The court as the origin of the Dynamex standard
In the July 1, 2020 episode, Bob Zadek traced California’s restrictive test for independent contractors to a decision of the California Supreme Court. According to Zadek, the court decided a case called Dynamex, and in doing so it relied on legislation and tradition reaching back to the 1930s to set out what he called a restrictive standard for independent contractor status. Zadek’s account places the court at the beginning of the chain: the court made the ruling, and the legislature then responded by codifying it. He described the sequence as the court starting from a very old body of law, making its ruling, and the legislature jumping on the bandwagon. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Zadek used that origin story to argue that the resulting legislation was not a response to public demand. He said he was not aware of any groundswell of complaints by the people being protected, and that nobody was crying out for help or organizing unions or ad hoc coalitions around the issue. In his telling, workers were grateful for the opportunity to set their own hours, drive their own cars, interact with consumers, and have back-office work done for them. He contrasted that with the idea that a journalist had discovered exploitation and blown the whistle, prompting the legislature to act. Instead, he said the process began with the court’s ruling. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Zadek also framed the court’s decision as an invention rather than a discovery. He said the legislature took the court’s ruling and codified it, and he described the whole process as giving birth to the subsequent legislation. He told his guest, Kim Kavin, that after a break he wanted to explore what he called the real motivation behind the law, which he said was driven by unions and by government’s desire for more tax revenue and more control, with worker protection serving as political cover. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
The court in a dispute over executive power
The March 14, 2022 episode, featuring Jeffrey Sutton, turned to the California Supreme Court in a different context: a dispute over who may exercise executive authority when the Governor is out of state. Sutton recounted a story from around 1980, when Jerry Brown was thinking of running for President and left the state for a fundraiser in Washington, D.C. While Brown was gone, the Lieutenant Governor decided to fill a vacancy on the California Supreme Court. Who Decides? (2022)
Sutton said that when Brown returned, he was surprised to find that authority he thought was his had been exercised by the Lieutenant Governor. The California Supreme Court ultimately said that the Lieutenant Governor had the power to fill the vacancy, but the person selected for the court was not helped by that ruling: the Governor had authority to undo the appointment soon after he got back. Sutton called it a pretty amusing story. Who Decides? (2022)
The anecdote served Sutton’s broader argument about state constitutions and direct democracy. He noted that California separately elects its Governor and Lieutenant Governor, which means the two can be from different parties or be rivals within the same party. He also pointed to a California provision stating that when the Governor is out of the state, all executive power in the Governor’s office goes to the Lieutenant Governor. The court’s ruling in the 1980 episode resolved which of the two officials held the appointment power at the moment the vacancy was filled. Who Decides? (2022)
Across episodes
The two episodes do not develop a shared account of the California Supreme Court. In the 2020 episode, Zadek presents the court as the source of the Dynamex standard that the legislature then codified; in the 2022 episode, Sutton presents the court as the arbiter of a dispute between a Governor and a Lieutenant Governor over a court vacancy. The earlier treatment is Bob Zadek’s own framing of the court’s role in worker classification; the later treatment is Jeffrey Sutton’s retelling of a specific historical episode. The excerpts show no development from one to the other, only two distinct uses of the court as a waypoint in larger arguments.
What the sources do not cover
The excerpts do not state the full holding of Dynamex, the name of the legislation that codified it, or the constitutional or statutory provisions the court relied on. They do not identify the Lieutenant Governor who filled the vacancy, the person appointed, or the date of the court’s ruling beyond Sutton’s approximate reference to 1980. They also do not describe the court’s composition, its selection method, or its broader jurisprudence.