McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Today I’ll consider the question of whether legislative intent language can overcome statutory language. I’ve seen instances in the California Legislature where a bill contains both statutory changes – language that adds, amends, or repeals Code Sections – as well as legislative intent statements – usually in the form of findings and declarations.

In most instances, one would expect these two types of provisions to be consistent. While with a well-drafted bill it may not be necessary for a court to resort to looking at findings and declarations to determine intent, there are times when legislators or interest groups want to have the extra assurance that the judicial branch will interpret the statute the way they desire. But what about instances where the statutory language and the legislative findings and declarations are not consistent with each other? How should a court treat that occurrence?

By way of background, it is presumed that if the language in a bill makes a material change to a statute – it adds, amends, or repeals language in the statute – then the amendment was intended to change the meaning of the statute.

To me, it would make sense for the courts to not rely upon legislative intent language, but rather to determine whether the underlying statute was materially changed, and then determine the effect to those statutory changes.

In most instances, the courts have ruled that the amendment of a statute is evidence of an intention to change a law. In these instances, there is no need for intent language to be considered or resorted to by the courts unless there was some ambiguity in the changed statutory language. Then, in theory, the purpose of the legislative intent language is to help resolve some of the ambiguity in the statutory language.

It is worth noting that the California Supreme Court has said that if there is no ambiguity in the language, then they presume the Legislature meant what it said, and the plain meaning of the statute governs their interpretation.

In my mind, the logical conclusion is that legislative intent language cannot overcome statutory language, particularly in instances where the bill makes no material changes to the underlying statute.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

As capitol observers watch the floor sessions, and sometimes even committee hearings, of the California State Assembly and State Senate they come across some commonly used phrases. Let’s take a look at what those phrases mean.

Parliamentary Inquiry

This is used by a member of the Senate or the Assembly during a legislative proceeding – a committee hearing or floor session – to raise a question about parliamentary procedure. The member is recognized by either the Committee Chair or the house’s Presiding Officer, and then that person answers the member’s parliamentary inquiry.

Point of Order

This phrase is based on parliamentary procedure and is used by a Senator or an Assemblymember to bring the chamber’s Presiding Officer’s or the Committee Chair’s attention to an alleged violation of the house’s or the committee’s rules. After the member states their point of order, the Presiding Officer or the Committee Chair issues a ruling on the validity of the stated point of order.

Privileges of the Floor

This phrase describes when a member of the Legislature has been granted permission by the respective house’s Presiding Officer for a guest – for example, a family member or constituent – to view the legislative proceedings from the floor of the Assembly or Senate, rather than from the gallery.

Condition of the File

This is used by a member to make a brief statement at the close of a legislative floor session. Essentially, the member is speaking to their colleagues about why it is no appropriate for that house to adjourn at that time. The Senate does not have a formal, established time limit for these comments, but Senators are generally limited to about five minutes. In the other house, Assembly Rule 84 states “a member may state a fact relating to the condition of the business of the Assembly, but is limited to two minutes, and no debate is allowed.”

Adjourn in Memory

This phrase describes when a member has been granted permission to adjourn the house in memory of an individual. The request must be made in writing, is read by the house’s Presiding Officer, and then the member’s statement occurs prior to adjournment of the day’s session.

The Desk is Clear

This phrase is used by the Presiding Officer of the Assembly or the Senate to recognize a motion to adjourn. Essentially, it means that there is no further official business to come before that particular house that particular day.

You can also read the transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

When the California Legislature adjourned its 2020 session in the early morning hours of September 1st, many observers mistakenly called it adjournment sine die. However, it is worth noting that there is a distinction between adjournment and adjournment sine die.

The Legislative Counsel’s Glossary of Terms defines adjournment as “terminating a meeting or the occurrence at the close of a legislative day upon the completion of the house’s business.” Adjournment is accomplished by a successful motion to end the committee hearing or the floor session. That motion is not debatable, and it may not be amended. A motion to adjourn is generally in order except when another member is speaking on the floor, when voting is taking place, or during a call.

Pursuant to Assembly Rule 84, the details of the adjournment motion are entered in the Assembly Daily Journal. Per Assembly Rule 85, a motion to recess to a time certain is treated the same as a motion to adjourn, however, a motion to recess is debatable and it can be amended regarding its time and duration. In both houses, a motion to adjourn requires a simple majority vote.

Adjournment sine die comes from Latin, and essentially means to adjourn without days. The phrase basically means there are no days left in the legislative session after the Legislature adjourns. Put another way, the term is used to describe the final termination of the two-year legislative session.

Adjournment sine die is also found in Article IV, Section 3(a) of California’s Constitution, where it says, “each session of the Legislature shall adjourn sine die by operation of the Constitution at midnight on November 30 of the following even-numbered year.” Note that both regular and special sessions of the Legislature adjourn sine die at midnight on November 30 of each even-numbered year.

Put another way, when the California Legislature terminated the 2020 session back in the wee hours of the morning of September 1, the Assembly and the Senate adjourned until they reconvene on Monday, December 7th, at twelve noon, per the state Constitution. The 2019-2020 legislative session adjourns sine die on November 30, 2020.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

California’s Law Revision Commission was established almost 70 years ago as an independent state agency, and its purpose is to assist the Legislature and the Governor in reviewing and making suggested reforms to state statutes. Beginning this year, there is also a Committee on the Revision of the Penal Code.

The Commission is comprised of seven members who are appointed by the Governor and approved by the State Senate. Additionally, one State Senator and one Assemblymember are appointed to the Commission. The Legislative Counsel also serves as an ex-officio member. The Commission reviews California statutes as well as California appellate court decisions in order to discover any defects, or anachronisms, or other issues with California law, and to recommend legislation to make changes.

The Committee on the revision of the Penal Code consists of five members, all of whom are appointed by the Governor, as well as one State Senator and one Assemblymember. The members of the Committee are separate from members of the Commission.

The California Law Revision Commission is charged by statute to do four things.

  1. Examine the common law and statutes of the state and judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms.
  2. Receive and consider proposed changes in the law recommended by the American Law Institute, the National Conference of Commissioners on Uniform State Laws, any bar association, and any other learned bodies.
  3. Receive and consider suggestions from judges, justices, public officials, lawyers, and the public generally regarding any defects and anachronisms in the law.
  4. Recommend from time to time such changes in the law as it deems necessary to modify or eliminate antiquated and inequitable rules of law, and to bring the law of the state into harmony with modern conditions.

The Commission must also recommend the repeal of any statute that’s been held to be unconstitutional by the US Supreme Court or the California Supreme Court.

Recommendations from California’s Law Revision Commission have resulted in changes to more than 22,500 sections of California’s Codes. Basically,  90% of the Commission’s recommendations have been enacted into law.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The California Transportation Commission, also known by its acronym, the CTC, was established in state government by legislation enacted in 1977.

The CTC began operations the following year. Its purpose is to ensure the implementation of a single transportation policy here in the State of California. When it began operations in 1978, it actually assumed the duties of four prior state entities. The CTC is charged with programming and allocating funds for the construction of highway, passenger rail, transit, and active transportation improvements throughout the State of California. It is an independent public agency that’s dedicated to ensuring a safe, financially sustainable, world-class multimodal transportation system that reduces congestion, improves the environment, and facilitates economic development throughout the efficient movement of people and goods.

The CTC is comprised of eleven members, as well as two ex-officio members. Nine of the voting members are appointed by the Governor, one is appointed by the Speaker of the Assembly, and the last voting member is appointed by the Senate Committee on Rules.

The California Transportation Commission advises the Secretary of the California Transportation Agency, as well as the Legislature, regarding state policies and plans on California’s transportation programs. The CTC also works on state and federal legislation in its effort to secure financial stability for the state’s transportation needs.

According to the CTC, it is responsible for a number of activities, including but not limited to:

  • Adopting the biennial estimate of state and federal dollars available for California’s STIP – State Transportation Improvement Program – and SHOP – State Highway Operations and Protection – program, as well as the STIP and SHOP themselves.
  • Adopting guidelines, programming projects, and allocating funds and reporting on programs funded by 2017’s SB 1.
  • Establishing reporting requirements related to the funding received by city and county governments from the road maintenance and rehabilitation account.

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

This week’s guest is USC Gould School of Law Vice Dean for Faculty and Academic Affairs and Professor of Law Franita Tolson. She is an expert in election law, constitutional law, and employment discrimination. Our conversation starts with the historic nomination of California Senator Kamala Harris as the Vice Presidential candidate for the Democratic Party and then spins off to voting rights and the numerous structural issues that could impact the outcome of this election.

One of the things that I’ve spent a lot of time thinking about this year, partly because it’s an election year, is how strong an individual’s right to vote is, and what influences how strong that right is. We talked about how even rhetoric – calling or thinking of voting as a privilege like having a driver’s license – can impact that right. We discuss the other, more talked about, factors like your sex, race, income level, and where you live as well. We also touch on the pros and cons of state-run versus federally-run elections, voter ID laws, and what Professor Tolson’s thoughts are on making our elections more just, equitable, and accessible for all Americans.

You can listen to my conversation with Professor Tolson on Apple Podcasts, Spotify, Stitcher Radio, or wherever you listen to podcasts. If you like the episode, please take the time to subscribe to The CAP⋅impact Podcast on your favorite podcast app and leave us feedback in the form of a (hopefully) five-star review. You can follow Professor Franita Tolson on Twitter @ProfTolson, and you can read her scholarship and research on the topics we talked about today on SSRN or on Google Scholar.

You can also keep up with all things Capital Center for Law & Policy by liking our page on Facebook and by following us on Twitter and Instagram @McGeorgeCapCtr.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The California Energy Commission, or CEC as it is often referred to as, was established in 1974 by the Warren-Alquist Act in response to the nation’s energy crisis in the early 1970’s. The CEC is charged with leading the state to a 100% clean energy future. It is the state’s primary energy policy and planning agency.

You can find provisions on the CEC in the Public Resources Code, Division 15, Chapter 1. Per Section 25006 of the Public Resources Code, “It’s the policy of the state and the intent of the Legislature to establish and consolidate the state’s responsibility for energy resources, for encouraging, developing, and coordinating research and development into energy supply and demand problems, and for regulating electrical generating and related transmission facilities.”

There are multiple divisions that run the day-to-day operations of the California Energy Commission. They include:

  • the Efficiency Division, which develops regulations, policies, and programs to help the state meet its clean energy goals;
  • the Energy Assessment Division, which forecasts and assesses energy demands and supplies;
  • the Fuels and Transportation Division, which administers the clean transportation program;
  • the Office of Compliance Assistance and Enforcement, which leads the CEC’s efforts to ensure conservation requirements are met;
  • the Public Advisor’s Office, which provides information on how to participate in the business meetings, workshops, and formal proceeding of the CEC;
  • the Renewable Energy Division, which develops and administers the state’s renewable energy programs; and
  • the Siting, Transmission, and Environmental Division, which maintains a staff of experts in more than twenty different engineering and environmental disciplines.

There are extensive provisions in the Public Resources Code related to the CEC. It also oversees loan and grant programs related to energy efficiency as well as more than two dozen specific funding programs.

You can read the transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The California Coastal Commission was created by voters in 1972 and made permanent by the Legislature when the California Coastal Act was enacted in 1976. The Coastal Commission is charged with protecting and enhancing California’s coast and ocean for all generations.

It is an independent, quasi-judicial state agency. It is quasi-judicial because it has enforcement capabilities as well as appellate authority over developments that have been approved by local governments in specified geographic areas.

The California Coastal Commission has twelve voting members appointed equally by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly. Additionally, six of the voting commissioners are locally elected officials, and the other six are appointed from the public at large. The Commission also has three ex-officio members who represent the state’s Natural Resources Agency, Transportation Agency, and State Lands Commission.

The Commission works closely with coastal cities and counties to plan and regulate the use of both land and water in the coastal area. The coastal zone was developed by the Legislature and includes land as well as a three-mile band of the ocean. That said, the San Francisco Bay area is not regulated by the California Coastal Commission. Rather, development there is regulated by the Bay Conservation and Development Commission, BCDC.

Pursuant to federal law, the Coastal Commission actually has regulatory control over all federal activities as well as federally licensed, permitted, or assisted activities. These include the outer continental shelf oil and gas leasing, exploration, and development, as well as the designation of dredged material disposal sites in the ocean, military projects at coastal locations, and several other specified activities under federal law.

The public is able to participate in Coastal Commission hearings as well as the ability to talk with Commissioners regarding proposed development activities and securing permits for those activities.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Similar to how the LAO serves the California Legislature, the Department of Finance – DOF or Finance for short – serves as the chief fiscal policy advisor to the Governor. Its closest federal counterpart is the Office of Management and Budget, OMB, which serves as the President’s chief fiscal policy advisor.

The DOF engages in a number of activities related to the state budget. They prepare the proposed, revised, and enacted versions of the state budget, trailer bill language, and other budget details such as BCP’s (budget change proposals), finance letters, and pro rata statewide cost allocation plans. DOF also has a treasure trove of historical budget information. This includes old e-budgets, publications, summary schedules, historical charts, and other budget-related information.

DOF is also responsible for accounting issues for the state. Their responsibilities include devising, supervising, and maintaining a modern, uniform state accounting system. Finance also sets statewide fiscal and accounting procedures and they provide fiscal and accounting training, advice, and consulting services to different state agencies and their personnel.

Finance also does a fair amount of forecasting. DOF prepares four major forecasting reports each year on demographics, economics, general fund and special tax revenue estimates, and on major regulations where the costs or benefits are estimated to exceed $50 million. DOF also publishes a number of reports on different matters where there is a fiscal impact to the state of California.

Like the LAO, Finance has proven to be an invaluable player in the annual state budget bill negotiations working on behalf of the Governor and the administration to ensure that the Governor and his or her staff has all the data and information that they need to work collaboratively with the Legislature in order craft what is undoubtedly the most important bill enacted each and every year, the state budget bill.

You can read the transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The Legislative Analyst’s Office, LAO, is similar to the federal Congressional Budget Office. It is a nonpartisan fiscal and policy advisor and has performed this duty admirably for 75 years.

The LAO is known for its fiscal and programmatic expertise and for providing very important and nonpartisan analyses of the California state budget to the Legislature. The office often acts as the eyes and the ears of the Legislature to ensure that the executive branch is implementing legislative policy directives in a cost‑efficient and very effective manner.

It is overseen by the Joint Legislative Budget Committee, JLBC, which is comprised of sixteen legislators. The Committee is bipartisan and has an equal number of Assemblymembers and Senators. The LAO itself has a staff of more than 40 analysts and other support staff to help it do its job.

The key responsibility for the LAO is to analyze the Governor’s annual budget proposal, released by January 10, pursuant to the state constitution. The LAO also does a series of analyses on some of the key fiscal issues and proposals in the Governor’s budget throughout the budget process.

LAO staff will actually sit in on budget subcommittee hearings throughout the budget process and they provide public testimony on the LAO’s recommendations.

The office used to analyze pending legislation, however it was forced to cut back to only analyzing the budget after the passage of Prop 140 in 1990 and the budget cutbacks that resulted from it.

In addition to its work on the state budget, the LAO estimates the fiscal impact on state and local governments of all proposed ballot initiatives prior to the initiatives being in circulation. The office also helps prepare the analyses of all the measures that actually qualify for the state ballot as well.

You can find the full transcript of the audio in this post here.