McGeorge Adjunct Professor Chris Micheli

Provisions about nominations and commissions made by the Governor are found in California’s Government Code in Title 1, Division 4, Chapter 2, Article II. Article II deals with nominations by the Governor. Article III provides for commissions by the Governor.

Starting in Article II, with nominations, Government Code Section 1320 requires nominations that are made by the Governor to the Senate to be in writing, to designate the residence of the nominee, as well as the office for which he or she is nominated.

Government Code Section 1321 requires the Secretary of the Senate, when the Senate agrees with a nomination, to deliver a copy of the resolution of concurrence to the Secretary of State and a copy to the Governor.

Government Code Section 1322 specifies 20 different officers that are subject to confirmation by the Senate. Section 1323 provides that any officer or any member of a board or commission whose salary is provided in the Government Code – related to salaries as specified positions – are all subject to confirmation by the State Senate.

Article III of the Government Code, Title 1, Division 4, Chapter 2 focuses on commissions made by the Governor

Government Code Section 1340 requires the Governor to commission all officers that are elected by the Legislature, all officers of the militia, and all officers that are appointed by the Governor.

Section 1341 specifies that the commissions of all officers that are commissioned by the Governor are to be issued in the name of the People of the State of California. These commissions are signed by the Governor and attested to by the Secretary of State.

Finally, Section 1342 requires that the commissions of all other officers were no special provision is made by law are to be signed by the Presiding Officer of the body or by the person who is making that particular appointment.

McGeorge Adjunct Professor Chris Micheli

The general business affairs of each house of the California Legislature are conducted by each house’s respective Committee on Rules. While the roles of the Senate and Assembly Committee on Rules are largely similar, they are different in several aspects.

As far as similarities are concerned, both committees:

  • Consider substantive legislation
  • Continue in existence during any recess of the Legislature, after final adjournment, and until the convening of the next regular session
  • Refer all bills and resolutions to the appropriate standing committee(s)

As to differences, one of the key ones is that the powers vested in the Speaker of the Assembly are the same powers vested in the Senate Committee on Rules. Some other differences between the two committees include:

  • The Assembly Rules Committee has a Chair, a Vice Chair, nine other members and two alternates, all of whom are appointed by the Speaker of the Assembly. The Senate Rules Committee has a Chair – the Senate President Pro Tem – and four other members who are elected by the entire Senate via a resolution.
  • The Senate Rules Committee confirms gubernatorial appointees whereas the Assembly Rules Committee does not.

It is also worth noting some other specific duties of each house’s Rules Committee. For example, in the Senate,  at each regular session the Rules Committee appoints a member of the Senate to Judicial Council and has the ultimate authority to fill a vacancy in that position during a joint recess of the Legislature.

This is not an exhaustive list, and more similarities are covered in the audio included in this blog post.

You can find the full transcript of today’s audio here.

 

Full disclosure: I tried, way too hard I might add, to make a fracking pun in the title of this podcast. Couldn’t make it work. Most likely because all the good fracking puns have been done to death. But enough of the peek behind the curtain, on with the show – and the blog post.

Today’s guest is Hannah Wiseman, a professor of law and expert on fracking and oil & gas production who currently teaches at Florida State University’s College of Law but is transitioning to Penn State Law. Her work has extensively looked at the states that have experienced booms in oil and gas production and how much those states regulate the industry. Her work is also colored by having lived in two states – Texas and Oklahoma – where there have been major oil and gas production booms due to unconventional production methods.

We talk about how the law splits rights for the persons who own land on the surface and the people who own the mineral rights for the natural resources below the ground, the disparities between states when it comes to regulating the industry or providing protections to surface owners, and land on some surprises for who has the most stringent and least stringent regulations and enforcement of those regulations. We also talk about the lack of federal regulation, why that is, and where there is room for federal regulation to improve.

You can find the conversation with Professor Hannah Wiseman on Apple Podcasts, Spotify, or on your favorite podcast app. You can read Professor Wiseman’s research on SSRN. If you are looking for something specific to read, I came across this new article on LinkedIn that Professor Wiseman co-authored with James Coleman and a former CAP⋅impact podcast guest Tara Righetti.

If you enjoyed today’s conversation, let us know by leaving a positive review on Apple Podcasts. You can help The CAP⋅impact Podcast grow by subscribing to the show on your favorite podcast app  You can also keep up with all things Capital Center by following the Capital Center for Law & Policy on Facebook, Twitter, and Instagram.

On today’s bonus podcast, I talked with McGeorge’s own Professor of Law, Ederlina Co, and Maggy Krell, who is General Counsel for Planned Parenthood Advocates of California about Monday’s decision from the US Supreme Court in June Medical Services.

There’s a lot to unpack from the narrow decision and we spend a solid chunk of our time parsing out the thinking of Chief Justice Roberts who some would say has surprised observers by joining the more liberal bloc of justices by concurring on this decision as well as joining the majority in the DACA and Bostock decisions.

We also get the immediate reactions from both Professor Co and Maggy Krell – we recorded the podcast on Monday just hours after the decision was released – and discuss the impact of this decision and what it could mean for policy changes in state policy across the country and what the recent SCOTUS decisions could mean for the 2020 election.

You can keep up with Professor Co by following her on Twitter @McGeorgeProfCo and you can learn more about her by visiting her McGeorge faculty page. You can also follow Maggy Krell on Twitter @maggykrell.

As always, you can help The CAP⋅impact Podcast grow by subscribing to the show on Apple Podcasts, Spotify, or your favorite podcast streaming app. You can follow McGeorge’s Capital Center for Law & Policy on Twitter and Instagram @McGeorgeCapCtr, and you can also Like the Capital Center on Facebook.

McGeorge Adjunct Professor Chris Micheli

There are a number of sections in California’s Government Code that set forth the operation of statutes and resolutions. These statutes in the Government Code were enacted back in 1943 and can be found in Title II, Division 2, Part 1, Chapter 6 of California’s Government Code.

Included in the many sections of this part of the Government Code are:

  • Provisions governing the enactment date of statutes, with four exemptions (Section 9600)
    • If enacted during a regular session, on January 1 of the following year
    • If enacted during a special session, on the 91st day after the adjournment of the special session
  • Provisions governing the effective date of resolutions (Section 9602)
    • They take effect upon filing with the Secretary of State
  • The general rules of statutory construction (Section 9603)
  • Restatements of statutes (Section 9604)
    • When provisions of one statute are carried into another and required to be construed as restatements or continuations (not as new enactments) then any reference made by any statute, charter, or ordinance to that restatements must be deemed as a reference to the restatement or continuation.
  • Repealed Statutes (Section 9605)
  • Vested rights (Section 9606)
    • Any statute may be repealed at any time except when vested rights would be impaired.
  • Revival of repealed statutes (Section 9607)
    • No statute or part of a statute that’s been repealed by another statute is revived by the repeal of the repealing statute without express words reviving the originally repealed statute.
  • Termination or suspension of laws (Section 9608)
    • If a law creating a criminal offense is terminated or suspended does not constitute a bar to the indictment of information or punishment for an act already committed in violation of the law unless expressly declare by an applicable provision of law.
  • Amending a repealed statute (Section 9609)
  • Public salaries (Section 9610)
  • Suspended provisions of laws (Section 9611)

You can find the full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

Before you can really set off drafting legislation in California, you need to understand the format of California’s Codes. There is a specific way that our Codes our organized. Codes read, from top to bottom: the Code, Title, Division, Part, Chapter, Article, and then lastly, Section – which is the actual piece of law.

Legislation also has a specific format. At the top of it is the date introduced or amended, the bill number, and then the type of legislation. If it’s a bill, then it begins with an act to do something. If it’s a resolution, it’s relative to something. That is followed by the Legislative Counsel’s Digest, and then the substantive provisions of the legislation. And within the bill there is a hierarchy of provisions – starting with a section, then subsection, then paragraph, subparagraph, clause, and lastly, subclause.

So, what are some questions you should ask yourself, or steps you should take, when drafting legislation? One of the first questions you want to ask is, “What’s the issue to be addressed?” The basic intent of this question is to set the stage for understanding the author’s goal.

Some other questions worth considering after you’ve answered that first question are:

  • To whom does the bill apply?
  • Are there individuals or groups to be excluded?
  • When would it take effect?
  • Who would be responsible for enforcement?
  • Is there any penalty for failure to comply?
  • How would it interact with existing laws?

Those are just a sampling of the questions to consider. The other goal for one to aim for in legislative drafting is to ensure that the legislation fulfils the plain meaning rule. Essentially, are you writing it so that the average person can read and understand the language in the bill or resolution, and are you limiting technical and legal jargon as much as necessary?

You should also make sure you recognize the proper use of terminology. For example, there is a clear difference in outcomes when using either “shall” or “may.” Shall requires an action to happen. May means the action is permissible, but not required. There are other examples of needing to carefully choose your words throughout legislation.

Five years ago today, the United States Supreme Court, in the Obergefell decision written by Justice (and long time McGeorge Professor) Anthony Kennedy, made same-sex marriage the law of the land, and as today’s guest put it, “There was no armageddon. There was just Cinderella.” That guest is Yale Law School’s Professor William Eskridge, who along with Christopher Riano wrote the upcoming book Marriage Equality: From Outlaws to In-Laws. Last week the Supreme Court expanded protections for LGBTQIA+ persons in the United States in Bostock by declaring that Title VII protections against sex discrimination in the Civil Rights Act extend to LGBTQIA+ persons.

The book, and our conversation today, track the history of the marriage equality movement, the key people in the movement, the people who don’t get enough credit for their role in the movement, and so much more. We also talk about what this recent decision in Bostock means in the context of the broader LGBTQIA+ equality movement, where the overall civil rights movement goes from here, and what other civil rights movements like Black Lives Matter and the Abortion Choice movements can take away from the successes of the marriage equality movement.

You can follow Professor Eskridge on Twitter @EskridgeBill, and you can find a list of his books and articles on his Yale faculty page.

You can find today’s podcast episode on Apple Podcasts, Spotify, or wherever you get your podcasts from.

If you enjoyed the podcast, please help us continue to grow by subscribing to The CAP⋅impact Podcast on Apple Podcasts or your favorite podcast app, if you have not done so already, and by leaving a review with your feedback for the show on Apple Podcasts.

A quick heads up – today will be the first of some extra podcasts here and in your podcast feeds for The CAP⋅impact Podcast related to the recent SCOTUS decisions this month. Keep your eyes peeled for podcasts on Bostock, faithless electors, and the president’s tax returns. But today, we’re taking a look at DACA, and what the Supreme Court’s ruling to let the program stand means. For the legal perspective, we have Blake Nordahl, who is a Professor of Lawyering Skills and the supervising attorney at the Immigration Clinic here at McGeorge. For a more personal perspective on the decision, we also have Set Hernandez who is a documentary filmmaker, a media specialist at the California Immigrant Policy Center, and a DACA recipient.

Long story short, the decision to keep DACA in place is a win for the immigrant community in the United States. However, it is a short term win. The current administration is already working on new challenges to the program based on their assertions that DACA is both illegal and bad policy – although Prof. Nordahl does rebut both of those assertions.

Set talks through his much more complicated feelings about DACA. Because of his DACA, he has access to healthcare through his employer, but his mother doesn’t. There are grants and other philanthropic sources to fund documentaries that he doesn’t have access to because he isn’t a citizen or a permanent resident. And a lot of the policies that make life easier for him as an undocumented resident of the United States are California state policy, not federal policies.

To make sure that you do not miss any of these bonus podcasts about SCOTUS decisions, make sure to subscribe to The CAP⋅impact Podcast on Apple Podcasts, Spotify, Stitcher Radio, or wherever you get your podcasts from.

As mentioned on the podcast, the McGeorge Immigration Clinic is open and can be reached at 916.340.6080.

You can also find the California Immigrant Policy Center on Facebook and Twitter.

McGeorge Adjunct Professor Chris Micheli

Generally, the committees deal with legislation before passing measures to the floor of either the Senate or the Assembly. However, there are rare instances where legislators choose to return a bill to committee when that measure is pending on either floor. There are times when legislators desire to pull or withdraw a bill out of committee and place it on the floor of the Senate or Assembly. As you would expect, there are rules governing these processes in each house.

In the Assembly, pursuant to Assembly Rule 96(a), a legislator can make a motion to withdraw a bill or resolution from committee or to re‑refer a bill or resolution from one committee to another committee, during the regular order of business on the floor. The motion to re‑refer a bill from the floor to a committee may be debated only as to the propriety of the reference of the bill to that particular committee. Now, Assembly Rule 96(b) provides that a bill or resolution may not be withdrawn from committee and placed upon the daily file unless a motion to withdraw has been heard and approved by a majority vote of the Rules Committee. This subdivision does not apply to a bill in a fiscal committee, that’s been amended so as not to require its reference any further to that fiscal committee.

Under Assembly Rule 97, a motion to re‑refer a bill or resolution that’s on the daily file to committee may also be made during the regular order of business on the floor. There are analogous rules in the Senate.

These procedural motions are necessary, in order to properly conduct business in an orderly fashion on the floors of the Assembly or Senate. They’re sometimes used by minority party legislators to try and force a public vote on a bill, perhaps that was defeated in a policy committee, and that they would ideally like to see debated on the floor of the Senate or Assembly. However, these motions are rarely successful.

You can find the full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

Does California have a balanced budget requirement? The short answer is yes, but there are a number of constitutional and statutory provisions that create this requirement.

In Article IV, Section 12(a), there is a clause that states, “If recommended expenditures exceed estimated revenues, then the Governor shall recommend the sources from which those additional revenue should be provided.” This provision basically requires the Governor to submit a balanced budget.

Since 1983, California Government Code Section 13337.5 has stated “The annual budget act shall not provide for projected expenditures in excess of projected revenues. Further, it is the intention of the Legislature that in the event, after enactment of the Budget Act, revised estimates of expected revenues or expenditures, or both, show that expenditures will exceed estimated revenues, expenditures should be reduced or revenues increased, or both, to ensure that actual expenditures do not exceed actual revenues for that fiscal year.”

So basically, the California Constitution and Government Code prohibit the Legislature from sending the Governor an unbalanced budget, and the Governor is prohibited from signing an unbalanced budget. So how does one determine if the budget is balanced, and who gets to decide if the budget is actually balanced?

Article IV, Section 12(g) of the California Constitution and the decision in Steinberg v. Chiang from the Third District Court of Appeal provide that the determination of balanced is made based on what is contained in the budget bill. In practical terms, it means the legislative and executive branches decide if the budget is balanced or not.

The courts concluded that the Legislature complies with the constitutional mandate for a balanced budget when it enacts a budget bill in which revenue estimates for the coming fiscal year exceed the total amount of existing appropriations for the fiscal year. As for enforcing this, the courts have left that to the Governor.

The courts ruled that the Governor enforces the balanced budget requirement “through vetoing the budget as a whole or exercising his power to veto line items to bring appropriations into balance with accurate revenues.”

Essentially, the Legislature enacts what it designates to be a balanced budget, and the check is brought forth by the Governor by using his or her the blue pencil, the line-item veto.

It also means that the Legislature can adopt a “balanced budget” based upon its determination that federal funds or new revenues are forthcoming, even though there is no guarantee of receipt of those funds.

You can find the full transcript of today’s podcast here.