McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/conducting-business-in-the-california-legislature-during-the-covid-19-pandemic

With the Legislature operating, but under social distancing guidelines, I thought I’d use this space to recount my experiences conducting business in the Legislature during the pandemic.

There’s roughly only one staffer per office, although most legislators have been in the building to at least participate in legislative hearings, and as of last week, floor sessions. Outside of hearings, neither lobbyists nor the public are allowed to visit legislative offices. They can only attend legislative hearings.

The rules for getting in to and navigating around the building have noticeably changed. The Sergeants at Arms do not even unlock the doors to the building for lobbyists or the public until 10-15 minutes before the start of the hearing. You cannot enter the building if you have a cough, fever, or any other indication that you are sick. And you are screened by nurses before you can even go through security. Legislative staff can only enter the building from the N Street entrance on the south side of the capitol, and the public can only enter from the L Street entrance on the north side.

Once you are through security you are escorted to the elevators by an Assembly or Senate sergeant, depending on if you are attending an Assembly or Senate hearing.  You cannot walk the stairs. Once you exit the elevator, another sergeant will escort you to the hearing room. From there a third sergeant will either escort you to a seat or will let you choose your own seat out of the marked open seats. That’s just leading up to the hearing.

Once you’ve taken your seat you notice that the Chair is behind a glass partition and that legislators on the dais are at least two seats apart from each other. The committee consultant, normally sitting right next to the Chair, is at the witness table taking roll. The Committee Assistant or Committee Secretary isn’t in the hearing room. If you are providing testimony you can either do so in person, via a teleconference, or by calling in.

Once you’re in the hearing room, you have to get permission to leave from a Sergeant – even to use the bathroom. There’s no wandering around the hearing room or the halls. In fact, if you have to take a phone call, you have to leave the building and re-enter after it’s over. Also, if you need to switch from an Assembly hearing to a Senate hearing, you have to be escorted back to the entrance on the north side of the capitol and then escorted by the appropriate house’s sergeants to the new committee hearing even though the hearings themselves are just on opposite sides of the hall from each other.

Are these new rules a bit of a pain in the rear? Yes, but they are in place to protect people’s health, and hopefully procedures in the Legislature will be able to return to normal soon.

You can find the full transcript, and a more robust account of my experiences conducting business in the Capitol, here.

To learn more about how McGeorge prepares students for these changing circumstances, please visit McGeorge School of Law Online Programs’ blog.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/the-role-of-the-ag-and-the-lao-in-initiatives

California’s Attorney General (AG) and Legislative Analyst’s Office (LAO) play very important roles in California’s initiative process. The roles for both of these officials are spelled out in California’s Constitution and Election Code, and those roles have also been further clarified in court.

As far as the Attorney General is concerned, California’s Constitution states in Article II, Section 10, subdivision (d), “Before circulation of an initiative or referendum petition for signatures, a copy shall be submitted to the Attorney General, who shall prepare a title and summary of the measure as provided by law.”

Multiple sections of California’s Elections Code also spell out the Attorney General’s duties in the initiative process. Those duties include:

  • That the text of proposed ballot measures be submitted to the AG with a written request for title and summary, and that the proponents pay a $2,000 fee to the AG at that time,
  • That the AG receive relatively germane amendments to an initiative from the proponents.
  • That if the Attorney General is the proponent of an initiative, then the duty to prepare title and summary is handed off to the Legislative Counsel, and
  • That the AG must provide the title and summary of ballot initiatives to the Assembly and Senate.

The Legislative Analyst, per California’s Elections Code, is tasked with preparing a fiscal estimate of a ballot initiative that the AG must include in the title and summary. The LAO is also tasked with preparing an impartial analysis of proposed initiative measures. The analysis must include a fiscal analysis and show any amount of increase or decrease in revenue or cost to a state or local program.

The LAO is also required to write a section that appears at the beginning of the State Voter Information Guide that explains the effect of a yes or a no vote on initiatives.

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

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/aca-25

Back in April, when lawmakers announced that the Legislature would be returning to session, the Assembly and Senate announced that they would be returning on different dates. As Hannah Wiley reported in the Sacramento Bee, based on the legal advice they received from their counsel, the Senate passed an emergency resolution allowing Senators to participate and vote remotely. The Assembly, based on the exact same legal advice from the same attorneys, determined remote participation and voting would be unconstitutional. Enter Assembly Constitutional Amendment 25.

If it passes, ACA 25 would add a section to California’s Constitution allowing legislators to participate and vote remotely. ACA 25 received the two-thirds majority vote it needed to pass the Assembly yesterday. It now needs at least 27 votes in the Senate. While it will not go to the Governor to be signed or vetoed should it pass both houses, it will be placed on the November statewide ballot where it will need to approved by a simple majority of voters. Also, because there is a looming June 25 deadline for legislative measures to qualify for the November ballot, there is a tight window for ACA 25 to pass the Legislature.

So, assuming it passes and is approved by voters how would it work? Remote attendance and voting could only take place during a state or federally declared state of emergency. That remote attendance and voting is the same as if legislators were physically present in the Capitol. It also defines state emergency along the same lines as it is defined in the California Emergency Services Act that gives the Governor many executive powers during a state of emergency.

There are some other interesting provisions in ACA 25 as well. One provides that if 20% or more of the members of the Assembly or Senate cannot attend a legislative proceeding during a state of emergency, then a quorum to conduct official business may be established by a majority of the legislators who are able to attend the proceeding. Another is that it would allow legislators to adopt by statute a means for temporarily filling vacancies in the Legislature.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/how-covid-19-is-impacting-the-legislatures-bill-load

As one might expect, the COVID-19 pandemic has made a significant impact on the bill load facing the California Legislature. Leadership asked legislators in both the Senate and the Assembly to substantially reduce the number of bills that they were going to carry this year. But just how sharply did the bill loads decline?

2,203 bills were introduced by the California Legislature’s February 21 bill introduction deadline. Since then, an additional twenty bills were introduced – 14 in the Assembly and 6 in the Senate – that were not subject to the February 21 deadline. Out of the total 2,223 bills introduced in the 2020 legislative session, 1,541 bills are Assembly Bills and 682 are Senate Bills.

Fast forward through the pandemic and into mid-May when the Legislature had returned and scheduled policy committee hearings. Just over 160 Senate Bills and 400 Assembly Bills were scheduled for policy committee hearings. That comes out to roughly 25% of the bills introduced overall (by my estimate, about 24% of the Senate Bills and 26% of the Assembly Bills) being scheduled for a hearing.

Nineteen Senate policy committees heard the 163 bills, with one committee hearing just a single bill, and two committees hearing 16 bills each. In the Assembly, 26 policy committees held hearings. One Assembly policy committee heard one bill, one heard 52 bills, and three heard zero bills.

As one can imagine, not every bill passed. About 375 bills advanced from policy committee to Appropriations, and there about 340 bills currently on the Assembly floor.

There are a few months left in the legislative session, which means perhaps some additional measures could spring to life later in the legislative session, but at this point, it’s easy to make the determination that the COVID‑19 pandemic has had a significant impact on bills in the California Legislature.

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

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/voting-on-a-recall

As spelled out in Article II, Section 13 of the California Constitution, the recall is the power of the electors to remove an elected officer. The process is initiated by filing a petition alleging a reason for the recall. But per Section 14 of Article II, “sufficiency of reason is not reviewable.” As such, neither a court nor a government official can, if you will, second guess the reason stated for the elected officer’s proposed recall.

It is also worth noting that at the same election to determine whether to recall the elected official, there is also an election to determine a successor for that office. Pursuant to Section 15 of Article II of our state Constitution, “If the majority vote on the question is to recall, then the officer is removed. If there’s a candidate, the candidate who receives a plurality is the successor.” Note that the elected official facing the recall may not be a candidate.

As such, the electorate casts two votes at the same election. The first is “Shall the elective officer be recalled?” And then second, “Which candidate do you vote for to fill the term if that officer is removed?”

If the elected official is not removed from office, then the results of the second question are moot. However, if they are removed from office, then he or she is replaced at the same election by the candidate who gets the highest number of votes. There is not a runoff election, hence, the candidate who fills the seat can do so by less than 50% of the vote.

Note also that pursuant to Section 18 of Article II, a state officer who is not recalled shall be reimbursed by the state for the officer’s recall election expenses that were legally and personally incurred. As a result, if a recall effort against a state officer is unsuccessful, then he or she can be paid back for their recall campaign expenses.

Moreover, under Section 18, again from Article II of the California Constitution, another recall may not be initiated against that officer until six months after the election. Therefore, repeat efforts to recall the same official can only be possible twice a year.

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

SPOILER ALERT: I’ll answer the question raised by the episode title first. The dangers of COVID-19 are very real and you should protect yourself. You don’t need to fear your cell phone announcing you to the world as someone who contracted the virus.

When I initially planned on talking to Leah Fowler on The CAP⋅impact Podcast we were just going to talk about her research into fem-tech and health apps, and the many privacy concerns that are inherent in inputting your personal health data into an app. And then COVID-19 flipped the world on its axis, but there was still a lot of talk about tech stepping in to help address the pandemic. Most notably was Apple and Google announcing they would launch some form of digital contact tracing.

So instead Professor Fowler and I wound up talking about how her research could apply here. There’s also a fair bit of compare and contrast with how California and Texas are responding to the COVID-19 pandemic, and how the crisis is changing the employer-employee relationship. Both of us being millennials, we also talk about how COVID-19 is impacting online conversations as well.

If you want to keep up with the work the Leah Fowler is doing as Research Director for the Health Law & Policy Institute at the University of Houston Law Center, you can start by visiting her UHLC faculty page or by following her on Twitter @_leahrfowler. You can also find her research on Google Scholar.

You can support The CAP⋅impact Podcast for free by subscribing to the podcast on Apple Podcasts, Spotify, Stitcher Radio, or on your favorite podcasting listening app. To keep up to date with things going on with the Capital Center, please Like the Capital Center for Law & Policy on Facebook, and follow the Capital Center on Twitter and Instagram @mcgeorgecapctr.

https://soundcloud.com/capimpactca/episode-64-what-you-do-and-dont-need-to-fear-in-the-covid-19-crisis

https://soundcloud.com/capimpactca/chris-michelis-new-book-on-the-california-legislative-process

I sat down (over Zoom) with Chris Micheli to talk about his new book, Understanding the California Legislative Process. The new book breaks down how the legislative process in California works, taking provisions of the California Constitution, California Government Code, Assembly, Senate, and Joint Rules and explaining them in plain English.

I talked with Chris about how this book came to be, and how he was able to publish two textbooks in one year, as well as what readers can find in this book that they can’t find in the book on lobbying in California that Chris co-edited with veteran lobbyist Ray LeBov.

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/unique-aspects-of-referendums-in-california

While a referendum is commonly used to refer to the practice of submitting a question or a measure to a popular vote of the electorate, such as Brexit in the United Kingdom, in the US states that have direct democracy – about two dozen of them – the referendum is used by the electorate to overturn a statute that was enacted by the state legislature. There are a few aspects of the referendum process that are unique to California.

The first, which was discussed in Friday’s blog post, is that there are four types of statutes that are exempt for being subject to a referendum. Those four are urgency statutes, statutes calling for elections, statutes providing for tax levies, and statutes providing for appropriations for the usual current expenses of the state.

The second is that once a referendum qualifies for the ballot, then the statute that is being subjected to the referendum is stayed. It is does not take effect and is essentially on hold until the results of the election.

Speaking of qualifying for the ballot, proponents of a referendum have only 90 days from the enactment of the statute to collect the requisite number of signatures to place their referendum on the ballot. That signature threshold is equal to five percent of the votes for all the candidates for governor in the last gubernatorial election.

Another unique aspect is that voters can overturn a statute either in part, or in whole. Article II, Section 9 of the California Constitution reads in part “to approve or reject statutes or parts of statutes.” As a result, if the referendum’s proponents want to overturn the entire law or just a part of it, then they can pursue either option.

The last aspect, and most important one to understand for voters, is the meaning of a yes or a no vote on the referendum itself. The definitions are actually counter-intuitive. Once on the ballot, the law is repealed if voters cast more no votes than yes votes. In other words, if a majority votes no, then the law never takes effect.

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

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/what-is-subject-to-referendum

The referendum is one of the three forms of direct democracy in California. It is the power of the voters to approve or reject statutes either in part or in whole. So, what is subject to a referendum?

Pursuant to Article II, Section 9 of the California  Constitution, any statute – either in part or in whole – can be subjected to referendum except for:

  • Urgency statutes,
  • Statutes calling elections,
  • Statutes providing for tax levies, or
  • Statutes providing for appropriations for usual current expenses of the state.

The courts in California have several times explained further what types of measures are subject to a referendum. The scope of the referendum power is generally treated as coextensive with the scope of the legislative authority. As a result, any legislative decision made by a representative type body is subject to referendum.

That said, the courts have said that a referendum may only review legislative matters. The power of referendum does not extend to matters that are strictly executive or administrative. This came of the 1998 decision in Empire Waste Management v Town of Windsor.

Other appellate courts have also ruled that the power of the referendum conferred by Article II, Section 9 applies only to acts that are legislative in character and not to executive or administrative acts.

What makes an act legislative in nature? An act is legislative in nature if it prescribes a new policy or plan. The distinction between legislative and administrative action may sometimes present not only legal issues but factual ones as well bearing on the government entity’s intent. This was discussed at length in a 1991 California Appellate Court decision called Southwest Diversified, Inc. versus the City of Brisbane.

As a result of this court guidance, we know that the power of referendum applies only to legislative enactments and not administrative agency regulations or other executive branch actions.

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

McGeorge Adjunct Professor Chris Micheli

https://soundcloud.com/capimpactca/resolutions-in-the-california-legislature

Like bills, resolutions and concurrent resolutions are mentioned several times in Article IV of California’s Constitution but are not defined in either the California Constitution or California Government Code. Unlike bills, there is no Schoolhouse Rock definition for resolutions.

The traditional definition of a resolution is a written motion that’s considered for adoption by a legislative body. Fundamentally, a resolution is a written measure that expresses the will of the Legislature. As opposed to a bill, once adopted a resolution does not have the force or effect of law. In California, there are several types of resolutions. Two are defined by the California Legislative Counsel.

Legislative Counsel gives definitions for concurrent and joint resolutions. A concurrent resolution is a measure that’s introduced in one house that if it’s approved must be sent to the other house for approval as well. Concurrent resolutions require action or state the Legislature’s position on a particular issue. The Governor’s signature is not required. These measures usually involve the internal business of the Legislature.

The Assembly version of a concurrent resolution uses the acronym ACR. The Senate version uses the acronym SCR.

Joint resolutions are defined as a resolution expressing the Legislature’s opinion about a matter within the jurisdiction of the federal government. Once adopted the resolution is forwarded to Congress for its information. A joint resolution requires the approval of both the Assembly and the Senate, but it does not require signature by the Governor.

The Senate version uses the acronym SJR, while the Assembly version uses the acronym AJR.

The third and final major type of resolution is a house resolution. It’s used to adopt rules for the individual house. These types of resolutions involve the internal business of a single house of the Legislature, and they only require passage in that one house. The Assembly version uses the acronym HR, while the Senate version uses the acronym SR.

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