McGeorge Adjunct Professor Chris Micheli outside the California State CapitolI am once again joined by my colleagues Laura Curtis and Robert Moutrie on today’s video podcast about lobbying bills that have made it to one of the floors in the California Legislature. We discuss the similarities and major differences between lobbying bills in committee and lobbying bills on the floor.

The topics covered in this video include how it’s possible to lobby all 120 members of the California Legislature, some do’s and don’t’s for lobbying members and their staff on bills, the value of coalition meetings and one-on-one meetings, and what materials you should bring to a meeting with a legislator or their staff.

McGeorge Adjunct Professor Chris Micheli outside the California State CapitolToday’s podcast is a little bit different. Not only does today’s post feature video, rather than audio, it also features two of my colleagues – Robert Moutrie (Policy Advocate at the California Chamber of Commerce) and Laura Curtis (Legislative Advocate). I discuss with them their advice for lobbying committee staff and committee members in the California Legislature.

The advice includes when to lobby committee staff and what to bring to those meetings, when to lobby committee members, if you should treat meetings with the Chair and Vice Chair of a committee different than meetings with committee members, and what to do if the Chair of the committee opposes your client’s position on a bill.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

All measures in the California Legislature are required to prominently display the Legislative Counsel’s Digest on the front page of the bill. So, what is this required section of every measure?

According to the Legislative Counsel’s glossary of terms, the Digest is prepared by the Legislative Counsel and it summarizes the effect of a proposed bill on current law. It is on the first page of every bill, resolution, or constitutional amendment that is introduced or amended in the Legislature. It is listed after the measure’s number, the listed author and co-authors, and the relating clause. Notably, it appears before the actual text of the measure.

In essence, the nonpartisan Legislative Counsel’s Office is explaining to legislators what they’re voting on with regards to that particular measure. Those who engage in legislative history and intent research often view the Legislative Counsel’s Digest as an important indication of the general legislative intent because the Digest provides a summary of existing law and how the bill actually proposes to change existing law.

Sometimes interest groups, lobbyists, even lawyers will attempt to modify the Digest language when they’re drafting amendments to a measure; or, when they’re drafting a bill to be introduced, they try to draft the Legislative Counsel’s Digest. These attempts are generally ignored entirely because the Digest is only written and modified by the Legislative Counsel Bureau.

The Legislative Counsel’s Digest contains at least two paragraphs. The first paragraph always begins with existing law and will state “Existing law provides for X.” The second paragraph always begins with “This bill would …” or in the case of a constitutional amendment, “This measure would …” before going on to explain how the bill or measure would impact existing law.

The Digest contains explanations of other provisions of the particular measure, such as whether the bill would impose a state‑mandated local program, whether the bill contains an appropriation, whether it requires reimbursement for some state‑mandated program, whether the bill contains an urgency clause or it’s a tax increase and therefore requires a higher vote threshold, among other provisions.

Note that the Digest is separate from the Digest Keys. Those keys are the measure’s vote threshold, if the bill contain an appropriation, if it requires referral to a fiscal committee, and if it creates a state-mandated local program. The keys follow the Digest.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

What is California’s reenactment rule? The state’s constitution, in Article IV, Section 9, states, “ A section of a statute may not be amended unless the section is reenacted as amended.” But what exactly does that mean?

The courts have determined that the purpose of the reenactment rule is to avoid enacting statutes in terms so blind that legislators themselves are deceived in regard to their effect. The rule applies to bills that amend a former act or an existing statute. It does not apply to bills that add new code sections, enact entirely independent acts, or that might somehow impliedly impact other code sections. In other words, if a bill adds a new code section, the Legislature does not need to reenact other code sections that may be affected by that change.

There are a number of court cases that have looked at how California’s constitutional reenactment rule should be applied. At least one state court has opined that non-substantive amendments cannot serve to reenact substantive provisions of an otherwise invalid statute.

In 2015’s Gillette Company v. the Franchise Tax Board, the California Supreme Court addressed a specific section of California’s Revenue and Tax Code, Section 25128. The Court addressed the question of whether or not that code section violated the reenactment rule. In the decision, the Court stated that the purpose of the reenactment rule is to ensure that legislators are made aware of the proposed changes they are making when they adopt legislation and that the public has been apprised of the proposed changes in the law.

The Court found that, even without enacting or reenacting the specific section to address a  change made to another Code Section, the Court felt the Legislature and the public were reasonably notified of the changes in the law. The California Supreme Court reached that decision because a provision in Section 25128 expressly referenced a compact contained in Section 38006, and that the provision in 25128 applied notwithstanding Section 38006.

Essentially, what California’s reenactment rule does is ensure that while reviewing the contents of a bill that amends an existing code section, that the reader can readily identify what changes are being proposed because the proposed amendments are set forth in the bill as proposed changes within the existing, current statute.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

On occasion, California statutes can be challenged in either state or federal court with the argument that the statute violates the California or United States Constitutions. So, on what bases can a statute be declared unconstitutional?

One basis is vagueness. Essentially, the standard here is whether or not the statute is written with a reasonable enough degree of certainty that the average citizen could understand the meaning of the statute and how its provisions would be applied. Often, courts will use phrases like “nearly unintelligible” when describing statutes that are unconstitutionally vague.

A statute can also violate the Equal Protection Clause, found in the 14th Amendment to the US Constitution. A number of state constitutions also have express equal protection guarantees. Here, a statute would be found unconstitutional if it treats different classes of individuals in different ways.

Another basis is what’s called improper delegation of legislative authority. The Legislature is prohibited from granting too broad of powers to an executive branch administrative agency. In an instance where a statute delegated too much power from the legislative branch to the executive branch, it could be deemed improper and declared unconstitutional.

A statute can also violate the single-subject rule. Essentially, a statute cannot encompass more than one subject, although the term has been defined broadly by the courts. The single-subject rule not only applies to statutes passed by the Legislature, but also to ballot initiatives in California’s direct democracy process.

Some other bases for a constitutional challenge include eminent domain, the separation of powers doctrine, the impairment of contracts, due process, the supremacy clause, and the First Amendment. These are all areas of constitutional law that bill drafters have to be mindful of while drafting provisions so that they don’t raise these potential constitutional concerns.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The so-called revolving door in politics – elected officials leaving public service to work in the private sector lobbying their former colleagues – is no secret. In California, we have a number of rules and laws to slow the so-called revolving door. The rules can be found in Article IV, Section 5(e) of California’s Constitution.

It states, “the Legislature shall enact laws that prohibit a Member of the Legislature whose term of office commences on or after December 3, 1990, from lobbying, for compensation, as governed by the Political Reform Act of 1974, before the Legislature for 12 months after leaving office.” Essentially, an elected official, after leaving office, cannot lobby their former colleagues, for one year after leaving.

California’s Government Code, in Section 87406(b)(1) goes further. There, state law specifies that a former elected official is prohibited from acting as either an attorney, an agent, or represent in some other way any person, for compensation, if that person makes any formal or informal appearances or any oral or written communications before the Legislature. This also applies to any committee or subcommittee of the Legislature if the appearance there is to influence any legislative action.

Government Code Section 87406(b)(2) was recently added and applies to members of the Legislature who resign from office prior to the expiration of their term. In this instance, the one-year ban on lobbying the Legislature or representing someone who attempts to influence policy in the Legislature starts on the date that would have been the end of their term, not on the date they resigned from office.

There is also a ban on influencing prospective employers. In other words, a public official is prohibited from making, participating in making, or influencing any governmental decisions that would directly relate to an employer that elected official is discussing or negotiating employment with.

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

Every election year, McGeorge Associate Dean Mary-Beth Moylan teaches the California Initiative Seminar. In it, students analyze every Proposition on the California ballot. That work culminates in the publishing of the California Initiative Review, the California Initiative Review – Initiatives At-A-Glance, and the California Initiative Forum. All of these resources are made available to the public, for free. Individual analyses of each ballot initiative can also be found on the California Initiative Review page on McGeorge’s website.

In normal years, the Initiative Forum would have been held in person. This year, to protect the health of everyone involved, the forum was held entirely online and live-streamed on October 21. Below is the recording of the live stream. Some questions we were able to answer live, and you can watch or listen to those questions and answers in the video below. Some questions we did not have the opportunity to answer verbally. Those questions and answers are listed out below and organized by Proposition. Not every initiative had questions that received written answers.

Proposition 14

Q: Why isn’t the stem cell research left to the private sector?

A: One argument – Private sector investment generally occurs during the testing and development phase, rather than the initial basic research. Scientists have referred to the stage right before industry becomes interested in the research as the “Valley of Death.” It is an area where promising therapies often languish because there is not enough federal funding to push the projects through to the later stages.

FAQ, CIRM CALIFORNIA’S STEM CELL AGENCY, https://www.cirm.ca.gov/about-cirm/cirm-faq#funding

Q: Does California spend a lot of money on medical science-related initiatives that end up as a proposition in a ballot or is Proposition 14 an anomaly?

A: Proposition 14 is not an anomaly. We have had other initiatives to fund science-related initiatives. That said, it is definitely within the legislative prerogative to use general fund dollars to fund science initiatives so that we do not need to vote on them.

Proposition 15

Q: On Prop 15: Wouldn’t the $3 Million Dollar kick in floor incentivize property owners to simply “shell off” to other folks they know letting them retain control without ownership in name? Is there a loophole there?

A: That is a current loophole- if the property is not sold it does not get reassessed. Under the new assessment, every property that qualifies is reassessed every 3 years regardless if ownership has changed hands. There is a provision within Prop. 15 that might address this situation. This section also states that any related entities are one taxpayer, thereby not allowing independently managed and operated businesses to qualify for small business exemptions if they are related to a business that does not qualify as a small business. Cal. Proposition 15 at §7(b).  However, California Assessors’ Assoc. (CAA) has noted that this is going to require coordination between counties that does not exist and require a staffing increase of about 1,000 more assessors.  It should be noted that CAA has testified against Prop. 15 for these reasons and other reasons.

Q: Since prop 15 has a negative impact on farmers and ranchers, is it likely we will see a trickle effect in the entire food chain (ie higher food prices)?

A: This is one of the opponent’s arguments. They fear a trickle-down effect on consumers. It is possible, but I don’t think there is any hard evidence that this will happen.

Q: Has anyone seen any studies that quantify the economic effects on the state, of all of the businesses and investors and revenue generators who will add to the stream of such parties leaving California for lesser-taxing states, if this proposition passes?

A: There have been multiple studies looking into this. However, I am not aware of a study that was done since the pandemic began and therefore considers the current economic environment.  We cite a few studies from the proponents and opponents in our paper. Measuring the validity of the studies is slightly outside of the scope of our analysis. Therefore, I cannot make a statement on the validity of these studies or what studies are seemingly more reputable.

Proposition 17

Q: If passed, would payment of restitution have any bearing on a parolee’s ability to vote?

A: Under the language of Proposition 17, restitution does not play into re-enfranchising parolees. While speaking with the proponents of the initiative, it was made clear that they do not expect a challenge like what happened after Amendment 4 passed in Florida during the 2018 midterms.

Q: You note there are some parolees that would still not be able to vote. Can you clarify who these individuals would be? Sexually violent predators? Other violent crimes? White-collar crimes?

A: If passed, all parolees would be allowed to vote so long as they meet the other requirements for voting that everyone else is held to (i.e. at least 18 years of age, California resident, U.S. citizen).

Proposition 18

Q: Isn’t it inconsistent to say 16-17-year-olds are mature and sophisticated enough to vote and determine the fate of millions of Californians, but not mature or sophisticated enough to purchase cannabis or tobacco? How can the state consider someone a juvenile until age 24 for purposes of criminal justice, but an adult for purposes of voting at age 17?

A: The opponents of the measure are making those arguments. We already have 18-year-olds voting and this would only allow those who will turn 18 by November to vote in primaries in March or June. It is a minor adjustment to existing law. Reasonable minds can disagree about whether we have as a society has placed our age limits in the correct spot for all sorts of rights and responsibilities.

Proposition 19

Q: How are renters or first time buyers disadvantaged by this proposition?

A: Opponents argue that because early purchasers (meaning long-time homeowners) will be re-entering the market with more purchasing power than first-time buyers or renters, first-time buyers and renters will be put even more at a disadvantage in the market. The purchasing power that the long-time homeowners would have include capital and experience. In other words, the opponent’s argument is essentially that there will be more goliaths entering the market, rendering first-time purchasers and renters uncompetitive in comparison.

Proposition 22

Q: If the exemption is not passed, would new hires or drivers have longer onboarding times during hiring? My concern is that people who are losing their jobs during the pandemic that are falling back on these gig jobs would have the carpet pulled out from beneath them.

A: Courts required Uber and Lyft to create a plan that implements compliance with AB 5 in case Prop 22 does not pass. I do not think the answer to your question is a known fact, but in practical terms that seems like a very reasonable concern (especially given network companies’ arguments against complying with AB 5). Again, however, network companies are legally required to have a plan in place to comply with AB 5.

Q: Do app-based drivers tends to lean towards favoring or disfavoring passing Prop 22?

A: There are conflicting polls from each side and criticized by each side for their methodology and/or bias. Many ads quote these polls, but it’s not clear what their reliability is.

Q: In the discussion of Prop 22, I think it was mentioned that it repeals AB 5.  Is this the case?  Or does Prop 22 only cover app deliver and drivers, and AB 5 would still cover the other workers that it did before?

A: Prop 22 overrides AB 5 as it applies to app-based drivers only. AB 5 would remain in place for other industries.

Q: How does prop 22 compare to existing exceptions to AB 5?

A: Proposition 22 solely applies to app-based drivers. There is the potential that other industries would adopt this classification model of their employees.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Sometimes, when reviewing California bills, you come across legislative findings and declarations. What are these, and are they necessary? There are essentially two schools of thought for the second question, but let’s first address what these are.

Sometimes bills will contain the equivalent of what we call a preamble, or a declaration of purpose. This preamble to the bill usually consists of statements of legislative intent. In California, we call these legislative findings and declarations. Their general function is to explain the purpose or intent of the legislature enacting the statute following those findings and declarations.

But are they necessary? I’ll answer that with the classic lawyer answer, it depends. One school of thought believes that these statements of purpose can assist the courts in interpreting any ambiguous terms of statements found in the statute. Generally, the plain reading of a statute is the rule that is followed, but that can be, at times, not easy to follow. In those instances, in California, the courts have to rely on extrinsic evidence regarding legislative intent. Very little of it is available for California legislation, but one of those pieces of evidence could come from the bill itself in these legislative findings and declarations. This point of view advocates that the judicial branch is to provide deference to the legislative branch’s determination regarding what is the need for the bill.

The other school of thought is that a well-crafted bill should not require any extraneous statements within itself as to what the bill is seeking to accomplish, or even the reasons that prompted the enactment of the bill. For example, the South Dakota Legislative Counsel states, “A declaration of purpose is strongly discouraged and is rarely useful. A well-drafted bill should not need a declaration of purpose. However, if a statement of policy of purpose is to be included, it is ordinarily the first section of the bill and should be short and concise. An improperly worded statement of purpose may cause serious problems of judicial interpretation.”

However, there are some circumstances where purpose language may be useful in upholding a bill against a constitutional attack after the enactment of the bill, providing proper meaning and context for the provisions of the bill in question. In those circumstances, some findings and declaration language may be appropriate.

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.