California Lawmaking

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After the introduction of a new bill in the California Legislature, or upon a bill passing one house and moving over to the second house for further consideration, that measure must be referred to a committee for a hearing.

The referral or assignment of a bill is governed by the Joint Rules of the Legislature as well as the respective rules of the Assembly and the Senate. In the California Legislature the referral of bills is done by the Rules Committee in each house. Though the rules of both houses provide that their committees must hold hearings and act upon bills referred to them as soon as practicable after they’ve been referred certain requirements must be met before that can occur. As a general rule, a bill is referred to the committee or committees that have jurisdiction over the provisions of the bill based upon the rules of the respective house and past referral decisions.

During a regular session of the Legislature committees must wait for a period of thirty days after a bill has been introduced and in print before they may take action on that bill. These prohibitions may be dispensed with by an extraordinary vote. This waiting period permits proponents and opponents to review the provisions of the bill and prepare testimony for presentation to the committee.

A schedule or calendar of bills set for hearing is proposed by each committee in the Legislature and publication of this hearing list is done in the Daily File of the Assembly and Senate and it must occur at least four days in advance of hearing by the first committee and at least two days in advance by subsequent committees of the same house. If a committee wishes to hold an informational hearing on a general topic, then a four day file notice is also required.

As one can imagine, which committee gets to hear a bill could impact the outcome of the bill depending on the subject matter and the receptivity of the committee to the bill. In most instances the bill referral is relatively straightforward. Sometimes, however, more than one committee might be appropriate to hear a bill. In most cases, only one policy committee will get to hear a bill. However there are occasions when it’s necessary for more than one committee to hear a bill. As a result, the referral of bills is an important part of the legislative process in California.

You can find a full transcript of today’s podcast here.

 

 

 

 

 

 

 

 

Governor Jerry Brown signed Senate Bill 838 by State Senator Robert Hertzberg on September 28th as Chapter 889 and this bill authorizes corporations to include a provision in their articles of incorporation authorizing the use of blockchain technology to record and track the issuance and transfer of stock certificates.

The bill was, before reaching the Governor’s desk, revised to modify the definition of blockchain technology and the bill added a January 1, 2022 sunset date. So this bill, which takes effect on January 1, 2019, will be in effect for three years.

The author is the sponsor of the bill and his stated intent is to provide privately held corporations with a more secure means to protect their shareholders from fraud involving the issuance and transfer of stock certificates. According to his statement, “SB 838 is intended to authorize privately held corporations to issue and transfer share certificates through blockchain technology or distributed electronic networks. And by authorizing this technology to be used in this way, California is engaging in new technology that will protect consumers and corporations from cases of fraud and theft.”

California is the first state in the country to authorize the use of blockchain technology to record and track the issuance and transfer of stock certificates. Despite the theoretical value that blockchain technology holds for securely and accurately documenting stock transfers, no other state has approved this technology for this purpose so far. We’ll have to look forward to how it works over the next three years.

When a bill in the California Legislature fails passage, either in a policy or fiscal committee or on the floor of the Assembly or Senate, it can be granted what’s called reconsideration. According to the Legislative Counsel, reconsideration is a motion that gives the opportunity to take another vote on the matter previously decided either in a committee hearing or a floor session. This is an important rule because it provides the legislator another opportunity to return to his or her colleagues and seek a second bite at the apple.

After a committee has voted on a bill, reconsideration may be granted only one time. Pursuant to Joint Rule 62(a), reconsideration may be granted within 15 legislative days or prior to the interim study joint recess, whichever occurs first.

Let’s explore the differences and similarities between the Assembly’s and Senate’s reconsideration processes.

 

The Assembly Process

In the State Assembly a motion to reconsider on the next legislative date must be made on the same day that the vote to be reconsidered was taken. On the Assembly floor, no motion to reconsider can be adopted unless it receives an affirmative vote of 41 Assembly Members. Upon making a motion for reconsideration, the question or measure to be reconsidered is placed upon the unfinished business file in the Assembly Daily File and no further action can be taken prior to the next legislative day.

A motion to reconsider, which is neither taken up nor continued on file, lapses after a specified time. Once a reconsideration motion has elapsed then the question or measure returns to the same position it held prior to the motion being made. When reconsideration is granted, the matter is to be reconsidered, resumes its exact position before the Assembly voted on that question and then the author may take it up immediately after reconsideration is granted.

 

The Senate Process

A motion to reconsider a question may be made by any Senator on the day on which the vote was taken. The motion may be considered on the day it is made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators. In the Senate, bills may be reconsidered by a majority vote, even though the bill required a 2/3 majority vote for ultimate passage. Note that Constitutional Amendments that are adopted can be reconsidered by only 14 votes while Constitutional Amendments that have been defeated require a 2/3 vote for reconsideration.

According to the Senate Standing Rules on the day on which a vote has been taken on any question, a motion to reconsider the vote may be made by any Senator. Reconsideration may be granted only once and the motion may be considered on the day it was made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators on the Senate Floor.

Reconsideration can serve as a valuable tool to legislators and interest groups in order to allow modifications to a measure to address why a measure initially failed passage. For those opposed to the measure, however, it means remaining vigilant to ensure that the bill does not get revived in a matter that results in continued opposition.

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

 

 

 

 

 

 

 

Most Capitol observers know that the Legislative Counsel, and her deputies, serve as the attorneys for the California Legislature, but that role is actually much broader. In today’s podcast we’ll look at the numerous activities that are undertaken by California’s Legislative Counsel.

Under Government Code Section 10207(a) the Legislative Counsel maintains an attorney-client relationship with each member of the Legislature with respect to communications between the legislator, the member, and the Legislative Counsel, unless provided otherwise by the Rules of the Legislature. As a result, all the materials arising out their relationship – such as proposed bills and amendments, analyses, opinions, and other memorandum – are actually not public records unless provided otherwise in the legislative rules.

In addition, in Government Code Section 10207(b) 1, the Legislative Counsel maintains an attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. In subdivision 10207(b) 2, whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or legislative measure that’s pending the Legislative Counsel delivers two copies of the opinion. First to the named author of the bill, and then a copy to any other author of the bill who requests a copy.

Government Code Section 10232 requires the Legislative Counsel to advise any state agency as to the preparation of measures to be submitted to the Legislature. And in Section 10232.5, the Legislative Counsel may provide legal services to our State Auditor.

In Section 10233, upon request, the Legislative Counsel must aid and assist any member of the Legislature regarding bills, resolutions, and measures – drafting them in proper form and furnishing to the legislator all the information that is appropriate. Note that in addition to serving as legal counsel to the Legislature, state law also requires services to be provided to the Governor regarding legislation.

The Legislative Counsel also prepares legislative measures, at the written suggestion of a judge or the Supreme Court or the Courts of Appeal or the Superior Courts. Also note that under Government Code Section 10242, the Legislative Counsel must advise the Legislature from time to time as to any legislation that’s necessary to maintain the codes, or codify such statutes that are enacted from time to time, subsequent to the enactment of codes. The Legislative Counsel cannot appear in any action or court proceeding without the prior approval of the Joint Rules Committee.

So there are quite a few statutorily required activities for the current Legislative Counsel, who is Diane Boyer-Vine. She oversees about 85 attorneys who are employed in the Office of the Legislative Counsel, as well as staff of the Legislative Data Center, who is also overseen by the Legislative Counsel. And note that the Legislative Counsel serves at the pleasure of the Legislature and is effectively elected, or appointed to their position, by the adoption of a resolution by both the Assembly and the State Senate.

 

 

 

 

 

 

 

In both the California State Assembly and the California State Senate, there are designated officers and elected leaders of these two bodies. We’ll take a quick look at some of those positions in the text and cover more of the positions in today’s podcast. We’ll start with the California State Assembly.

Speaker – he or she is the highest-ranking officer of the Assembly and is elected by the members at the beginning of the two-year session. He or she presides over floor sessions and has extensive powers and duties established by the Assembly Rules.

Majority and Minority Floor Leaders – The Majority Floor Leader is elected by the members of the majority party caucus, who represents the Speaker on the floor and oversees the floor proceedings through parliamentary procedures such as motions and points of order. The Minority Floor Leader is elected by the caucus having the second largest membership in the Assembly and is generally responsible for making motions and points of orders and representing the minority caucus on the Assembly Floor.

Majority and Minority Whips – The Whip is essentially the political leadership of each party in the Assembly. They are elected by their caucuses or appointed by the Speaker and there are usually Assistant Majority Whips and of course, on the other side of the aisle, there is the Minority Whip who is selected by the Republican leader and there are often multiple Assistant Minority Whips.

There are many positions in the California State Senate that are very similar to their counterparts in the Assembly so I’ll focus instead on President of the Senate and the President Pro Tem of the Senate.

President of the Senate – By law, this is the Lieutenant Governor. However, by custom the role is extremely limited. He or she may be invited periodically to preside over ceremonial occasions, such as the opening of the two-year legislative session. The only time the Lt. Governor is entitled to participate in the business of the Senate is in the case of a tie vote when he or she would cast the tie breaking vote.

Senate President Pro Tem – He or she is the leader of the Senate and serves as the chair of the Rules Committee. This individual is elected by the members, generally, at the start of the two-year session. The Pro Tem is the presiding officer who oversees the appointment of committee members, the assignment of bills, and the confirmation of Gubernatorial appointees, and of course, he or she is also the political leader of the majority party.

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

 

 

 

 

 

 

 

There are a number of publications that are regularly used by the California Legislature and those who work in and around California’s state capitol. Of note is that several of these publications are specified in the California Government Code. I’ll provide a brief overview of some of the publications here, but I cover more in today’s podcast.

As an overarching provision, all printing for the Legislature and the individual houses is governed by the respective rules of the Senate and the Assembly, as well as the Joint Rules of the two houses. The Secretary of the Senate and the Chief Clerk of the Assembly are charged with printing all of the legislative bills, resolutions, constitutional amendments that are proposed by their respective members.

All of the legislative printing is done by the State Printing Office, or SPO, which is required by statute to print all of the laws, including initiative measures, as well as any other printing that is ordered by either the Senate or the Assembly. Now, by statute, the officers of the Assembly must appear on the front of all Assembly publications. There is no statutory requirement for the officers of the Senate. However, the same procedure is used in that house.

Article II of the Government Code deals with the Daily Journals of the Assembly and Senate. These two must be published by the State Printing Office. At least one copy of each Daily Journal of the Assembly and Senate must be authenticated. And after the final adjournment of the Legislature, the Journals for the entire session are bound and provided to the Secretary of State’s office.

Article III deals with the Legislative Manual. The Senate Secretary and the Assembly Chief Clerk must compile a Legislative Manual, or handbook, in December of each even-numbered year. The Legislative Manual includes state officers, members, and officers of both houses, lists of committees, rules of both houses, as well as the Joint Rules and other information that is deemed to be of use to legislators. This manual is provided to each legislator and elected state officer, as well as libraries throughout the state.

If you want to learn more about other legislative publications covered in the California Government Code, please listen to today’s podcast. You can find a transcript of today’s podcast here.

 

 

 

While some aspects of drafting bills and amendments in California are certainly generic in nature to all types of legislative bill drafting, there are several unique aspects that are a part of bill drafting in the state of California. In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there’s the usual plain meaning rule where the judiciary will look to the “plain meaning” of the statutory language. Of course, in a legal dispute, the statutory language rarely has the same plain meaning to both parties of that dispute.

On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help the judiciary interpreting the bill language. Those who draft and analyze bill language are aware that there are many other canons of statutory construction, but after these general rules, bill drafters in California need to think about some of the following other issues such as conflicts with other bills. Here are some other aspects to consider.

Retroactive Versus Prospective Nature of the Bills

As you’re probably aware, in most instances, bills are prospective in their application. Most bills in California are effective on January 1 of the following year. However, in some instances a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will be applied retroactively.

For example, what effective date is contemplated? Should the bill drafter include a statement that the bill clarifies existing law? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited unless a public purpose is expressed in the bill language that justifies the retroactive application of the bill’s provisions.

Legislative Intent Language

Some bills include intent language which expresses the findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and the cons of using intent language. The following is one appellate court statement on the use of such language. “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body.” That was in Ballard v. Anderson back in 1971. They also said that other extrinsic aids to determine legislative intent are generally more persuasive.

There are other aspects that are unique to bill drafting in California, but these highlighted ones give you a sense of some of the factors to consider when drafting bills and amendments in California.

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

 

 

 

Today’s post is on obstacles faced in the legislative process.

As one might contemplate, there are numerous obstacles to overcome during the legislative process here in California. These are generally characterized as policy, fiscal, and political obstacles that may have to be addressed as a bill travels through the legislative process. Our effort here is to pose a few questions that one might want to ask before proceeding with a bill in the California Legislature.

The first set is policy obstacles. Naturally, there should be a good policy rationale for the legislation. Unfortunately, the Legislature generally examines a proposed solution rather than examine the policy problem that is attempted to be addressed and then determine what the best solution to that problem actually is.

At this early point, the bill’s proponents need to address these questions.

  • In presenting the bill, which contains a solution, has the policy problem been clearly explained?
  • Is this bill the best solution to the stated policy problem?
  • Are there other viable solutions to address the problem?
  • What are the potential policy problems with the other solutions?
  • Is there sufficient policy justification to make the proposed change in the law?
  • Is there evidence that the alleged shortcoming in existing law actually exists?

The next set is fiscal obstacles. Assuming the policy implications are addressed, the fiscal impact is duly considered by the respective appropriations committees. Note that even some policy committees do consider the fiscal impact of proposed legislation. The questions for addressing fiscal obstacles are:

  • Is there any fiscal impact due to the proposed law change contained in the bill? If so, how significant is the fiscal impact?
  • If there is a fiscal impact, is it to the state government, to local government, to the private sector, or a combination thereof?
  • If the fiscal impact is significant, is there some sort of funding source or a mechanism to help pay for the cost of the bill?
  • What is the likely position of the Governor’s Department of Finance: support or oppose or neutral?

Third is political obstacles. Some of the questions to pose in this area include:

  • Which groups are likely to support or oppose the bill and how can they impact the proposed law change?
  • Is there potential grassroots support for either side of the bill, in support or in opposition?
  • And how do the key legislative staff view the proposal?

In some instances, vote requirements may become an obstacle if the bill requires a super-majority vote for passage.

As one would expect, each controversial bill can create its own unique set of obstacles that will need to be addressed. That’s why there’s not a clear set of rules that apply in the same way for all pieces of legislation.

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

 

Challenges to Lawmaking in California’s Legislative Process (transcript)

Today’s post is on the challenges to lawmaking in California’s legislative process.

Individuals and groups engaging in California’s lawmaking process may find several challenges in their legislative endeavors. There are certainly institutional challenges as well as political challenges that complicate the legislative process. These challenges must be overcome to achieve a successful outcome in enacting state legislation.

An initial, structural, challenge is California’s bicameral legislature and three separate branches of government. Naturally, in our form of government these separate branches are intended to provide a system of checks and balances on the other branches. In other words, our system of government combined with the two houses and 120 legislators that comprise the legislative branch of government means that there’s a natural, and intentional, tension in the lawmaking process.

In addition there are other institutional issues that can cause gridlock and create challenges in the lawmaking process. Two of the most commonly cited factors are term limits and the lack of bipartisanship. In the case of term limits, those who are newly elected and those who are in their final term of office are undoubtedly going to view each other’s role differently. Further, more seasoned legislators often are committee chairs, leaders, or otherwise in more influential positions to effect the outcome of pending legislation. One additional institutional factor that makes lawmaking is the sheer volume of legislation – roughly 2,500 bills per year.

Legislative rules can also create hurdles for achieving lawmaking success. For example, our state’s constitution requires a supermajority vote for passing tax increases in each house of the Legislature. The burden of achieving a higher vote threshold often increases the likelihood of failure with certain pieces of legislation.

In addition to these institutional factors we’ve covered there are also political reasons that can make the legislative process in the state of California evermore challenging. One such factor is the electoral process. In California, Assembly Members run for office every two years while Senators run for office every four years. As a result, these legislators are continually in a campaign mode and raising funds for their political races. Now, as a practical matter this can mean soliciting interest groups for campaign contributions – including those who regularly appear before legislators. Some of these legislators find it difficult to vote against their friends, especially those who might be helpful in their reelection efforts.

Other factors include the initiative process and voter approved ballot measures that constrain state spending and limit the ability of legislators to address public policy issues as well as competing funding priorities that are established by initiative for the state. These provisions of state law make it more difficult for legislators to craft solutions to public policy solutions facing the state because they often find their hands are tied by these constitutional or budgetary restrictions imposed by the voters.

In the end, there’s not a single factor that makes lawmaking in California difficult. Instead it’s a combination of factors that impact the resolution of public policy issues by the Legislature and that often result in gridlock and lack of success in lawmaking. The result can increase the partisanship in the Legislature, which then in turn creates hurdles, as both sides of the political spectrum engage in sometimes rigid ideology that in turn can create a lack of desire or need to compromise.

 

Publishing Letters to the Journal (transcript)

Today’s post is on publishing letters to the Journal for determining legislative intent.

Sometimes in order to explain the intent behind a specific piece of legislation, one or both houses of the Legislature will utilize a process by which a legislator publishes a letter stating his or her intent to explain the piece of legislation. For Assembly Members, this is published in the Assembly Daily Journal, and for Senators this is published in the Senate Daily Journal.

Generally this letter from the legislator is used to explain perhaps an ambiguity in the bill, or explain the purpose of a particular change in the law or for some other reason. Again, in both the State Assembly and the State Senate such a letter to the Journal is a rather formal process. For example, the letter must be on the legislator’s letterhead and signed by that particular legislator.

The general custom and practice of the two houses of California’s Legislature is to have the respective leadership staff – meaning both the majority Democrat and minority Republican parties – review the contents of that letter from the legislator and determine whether or not either party has any objections to the contents found in the letter. Now, the consultants to the majority and minority parties may request revisions to that letter to the Journal, otherwise they’ll give their consent.

Now, if approval is not received by both sides of the aisle – and this is a rare occurrence – then the legislator can request that the letter be printed in the respective Daily Journal with a majority vote.

The general practice is that the Assembly letters are authored by the individual Assembly Member and they’re addressed to the Chief Clerk of the Assembly. Senate letters are written by the individual Senator, of course on his or her letterhead, and are addressed to the Secretary of the Senate.