By: Chris Micheli

Types of State Agencies

Today I will be continuing my series of podcasts on how to be a more effective state regulatory agency advocate. In my first post, I gave a brief overview of Regulatory Advocacy. Today, I’ll look at the types of rule-making bodies in California state government.

You might remember from my last podcast that there are over 200 rule-making bodies in California at the state government level. Those 200 bodies all fall under one of three types of state agency: plural executive, independent agencies, and line authority agencies.

Plural executive agencies have separate constitutional authority executive powers and are overseen by officials or boards that are elected statewide. The Governor is the most widely known of these officials, of which there are nine total. Also in this group are a pair of officials who are appointed by the Governor in most other states, but are elected statewide in California: the Insurance Commissioner, and the Superintendent of Public Instruction. The powers of these officials are enumerated in the Constitution and in state statute.

The next type of agency is independent agencies. They have separate statutory or constitutional powers and they are independent of the line authority of the Governor. One example of this is the University of California Board of Regents. Regents are appointed by the Governor and confirmed by the State Senate, but their term of office is 12 years. The Governor can serve, at most, two four year terms for eight years total. You can see that the 12-year term Regents serve clearly establishes some independence from the Governor.

The third type of agency is line authority agencies. They’re called “line agencies” because if you look at a state organization chart, they fall on a line that comes directly from the Governor, which means that these agencies are directly under the control of the Governor. There are 11 agencies like this in California – ranging from the Transportation Agency to the Natural Resources Agency. These agencies form the Governor’s cabinet, and their secretaries – all appointed by the Governor – are the members of the Governor’s cabinet.

Next week, we’ll take a look at how the public participates in rule-making activities.

 

By: Chris Micheli

Overview of Regulatory Advocacy

In today’s post, I will begin a series of podcasts about how to be a more effective state regulatory agency advocate. Today’s podcast will be an overview of state regulatory agency advocacy efforts.

The first questions one might have about regulatory agency advocacy are: “What is it?” and “Is it different from legislative advocacy?” In my mind, there is not a difference between regulatory agency advocacy and legislative advocacy. On the legislative side, you are lobbying for or against legislation and dealing with the Legislature. On the regulatory side, you are lobbying for or against regulations and dealing with the executive branch of government.

The next question one might ask is, why is regulatory agency advocacy important? I like to remind people that just because a statute has been enacted doesn’t mean that the battle is over. Regulatory advocacy is another bite at the apple; it is another opportunity to limit or expand the scope of a statute.

This is no small task. Keep in mind is that there are over 200 agencies, departments, boards, and commissions that have rule-making authority in California state government and, according to California’s Office of Administrative Law (OAL), there are over 500 regulations adopted each year. These rule-making bodies engage in both quasi-judicial and quasi-legislative activities, which is how they enforce and create the rules to implement legislation.

I’ll focus on the quasi-legislative activity. California’s rule-making process is governed by the state APA – Administrative Procedure Act. The state’s APA is premised on the federal APA. What do I mean by quasi-legislative activity? I mean that the agency – or department, commission, board, etc. – engages in the rule-making process by adopting, amending, or repealing regulations.

My next podcast on the subject of regulatory agency advocacy will be released after the holidays and will be on the different types of rule-making bodies. Happy Holidays and as always, thanks for listening.

 

 

 

Rules for Effective Lobbying – Part 8 – Don’t Ignore the Minority Party

In today’s podcast, I talk about my eighth rule for being an effective lobbyist: don’t ignore the minority party.  There are a number of reasons supporting this rule, among them: common courtesy, you may need their votes and not realize it, you will need them on some future issue, they may raise issues that you may not have thought out, and no one likes to be ignored.

Another point I focus on in this podcast is the role of committee consultants. Every committee in the Legislature has a staff of consultants who serve the full committee. Their role is primarily to work with the chair of the committee and the majority party members of the committee as well as to analyze every bill that is referred to the committee. The minority party also has committee consultants. I’ve said previously that committee staff is your best friend in Sacramento. Well, right behind them is the minority party staff.

In the rest of the podcast, I explore the many difference between the work and role of the committee staff and the minority party consultant.  Listen to the podcast to learn the details about the many differences that can be critical to your success as an advocate. Among those differences are the bill load of the consultants, whether their bill analyses are objective and non-partisan or subjective and partisan, and if their bill analyses are public record or not.

For more advocacy tips from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive. For more advocacy tips from myself, you can refer back to my previous Rules for Effective Lobbying podcasts or attend one of the next sessions of Capitol Seminars, which are hosted at the McGeorge School of Law in Sacramento.

 

 

 

California Attorney General Xavier Becerra has filed a total of 22 lawsuits in 17 different subject areas against the Trump administration.

The Sacramento Bee compiled a list of all the pending cases, along with quick summaries of each, and arranged them by subject matter. You can find links to the many complaints filed by California Attorney General Xavier Becerra below.

For more of my takes on these issues, you can refer back to my previous post on the Attorney General’s lawsuit over birth control exemptions.

Rules for Effective Lobbying Part 7 – Client Relations

In today’s podcast, I talk about my seventh rule for being an effective lobbyist: set yourself up for successful client relations. This is really a series of rules that will help you establish a solid foundation for a successful relationship with any client that you work with.

One example of these rules is: always under-promise and over-deliver. While it may be frustrating in the short-term to lose potential clients to lobbyists who make promises of success that they know they cannot deliver on, you and your reputation will be best served by adhering to this rule.

For more advocacy tips from me and from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive or attend one of the next sessions of Capitol Seminars, hosted at McGeorge School of Law in Sacramento.

 

 

 

It looks like Justice Anthony Kennedy will provide the key vote again, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued today in the U.S. Supreme Court.  The case pits a cake baker’s free speech claim against the state’s efforts to provide equal access to goods and services regardless of the customer’s sexual orientation.  Listen as two McGeorge School of Law professors, Larry Levine and John Sims, talk about Justice Anthony Kennedy, and his LGBT civil rights legacy on the Supreme Court.

 

 

 

Advocacy in Practice with Judge Morrison England Jr.

I sat down with Judge Morrison England Jr., of the United States District Court for the Eastern District of California.

We discussed his “non-traditional” path to the bench – you will have to listen to the podcast to for more information about his interesting background. He also provided  advice, insights, and observations for attorneys appearing before him.

In particular, he gave a couple of pieces of advice that stood out to me. One, he urged attorneys and judges “Don’t try to bluff your way through a situation. If you don’t know, just say so.” He noted that this kernel of knowledge came to him when he was making a challenging transition from being a transactional attorney to a California Superior Court judge.

Another great piece of advice that he gave, that seems obvious but many attorneys do not heed, is to read the scheduling orders that you are given. As he noted, in the federal court, the dates and timelines that you are given in the scheduling order are not easily modified. Once the deadlines are set, they are set. There is no wiggle room except for in extraordinary circumstances.

A few other key pieces of advice that he offered were: “Be prepared. Know your case. Know the law. And if you’re wrong or if you have a bad point, fall on the sword and accept it.” He pointed out that a great way for attorneys to distinguish themselves is to to acknowledge bad facts or adverse authority and then point out how those facts or cases are irrelevant or distinguishable.

We also discussed at length how technology is changing courtroom practice. The days of bringing bankers boxes full of binders of exhibits and depositions are now over, and instead, attorneys are now expected to bring a thumb drive, and perhaps one box of exhibits, to the courtroom.

I hope you enjoy listening to my conversation with Judge England. Be sure to tune in next time.

 

 

 

On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral argument in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.  Colorado civil rights law requires vendors to provide their products and services without discrimination according to, among other things, sexual orientation.  A Colorado baker claims that the U.S. Constitution trumps the state nondiscrimination law, and protects his right to refuse to bake a cake for a gay couple’s wedding celebration.  Several key distinctions explain the constitutional boundary between the baker’s right to refuse service and the state’s power to regulate.

Freedom of Religion Under the Constitution vs. Federal Statute

The baker claims that the state requirement that he provide a cake to be displayed and consumed at a gay marriage violates his freedom of religion.  Because he complains about the application of a state law, he must base his claim only on the U.S. Constitution.  In this respect, he is different from the owners of the Hobby Lobby retail chain, who several years ago successfully argued that the federal Affordable Care Act violated their freedom of religion by requiring them to pay into an insurance fund that could be used to finance birth control.  A different, more religious freedom-friendly test applied to the Hobby Lobby owners because they challenged a law enacted by Congress than the test that applies to the baker who challenges application of a state law.  Specifically, people claiming a burden on their free exercise imposed by federal law can claim an exemption from a neutral requirement, such as that all employers fund preventative health case such as contraception, by showing the law imposes a substantial burden on them because of their particular religious beliefs.  By contrast, to prevail under the federal Constitution and avoid application of a state law requirement, a person, like the Masterpiece baker, must show that the state law singles him out for especially disadvantageous treatment because of his religious beliefs.  The Colorado law does not do this.  It applies neutrally to all businesses.  For this reason, as Dean Erwin Chemerinsky explains in a recent op-ed, the baker’s free exercise of religion claim is weak.

Freedom of Religion vs. Free Speech

Because the Masterpiece baker cannot prevail on his free exercise of religion claim, he primarily claims that the Colorado law unconstitutionally compels him to speak.  To succeed on the speech claim, the baker must convince the Court that the cakes he bakes qualify as “speech” protected by the Constitution.  The Court has made clear that it will not accept that “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Instead, it requires both that the speaker intend to send a message and that the audience be likely to understand it.  So, to prevail on his compelled speech claim, the baker must transform the conduct of creating and providing a visually appealing, edible product into a message of endorsement from him, likely to be understood by wedding attendees, of the event at which it will be displayed and consumed.  The constitutional determination of whether wedding cake viewers understand a message from the baker must be made from the perspective of reasonable observers within the community, not according to the baker’s subjective assessment of his own messaging.  And, as Professors Dale Carpenter and Eugene Volokh point out in their amicus brief, viewed objectively, the answer is obvious: “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.” A generic cake without overt messaging, however lovely, is not constitutionally protected speech.

Message vs. Status Refusals to Serve

The First Amendment protects people from being required to participate in sending messages with which they disagree.  Professor John Corvino points out in a recent New York Times op-ed, that a baker’s claim would be more likely sound if he refused to decorate a cake with two grooms, or if she refused to write on a cake, according to a client’s request, “Homosexuality is a detestable sin.”  Instead, the Masterpiece baker’s claim is that he may refuse to provide a cake without identifiable pro-gay marriage messaging to gay people because its use at the reception compels him to endorse the event.  According to Corvino, the latter baker’s “objection was about what she sold; a design-based objection. [The Masterpiece baker’s] objection was about to whom it was sold; a user-based objection,” which does not implicate the baker’s right to speak.

Vendor Nondiscrimination Laws vs. Consumer’s Right to Boycott 

Governments have the constitutional power and duty to regulate the qualities of products and services, and how they are sold by vendors, to protect the public and promote the public interest, including ensuring access by members of the public to the products and services without discrimination according to particular traits, which governments may identify differently.  Colorado has chosen to identify sexual orientation as a protected trait and businesses that take advantage of the many Colorado laws that protect and promote business operations are legitimately subject to nondiscrimination limits as well.  By contrast, citizens who spend money, rather than make it through dealing with the public, retain their individual rights to choose who to patronize and where to spend their money.  Five Justices of the Supreme Court have found Congress, at least, to lack the power to force individuals to purchase products to promote a public purpose.

In his role as vendor, the Masterpiece baker must comply with reasonable government regulations of his business operations, including nondiscrimination laws.  In his purchases as a private citizen, he may refuse to spend money in ways that he alone determines may violate his conscience, or for any other reason at all.

Knowing When to Stop

In today’s podcast, I talk about my sixth rule for being an effective lobbyist: knowing when to stop. This is closely related to last week’s rule about persistence tempered by patience.

For more advocacy tips from me and from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive or attend one of the next sessions of Capitol Seminars, hosted at McGeorge School of Law in Sacramento.

 

Perseverance Equals Persistence Plus Patience

In today’s podcast, I talk about my fifth rule for being an effective lobbyist; understanding that perseverance equals persistence plus patience. While perseverance is correctly cited as being key to a lobbyist’s success, it is also critical to an advocate’s success to not engage in the fallacy of thinking that perseverance and persistence are the same thing. Perseverance equals persistence and patience, in roughly equal parts.

For more advocacy tips from me and from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive or attend one of the next sessions of Capitol Seminars, hosted at McGeorge School of Law in Sacramento.