McGeorge Adjunct Professor Chris Micheli

The judiciary can be a forgotten branch of state government when it comes to the lawmaking process. The courts play a key role because judges interpret the laws and their decisions may comport with the interpretation intended by the Legislature, or their determinations may result in something quite different than intended. The courts can also strike down a statute or narrow its application.

Every year there are bills considered by the California Legislature because of a court decision. These types of bills may clarify existing law. They may overturn a court decision or they may amend the law to comport with the court’s interpretation of it.

When California statutes or regulations are challenged in court, the state or federal court that issues the decision establishes a policy for the state. California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts can play a role in the state’s lawmaking process when they issue a written decision that is based upon a legal challenge to either a new or an existing law.

The other way in which the courts make state public policy is through statutory interpretation. In this instance, there is a statute, or group of statutes, which may be unclear in their language or perhaps even silent on some aspect of the public policy or the particular area of law. Then the court is asked to fill in the gap. That is to discern the intent of the Legislature and give meaning to the particular area of law or individual statute.

As strange as it may sound, there is actually lobbying the judicial branch. Different interest groups work to influence the courts in several ways, the most common of which is the amicus curiae brief or a friend of the court brief, in which they present supporting or opposing arguments in the particular case. Some interest groups even file lawsuits against the government challenging the interpretation or enforcement of a statute or regulation.

Lobbying the judiciary is the forgotten, or even unnoticed, form of lobbying. It does not mean ex-parte, or one party communication with judges, that can obviously occur in the legislative process. These are prohibited. Instead, it means filing friend of the court briefs with the court, which is a formal process of lobbying the judicial branch of state government.