-San Mateo, said, adding that even doctors and spouses must report suspected child abuse reported to them in confidence. “Instead of protecting children, some have been shielding abusers. It is time for California to put children first.”

The California Catholic Conference opposes Hill’s bill, SB 360, arguing it will not help protect children and dangerously weaken religious freedom by “interjecting the government into the confessional.”

“The ‘seal of confession’ is one of the most sacrosanct of Catholic beliefs and penitents rely on this unbreakable guarantee to freely confess and seek reconciliation with God,” the California Catholic Conference said. A priest who “breaks the seal,” the group added, “is automatically excommunicated.”

“We are dealing here with an egregious violation of the principle of religious liberty,” Robert Barron, auxiliary bishop of the Archdiocese of Los Angeles said in a statement.

However, the bill comes at a time when the Roman Catholic Church is under fire over priests who sexually abused children. Reporting of widespread abuse in the Boston diocese prompted U.S. bishops in 2002 to adopt a Charter for the Protection of Children, known as the Dallas Charter, to prevent child abuse within the church.

But more recent revelations like a bombshell Pennsylvania investigation in August that found widespread child sex abuse and cover-ups over decades in six dioceses has sparked fresh outrage. California Attorney General Xavier Becerra is now investigating the Golden State’s dioceses.

The bill is headed to the state Assembly after passing out of the Senate on a 30-4 vote. Senators Patricia Bates, R-Laguna Hills, Shannon Grove, R-Bakersfield, Brian Jones, R-El Cajon, and Jeff Stone, R-Murrieta, were opposed.

Four other senators — Benjamin Allen, D-Redondo Beach, Andreas Borgeas, R-Fresno, John Moorlach, R-Costa Mesa, and Mike Morrell, R-Rancho Cucamonga — did not record votes.

Supporters include Crime Victims United California, the Survivors Network of those Abused by Priests, the National Association of Social Workers and Consumer Attorneys of California.

Hill said that California hasn’t before attempted legislation challenging the “clergy-penitent privilege” protecting priests from having to disclose child abuse confessions. But he said Connecticut, Indiana, Mississippi, Nebraska, New Hampshire, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and West Virginia already have similar statutes.

Steve Pehanich, spokesman for the California Catholic Conference, disputed that claim, saying “we can’t find any that removed the exemption.”

An analysis of the bill for the Senate Public Safety Committee said “only 6 states deny the clergy-penitent privilege in cases of child abuse or neglect,” and added that their “ability to compel testimony from clergy who learned of abuse during a penitential communication may be limited.”

The analysis said the constitutionality of a statute that requires clergy to report child abuse but “does not provide an exemption for penitential communications remains an evolving legal question.”

Hill’s bill would not only remove the clergy-penitent privilege in formal confessions of child sex abuse by priests to fellow priests, but also clarify that admissions outside a formal confession to an ordained priest are not exempt from the reporting requirement.

Hill called it a “weak argument” that the Constitution’s First Amendment religious liberty protection allows a priest to keep secret a fellow priest’s admitted sexual abuse of a child. He noted that free speech rights don’t let someone incite a dangerous stampede by yelling “fire” in a crowded theater where nothing’s burning.

California, Hill added, outlaws polygamy practiced by some religious sects, and recently eliminated the religious exemption for being vaccinated against communicable diseases.

“None of our freedoms is absolute,” Hill said. “The reason they’re not absolute is there are times when the greater good is not being served by that purpose. If you look at child abuse and neglect, there’s no greater good.”

But Pehanich called it a slippery slope, arguing that if government can force a priest to disclose a confession of sexually abusing a child, why not anyone’s confessed misdeeds, like check kiting?

“You start doing it for this,” Pehanich said, “you start doing this for everything.”


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