Bill Text: CA SB877 | 2009-2010 | Regular Session | Amended

California Senate Bill 877 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Arbitration: legal representation.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2010-09-24 - Chaptered by Secretary of State. Chapter 277, Statutes of 2010. [SB877 Detail]

Download: California-2009-SB877-Amended.html
BILL NUMBER: SB 877	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 8, 2010

INTRODUCED BY   Senator Harman

                        JANUARY 12, 2010

    An act to amend Section 12370 of the Penal Code, relating
to body armor.   An act to amend and repeal Section
1282.4 of the Code of Civil Procedure, relating to arbitration. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 877, as amended, Harman.  Body armor.  
Arbitration: legal representation.  
   Existing law, until January 1, 2011, permits persons admitted to
the bar of any other state to represent a party in an arbitration
proceeding in this state, or to render legal services in this state
in connection with an arbitration proceeding in another state.
Existing law requires out-of-state attorneys to serve upon the
arbitrator, the parties, the State Bar of California, and counsel, a
certificate containing specified information within a reasonable
period of time after the attorney expresses his or her intent to
appear in an arbitration.  
   This bill would delete the repeal date, thereby extending these
provisions indefinitely.  
   Existing law provides that any person who has been convicted of a
violent felony who purchases, owns, or possesses body armor, as
defined in the California Code of Regulations, except as authorized,
is guilty of a felony, punishable by imprisonment in a state prison
for 16 months, or 2 or 3 years. However, the court, in People v.
Saleem (Cal.App.2nd Dist., Dec. 17, 2009, B204646), held that this
provision is unconstitutionally vague in violation of due process.
 
   This bill would change the definition of body armor for purposes
of this provision to mean any bullet-resistant material intended to
provide ballistic and trauma protection for the wearer. 

   By expanding the scope of an existing crime, this bill would
impose a state-mandated local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no . State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 1282.4 of the   Code
of Civil Procedure   , as amended by Section 1 of Chapter
357 of the Statutes of 2006, is amended to read: 
   1282.4.  (a) A party to the arbitration has the right to be
represented by an attorney at any proceeding or hearing in
arbitration under this title. A waiver of this right may be revoked;
but if a party revokes that waiver, the other party is entitled to a
reasonable continuance for the purpose of procuring an attorney.
   (b) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, an attorney admitted to
the bar of any other state may represent the parties in the course
of, or in connection with, an arbitration proceeding in this state,
provided that the attorney, if not admitted to the State Bar of
California, satisfies all of the following:
   (1) He or she timely serves the certificate described in
subdivision (c).
   (2) The attorney's appearance is approved in writing on that
certificate by the arbitrator, the arbitrators, or the arbitral
forum.
   (3) The certificate bearing approval of the attorney's appearance
is filed with the State Bar of California and served on the parties
as described in this section.
   (c) Within a reasonable period of time after the attorney
described in subdivision (b) indicates an intention to appear in the
arbitration, the attorney shall serve a certificate in a form
prescribed by the State Bar of California on the arbitrator,
arbitrators, or arbitral forum, the State Bar of California, and all
other parties and counsel in the arbitration whose addresses are
known to the attorney. The certificate shall state all of the
following:
   (1) The case name and number, and the name of the arbitrator,
arbitrators, or arbitral forum assigned to the proceeding in which
the attorney seeks to appear.
   (2) The attorney's residence and office address.
   (3) The courts before which the attorney has been admitted to
practice and the dates of admission.
   (4) That the attorney is currently a member in good standing of,
and eligible to practice law before, the bar of those courts.
   (5) That the attorney is not currently on suspension or disbarred
from the practice of law before the bar of any court.
   (6) That the attorney is not a resident of the State of
California.
   (7) That the attorney is not regularly employed in the State of
California.
   (8) That the attorney is not regularly engaged in substantial
business, professional, or other activities in the State of
California.
   (9) That the attorney agrees to be subject to the jurisdiction of
the courts of this state with respect to the law of this state
governing the conduct of attorneys to the same extent as a member of
the State Bar of California.
   (10) The title of the court and the cause in which the attorney
has filed an application to appear as counsel pro hac vice in this
state or filed a certificate pursuant to this section in the
preceding two years, the date of each application or certificate, and
whether or not it was granted. If the attorney has made repeated
appearances, the certificate shall reflect the special circumstances
that warrant the approval of the attorney's appearance in the
arbitration.
   (11) The name, address, and telephone number of the active member
of the State Bar of California who is the attorney of record.
   (d) The arbitrator, arbitrators, or arbitral forum may approve the
attorney's appearance if the attorney has complied with subdivision
(c). Failure to timely file and serve the certificate described in
subdivision (c) shall be grounds for disapproval of the appearance
and disqualification from serving as an attorney in the arbitration
in which the certificate was filed. In the absence of special
circumstances, repeated appearances shall be grounds for disapproval
of the appearance and disqualification from serving as an attorney in
the arbitration in which the certificate was filed.
   (e) Within a reasonable period of time after the arbitrator,
arbitrators, or arbitral forum approves the certificate, the attorney
shall file the certificate with the State Bar of California and
serve the certificate as described in Section 1013a on all parties
and counsel in the arbitration whose address is known to the
attorney.
   (f) An attorney who fails to file or serve the certificate
required by this section or files or serves a certificate containing
false information or who otherwise fails to comply with the standards
of professional conduct required of members of the State Bar of
California shall be subject to the disciplinary jurisdiction of the
State Bar with respect to that certificate or any of his or her acts
occurring in the course of the arbitration.
   (g) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, an attorney who is a
member in good standing of the bar of any state may represent the
parties in connection with rendering legal services in this state in
the course of and in connection with an arbitration pending in
another state.
   (h) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, any party to an
arbitration arising under collective bargaining agreements in
industries and provisions subject to either state or federal law may
be represented in the course of, and in connection with, those
proceedings by any person, regardless of whether that person is
licensed to practice law in this state.
   (i) Nothing in this section shall apply to Division 4 (commencing
with Section 3201) of the Labor Code.
   (j) (1) In enacting the amendments to this section made by
Assembly Bill 2086 of the 1997-98 Regular Session, it is the intent
of the Legislature to respond to the holding in Birbrower v. Superior
Court (1998) 17 Cal.4th 117, as modified at 17 Cal.4th 643a
(hereafter Birbrower), to provide a procedure for nonresident
attorneys who are not licensed in this state to appear in California
arbitration proceedings.
   (2) In enacting subdivision (h), it is the intent of the
Legislature to make clear that any party to an arbitration arising
under a collective bargaining agreement governed by the laws of this
state may be represented in the course of and in connection with
those proceedings by any person regardless of whether that person is
licensed to practice law in this state.
   (3) Except as otherwise specifically provided in this section, in
enacting the amendments to this section made by Assembly Bill 2086 of
the 1997-98 Regular Session, it is the Legislature's intent that
nothing in this section is intended to expand or restrict the ability
of a party prior to the decision in Birbrower to elect to be
represented by any person in a nonjudicial arbitration proceeding, to
the extent those rights or abilities existed prior to that decision.
To the extent that Birbrower is interpreted to expand or restrict
that right or ability pursuant to the laws of this state, it is
hereby abrogated except as specifically provided in this section.
   (4) In enacting subdivision (i), it is the intent of the
Legislature to make clear that nothing in this section shall affect
those provisions of law governing the right of injured workers to
elect to be represented by any person, regardless of whether that
person is licensed to practice law in this state, as set forth in
Division 4 (commencing with Section 3200) of the Labor Code. 

   (k) This section shall be operative until January 1, 2011, and on
that date shall be repealed. 
   SEC. 2.    Section 1282.4 of the   Code of
Civil Procedure   , as amended by Section 2 of Chapter 357
of the Statutes of 2006, is repealed.  
   1282.4.  (a) A party to the arbitration has the right to be
represented by an attorney at any proceeding or hearing in
arbitration under this title. A waiver of this right may be revoked;
but if a party revokes the waiver, the other party is entitled to a
reasonable continuance for the purpose of procuring an attorney.
   (b) This section shall become operative on January 1, 2011.
 
  SECTION 1.    Section 12370 of the Penal Code is
amended to read:
   12370.  (a) Any person who has been convicted of a violent felony,
as defined in subdivision (c) of Section 667.5, under the laws of
the United States, the State of California, or any other state,
government, or country, who purchases, owns, or possesses body armor,
as defined in subdivision (f), except as authorized under
subdivision (b), is guilty of a felony, punishable by imprisonment in
a state prison for 16 months, or two or three years.
   (b) Any person whose employment, livelihood, or safety is
dependent on the ability to legally possess and use body armor, who
is subject to the prohibition imposed by subdivision (a) due to a
prior violent felony conviction, may file a petition with the chief
of police or county sheriff of the jurisdiction in which he or she
seeks to possess and use the body armor for an exception to this
prohibition. The chief of police or sheriff may reduce or eliminate
the prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as he or
she deems appropriate, based on the following:
   (1) A finding that the petitioner is likely to use body armor in a
safe and lawful manner.
   (2) A finding that the petitioner has a reasonable need for this
type of protection under the circumstances.
   In making its decision, the chief of police or sheriff shall
consider the petitioner's continued employment, the interests of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that law
enforcement officials exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, this paragraph may not be construed to require
law enforcement officials to grant relief to any particular
petitioner. Relief from this prohibition does not relieve any other
person or entity from any liability that might otherwise be imposed.
   (c) The chief of police or sheriff shall require, as a condition
of granting an exception under subdivision (b), that the petitioner
agree to maintain on his or her person a certified copy of the law
enforcement official's permission to possess and use body armor,
including any conditions or limitations.
   (d) Law enforcement officials who enforce the prohibition
specified in subdivision (a) against a person who has been granted
relief pursuant to subdivision (b), shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the permission granting the person relief from the
prohibition, as required by subdivision (c). This immunity from
liability does not relieve any person or entity from any other
liability that might otherwise be imposed.
   (e) For purposes of this section only, "violent felony" refers to
the specific crimes listed in subdivision (c) of Section 667.5, and
to crimes defined under the applicable laws of the United States or
any other state, government, or country that are reasonably
equivalent to the crimes listed in subdivision (c) of Section 667.5.
   (f) For purposes of this section, "body armor" means any
bullet-resistant material intended to provide ballistic and trauma
protection for the wearer.  
  SEC. 2.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.