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.

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.

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.