McGeorge Adjunct Professor Chris Micheli

While a referendum is commonly used to refer to the practice of submitting a question or a measure to a popular vote of the electorate, such as Brexit in the United Kingdom, in the US states that have direct democracy – about two dozen of them – the referendum is used by the electorate to overturn a statute that was enacted by the state legislature. There are a few aspects of the referendum process that are unique to California.

The first, which was discussed in Friday’s blog post, is that there are four types of statutes that are exempt for being subject to a referendum. Those four are urgency statutes, statutes calling for elections, statutes providing for tax levies, and statutes providing for appropriations for the usual current expenses of the state.

The second is that once a referendum qualifies for the ballot, then the statute that is being subjected to the referendum is stayed. It is does not take effect and is essentially on hold until the results of the election.

Speaking of qualifying for the ballot, proponents of a referendum have only 90 days from the enactment of the statute to collect the requisite number of signatures to place their referendum on the ballot. That signature threshold is equal to five percent of the votes for all the candidates for governor in the last gubernatorial election.

Another unique aspect is that voters can overturn a statute either in part, or in whole. Article II, Section 9 of the California Constitution reads in part “to approve or reject statutes or parts of statutes.” As a result, if the referendum’s proponents want to overturn the entire law or just a part of it, then they can pursue either option.

The last aspect, and most important one to understand for voters, is the meaning of a yes or a no vote on the referendum itself. The definitions are actually counter-intuitive. Once on the ballot, the law is repealed if voters cast more no votes than yes votes. In other words, if a majority votes no, then the law never takes effect.

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

McGeorge Adjunct Professor Chris Micheli

The referendum is one of the three forms of direct democracy in California. It is the power of the voters to approve or reject statutes either in part or in whole. So, what is subject to a referendum?

Pursuant to Article II, Section 9 of the California  Constitution, any statute – either in part or in whole – can be subjected to referendum except for:

  • Urgency statutes,
  • Statutes calling elections,
  • Statutes providing for tax levies, or
  • Statutes providing for appropriations for usual current expenses of the state.

The courts in California have several times explained further what types of measures are subject to a referendum. The scope of the referendum power is generally treated as coextensive with the scope of the legislative authority. As a result, any legislative decision made by a representative type body is subject to referendum.

That said, the courts have said that a referendum may only review legislative matters. The power of referendum does not extend to matters that are strictly executive or administrative. This came of the 1998 decision in Empire Waste Management v Town of Windsor.

Other appellate courts have also ruled that the power of the referendum conferred by Article II, Section 9 applies only to acts that are legislative in character and not to executive or administrative acts.

What makes an act legislative in nature? An act is legislative in nature if it prescribes a new policy or plan. The distinction between legislative and administrative action may sometimes present not only legal issues but factual ones as well bearing on the government entity’s intent. This was discussed at length in a 1991 California Appellate Court decision called Southwest Diversified, Inc. versus the City of Brisbane.

As a result of this court guidance, we know that the power of referendum applies only to legislative enactments and not administrative agency regulations or other executive branch actions.

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

McGeorge Adjunct Professor Chris Micheli

Like bills, resolutions and concurrent resolutions are mentioned several times in Article IV of California’s Constitution but are not defined in either the California Constitution or California Government Code. Unlike bills, there is no Schoolhouse Rock definition for resolutions.

The traditional definition of a resolution is a written motion that’s considered for adoption by a legislative body. Fundamentally, a resolution is a written measure that expresses the will of the Legislature. As opposed to a bill, once adopted a resolution does not have the force or effect of law. In California, there are several types of resolutions. Two are defined by the California Legislative Counsel.

Legislative Counsel gives definitions for concurrent and joint resolutions. A concurrent resolution is a measure that’s introduced in one house that if it’s approved must be sent to the other house for approval as well. Concurrent resolutions require action or state the Legislature’s position on a particular issue. The Governor’s signature is not required. These measures usually involve the internal business of the Legislature.

The Assembly version of a concurrent resolution uses the acronym ACR. The Senate version uses the acronym SCR.

Joint resolutions are defined as a resolution expressing the Legislature’s opinion about a matter within the jurisdiction of the federal government. Once adopted the resolution is forwarded to Congress for its information. A joint resolution requires the approval of both the Assembly and the Senate, but it does not require signature by the Governor.

The Senate version uses the acronym SJR, while the Assembly version uses the acronym AJR.

The third and final major type of resolution is a house resolution. It’s used to adopt rules for the individual house. These types of resolutions involve the internal business of a single house of the Legislature, and they only require passage in that one house. The Assembly version uses the acronym HR, while the Senate version uses the acronym SR.

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

McGeorge Adjunct Professor Chris Micheli

Today’s post answers the question, what is a bill? Despite the fact that members of the California Legislature draft thousands of bills every year no definition for the term “bill” can be found in the California Constitution or California’s Government Code. Although, it has been defined by Schoolhouse Rock.

Bills only apply to the legislature. In the two dozen states that have direct democracy, including California, the people can enact statutes but only by initiative, not by bill.

California’s Legislative Counsel defines a bill as a proposed law introduced during a session for consideration by the Legislature and identified numerically in order of presentation. Also, it’s a reference that may include joint and concurrent resolutions and constitutional amendments for rules purposes.

Article IV Section 8 (b) (1) of the California Constitution provides that the Legislature may make no law except by statute and may enact no statute except by bill. Hence, the law‑making process in the state of California requires the use of bills.

There are a few other state constitutional provisions that apply to bills. For example, in Article IV Section 8 (b) (3) it states that no bill may be passed unless, by rollcall vote entered in the journal, a majority of the membership of each house concurs.

Section 10 (a) of Article IV requires that each bill passed by the Legislature shall be presented to the Governor. Section 12 of Article IV deals with budget bills in particular.

Article IV deals with the legislative branch of state government. It sets forth the general legislative activities and process. Again, a bill is required to create a law or a statute. It is the form that is utilized by the legislature to create a statute.

You can find the full transcript of today’s podcast on Bills in the California Legislature here.

University of California, Irvine Professor Richard Hasen was worried about the 2020 election before the coronavirus pandemic. As the public health crisis evolved into a societal and economic crisis, it became clear this could become a political crisis as well.

In his most recent book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, Prof. Hasen pointed out four key threats to US Democracy and what needs to be done to address those problems. Trust in our democratic institutions are already strained by overly restrictive voter ID laws, incompetent election administrators, dirty tricks, and foreign interference. COVID-19 makes all of those worse and living in a post-truth era where the sides don’t even agree on the facts in front of them doesn’t help either. I won’t go into too many of the specifics of those problems here because a) I don’t want to depress you too much, and b) you should listen to the podcast where we do talk about them

The good news is that none of the problems are unsolvable. We discuss some of the short and long term solutions that can address the problems facing US democracy. Again, if you want some of the actual solutions, listen to the podcast, or read the book.

As mentioned on the podcast, there are many ways to keep up with Professor Hasen’s work. You can visit his UCI faculty page, subscribe to his blog – Election Law Blog – and follow him on Twitter @rickhasen. Be sure to also read Fair Elections During a Crisis and Professor Hasen’s new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.

As always, if you enjoyed this conversation on The CAP⋅impact Podcast, you can find more like it by subscribing to it on Apple Podcasts, Spotify, Stitcher Radio, or your favorite podcast listening app.

McGeorge Adjunct Professor Chris Micheli

There are several code sections of the California Government Code that set forth the enactment of statutes and the adoption of a resolution by the Legislature. These statutes were originally enacted in 1943 in the Government Code. They’re found in Title 2, Division 2, Part 1, Chapter 5. I’ll discuss some of these sections here. There are more in today’s audio.

The first is Government Code Section 9500, which is the definition of clerk, the employee who performs the duties of engrossing and enrolling.

Government Code Section 9501 is the definition of committee, which means the engrossing and enrolling committee of the House.

Government Code Section 9501.5 on enacting clauses requires that the enacting clause of every law adopted in the Legislature must be, “The people of the state of California do enact as follows.”

Government Code Section 9502 states that all bills and other documents ordered, engrossed, or enrolled by either the Senate or the Assembly are to be delivered by the Secretary of the Senate or the Chief Clerk of the Assembly.

Government Code Section 9503 states that the clerk must deliver the bills and documents without delay to the state printer.

Government Code Section 9504 requires the state printer to accept all bills or documents, and without delay engross or enroll and then print them in the order of their receipt.

Government Code Section 9505 states that the state printer must deliver the engrossed or enrolled copy of the bill, or documents with the original to the clerk from whom he received the original, and must carefully compare the engrossed or enrolled copy with the original version.

Government Code Section 9506 states that all bills and documents that have been printed must be considered engrossed. If no amendments have been made after being printed, the original bill or document is to be delivered to the clerk of the House where it originated.

Government Code Section 9507 states if the enrolled copy of a bill or other document is found to be correct, the committee must present it to the proper officers for their signatures. When the officers sign their names as required by law, the bill is enrolled.

Government Code Section 9508 provides that enrolled bills are required to be transmitted to the Governor for his approval.

Government Code Section 9509, as soon as an enrolled bill is delivered to the Governor, it must be endorsed as follows, “This bill was received by the Governor this ____ day of ____.” The endorsement must be signed by the private secretary of the Governor or by any other person designated by the Governor whose designation has been reported by the Speaker or the President Pro Tem.

There are more code sections covered in today’s audio. You can also find the full transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli

Oversight is intended to ensure government accountability. A critical role for the legislative branch of government is oversight regarding the executive branch activities. Fundamentally, oversight is intended to ensure government accountability and make certain that tax dollars are spent properly and efficiently by the executive branch of state government.

Now in 2017, Assembly Committee on Rules Chairman Ken Cooley, a Democrat from the Sacramento area, released a document entitled “2017 Oversight Handbook,” and he provided it to his legislative colleagues and members of the public.

This Legislative Oversight Handbook provides a toolkit and offers useful advice to support legislative committees as they prepare and conduct oversight activities. According to his handbook, oversight is broadly defined as reviewing, monitoring, and supervising the implementation of public policy.

Legislative oversight can take several forms including private communications between the legislative and executive branches, public hearings, the state budget process and even individual pieces of legislation.

The Legislature also has the Bureau of State Audits which the Joint Legislative Audit Committee can request audits be done and investigations into the executive branch of state government and even local agencies and special districts.

There are essentially two types of oversight hearings that the Legislature can conduct. One is more informational in nature while the other is investigatory in its approach.

Informational hearings essentially allow legislators to learn about a particular topic or a particular state agency or department. These types of hearings also educate legislators, staff, and members of the public even who listen into the hearing. These usually occur when the Legislature wants to learn more about a particular subject matter.

An investigatory hearing is more focused on fact finding. This type of hearing is the traditional oversight hearing wherein the Legislature needs to understand what in particular transpired, such as when the Legislature in prior years has investigated information technology procurements that went well over budget and had significant delayed timelines.

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

McGeorge Adjunct Professor Chris Micheli

What are some of the standard bases for gubernatorial vetoes and what are some of the themes that have emerged with Governor Newsom’s vetoes? This is by no means an exhaustive list, but it gives a flavor for some of the things chief executives might use to determine whether to sign or veto pending legislation.

Political scientists have identified a fair number of bases that are utilized for state governors to veto legislation. These could range from executive branch agency objections to separation of powers issues to impact on the state’s budget or fiscal affairs to public outcries against the bill.

As it pertains to Governor Newsom after one year in office, and even to some degree Governor Brown before him, there are some veto trends that have emerged. These trends include If an executive branch agency is already working on an issue administratively, the Governor is more likely to choose that approach over a legislative solution.

Similarly, legislation that tries to take authority from one state agency and give it to another state agency, or even a local agency, often gets vetoed. As does legislation that duplicates activities that are currently being undertaken by an executive branch agency.

Another is that if the bill proposes the state does something a local government can do, or if the bill imposes rules on local governments that result in a reimbursable state mandate, then those bills tend to get vetoed.

Sometimes a governor may think an issue isn’t quite ripe yet for a policy solution and will veto the bill. Similarly, the governor may think the issue is ripe for a solution but that the legislation on their desk isn’t ready and will veto the bill so that more work can be done on it.

Lastly, and perhaps obviously, if the governor has already signed one bill on the topic there probably isn’t a need to sign a second bill on the topic too.

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

McGeorge Adjunct Professor Chris Micheli

When a bill is passed by the California Legislature and sent to the Governor, there are three actions that are allowed.

One is the Governor can sign the bill into law, making it a statute. The second is the Governor can veto the bill or reject it. The third option is that the Governor can allow the bill to become law without his or her signature, generally called a pocket signature. Note of course that this is different than the pocket veto found at the federal level.

Signature

Section 10(a) of Article IV provides in part that each bill passed by the Legislature shall be presented to the Governor. It becomes a statute if it is signed by the Governor. Depending on when the Governor is presented with the legislation, the Governor has either 12 or 30 days to sign the bill into law.

In general, the Governor has 12 days to sign a bill after it has been presented to him or her. The bill is not presented to the Governor immediately after it passes the Assembly or Senate. First, the legislation goes through the engrossing and enrolling process and then is presented to the Governor. That is when the 12-day clock starts ticking.

However, the Governor has 30 days to sign a bill if:

  • In the first year of the two-year session, the Governor receives the bill with less than 12 days until the Legislature adjourns for a joint recess, or
  • On or after August 20 during the second year of the two-year session.
Veto

Section 10(a) of Article IV provides in part that the Governor may veto a bill by returning it with any objections to the house of origin which shall enter the objections in the Journal and proceed to reconsider it. The Constitution provides the Legislature has 60 calendar days, with days in joint recess excluded, to act upon the vetoed bill. If two-thirds of the members of both houses concur, the veto is overridden. However, veto overrides are quite rare. The Legislature has not overridden a Governor’s veto since 1979. 

The Governor also has line-item veto authority. Per Section 10(e) of Article IV, the Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill. Like a veto, the Legislature can override a line-item veto with a two-thirds vote of both houses.

Pocket Signature

Section 10(b)(1) of Article IV provides that any bill other than a bill that would establish or change boundaries of any legislative, congressional, or other election district that is passed by the Legislature and is not signed by the Governor in the allotted 12 or 30-day timeframe, depending on when the Governor received the bill, becomes law without the Governor’s signature. This pocket signature rule is the opposite of the federal pocket veto rule, where if the US President fails to act on a bill within the allotted time, the bill is vetoed.

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

McGeorge Adjunct Professor Chris Micheli

Governor Gavin Newsom has issued more than thirty executive orders during the coronavirus pandemic to temporarily address different aspects of state law. But what are the limits on the Governor’s executive orders?

Pursuant to California Government Code Section 8558, the Governor can call a state of emergency when there’s an existence of conditions of disaster or of extreme peril to the safety of persons and property within the state. Once the state of emergency has been declared, state law grants enormous power to the Governor.

The state’s constitution gives the Governor the power to utilize the national guard during a state of emergency to ensure that state laws are complied with. The Governor is also provided with numerous powers in the California Emergency Services Act, CESA.

CESA provides:

  • The Governor can issue executive orders, as well as add, amend, or repeal executive orders.
  • That executive orders take place immediately and remain in effect until the end of the state of emergency.

The pressing question is how broad is the Governor’s authority? Do CESA and other code sections limit the governor’s authority?

Government Code Section 8571 does not provide the Governor with the power to suspend all laws. I believe that suspend is the important word here, which means that the power leads to an existing statute, not the imposition of a new obligation. In my mind, the statute does not allow the creation of new statutory obligations via executive order.

Under Government Code Section 8628, the Governor can exercise full direction over all state agencies and utilize all public employees and their equipment to perform any required duties that the Governor determines to exist during an emergency. State personnel may be directed to provide services to local governments.

A state of emergency is ended either by gubernatorial proclamation or by a concurrent resolution of passed by both houses of the Legislature.

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