McGeorge Adjunct Professor Chris Micheli

Now that the deadline for Governor Newsom to act on the legislation that made it to his desk has passed, we can take a brief overview of how he acted on the bills that made it to the Governor’s desk in his first year in office.

In total, 1,042 bills – out of 2,625 that were introduced – made it to the Governor’s desk. Of that 1,042, 740 were acted upon in the final month of the 2019 legislative session. As a result, 40% of the bills introduced made it to Governor Newsom’s desk, which is about the average. 33% of the bills introduced were signed into law and 6.5% of the bills introduced were vetoed. The percentage of introduced bills being signed is down compared to Governor Jerry Brown’s final year in office in 2018 (3% signed into law in 2019 compared to 45% in 2018), and Governor Newsom’s veto rate was also lower the former Governor Brown’s in 2018 (6.5% vetoed this year compared to 9% last year).

Of the 1,042 bills that reached Governor Newsom’s desk, 870 bills were signed. Of those that were signed into law 66% were Assembly Bills, of which 83% were authored by Democrats, 9% were authored by Republicans, and 8% were committee bills. The remaining 34% of bills signed into law originated in the Senate. Of the SBs, 76% were authored by Democrats, 10% were authored by Republicans, and 14% were committee bills.

On the other hand, Governor Newsom vetoed 172 bills that reached his desk. Of those, 71% were ABs. Of the ABs, 88.5% were authored by Democrats and 11.5% were authored by Republicans. Looking at the Senate Bills that were vetoed, we see that 84% of the vetoed SBs were authored by Democrats and 16% were authored by Republicans.

Greensheets staff writer Mike Adams at McGeorge School of Law

By: Mike Adams

Kids these days with their newfangled smartphones! It’s stunting their brains!

It sounds like a clichéd complaint from an older generation, but that grouchy old curmudgeon might actually be right. Modern social science research is starting to uncover some very serious negative effects of excessive screen time. Depression and lowered school achievement are two of the known effects, let alone the issue of cyberbullying. When that grouchy curmudgeon was growing up bullies might dunk a kid’s head in a toilet. But at least the kid could go home at the end of the day to escape their tormenter. With smartphones and the 24/7 connection to all the various forms of social media that comes with them, bullying follows the victim wherever they go.

If we’re going to try to address these problems, we need to find a place where our intervention would be maximally effective. A nexus where all these problems occur, and where it is possible to provide children with a respite from smartphones—the school system. If the law allowed it, and if schools enforced it, some kind of smartphone ban at school might be really good for kids’ mental health.

That’s what AB 272 aims to do. It gives school districts, charter schools, and county offices of education the power to ban smartphones.

Wait, “Blocking kids from access to their property, and restricting their free speech?” you might ask. How fast can you say “constitutional challenge?” Most people are not aware of how much leeway schools have in regulating the speech and possessions of students. Yes, it turns out that a school can indeed prevent a student from using their favorite medium for speech without running afoul of the First Amendment. The school can even seize the device itself without running afoul of the Fourth Amendment. There are some outer limits that schools cannot cross, but my article sketches out those boundaries, so a school official can steer clear of them.

Now, the weird thing is that California law already allowed schools to ban “electronic signaling devices.” The archaic language indicates that was an old law, and few schools really noticed it or took advantage of that power. What’s worse, the old law was clunky—with gaps in coverage and unclear language—and had the potential to conflict with other education laws. It was written before charter schools were a hot topic and before accommodating students with disabilities was taken so seriously.

AB 272 brings the idea of a school ban on smartphones back into the spotlight, and it broadens the coverage by allowing nontraditional schools to use its provisions. This new law also carves out some important exceptions that would make such a ban work more smoothly with the rest of the education system. It reacts to the problems created by smartphones, while also trying not to overreact. My article suggests some ways for a school to tailor a smartphone ban so that it does the maximum amount of good for students’ mental health while doing a minimum amount of harm.

You can subscribe to the In Session podcast and listen to my broader conversation about AB 272 with Thomas Gerhart on Apple Podcasts, Stitcher Radio, Spotify, and everywhere else podcasts are listened to.

McGeorge Adjunct Professor Chris Micheli was published in the National Law Review. His new article,  A Look at California’s New Labor Employment Laws, was published yesterday. You can also find the complete list of his articles published by the National Law Review here.

Chris Micheli is an attorney and partner at the Sacramento governmental relations firm Aprea & Micheli. As an adjunct faculty member at McGeorge School of Law, he co-teaches the Lawmaking in California and Legislative and Public Policy Clinic courses in McGeorge’s Capital Lawyering Concentration.

McGeorge Adjunct Professor Chris Micheli

Most of the powers of the executive branch of California’s state government are found in Article V of the California Constitution. Today’s post and podcast is a description, briefly, of those constitutional provisions affecting the Governor and his or her administration. A smaller sample of the Governor’s powers are discussed in the post, while a broader discussion is in today’s podcast.

Section 4 of Article V provides the Governor can require officers and agencies to furnish information to him related to their duties.

Section 6 authorizes a statute to allow the Governor to reorganize functions among state agencies other than those of the remaining constitutional offices. This is generally known as a Governor’s Reorganization Plan, or GRP.

Section 8 provides the Governor with authority to grant a reprieve, a pardon, and commutation, except for cases of impeachment. The Governor must report to the Legislature any grants, and provide the facts and reasons for doing so. There are no pardons for persons twice convicted of a felony unless the Supreme Court recommends it.

Section 9 of Article V requires the Lieutenant Governor to have the same qualifications as the Governor. The Lieutenant Governor is the president of the Senate, but may only cast a vote on a tie.

Section 10 provides the Lieutenant Governor will become the governor when a vacancy in the office occurs. He or she shall act as the Governor during an impeachment proceeding, when the Governor is out of state, or when the Governor has a temporary disability. There is an order of precedence for succession to the governor’s office or temporarily exercising the governor’s function. The Supreme Court has exclusive jurisdiction under this section to address any questions.

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

McGeorge Adjunct Professor Chris Micheli

Most of the provisions pertaining to the California Legislature can be found in Article IV of the California State Constitution, although provisions affecting the legislative branch of government appear in nearly half a dozen other articles of the state constitution. The California Constitution is generally looked at in order to determine whether it prohibits an action by the Legislature rather than as a source of power for the legislative branch of state government.

I discuss some of these provisions on the Legislature in today’s post and cover more of them in today’s audio. Section 4 of Article IV prohibits the legislators from receiving any salary or earned income from lobbyists, lobbying firms, or anyone with a contract with the Legislature for the past 12 months. No legislators can accept any honorarium and the Legislature is required to enact strict limits on gifts. Legislators are prohibited from accepting compensation or taking any other action on behalf of another person before a state agency or board.

California’s revolving door prohibition is enshrined in Article IV as well and prohibits legislators from lobbying the Legislature for 12 months after leaving office.

If the general fund revenues decline substantially below the estimate for the fiscal year, then the governor may issue a proclamation declaring a fiscal emergency and call the Legislature into a special session. If the legislature fails to pass a bill to address the fiscal emergency within 45 days, then no other bill may be acted upon, nor may the Legislature adjourns for recess.

Section 18 grants the sole power of impeachment to the Assembly. Impeachments are tried in the Senate. A person can only be convicted by the Senate by a two-thirds majority vote. Statewide elected officials, Board of Equalization members and state court judges are subject to impeachment for misconduct in office and they can be removed from office by the Senate.

This is just a sampling of the constitutional provisions on the Legislature contained in Article IV of the California Constitution. I discuss more provisions in today’s podcast.

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

Yesterday, Governor Gavin Newsom signed Senate Bill 338 (Hueso) the California Senior Disability and Justice Act into law. The press release announcing the signing of the bill into law signaled a major accomplishment for Stephanie Chavez and Spencer Saks. SB 338 was the bill that Stephanie and Spencer worked on while in the Legislative and Public Policy Clinic at McGeorge School of Law. After a year of hard work, collaborating closely with the office of Senator Ben Hueso and Arc of California, Spencer and Stephanie have a new law to show for their efforts.

“This was definitely a team effort,” said Spencer Saks after learning SB 338 had become law, “I’m excited to know that our work could help elderly and disabled Californians have access to the justice they deserve.”

Not only did the bill become law, but it navigated its way through the California Legislature without receiving a single no vote.

According to the Senate Floor Analysis of the legislation, SB 338 “establishes the “Senior and Disability Justice Act” which requires a local law enforcement agency that adopts or amends its policy regarding senior and disability victimization after April 13, 2021, to include information and training on elder and dependent adult abuse as specified.”

The Legislative and Public Policy Clinic at McGeorge School of Law is taught by Elizabeth Fenton and Cathy Christian.

McGeorge Adjunct Professor Chris Micheli was published in the National Law Review. His new article, Using Letters to the Daily Journals for Determining Legislative Intent; Compilation of Assembly and Senate Letters from Bill Authors – 2019 Update, was published last Friday. You can also find the complete list of his articles published by the National Law Review here.

Chris Micheli is an attorney and partner at the Sacramento governmental relations firm Aprea & Micheli. As an adjunct faculty member at McGeorge School of Law, he co-teaches the Lawmaking in California and Legislative and Public Policy Clinic courses in McGeorge’s Capital Lawyering Concentration.

McGeorge Adjunct Professor Chris Micheli

There are several ways in which the California Legislature can influence the rulemaking activities of these executive branch entities. Primarily the Legislature does this through lawmaking and the budget.

Generally speaking, the authority of California’s agencies and departments to adopt policy through its rulemaking activities is both defined and restricted by state statute. It’s an established principle of administrative law that a state agency cannot exceed its legally prescribed authority to regulate. Now keep in mind that the underlying statute confers either broad or limited powers to the state agencies. Some of the broad rulemaking authority is vested in state agencies such as the Department of Motor Vehicles, the Air Resources Board and the Department of Fair Employment and Housing.

There is also a legislative review of regulations under the Joint Rules of the California Legislature. The California Joint Legislative Rules Committee, as well as the respective Rules Committees of both the Assembly and the Senate, can approve any requests from a legislator to give priority review of a regulation. If such a request is approved, then the Joint Rules Committee must submit any approved requests to the Office of Administrative Law. In addition, under these joint rules, any member of the Senate may request the Senate Committee on Rules, and any member of the Assembly may request the Speaker of the Assembly to direct any standing policy committee in their respective houses, or the Assembly Office of Research or the Senate Office of Research to study any proposed or existing regulation or group of related regulations.

Now, upon receipt of such a study request from a legislator, the Senate Committee on Rules or the Speaker of the Assembly will determine whether a study will be made of the regulation or regulations requested. In reviewing such a request, the Senate Committee on Rules or the Speaker of the Assembly must determine

  1. the cost of making that study,
  2. the potential public benefits that would be derived from the study, and
  3. the scope of such a study.

Under the joint rules, the study may consider among other things, seven different items:

  1. Do the proposed or existing regulation exceed the agency statutory authority?
  2. Does it fail to conform to the legislative intent of the enabling statute?
  3. Does it contradict or duplicate other regulations adopted by federal, state, or local agencies?
  4. Does it involve an excessive delegation of regulatory authority to a particular state agency?
  5. Does it unfairly burden particular elements of the public?
  6. Does it impose social or economic costs that outweigh its intended benefits to the public?
  7. Does it impose unreasonable penalties for violation?

This review must be done in a timely manner, and any concerns must be transmitted to the Senate Committee on Rules, or the Speaker of the Assembly, as well as the relevant state agency that is promulgating the regulation. In the event that a state agency takes a regulatory action that the reviewing entity finds to be unacceptable, then the entity must file a report for publication in the Assembly Daily Journal, or the Senate Daily Journal, indicating the specific reasons why the regulatory action should not have been taken.

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

McGeorge Adjunct Professor Chris Micheli

Under our state constitution’s separation of power provisions, the laws of the state are generally enacted by the legislative branch of government, administered by the executive branch of government, and interpreted by the judicial branch of government. With the executive branch being charged with both administering and enforcing the law, state agencies and departments tasked with administering the law need to engage in rulemaking activities that are quasi-legislative in nature.

In delegating authority to the executive branch of government, one question that arises is whether a legislature can be expected to adopt statutes that address every detail of public policy. In some instances they can, but in many other instances they cannot. As a result, it is expected that there is to be some delegation of legislative authority to the executive branch of either the federal or state levels of government. There is an issue of which powers can be delegated to the executive branch of government and to which of the agencies or departments, as well as to what extent that delegation can take without running afoul of constitutional limitations.

So, how broadly can the California Legislature delegate authority to state agencies and departments? Generally, when the Legislature delegates some of its authority, it will also articulate guidance in the use of that authority by that particular state agency. There are many state appellate court decisions in this area of state constitutional law. As a general rule, an unconstitutional delegation of authority occurs when the Legislature:

  1. Leaves the fundamental policy issues to others, or
  2. Fails to provide adequate direction for the implementation of the particular policy.

In the end, the fundamental issue that the courts look at is how much legislative authority can be delegated to agencies and departments in the executive branch. It appears, that the more that the authority is delegated, the more likely the delegation will be deemed unlawful.

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

Earlier today, McGeorge School of Law sent the email below out across the country to highlight the amazing professors that I’ve had the chance to talk to on The CAP⋅impact Podcast. As you know, earlier this year we re-imagined The CAP⋅impact Podcast. We took a show that was one of many podcasts looking at legislation and policy issues in California and transformed it. From January onwards, we’ve been exploring how legal scholars are changing law and public policy at all levels of government across the country. The goal was to demonstrate that the work and research that happens in the “ivory tower” has a real-world impact. I am proud to say that through the collection of interviews we published over the first half of 2019 that we accomplished that goal.

I have been fortunate to interview twenty different professors with a wide variety of specialties ranging from climate change to data privacy to voting rights. Every professor I have talked to has blown me away with their knowledge, experience, and expertise. It’s exciting to see this podcast get pushed out nationally, and I am looking forward to continuing to having these engaging conversations about public policy.

The picture below links to the email, which has links to the individual episodes, or you can listen to all our episodes of The CAP⋅impact Podcast on Apple Podcasts, Spotify, Stitcher Radio, and everywhere else that podcasts are listened to.

And if you are a law professor who is shaping or changing public policy and I haven’t talked to you yet, I want to talk to you. Please send me an email at jwainwright@pacific.edu and let’s talk about the work that you are doing.