(California Court of Appeal) - Held that the State Bar of California did not have to disclose information from its database. For social science research purposes, the petitioners sought anonymized data about all individuals who took the California bar examination from 1972 to 2008, including their race or ethnicity, law school and undergraduate grade point averages, LSAT scores, and performance on the bar examination. Affirming the denial of a writ of mandate, the California First Appellate District held that such a request was beyond the purview of the California Public Records Act because it would compel the State Bar to create new records.

(United States Supreme Court) - Held that a copyright claimant may not commence an infringement suit until the Copyright Office registers the copyright. The plaintiff, a news organization that sued a news website for infringement, argued that the relevant date should be when the Copyright Office receives a completed application for registration, even if the Register of Copyrights has not yet acted on that application. The U.S. Supreme Court disagreed, in a unanimous opinion delivered by Justice Ginsburg.

(California Court of Appeal) - Affirming the dismissal of a complaint brought by a company formed by a hairdresser who attempted to take advantage of changes in the law relating to whether cancelled companies can pursue litigation rather than litigate in a forthcoming manner, creating a situation where they were technically entitled to proceed but allowing them to do so would be unfair.

(Supreme Court of California) - In an action concerning who pays for storm drains, the Court of Appeal's conclusion that the Regional Water Quality Control Board for Los Angeles's permit conditions are mandated by federal law and that storm drain systems operators are not entitled to state reimbursement under Article XIII B, section 6, subd. (a) of the California Constitution is reversed where the permit conditions are not imposed by any federal law or regulatory system.

(United States Second Circuit) - Denying a petition for review by the New York State Department of Environmental Conservation seeking to vacate two orders of the Federal Energy Regulatory Commission authorizing a company to construct a natural gas pipeline in New York and determining that the Department waived its authority to provide a water quality certification for the pipeline project under Section 401 of the Clean Water Act.

(California Court of Appeal) - Affirming the denial of an administrative writ and declaratory relief in the case of a Pacific Gas and Electric Company lease extension on two long term leases on land used for water intake and discharge for a nuclear power plant because the lease replacement was subject to the existing facilities categorical exemption to the California Environmental Quality Act's environmental impact report requirement and the unusual circumstances exception did not apply.

(United States Fifth Circuit) - In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees.

(United States Fifth Circuit) - In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees. (Revised opinion)

(United States Fifth Circuit) - Affirmed. A lawsuit in which Texas complained that EEOC regulations relating to the use of criminal records in hiring was an unlawfully promulgated substantive rule properly dismissed the suit but enjoined EEOC enforcement until the agency complies with notice and comment rulemaking requirements under the Administrative Procedure Act.

(California Court of Appeal) - Affirmed. Plaintiff was an investigator employed by the California State Lottery. He sued Defendant alleging retaliation in violation of the California Whistleblower Protection Act. Defendant filed an anti-SLAPP motion to strike Plaintiff’s complaint. The trial court denied the motion. The appeals court agreed finding Plaintiff had established his complaint arose from a protected activity and that he was likely to succeed on the merits of his claim.

(United States Third Circuit) - In a case to determine whether SB 2460, which the New Jersey Legislature enacted in 2014 (2014 Law) to partially repeal certain prohibitions on sports gambling, violates federal law the district court's judgment that the 2014 Law violates the Professional and Amateur Sports Protection Act (PASPA), 28 U.S.C. sections 3701-3704, is affirmed where PASPA, but its terms, prohibits states from authorizing by law sports gambling, and the 2014 Law does exactly that.

(United States Third Circuit) - In an appeal to determine where whether SB 2460, which the New Jersey Legislature enacted in 2014 to partially repeal certain prohibitions on sports gambling, violates federal law, the District Court's holding that the 2014 Law violates the Professional and Amateur Sports Protection Act (PASPA), 28 U.S.C. sections 3701-3704, is affirmed where PASPA by its terms, prohibits states from authorizing by law sports gambling, and the 2014 Law does exactly that.

(California Court of Appeal) - In a suit for negligence and willful misconduct against soccer league defendants, arising out of the sexual abuse of plaintiff by her former soccer coach, the trial court's judgment sustaining defendants' demurrers to the fourth amended complaint on the ground that they had no duty to protect plaintiff from criminal conduct by a third party and dismissing the defendants is reversed where defendants had a duty to conduct criminal background checks of all adults who would have contact with children involved in their programs.

(United States Second Circuit) - Affirming the denial of the North American Soccer League's motion for preliminary injunction seeking Division II designation pending the resolution of its antitrust case against the United States Soccer Federation because they had failed to demonstrate a clear likelihood of success on the merits of their claim.

(California Court of Appeal) - Revived claims brought by several African-American college basketball players that their head coach had engaged in race-based discrimination and retaliation. The players claimed that the coach reduced their playing time, afforded them fewer opportunities, punished them more severely and otherwise favored their teammates of other races. Reversed summary judgment in relevant part on their claims under title VI of the Civil Rights Act of 1964 and California law.

(California Court of Appeal) - Held that an electrical contractor could not proceed with its lawsuit challenging a state licensing board's disciplinary decision, because the contractor was required to exhaust its administrative remedies before filing suit. Granted the licensing board's petition for a writ of mandate.

(California Court of Appeal) - Upheld a decision of the Contractors' State License Board finding that a large contracting company violated California law by failing to obtain a building permit before replacing a boiler. Affirmed the denial of the company's writ petition.

(California Court of Appeal) - Affirmed. Plaintiff sued medical providers for birth injuries that were paid for through Medi-Cal. The Department of Health Care Services put a lien on the monies recovered from the medical providers. Plaintiff sought to remove lien. Court held that Medi-Cal was entitled to repayment and upheld the lien.

(California Court of Appeal) - Reversed. Plaintiff, a retired teacher, sought relief to prevent Defendant from reducing retirement benefits and to restore monies wrongfully withheld. The trial court held that Defendant was time-barred to reduce benefits and collect over payment, thus concluding that continuous accrual theory did not apply. Appeals court held the continuous accrual theory did apply, but Defendant was time barred as to over payments made more than three years before the action was filed and may adjust future monthly payments to recoup those prior over payments.

(United States Supreme Court) - Held that a copyright claimant may not commence an infringement suit until the Copyright Office registers the copyright. The plaintiff, a news organization that sued a news website for infringement, argued that the relevant date should be when the Copyright Office receives a completed application for registration, even if the Register of Copyrights has not yet acted on that application. The U.S. Supreme Court disagreed, in a unanimous opinion delivered by Justice Ginsburg.

(United States Fourth Circuit) - Denied a legal challenge filed by environmental groups seeking to prevent the construction of a natural gas pipeline across part of Virginia. The environmental groups argued that the Commonwealth of Virginia had improperly certified that the pipeline project would not degrade the state's water. Unpersuaded, the Fourth Circuit, which had jurisdiction over the case by federal statute, concluded that Virginia's issuance of a Clean Water Act certification was not arbitrary and capricious, and thus denied the environmental groups' petition for review.

(United States Supreme Court) - This case involved the State of Washington's tax on fuel importers who travel by public highway. The Yakama Nation contended that its 1855 treaty with the United States forbids that tax from being imposed upon fuel importers who are tribal members. The U.S. Supreme Court agreed with the tribe. Justice Breyer's plurality opinion was joined by only two other justices. Justices Gorsuch and Ginsburg concurred in the judgment.

(United States Fifth Circuit) - Affirmed. A lawsuit in which Texas complained that EEOC regulations relating to the use of criminal records in hiring was an unlawfully promulgated substantive rule properly dismissed the suit but enjoined EEOC enforcement until the agency complies with notice and comment rulemaking requirements under the Administrative Procedure Act.

(United States Seventh Circuit) - Affirmed. The FBI's refusal to turn over materials relating to the investigation of a murder on state park land that would violate the personal privacy of third parties and would disclose the identity of a confidential source was proper.

On Friday’s broadcast of HBO’s “Real Time,” host Bill Maher discussed the sexual assault allegations made by Tara Reade against 2020 Democratic presidential candidate former Vice President Joe Biden and stated that the matter is a he said, she said,

Jeff Haste, Pennsylvania's Dauphin County Board chairman, slammed Gov. Tom Wolf (D) in a letter on Friday for keeping a bulk of businesses closed, particularly in his county, and bluntly called on Wolf to “return our state to the people (as prescribed by our Constitution) and not run it as a dictatorship.”

(California Court of Appeal) - Reversing a trial court judgment granting writ of mandate and the award of attorney's fees in the case of a real estate salesperson who sued a state agency for publicizing her three misdemeanor convictions because they had no mandatory duty to remove from their website information about a licensee's convictions even if they were eventually dismissed.

(United States Ninth Circuit) - Affirmed that a federally recognized Indian tribe was prohibited from operating an internet bingo casino. The State of California and the United States brought this lawsuit contending that the tribe's online bingo game violated the federal Unlawful Internet Gambling Enforcement Act. Agreeing with the governmental plaintiffs, the Ninth Circuit affirmed summary judgment against the tribe, holding that while the Indian Gaming Regulatory Act protects gaming activity conducted on Indian lands, it did not permit the tribe's internet bingo game that reached patrons located off Indian lands.

(United States Ninth Circuit) - Held that a proposed class action lawsuit challenging the Golden Gate Bridge toll-collecting system belonged in state court. Affirmed the remand of the case to state court after it was removed under the Class Action Fairness Act. The suit principally alleged unlawful collection of personal data.

(California Court of Appeal) - Affirmed the denial of class certification in a wage-and-hour case involving property inspectors in the insurance industry. The inspectors proposed to establish liability and damages using a method of anonymously surveying class members, but the trial court found flaws with the plan, and its decision to deny class certification was upheld on appeal.

By Ezra David Romero

By Rob Stein, Carmel Wroth, Alyson Hurt

To safely phase out social distancing measures, the U.S. needs more diagnostic testing for the coronavirus, experts say. But how much more?

The Trump administration said on April 27 that the U.S. will soon have enough capacity to conduct double the current amount of testing for active infections. The country has done nearly 248,000 tests daily on average in the past seven days, according to the nonprofit COVID Tracking Project. Doubling that would mean doing about 496,000 a day.

Will that be enough? What benchmark should states try to hit?

One prominent research group, Harvard's Global Health Institute, proposes that the U.S. should be doing more than 900,000 tests per day as a country. This projection, released Thursday, is a big jump from its earlier projection of testing need, which had been between 500,000 and 600,000 daily.

Harvard's testing estimate increased, says Ashish Jha, director of the Global Health Institute, because the latest modeling shows that the outbreak in the United States is worse than projected earlier.

"Just in the last few weeks, all of the models have converged on many more people getting infected and many more people [dying]," he says.

But each state's specific need for testing varies depending on the size of its outbreak, explains Jha. The bigger the outbreak, the more testing is needed.

On Thursday, Jha's group at Harvard published a simulation that estimates the amount of testing needed in each state by May 15. In the graphic below, we compare these estimates with the average numbers of daily tests states are currently doing.

Two ways to assess whether testing is adequate

To make their state-by-state estimates, the Harvard Global Health Institute group started from a model of future case counts. It calculated how much testing would be needed for a state to test all infected people and any close contacts they may have exposed to the virus. (The simulation estimates testing 10 contacts on average.)

"Testing is outbreak control 101, because what testing lets you do is figure out who's infected and who's not," Jha says. "And that lets you separate out the infected people from the noninfected people and bring the disease under control."

This approach is how communities can prevent outbreaks from flaring up. First, test all symptomatic people, then reach out to their close contacts and test them, and finally ask those who are infected or exposed to isolate themselves.

Our chart also shows another testing benchmark for each state: the ratio of tests conducted that come back positive. Communities that see about 10% or fewer positives among their test results are probably testing enough, the World Health Organization advises. If the rate is higher, they're likely missing a lot of active infections.

What is apparent from the data we present below is that many states are far from both the Harvard estimates and the 10% positive benchmark.

Just nine states are near or have exceeded the testing minimums estimated by Harvard; they are mostly larger, less populous states: Alaska, Hawaii, Montana, North Dakota, Oregon, Tennessee, Utah, West Virginia and Wyoming.

Several states with large outbreaks — New York, Massachusetts and Connecticut, among others — are very far from the minimum testing target. Some states that are already relaxing their social distancing restrictions, such as Georgia, Texas and Colorado, are far from the target too.

Jha offers several caveats about his group's estimates.

Estimates are directional, not literal

Researchers at the Global Health Initiative at Harvard considered three different models of the U.S. coronavirus outbreak as a starting point for their testing estimates. They found that while there was significant variation in the projections of outbreak sizes, all of the models tend to point in the same direction, i.e., if one model showed that a state needed significantly more testing, the others generally did too.

The model they used to create these estimates is the Youyang Gu COVID-19 Forecasts, which they say has tracked closely with what's actually happened on the ground. Still, the researchers caution, these numbers are not meant to be taken literally but as a guide.

Can't see this visual? Click here.

If social distancing is relaxed, testing needs may grow

The Harvard testing estimates are built on a model that assumes that states continue social distancing through May 15. And about half of states have already started lifting some of those.

Jha says that without the right measures in place to contain spread, easing up could quickly lead to new cases.

"The moment you relax, the number of cases will start climbing. And therefore, the number of tests you need to keep your society, your state from having large outbreaks will also start climbing," warns Jha.

Testing alone is not enough

A community can't base the decision that it's safe to open up on testing data alone. States should also see a consistent decline in the number of cases, of two weeks at least, according to White House guidance. If their cases are instead increasing, they should assume the number of tests they need will increase too.

And, Jha warns, testing is step one, but it won't contain an outbreak by itself. It needs to be part of "a much broader set of strategies and plans the states need to have in place" when they begin to reopen.

In fact, his group's model is built on the assumption that states are doing contact tracing and have plans to support isolation for infected or exposed people.

"I don't want anybody to just look at the number and say, we meet it and we're good to go," he says. "What this really is, is testing capacity in the context of having a really effective workforce of contact tracers."

The targets are floors, not goals

States that have reached the estimated target should think of that as a starting point.

"We've always built these as the floor, the bare minimum," Jha says. More testing would be even better, allowing states to more rapidly tamp down case surges.

In fact, other experts have proposed that the U.S. do even more testing. Paul Romer, a professor of economics at New York University, proposed in a recent white paper that if the U.S. tested every resident, every two weeks, isolating those who test positive, it could stop the pandemic in its tracks.

Jha warns that without sufficient testing, and the infrastructure in place to trace and isolate contacts, there's a real risk that states — even those with few cases now — will see new large outbreaks. "I think what people have to remember is that the virus isn't gone. The disease isn't gone. And it's going to be with us for a while," he says.

Can't see this visual? Click here.

Daniel Wood contributed to this report.

Members of California’s Congressional delegation are center stage at the House Intelligence Committee impeachment inquiry hearings on Capitol Hill. The chair of the committee is LA area Democratic Rep. Adam Schiff. The ranking Republican member of the same committee is Fresno Rep. Devin Nunes. Other Californians are Democrats: Bay Area Rep. Jackie Speier and East Bay Rep. Eric Swalwell. McClatchy DC reporter Kate Irby joins Insight. She follows the California Congressional delegation. 

California’s State Endorsement Convention is this weekend in Long Beach. One of the surprises is that candidates Massachusetts Sen. Elizabeth Warren and Former Vice President Joe Biden will not attend. What does this mean? 

On Saturday, Nov. 16, the California Democratic Party in conjunction with Univision will host a televised 2019 Presidential Forum from 4 to 6 pm PST. Confirmed candidates are New Jersey Sen. Cory Booker, South Bend Indiana Mayor Pete Buttigieg, Former Health and Human Services Secretary Julián Castro, California Sen. Kamala Harris, Minnesota Sen. Amy Klobuchar, Vermont Sen. Bernie Sanders, investor Tom Steyer, and entrepreneur Andrew Yang. CapRadio’s Capitol Bureau Chief Ben Adler provides a preview to this weekend’s convention.

Today’s CapChat looks at three current issues. 

First, with horse death investigations underway at Santa Anita Park, three more deaths have occurred in recent days. Since December 2018, there have been a total of 42 deaths at the park. California Gov. Gavin Newsom signed a law in June of 2019 allowing the state to suspend horse racing at tracks with dangerous conditions. That has, as yet, not happened at Santa Anita.

Next, in a new pilot program, Uber is giving some of its driving contractors more control by letting them set their own rates. Drivers at the Sacramento, Palm Springs and Santa Barbara airports can increase rates in ten percent increments, with a cap. Depending on results, Uber could expand this to other airports. This is an effort to clarify that Uber drivers are independent, not employees, since the implementation of AB 5 on Jan. 1, 2020.

Third, with the impeachment trial underway in the U.S. Senate, the date of President Donald Trump’s State of the Union somewhat uncertain, Newsom has yet to set a date for his own annual State of the State address. 

Guests

• CapRadio State Government Reporter Scott Rodd

(US 1st Circuit) - No. 19-1390

The conversation around testing and when to reopen continues; we check in with the Solano County. Questions about filing for unemployment get some needed answers, and how children’s parties are still happening online.

We check in on the state budget deficit and the controversial reopening of the Yuba Sutter Mall. A trio of UC Davis Medical Center nurses on the value of nursing during the pandemic. How to monitor mental health and a new COVID-19 children’s book.

U.S. Senate candidate Andrew Romanoff secured a dominant victory Saturday at a Democratic Party assembly, earning him a slot in the June 30 primary and setting the stage for a likely one-on-one contest between him and John Hickenlooper.

(CA Court of Appeal) - D074459

Thanks to a recent spike in temperatures, Colorado's snowpack has melted unusually quickly in recent weeks, potentially leading to an earlier-than-usual depletion of the water from the snowpack.

Gov. Jared Polis is charting a smart and sustainable course for Colorado.

(US 4th Circuit) - No. 18-4794

(US 4th Circuit) - No. 19-4167

The decision to wear a mask in public is becoming a political statement — a moment to pick sides in a brewing culture war over containing the coronavirus.

(United States Third Circuit) - Reinstated a former 911 dispatcher's claim that her former supervisors gave false, defamatory job references to her prospective employers to retaliate against her for her previous employment complaints, in violation of her constitutional rights. The dispatcher claimed that undeserved negative references had prevented her from obtaining other employment. Reversing the dismissal of her complaint, the Third Circuit held that she adequately pleaded a First Amendment retaliation claim.

Colorado lawmakers may forgo raises next year as they anticipate having to make major changes in the overall state budget -- including eliminating raises for all state employees.

(United States Fourth Circuit) - Affirming in part the dismissal of an African-American police officer's discrimination and retaliation claims against a state prosecutor for reading aloud criminal suspects' letters containing racial epithets at a trial preparation meeting that the officer attended. The Fourth Circuit held that the police officer did not state a claim for racial harassment or retaliation as no reasonable employee could believe that the prosecutor's conduct violated civil rights law and because the prosecutor was protected by absolute prosecutorial immunity.

(United States Fourth Circuit) - Denied a legal challenge filed by environmental groups seeking to prevent the construction of a natural gas pipeline across part of Virginia. The environmental groups argued that the Commonwealth of Virginia had improperly certified that the pipeline project would not degrade the state's water. Unpersuaded, the Fourth Circuit, which had jurisdiction over the case by federal statute, concluded that Virginia's issuance of a Clean Water Act certification was not arbitrary and capricious, and thus denied the environmental groups' petition for review.