The Legislative Calendar (transcript)

Today’s podcast is on the legislative calendar. The legislative calendar establishes a schedule for the two‑year legislative session and provides numerous deadlines throughout the legislative process.

The calendar for the California legislative session is certainly important for those who work in and around the state capitol. California’s constitution provides the date for convening and adjourning the legislative session. Other than that, the Legislature has the freedom to set its own calendar for meetings and recesses.

Article IV of the state constitution establishes when the Legislature is to be in session. Section Three of Article IV provides that the Legislature is to convene the regular session on the first Monday of December in each even‑numbered year in order to convene its organizing session. Thereafter, the Legislature must adjourn by November 30th of the following even‑numbered year.

Now in general, the Legislature begins meeting the first week in January of each year and concludes work for the year either in mid‑September in the odd‑numbered years or by August 31st in the even‑numbered years.

During the calendar year, the Legislature traditionally schedules two recesses ‑ a one‑week spring recess which is generally the week before Easter, and a summer recess that typically lasts four weeks – either the entire month of July or roughly mid‑July through mid‑August in the odd‑numbered years.

In addition, several one‑day holidays are recognized by the Legislature. While the Legislature eliminated the Columbus Day holiday and one of the President’s Day holidays in February a number of years ago, legislators are still permitted to provide one floating holiday for their personal staff.

In addition to the regular session, the Governor may, by proclamation, require the Legislature to meet in special session. Now, a special session may run concurrently with the Legislature’s normally scheduled meeting times and/or during its recesses. During these special sessions, the legislature may act only on subjects specified in those proclamations.

On today’s episode of The CAP·impact Podcast we talk with McGeorge School of Law Capital Lawyering professor Chris Micheli about some of the institutional challenges to lawmaking in California. We then have a deep dive conversation with Assembly Member Chad Mayes about how our current state of hyper-partisan politics is affecting governing and lawmaking in California.

To learn more about Asm. Mayes’ new organization, New Way California, you can check out their website here.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter. Or you hit me up directly on Twitter @jon_wainwright.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Thanks for listening to today’s show.




Legislative Lingo (transcript)

Today’s topic is one of my favorites, legislative lingo.

It probably doesn’t come as much of a surprise that my colleagues and I, those who work in and around California’s state capital, use a number of different terms or lingo to describe different aspects of the California legislative process. I’ve tried to compile a short list of some of the more common terms used in the California legislative process.

I’ll cover a few of the terms here, and the rest are covered in the podcast. The first one is “41st senator.” There are 40 members of the California State Senate who are duly elected to represent the 40 Senate districts across the state of California, about 950,000 constituents each.

Due to the power of some of the staff in the upper house of the Legislature, there are a few staffers, particularly with committees or leadership offices, who are often viewed as being almost as powerful, if not as powerful, as some of those elected members of the State Senate. That’s why we use the term, 41st Senator.

Blue pencil. The term blue pencil is used to refer to the Governor in the State of California has an ability to line‑item veto, specific items of appropriations, either in the budget bill itself, which has numerous thousands of appropriations or individual appropriation bills.

The President of the United States does not have line‑item veto authority, but California’s Governor is one of those states that provides it. The line‑item veto authority can only reduce or eliminate items of appropriation. The Governor does not have authority to increase items of appropriation.

Gut and amend. It sounds rather ominous, doesn’t it? This is when amendments to a bill remove the current contents of the bill in their entirety. It’s gutted ‑‑ the bill is gutted ‑‑ and it’s amended, that is the language is replaced with entirely different provisions that are unrelated to the original contents of the bill. That’s a gut and amend.

Again, I cover many more terms in today’s podcast. Thanks for listening.

Law professors across the U.S. influence and shape more than just the next generation of lawyers; they influence and shape the laws and policies of the nation as well. In our first Capital Contributions post, we’re highlighting Professor Seth W. Stoughton of the University Of South Carolina School Of Law and his contribution to a bill currently working its way through the California Legislature, AB 931.

Professor Stoughton is a former police officer turned Assistant Professor. His specialization is in the regulation of police. His scholarship has been published in various law review journals as well as media outlets such as The New York Times and TIME Magazine.

Recently, Professor Stoughton wrote a letter offering conditional support of California Assembly Bill 931, which changes the use of force policy used by police officers in California. As we’ve discussed previously on CAP·impact, AB 931 would change when it is acceptable to use deadly force from when it is reasonable, to when it is necessary.

In his letter, Stoughton notes some areas of improvement for the legislation. Those include the bill’s lack of an explicit definition for “reasonable alternatives,” as in reasonable alternatives to the use of deadly force, and an explicit definition for “imminent,” as in an imminent threat. He also takes issue with language in the bill about “whether the officer’s conduct was consistent with applicable training and policy.”

Stoughton offers definitions for reasonable alternatives and imminent in his letter. He understands reasonable alternatives as “only when it does not unjustifiably increase the danger to officers or bystanders; thus, an alternative that makes the situation any less safe for officers or bystanders should not generally be considered reasonable.” An imminent threat, by Prof. Stoughton’s understanding “exists only when the officer reasonable perceives that the subject has the capability, opportunity, and intent to cause death or great bodily harm.” He goes on further in his full letter to Asm. Weber to define capability, opportunity, and intent.

Stoughton expresses concern over the use of the factor “whether the officer’s conduct was consistent with applicable training and policy” into evaluating the validity of the use deadly force by an officer. His issue with this language is that it “could create a perverse incentive for police agencies to adopt lax policies, which officers are less likely to violate, as a way to insulate officers from liability. Meanwhile, officers at agencies with stricter policies may be exposed to greater criminal liability.” This “fatal flaw” undermines the intent of the bill.

Stoughton’s letter to Asm. Weber – dated June 11 – notes that there are already proposed amendments that address his concerns about training and policy by removing the provisions with those references. Amendments to AB 931, published on June 12, show the addition of an explicit definition for “reasonable alternatives.” As of now, there is no explicit definition for “imminent” in the bill.

AB 931 is still working its way through the California Legislature, and was recently passed out of the Senate Committee on Public Safety on a 5-2 party line vote. With another committee vote and a floor vote to go, it is currently unclear what the final impact of Stoughton’s input on the legislation will be. It is clear now, however, that his input has led substantive changes to the proposed law.




California’s Open Meeting Laws (transcript)

Today’s podcast is an overview of local and state open meeting laws here California. California has three types of open meeting laws that apply to local and state governmental entities.

These laws have been adopted over a number of years, and they equally apply to state agencies and departments, the Legislature, and local entities.

The open meeting acts are generally referred to Bagley‑Keene, LOMA, and Brown Act. What do all those mean, and to whom do they apply?

The Bagley‑Keene Act applies to state entities, the LOMA applies to the Legislature, and the Brown Act applies to local entities. You need to be aware of all three laws so that you can properly participate and be aware of what is happening at local and state governments and the meetings of relevant legislative and executive branch entities.

The Bagley‑Keene Open Meeting Law, generally referred to as “Bagley‑Keene,” was adopted by the State Legislature in 1967, and essentially implements relevant provisions of the California Constitution which requires meeting of public bodies and the writings of public officials and agencies to be open to public scrutiny.

What’s the practical impact of Bagley‑Keene? The Bagley‑Keene Open Meetings Act is applicable to state agencies and departments. The act requires that members of the public be able to address agenda items in public meetings of different state agencies and departments.

Of course, before one has the ability to comment on such agenda items, the public has to be made aware of meetings of these state agencies.

As a result, the notice of state agencies or department meetings must be provided to any person who makes such a request ‑‑ an interested party ‑‑ in writing, at least, 10 days in advance of the meetings of those state entities.

As you would imagine, those notices must include a specific agenda, the items of business to be transacted or discussed by the state entity, and no item can be added to the agenda after the notice has been issued.

Now, there are some instances where state entities can take action on items of business that were not on the agenda, but that’s in certain limited circumstances. Basically, it’s limited to the instances where a majority voted that state entity has deemed an emergency situation to exist.

As you can also imagine, the Bagley‑Keene Open Meeting Act requires all state agencies to conduct any meetings or functions in any of their facilities. It cannot occur where there’s any prohibition on admittance of people for protected classifications.

By the way, if Bagley‑Keene is violated, the decision of a body could be overturned so long as it’s challenged within 90 days. Of course, violations can be stopped or prevented by court action.

Next up is LOMA, the Legislative Open Meetings Act. That’s also in the Government Code like Bagley‑Keene, and it binds the California Legislature.

Now, be aware of a couple of things when it comes to LOMA. Caucuses of the Legislature ‑‑ party caucuses, Democrat and Republican in both houses ‑‑ have full authority to meet in closed session. Remember, state agencies have very limited authority to meet in closed sessions unless it’s for a specified exception, like litigation or personnel actions. That’s not applicable to legislative caucuses.

Legislators can meet informally, outside of committee hearings and floor sessions, to discuss policies so long as no formal actions are taken, and so long as less than a majority of the body is involved.

Last is the Ralph M. Brown Act which was adopted in 1953. The Brown Act applies to open meetings of counties and cities. It’s found also in the Government Code, around Section 54950.

Now, the purpose of the Brown Act is to guarantee the public’s right to attend and participate in the meetings of local elected bodies. It applies to city councils, the board of supervisors, and local government bodies so that they can’t hold secret workshops or study sessions.

Keep in mind that the Brown Act applies solely to city and county governments, as well as their agencies, boards, councils, etc.

What are some of the major provisions? The majorities of decision‑making bodies may not decide amongst themselves on issues within their own jurisdiction, except when they’re done so in open and publicly held meetings.

As a result of the Brown Act, local agencies have to publicize where and when their meetings will occur, as well as what will be discussed on the agenda. Of course, then the public can observe those meetings.

Now, at the local level, the Brown Act requires 72 hours or 3 days’ notice. Remember, that’s different than the Bagley‑Keene Act which requires 10 days’ notice. No action can be taken by those local bodies unless an item’s been placed on the agenda for consideration.




The Single-Subject Rule (transcript)

Today’s podcast is on California legislation and the single‑subject rule.

Many state capitol observers are aware of the single‑subject rule, because many are familiar with California Constitution Article II, Section 8(d), which provides that an initiative measure embracing more than one subject may not be submitted to the electors or have any effect. But does a similar rule exist for bills considered by the California Legislature?

Here’s a little background on the subject. The single‑subject rule is found in several state constitutions in the US that provide some or all legislation may only deal with one main issue. Basically, the general idea is to ensure that legislation is not overly complex or that bills may not possibly confuse or hide provisions in a multi‑faceted measure. Some have argued that the single‑subject rule in legislation precludes combining popular and unpopular unrelated provisions in one large measure.

In California, there is a single‑subject rule for legislation. Found in the state constitution, Article IV, Section 9, it provides, “A statute shall embrace but one subject which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re‑enacted as amended.”

It was in 1948 that the California Constitution was amended to add the single‑subject rule for initiatives. The following year, the California Supreme Court ruled that the single subject rule applicable to initiatives was to be construed in the same manner as that contained in Article IV, Section 9 and applicable to legislation.

That’s because this provision applicable to legislation had long been in effect by that time. The single‑subject rule is generally to be construed liberally to uphold proper legislation and all of its parts, which are reasonably germane according to relevant court decisions.

There are a number of cases that have interpreted and applied the single‑subject rule as it applies to legislation. The main case in this area was from 1987, Harbor v. Deukmejian, which was decided by the California Supreme Court.

In that case, the Court explained that the single-subject clause has as its primary and universally recognized purpose, to be the prevention of log rolling by the Legislature.

Yesterday was the deadline for ballot initiatives that had qualified for the ballot – that is, they received the requisite number of signatures – to be pulled from November’s ballot. In fact, three initiatives were withdrawn from the ballot for this November.

The three initiatives that Californians will not be voting on come November are an initiative pushed by paint companies like Sherwin-Williams and ConAgra that “would have blunted a state appeals court ruling that made the companies liable for the cleanup” of lead pain in homes according to Liam Dillon of the Los Angeles Times. The initiative would’ve blunted that appeals court ruling by shifting the financial burden to taxpayers.

An initiative pushed by Bay Area real estate developer Alastair Mactaggart that would have vastly expanded consumer protections related to their data online was pulled after a deal was worked out between Mactaggart and legislators. The compromise legislation, according the New York Times creates “one of the most significant regulations overseeing the data-collection practices of companies in the United States,” granting “consumers the right to know what information companies are collecting about them, why they are collecting that data, and with whom they are sharing it.” The new protections go into effect in January 2020.

The third initiative that was pulled was one that would have required local governments to specify how new revenues raised were going to be spent, and also increased the vote requirement for new revenue measures – read: new taxes – to be a two-thirds supermajority. That initiative, which was backed by the beverage industry, was pulled from the ballot “in exchange for a ban on new soda taxes until 2031.”

That leaves 12 measures on the ballot for voters to decide on. Ben Christopher at CALmatters pulled together an excellent summary of the initiatives, which you can find here. And as a quick overview, voters will be faced with two repeal measures – one to repeal the recently passed gas tax and another to repeal the Costa-Hawkins Act which has limited local governments’ ability to enact rent control measures. There will also be four bond measures – water, children’s hospitals, affordable housing, and supportive housing for those suffering from mental illnesses. The other seven initiatives include:

  • A change to Prop. 13 allowing “older or disabled homeowners to take their lowered property tax base with them when they move,”
  • An initiative to split California into three states, an expansion of 2008’s Proposition 2,
  • A carve-out allowing private ambulance services to require their EMTs to remain on call during meal and rest breaks
  • Ending daylight savings time in California, and
  • Requiring companies that run dialysis clinics “to pay back insurers profits over 15 percent of qualifying business costs.”

As I mentioned before in my post about the repeal of Costa-Hawkins, there is a lot of money to be spent this election cycle. That will be one of the big fights, along with the gas tax repeal and the dialysis clinics initiative. Governor Brown has already voiced his opposition to the gas tax repeal via Twitter. I would not be surprised if he spends a good portion of his nearly $15 million war chest on defeating the repeal. The dialysis initiative has well-heeled groups on both side of it as well, with the SEIU-UHW on the proponent side, and DaVita – a company that netted $1 billion last year – fighting the initiative off.




The Role of the Judicial Branch in the Legislative Process (transcript)

Today’s podcast is on the role of the judicial branch in the lawmaking process here in California. Members of the state and federal judiciary branches play a role in California lawmaking in the actual legislative process, as part of our state government system of checks and balances. When California statutes or regulations are legally challenged, for example, then the state or federal court that makes a determination establishes a public policy for the state.

Of course, California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state lawmaking process. In addition to these legal challenges, both federal and state courts may be called upon to interpret California statutes or regulations.

Statutory interpretation is a primary role of the judicial branch of government in the state lawmaking process. In fact, courts are regularly called upon to interpret state statutes and regulations, sometimes to the dismay of elected officials in the executive or legislative branches of government.
This third branch of government does play a crucial role in the lawmaking process when the courts determine what the legislative intent was of a statute, or whether a regulation comports with the Administrative Procedure Act, or whether a statute or regulation is constitutional. This, of course, is the most critical role of the judicial branch in the state lawmaking process.

Occasionally, the California Legislature passes a law that does not comport with the state or federal constitutions. Despite claims by judges that they leave lawmaking to the elected branches of government, when judges modify statutes or issue a determination of how a statute or regulation is to be interpreted and applied, then judges do, to some degree, become a critical part of the state policy making process.

Hence, from my perspective, all three branches of state government do, in fact, play a role in the development of state public policy.




The Role of State Agencies in Policy Making (transcript)

Today’s podcast is about state agencies and their role in public policy development. California’s agencies – including departments, board, and commissions – engage in a fair amount of public policy making through both their rule making authority, as well as their interpretation and enforcement of existing statutes and regulations.

These state agencies are the ones who generally run the day-to-day operations of state government, and they’re charged with implementing the statutes adopted by the Legislature and signed into law by the Governor. With over 200 of these agencies in California state government, there are many state agencies that do policy development by adopting regulations and implementing statutes. They can also engage in policy making when issuing guidelines, legal opinions, management memos, and other sorts of written documents wherein they interpret and implement laws and regulations.

Generally speaking, the authority of state agencies to adopt policy through their rule making process is defined and often restricted by state statute. These statutes usually prescribe each agency’s authority to adopt policy. And of course, it’s an established principle of administrative law that an agency cannot go beyond its legally prescribed authority to regulate. On the other hand, many statutes confer broad powers to some state agencies regarding matters that directly affect the public generally. The regulations and administrative practices of these agencies often affect millions of Californians in their daily lives.

It’s important to understand the rule making process and the role of state agencies in conducting rule making. One interesting phenomenon is that businesses cannot rely in good faith upon the written determinations issued by state agencies. State agencies’ written interpretation is often not given significant legal weight by a reviewing court. In other words, despite being charged with interpreting, implementing, and enforcing California statutes and regulations, individuals and businesses that obtain written guidelines from state agencies have little to no protection from legal liability if they follow that written guidance.

This week’s episode of The CAP·impact Podcast features a case study in one of Ray LeBov’s Rules for Effective Lobbying: not letting the perfect become the enemy of the good. Today we are talking with folks from two organizations that regular readers and podcast listeners will be familiar with – the California Partnership to End Domestic Violence and the California Coalition Against Sexual Assault. Specifically, we talk with the Partnership’s Jacquie Marroquin and CALCASA’s John Finley about their organizations’ joint effort to secure a $50 million allocation in the General Fund of California’s state budget for sexual assault and domestic violence prevention programs. It’s an effort that we talked with John Finley about previously.

Since the California Legislature passed the state budget last week, what better time than now to check in with Jacquie and John about how the effort panned out. You can likely figure out, in rough terms, what the outcome was, just based on the title of today’s show alone. But don’t tune out because while the title gives away the overall outcome, it doesn’t spoil any of the details.

Today’s show also features an explanation of the lobbying process for California’s state budget from McGeorge Capital Lawyering adjunct professor Chris Micheli.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter. Or you hit me up directly on Twitter @jon_wainwright.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Thanks for listening to today’s show.