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.

 

Rules of Statutory Construction (transcript)

Today’s post is on rules of statutory construction primarily for the non-lawyer.

For those working in and around the California State Capitol, it’s important to understand general rules of statutory construction whether you’re a lawyer or a non-lawyer.

The general rule of statutory construction is to effectuate the intent of the Legislature, which basically requires the courts to give the statutory language its usual and ordinary meaning.

The fundamental rule of statutory construction is known as the plain language rule. Basically, this rule provides that when the meaning of a statute is clear and unambiguous, there’s usually no need for a court to apply any of those rules of statutory construction because the plain meaning of the statute can be ascertained without resorting to what we call the use of extrinsic aids to help in understanding the language.

Under this rule, if the statute is clear then the courts presume the Legislature meant what they wrote in the statute and the courts give effect to the plain meaning of that statute.

In order to resort to the general rules of statutory construction, a court must determine that there’s ambiguity in the statutory language and as a result it’s unclear what was intended by the Legislature in enacting the particular statute. The courts have determined that a party demonstrates statutory ambiguity by providing an alternative meaning to the statutory language and, as a result, the statutory language can be given more than one interpretation, then a court generally should consider extrinsic aids to determine the purpose of the statute and the intent of the Legislature.

Among the extrinsic aids are the legislative history of the statute, the public policy surrounding its enactment, the statutory scheme in which the language is found, and other related issues. In this regard, the language of a statute should be construed in light of the rest of the statutory scheme in which the particular statute is found. The goal of the court is to harmonize the parts of the statute by considering the context of the statutory framework in which this particular statute is found.

 

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.