McGeorge Adjunct Professor Chris Micheli

One of the controversial occurrences that occurs during the legislative sessions of the California Legislature are so-called gut and amend bills. According to the Legislative Counsel, these measures are defined as “when amendments to a bill remove the current contents in their entirety and replace them with different provisions.”

These types of amendments raise the legislative issue of germaneness, which generally refers to whether a proposed amendment is relevant to the subject matter that’s currently contained in that particular measure. While the Legislative Counsel in California may opine on the issue of germaneness, the determination of germaneness is generally decided by the presiding officer of the Assembly or Senate.

In addition, we have to consider the appropriateness of gut and amend bills in the context of Prop. 54 that was adopted by the voters and requires a bill to be in print for 72 hours before the final version of the bill can be voted upon by members of the Legislature. Now, because that ballot measure added the word “any” before the types of amendments, the 72-hour rule means it applies to both substantive and technical amendments.

Prop. 54 has to be taken into account at the end of the legislative session when dealing with gut and amend bills. Each house of the Legislature has rules related to determining whether these amendments are, in fact, germane to the current contents of the bill.

In the Assembly there is Assembly Rule 92. It basically says that an amendment to any bill, other than a bill stating legislative intent to make necessary statutory changes to implement the budget bill, is not in order when the amendment relates to a different subject than, or is intended to accomplish a different purpose than, or requires a title that’s essentially different than the original bill.

The Senate has Senate Rule 23(e) which draws a distinction to amendments to rewrite a bill. Here, the first inquiry is whether the amendment is germane to the current version of the bill, but adds a new subject to the bill that’s different from but relates to the current contents of the bill. Subdivision (f) of Senate Rule 23 acknowledges these new bills when an amendment creates a new bill if the amendment changes the subject of the bill to a new or entirely different subject.

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

As part of McGeorge’s one-of-a-kind Legislative and Public Policy Clinic, students are required to develop a legislative proposal and then secure a state legislator to author the bill. This year’s Clinic has three teams. Over the past two weeks, students were able to “pitch” their proposed bills to, and learn more about the legislative process from, six lobbyists working at the California State Capitol and seven Capitol staffers working on committees and in the offices of Democratic and Republican elected officials in both houses of the California Legislature. The Clinic’s students and faculty want to thank the following professionals for lending their time and expertise to help our students.

Lobbyists helping McGeorge Legislative and Public Policy Students
McGeorge Legislative and Public students with Kirstin Kolpitke (VP of Government Affairs for the California Forestry Association), John Moffat (Attorney at Nielsen Merksamer), Katerine Pettibone (Principal at Pettibone Consulting), Randy Pollack (Attorney at Churchwell White), and Robert Moutrie and Adam Regele (both Policy Advocates at the California Chamber of Commerce).
Legislative & Public Policy Clinic students with Brandon Bjerke (Legislative Director for Asm. Jacqui Irwin), Tom Clark (Counsel to the Asm. Judiciary Committee), Chris Clemons (Legislative Aide to Asm. Adrin Nazarian), Zach Keller (Legislative Aide to Senator Tom Umberg), Jaspreet Johl (Chief of Staff to Asm. Miguel Santiago), Spencer Street (Legislative Aide to Senator John Moorlach), and Celia Mata (Legislative Director for Asm. Tasha Boerner-Horvath).

McGeorge Adjunct Professor Chris Micheli

California Assembly Bill 9 was signed in to law on October 10 and enacted as Chapter 709. The new law extends the limitation period for employment discrimination claims.

AB 9 extends to three years the statute of limitation for complaints alleging employment discrimination, and it specifies that the operative date of the verified complaint is to be the date that the intake form was filed with the Labor Commissioner.

Additionally, the bill make confirming changes to current provisions that grant a person allegedly aggrieved by an unlawful practice, who first obtains knowledge of the facts of the alleged unlawful practice after the expiration of the limitation period. The legislation further provides that complaints alleging a violation of the Unruh Civil Rights Act shall not be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.

However, a complaint alleging any other violation of Article One of Chapter Six shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate had occurred. Also, the bill states legislative intent that its provisions are not to be interpreted as reviving lapsed claims.

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

By: Josh La Bella

AI overpowering and subsequently overtaking humankind has scared people for decades. Movies like I, Robot showcase the grim reality of an AI-dominated world where AI ignores the original confines humans assigned to them. Other movies—like The Terminator—toy with the idea that if AI becomes dominant, it will do anything to ensure its supreme status. Black Mirror, a Netflix show, explores various alternative societies where AI dramatically changed the universe—for better or worse. Today’s technology does not rise to any of the previous dramatic portrayals of AI . . . yet.

AB 594 does not have anything to do with replicants serving in LAPD to retire other replicants. However, it did understand the potential negative consequences that AI could bring to California’s civil servant positions and attempted to implement a framework to protect them from displacement.  Originally, AB 594 required the California Department of Technology (CDT) to appoint a Chief Artificial Intelligence Officer within CDT to oversee AI’s implementation into California government. Further, the Chief Artificial Intelligence Officer would work closely with the California Workforce Development Board to ensure that, if AI displaced any civil servants, California would reintegrate the displaced civil servants into a new civil service position. However, an amendment to AB 594 changed the CDT’s obligation to permitting—but not mandating—the CDT to designate a position to oversee AI if they so choose.

One interesting aspect of AB 594 is that it could potentially displace civil servants by implementing AI into civil service and taking jobs that do simple tasks like data input. Fortunately, if that were to happen, California civil servants have powerful precedent on their side to protect their jobs. Board of Regents v. Roth established a property right in a civil servant’s job after they become a permanent employee. The inherent property right in a civil servant’s job then triggers an additional judicial protection from a California Supreme Court case called Skelly v. State Personnel Board. When an administrative authority disciplines a civil servant, the civil servant receives a Skelly hearing. In the Skelly hearing, the administrative authority must present all the evidence they used against the civil servant in their decision to impose discipline. Therefore, if California wishes to replace civil servants with AI, the state must adhere to many different procedures.

AB 594 made it all the way to Governor Newsom’s desk; however, he ultimately decided to veto the bill. Governor Newsom’s veto letter explained that the CDT already possesses the power to evaluate and implement AI into California services. Thus, since the CDT already retains this power, there was no need for AB 594.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 594 and related legislation with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

McGeorge Adjunct Professor Chris Micheli

Most capitol observers are only aware of the majority vote and the two thirds super majority vote requirements for California legislation. However, there are actually several other categories of vote requirements on bills that come before the Legislature. The other categories are the three fourths vote, the 70% vote, and the four fifths vote.

The three fourths vote – which requires 30 votes in the Senate and 60 votes in the Assembly – is required to waive the requirement in the California Constitution that a bill may not be heard or acted upon until the 31st day after its introduction. This vote threshold also applies to a motion to postpone the reconsideration of a vote beyond the first legislative day succeeding the day the motion to reconsider was made.

The 70% vote requirement – 28 votes in the Senate and 56 votes in the Assembly – applies to:

  • Bills amending the statutory provisions – other than the bond provisions – of the California Stem Cell Research and Cures Act, which was known as Prop 71 when voters approved it
  • Bills amending the statutory provisions of the Victim’s Bill of Rights.

The final category, the four fifths vote – requiring 32 votes in the Senate and 64 votes in the Assembly – applies to the following measures:

  • Bills to amend the Tobacco Tax and Health Restoration Act of 1988, also known as Prop 99
  • Any bill to amend the Clean Air and Transportation Act of 1990, also known as Prop 116 and
  • Any bill to amend the California Wildlife Protection Act of 1990, also known as Prop 117.

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

McGeorge Adjunct Professor Chris Micheli

The California Legislature works on the basis of deadlines for moving measures including bills, resolutions and constitutional amendments through the legislative process. This is in stark contrast to the US Congress that does not have similar deadlines. The Assembly Chief Clerk and the Senate Secretary each maintain information related to these legislative deadlines.

Most statutes take effect on January 1. The Legislature generally convenes the first week in January. The budget bill must be submitted by the Governor by January 10th. There’s a deadline in late January for the last day to submit bill drafting requests to the office of the Legislative Counsel. And February is the last day for bills to be introduced for that year.

In April there is the last day for policy committees to hear and report fiscal bills to fiscal committees. Two weeks thereafter will be the last day for policy committees to hear and report to the floor non-fiscal bills. There will be the last day for fiscal committees to hear and report bills to the floor, generally in late May.

The first week in June will generally be the last day to pass bills out of the house of origin. The budget bill must be passed by midnight, June the 15th. In late June or early July will be the last day for policy committees to hear and report fiscal bills for referral to the fiscal committee.

Generally, either the month of July or mid-July to mid-August in odd-numbered years will be the summer recess assuming that the budget bill has been passed. The Legislature will reconvene from the summer recess for generally four to five weeks. At that time there’ll be the last day for fiscal committees to meet and report bills to the floor. The last two weeks will be floor session only or generally no committee may meet absent a rule waiver.

The last day of session is August 31st in the even-numbered year or roughly mid-September in the odd-numbered year is the last day for any bill to be passed and the start of the interim recess upon adjournment in the odd-numbered year. The Governor will have 30 days to sign or veto bills that were passed by the Legislature to him or her at that point.

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

Greensheets Staff Writer Lauren Hirota

 By: Lauren Hirota

We’ve all seen the movie Concussion, and if you haven’t—you should. It tells the story of Dr. Bennet Omalu’s discovery of the degenerative brain disorder Chronic Traumatic Encephalopathy (“CTE”) in NFL players. With the success of the movie—coupled with countless stories of ex-NFL, high school, and youth football player’s suicides flooding the news—it’s no wonder why participation in youth programs has dropped almost 20% since 2009. Now more than ever parents are asking: are our kids safe? Are Friday night lights worth the long-term effects of CTE? Is there anything can we do? While states across the nation are beginning to look for solutions, California passed AB 1.

Also known as the California Youth Football Act, AB 1 compels various safety regulations for youth tackle football programs and mirrors those enacted in 2014 by AB 2127 for high school and middle school football programs. AB 1 limits full-contact work to thirty minutes per practice, with no more than two full-contact practices per week. The bill further prohibits all contact training during the off-season and requires coaches to stay up to date on head injury training and proper tackling and blocking techniques.

After numerous legislative brawls over youth football’s viability, AB 1 is California’s “Hail Mary” attempt at appeasing opponents of youth football while still keeping the sport afloat. Despite California’s attempt to toe the sideline, AB 1 fails to address the safety issues inherent to the sport and sets a new precedent by regulating the “private” sports industry.

While AB 1’s safety goals are admirable, the bill “bandwagons” the already widely accepted practices of youth programs, such as Pop Warner, across the country. Critics of AB 1 argue that sports leagues already effectively regulate themselves without the codification of weaker regulations by the government. Prior to the enactment of AB 1, Pop Warner—the nation’s largest youth football league—eliminated kickoffs for its three youngest divisions and implemented the “Heads Up Football” program to educate the league’s coaches on concussion management. Proponents of AB 1 say the bill effectively unifies the few straggling programs across the state that have yet to follow the outlined measures.

Despite AB 1’s lack of ingenuity, the bill breaks precedent by regulating the private sports industry. Historically, federal and state governments have allowed sports leagues to operate with vast freedom and discretion. It wasn’t until significant safety concerns, such as CTE, made headlines that governments began to take notice. While various previous regulations have addressed concussion management protocols off the field, AB 1 breaks ground by regulating the actual substance of the game—limiting a coach’s ability to run full-contact practices.

Despite its potentially tepid impact, AB 1 signifies the beginning of a long battle for youth football’s survival. With courts and legislatures more willing to hold football leagues accountable for failing to protect its players, the future of football hangs in the balance. AB 1 begins an important dialogue on the balances between private sports regulations and public welfare.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 1 and related legislation with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, or on your favorite podcast app.

The Capital Center for Law & Policy is excited to announce that it will host an event at the AALS 2020 Annual Meeting in Washington D.C. The event, Craft Beer Law and Policy, will be in the Jackson Room on the Mezzanine Level of the Marriot Wardman Park Hotel. It will run from 6:30 – 8:30 pm on Friday 1/3/2020.

The program will introduce you to the practice and study of craft beer law, the policy implications and legislative battles independent craft breweries constantly face, and introduce you to McGeorge’s first-ever craft beer law course at a U.S. law school.  The presentation will include a beer-tasting component led by Professor Dan Croxall and McGeorge Capital Center staff.

For more information on Professor Croxall you can read (and subscribe to) his blog, Craft Beer Law Prof, or follow him on Twitter @GoodBeerLawProf.

For updates on the event, follow the Capital Center for Law & Policy on Facebook and Twitter.

 

McGeorge Adjunct Professor Chris Micheli

To those who are not operating in or around the California State Capitol, sponsored bills are relatively unknown. However the media often focus on sponsored bills in a critical manner making matters confusing. In Congress, the term sponsor means the legislator whose name is on the bill. However in the California Legislature, the legislator whose name is on the bill is called the author rather than the sponsor. In California, sponsor refers to the individual or the group who brought the bill to the legislator, who then authors the measure on behalf of that sponsor.

The media’s claim is that legislators and legislative staff don’t fully understand the contents of a sponsored bill, and that the sponsor gets to call all the shots related to that sponsored bill. Or worse, the media will claim that legislators or their staff do not even have to do any work for a sponsored bill.

These criticisms are unwarranted. Legislators often solicit bill ideas from individuals or groups. Some legislators sponsor “There Ought to be a Law” contests, or solicit ideas by other means. Of course, legislators are expected to be responsive to their constituents, to community groups, or other organizations from their district or around the state. All of these groups are examples of sponsors who bring forth ideas for legislation to be considered by the California Legislature.

Even with a sponsored bill, the author and his or her staff must do a lot of work for the bill, just as if they were the ones who came up with the original idea for that bill. They have to work with the Legislative Counsel’s Office to draft or revise the bill language and any amendments, they also have to develop the bill’s fact sheet, which usually discloses the bill’s author, and sponsor, and other relevant information that’s used to promote the bill. Even if the sponsor writes the initial materials, they’re almost always revised by the author and the author’s staff. In addition, the author’s staff will complete the committee background materials, they’ll write talking points, they’ll solicit groups to support the measure, they’ll deal with opposition to the bill, they’ll work with the committee staff, the floor staff, leadership staff, and of course, they themselves will advocate for the bill with staff of other legislators in both houses.

Ultimately, the sponsor’s name is not on the bill, the legislator’s name is. By the way, sponsors are always listed on policy committee analyses so that other legislators and members of the public know who brought forth the bill to the particular legislator. In California there’s a fair amount of transparency when it comes to the legislative process, as opposed to a number of other states that don’t even list supporters and opponents of bills, let alone the sponsoring organization or individual. Moreover, it’s rare that a bill analysis will not call out a potentially self-serving piece of legislation that benefits the sponsor of that particular bill.

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

McGeorge Adjunct Professor Chris Micheli

A fundamental purpose of both the federal and California Administrative Procedure Acts is to allow public participation in the federal and state rulemaking processes.

Providing notice to the public of the proposed rulemaking as well as an opportunity to be heard during the rulemaking process is key to having meaningful public participation in the quasi-legislative actions of executive branch agencies. However, with any exemption from the formal rulemaking process, that exemption precludes any meaningful public participation because notice to the public is lacking and therefore so is the ability for interested parties to participate in and ultimately to advocate for or against proposed regulations or changes to existing regulations.

All regulations are subject to the APA unless expressly exempted by statute. According to the Office of Administrative Law, OAL, the following are some of the common examples of exemptions to the APA including a local rule, internal management, forms, audit guidelines, the only legally tenable interpretation, rates, prices and tariffs, legal rulings of tax counsel and precedent decisions. I would add to this list the use of statutory exemptions created by the Legislature. It’s my belief that the California Legislature should refrain from abrogating public participation and input into the rulemaking process.

The OAL should always have the ability to be a check on these numerous rulemaking bodies and the hundreds of regulatory changes that they go through each year in order to ensure that these entities are properly complying with the relevant laws and regulations.

These statutory exemptions also represent an unwarranted delegation of authority being made by the Legislature to the executive branch of government. Instead of ensuring that the Legislature remains an equal branch of state government, by granting this exemption to a regulatory agency to bypass the APA, it’s my belief that the Legislature weakens its position towards its otherwise coequal branch the executive branch of state government.

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