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Court Cases Related to California’s Legislative Process (transcript)

Today’s post is an overview of specified court cases related to California’s legislative process.

As you can imagine, there are a number California Appellate Court decisions that related to the legislative process. These cases deal with a number of separate and distinct issues. While I don’t cover all of them, there are some major cases that capitol observers and insiders should be aware of.

The first one is Kaufman & Broad Communities v. Performance Plastering which was a California in Appellate Court decision 2005. The 3rd District Court of Appeal clarified that a determination of the existence of any ambiguity occurs not at the time of a motion for judicial notice but by the panel of judges that hear the appeal. The case has been cited more than 80 times by other appellate courts in California for what documents may be utilized to ascertain legislative intent in interpreting statutes.

Another case you should aware of is Yamaha – Yamaha Corporation of America v. the State Board of Equalization. This case was decided by the California Supreme Court in 1998. The decision says that in general the deference afforded to an agency’s interpretation of a statute by the agency that is charged with enforcing and interpreting that statute will vary based on a legally informed and common sense assessment of the statute’s context.

The next case of interest is Association for Retarded Citizens v. Department of Developmental Services. It was decided in 1985 by the California Supreme Court. The lawsuit alleged that certain spending decisions issued by the Director of the department were void. The Court entered an order granting a preliminary injunction at the lower level and said administrative action that is not authorized by or is inconsistent with acts of the Legislature is void.

This is just a sampling of the cases I go over in today’s podcast.

The California Legislature’s Organizing Session (transcript)

With this year being an even numbered year, the California Legislature’s organizing session will take place next Monday, December 3. Today’s post and podcast is an overview of California’s legislative organizing session.

As you may be aware, the California Legislature operates during two-year legislative sessions. At the commencement of the two-year session, the Legislature must organize itself.

In that regard there are several provisions related to organizing the Legislature. The first is found in the California Constitution, and the other provisions in the California Government Code. According to Article IV, Section 3a of the state constitution, “The Legislature shall convene in regular session at noon on the first Monday in December of each even numbered year, and each House shall immediately organize.”

This date falls every two years, roughly three weeks – perhaps four on occasion – after the statewide General Election has taken place. The two houses convene that first session at noon and it generally lasts about two hours.

At these organizing sessions, both the elected officials and their families and supporters are in attendance. They rarely engage in regular business other than introducing their first bills, which not all legislators do on that first day in session.

They’ll often visit with colleagues and former legislators, and attend and enjoy the pomp and circumstance of that organizing session. Thereafter, in the first week of January when they reconvene, that’s when legislators commence the serious work ahead that will last for the following two years.

Please be sure to listen to today’s podcast which covers the sections of California’s Government Code that dictate the rules for the California Legislature’s organizing session.

 

Methods of Floor Voting (transcript)

Today’s post is on the methods of voting on the floors of the California State Assembly and State Senate.

In the two houses of the California Legislature, there are differences in how voting by legislators is conducted on the floors of the State Assembly and State Senate. The main difference is that the Assembly uses an electronic means of recording votes on the floor while Senators record their votes with a verbal response to an announced roll call. The other major difference is that Assembly Members may change their votes under specified circumstances. Generally, Senators cannot.

We’ll first look at the rules governing voting in the Assembly. Under Assembly Rule 105 the ayes and noes are recorded by the electrical voting system on the final passage of all bills. The names of the Legislators and how they cast their votes are then entered in the Assembly Daily Journal. And pursuant to Assembly Rule 106, when begun, voting may not be interrupted except that before the vote is announced any legislator may have the total pending vote flashed on the visible screen recorder and then any Legislator may move a Call of the Assembly after the completion of the roll before that final vote has been announced.

Now let’s look at the Senate. Pursuant to Senate Rule 44, whenever a roll call is required by the Constitution or the Rules or it is ordered by the Senate or demanded by at least three legislators, every legislator within the Senate without debate answers aye or no when his or her name is called. This Rule requires that the names of legislators be called alphabetically, and a Senator may not vote or change his or her vote after the announcement of the final vote by the presiding officer.

There is an exception for the two party leaders. Under the Senate Rule, on a legislative day when the President Pro Tem or the Minority Floor Leader is in attendance throughout a session but he or she in absence of any objection may instruct the Secretary of the Senate to add his or her vote to any previously announced vote that was taken while he or she was performing a responsibility of their respective office. Here, then, is the limitation: provided that the outcome of the vote is not changed by the addition of their vote. As explained by Senate Rule 44, the intent of this paragraph is to allow the President Pro Tem and the Minority Floor Leader to carry out their unique and special duties that their offices hold without losing the opportunity to vote on matters before the State Senate.

The deadliest fire in California history is still raging, and there still hundreds of people unaccounted for in this ongoing tragedy. In addition to earning that moniker, the Camp Fire is also “the most destructive in California history … 8,817 structures have been destroyed, including 7,600 homes.”

Like the fires in 2017, Pacific Gas & Electric (PG&E) appears to be the focus of the finger pointing. There’s already talk of lawsuits directed at PG&E – should they be the ones found responsible for the Camp Fire. California State Senator Jerry Hill is in the camp of those who believe PG&E is to blame, telling Politico, “The main culprit here is the spark, and what cause the spark. … Here, PG&E reported a break in their line where the Camp Fire started. It looks like there’s a causal relationship there.”

Politico is further reporting that Sen. Hill is “having a number of conversations” about introducing legislation in the 2019-2020 session that would create a statewide publicly owned utility company – a la SMUD here in Sacramento – as an alternative to investor owned utility like PG&E.

Sen. Hill is a well-known antagonist of PG&E, so his stance is not surprising. And it also needs repeating the Cal Fire is still investigating the cause of the Camp Fire, so it could very well mean that PG&E is not responsible this time.

However, if PG&E is found responsible for the Camp Fire, things could get very expensive for the utility very quickly. That’s because SB 901 – last year’s grand compromise on wildfire liability – allows utilities like PG&E to pass on the cost of lawsuits to ratepayers for 2017’s wildfires and for wildfires sparked after Jan. 1, 2019, leaving PG&E shareholders on the hook for the Camp Fire it be determined PG&E was liable. Should that be the case, I would not be surprised if PG&E sponsored legislation in 2019 in an attempt to shift costs of the Camp Fire from shareholders and on to ratepayers.

Looking ahead – between potential lawsuits, the cost of lobbying, and dealing with unbridled rage of Northern Californians who have lost their loved ones, their homes, and their possessions – it is increasingly looking like PG&E will have hell to pay in the near future.

 

Conducting Business on the Floors (transcript)

Today’s post is on conducting business on the floors.

The California Legislature conducts its business both in policy and fiscal committees as well as on the floors of the State Assembly and the State Senate. Each house determines its own rules and specifies how business will be handled on their respective floors. This process of conducting their activities on the floors is called the Order of Business.

The processes between the two houses are similar in many regards, but there are a few differences as well. So let’s look at the Assembly and the Senate and how each conducts business on the floors.

Pursuant to Assembly Rule 40A, the Assembly’s Order of Business is:

  1. Roll Call
  2. Prayer by the Chaplain
  3. Reading of the Previous Day’s Journal
  4. Presentation of Petitions
  5. Introduction and Reference of Bills
  6. Reports of Committees
  7. Messages from the Governor
  8. Messages from the Senate
  9. Motions and Resolutions
  10. Business on the Daily File
  11. Announcements, and
  12. Adjournment

In addition, under Assembly Rule 63 the following constitutes the Order of Business of pending legislation as contained in the Assembly Daily File:

  1. Special Orders of the Day
  2. Second Reading – Assembly Bills
  3. Second Reading – Senate Bills
  4. Unfinished Business
  5. Third Reading – Assembly bills, and
  6. Third Reading – Senate Bills.

As for the State Senate, under Senate Rule 4, the Order of Business of the Senate is:

  1. Roll Call
  2. Prayer by the Chaplain
  3. Pledge of Allegiance
  4. Privileges of the Floor
  5. Communications and Petitions
  6. Messages from the Governor
  7. Messages from the Assembly
  8. Reports of Committees; Motions, Resolutions, and Notices
  9. Introduction and First Reading of Bills
  10. Consideration of the Daily File in the following order:
    1. Second Reading,
    2. Special Orders,
    3. Unfinished Business, and
    4. Third Reading
  11. Announcement of Committee Meetings
  12. Leaves of Absence, and finally

There are no additional special rules for the Senate found in the Senate Rules. When a bill is taken up that is not on the Daily File, it is done so without reference to file – most often known as its acronym WORF. When a bill is subject to a WORF, what the Senate or Assembly is actually doing is suspending the Orders of the day as set forth in their respective rules providing the order of business.

 

 

Floor Items (transcript)

This post is on floor items. We’re going to cover, briefly, the unfinished business file, the inactive file, the use of floor managers, and WORFs. What are they?

The unfinished business file: both the Assembly Daily File as well as the Senate Daily File contain a portion titled “Unfinished Business.” This is the section of the daily file that contains the bills that have returned to their House of origin from the opposite House.

This section of the daily file also contains bills that were vetoed by the governor. Note that vetoed items remain on the daily file for a 60‑day period following the gubernatorial veto. Thereafter, unless voted upon, they are removed from the daily file and can no longer be considered.

What’s the inactive file? Another portion of the daily file to be aware of is for bills that made it to the floor of either the Assembly or the Senate but, for whatever reason, the bill’s author has chosen not to proceed with the measure.

Bills that have failed passage can be moved to the inactive file for further consideration. If an author has moved the bill to the inactive file, he or she can remove it from the Inactive File at a later date, with specified public notice, for further consideration on the respective floor.

What are floor managers? When the bill’s author presents his or her bill on the floor of the bill’s House of origin, that is, when the Assembly bill is presented by an Assembly Member or a Senate bill is presented by the Senator, that’s different when the bill is for consideration in the opposite House.

While a bill’s author is responsible for taking up his or her measure on their own floor, a floor manager is required in the other House. A member of the other House, designated by the bill’s author when the bill is considered by the other House, is called the bill’s floor manager.

What’s a WORF? According to the rules of both Houses, bills that are not listed on the daily file can only be taken up with either unanimous consent by the members of that House or by suspension of the rules.

A bill that is not listed on the daily file but which is taken up nonetheless is referred to as a WORF. The process of taking up a WORF’ed bill is without reference to file, W‑O‑R‑F.

In order to WORF a bill, a majority of the House’s membership, that’s 41 votes in the Assembly and 21 votes in the Senate, is required to take up the bill without reference to file.

On today’s episode, we talk about the legislative, legal, and policy issues that face my favorite special interest in California state government and politics – craft beer. And to get more insight into that topic I brought Tom McCormick of the California Craft Brewers Association (CCBA) and McGeorge Professor – and craft beer law expert – Dan Croxall on the show to talk with.

Like Tom said, the best way to learn more about the craft beer industry is just to go spend time at your local craft brewery. But if you want to learn more about CCBA specifically – as well as the California Craft Beer Festival – you can always check out their website here.

You can also follow CCBA on Facebook and Twitter, and you can follow Tom on Twitter @CCBATom.

You can find Professor Croxall on Twitter @GoodBeerLawProf.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or Stitcher Radio, and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also stay in touch with us and let us know what you thought about today’s show and think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

For a more in depth discussion of Proposition 8, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 8: Fair Pricing for Dialysis Act

Current Law

  • California Health and Safety Code regulates chronic dialysis clinics (CDCs)
  • Current law does not limit the revenue of chronic dialysis clinics providing kidney dialysis treatment.

Proposed Law

  • Limit chronic dialysis clinics revenue and require clinics to issue refunds for revenue above 115 percent of the costs of direct patient care service and health care quality improvements.
  • Assess penalties if clinics fail to maintain information or timely submit a report required, report inaccurate or incomplete amounts or percentages, or fail to timely issue a full rebate.
  • Require clinics to submit annual reports to the California Department of Public Health (CDPH). These reports shall include the number of dialysis treatments provided, the amount allowable costs, the amount of owner/operator’s revenue car, the amount by which revenues exceed the cap, and the amount of rebates paid.
  • Prohibit clinics from refusing to treat patient based on source of payment for care.

Policy Considerations

 

Yes on Proposition 8 No on Proposition 8
  • Lower costs of dialysis treatment.
  • Improve patient care by incentivizing clinics to spend more of direct patient care services.
  • Ensure clean dialysis centers because clinics would spend more on health care quality improvements.
  • Require corporations to refund excessive profits that aren’t spent on improving patient care.
  • Clinics will operate at a loss because reimbursement rates are too low.
  • Clinics will be forced to close.
  • Patients will be forced to seek treatment at more expensive hospital emergency rooms due to closures of clinics.
  • Definition of “allowable” costs excludes critical staff and necessary services to operate a dialysis clinic.
  • Presents constitutional issues, giving rise to a post-election challenge.

Analysis of Proposition 8 provided by John Ponce and Anupe Litt.

For a more in depth discussion of Proposition 11, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 11: Emergency Ambulance Employees Safety and Preparedness Act

Current Law

  • Federal law – Under the Fair Labor Standards Act of 1938, emergency employees may not receive compensation for interrupted breaks.
  • State law – Under the California Labor Code, employer-mandated on-call rest breaks are illegal.
  • CA Supreme Court – In Augustus v. ABM Security Services (2016), the California Supreme Court held that on-call breaks violate state labor law. Full compliance with the Augustus decision would potentially increase costs for ambulance providers by more than $100,000 annually.

Proposed Law

  • Allows emergency medical technicians (EMTs) and paramedics to remain on-call during breaks.
  • Requires employers to pay EMTs and paramedics at their regular rates during their breaks.
  • Requires 911 ambulance operators to maintain high staffing levels to provide coverage for breaks.
  • Requires training for certain emergency incidents related to active shooters, multiple casualties, natural disasters, and violence prevention.
  • Requires employers to provide employees mandatory mental health coverage, as well as yearly mental health and wellness training.
  • Retroactively prevents emergency employees from bringing claims pursuant to Augustus against ambulance service providers, including claims already pending.

Policy Considerations

Yes on Proposition 11 No on Proposition 11
  • Ensures 911 emergency will not be delayed because EMT’s always on-call.
  • Provides important additional training for emergency employees.
  • Increases efficacy of mental health services.
  • Negatively impacts labor union workers.
  • Excludes private sector emergency employees from labor law protections.
  • Allows ambulance companies to require workers to remain on-call during their breaks.

Analysis of Proposition 11 provided by Anupe Litt and David Witkin.

Ethics for Legislative Staff (transcript)

Today’s post is on ethics for legislative staff.

Just like California legislators, who are bound by laws and codes of conduct, there are also guides for the conduct of legislative staff as they serve these elected officials and the public. For example, the National Conference of State Legislatures – NCSL – has published a model code of conduct for legislative staff. This comprehensive guide is an invaluable resource for legislative staff across the country.

The purpose of this code of conduct is to provide guidance to legislative staff so that they can better serve the public and legislative branch of state government. These staffers are invaluable to the legislative process and the institution itself. But they are also public servants, just like the elected legislators for whom they work. And just like these legislators, staff too are there to carry out the mission of the Legislature. They have a relationship of trust to the institution and the public generally.

In that regard, staff must conduct themselves appropriately towards legislators, the public, lobbyists, and their fellow staff members. Any code of conduct must detail how legislative staff should conduct themselves so that the public trust is always protected. In addition to any code of conduct, there are relevant state laws that apply to staff such as the California Government Code that provides extensive guidance to public employees.

While many of the prohibitions in the Government Code may seem obvious, they are important for staff to keep in mind as they perform their valuable public service while working in the California State Legislature. In reviewing the NCSL’s model code, it provides a number of helpful guides to legislative staff.