McGeorge Adjunct Professor Chris Micheli

There are several code sections that set forth legislative powers and duties. These statutes were added by Prop 24 in 1984 and are found in Title 2, Division 2, Part 1, Chapter 8, Article II of California’s Government Code.

Government Code section 9910 states that the Speaker is responsible for the efficient conduct of the legislative and administrative affairs of the state Assembly and that he or she is elected upon organization of the Assembly at the beginning of each regular or special session. The speaker serves until adjournment sine die of that session, unless removed, in which case a successor is chosen. Government Code section 9914 similarly provides for the Senate Pro Tempore.

Government Code section 9911 provides for an Assembly Committee on Rules that consists of the Speaker of the Assembly – who chairs the Committee – and six other members, with three coming from the party with the most members in the Assembly and three from the party with the second most members. Section 9915 creates the Senate Committee on Rules, with the Senate Pro Tem as Chair and four more members, divided equally between members of the two parties with the most members.

Government Code sections 9912 and 9916 give the Assembly and Senate, respectively, the power to assign bills to committees in their respective houses, to appoint the Chairs and Vice-Chairs of committees, and to have general direction over their respective houses.

Government Code section 9917 specifies that there is a Joint Rules Committee. The Joint Rules Committee is comprised of the combined membership of the Assembly Committee on Rules as well as the Senate Committee on Rules, and two other members of the Senate, one to be elected by the party having the largest number of members in the Senate and one to be elected by the party having the second largest of members. The committee created has a continuing existence and may meet and act during sessions of the Legislature or any recess or interim period.

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

McGeorge Adjunct Professor Chris Micheli

In California’s Government Code, there are several code sections that set forth legislative rules and procedures. These particular statutes were added by Proposition 24 in 1984. These sections of law are found in Title 2, Division 2, Part 1, Chapter 8 of Article III in California’s Government Code.

Government Code Section 9920 essentially provides that each house of the Legislature must adopt rules for its proceedings for each regular and special session. This is done by resolution adopted by an affirmative recorded vote of two-thirds of the membership of the respective houses.

Government Code Section 9921 provides that the Senate and the Assembly are required to adopt rules for their joint proceedings for each regular and special session. This is done by resolution, adopted by an affirmative recorded vote of two thirds of the membership of each house of the Legislature.

Government Code Section 9922 specifies that all standing committees of both the Senate and the Assembly, except for the Senate Committee on Rules and the Assembly Committee on Rules, must be created and the size and jurisdiction of each is established through the adoption of, or an amendment to, the rules of the respected house by resolution with two-thirds of the membership of each house concurring in the adoption of that resolution. The standing committee membership must be determined in the specified manner that’s found in that statute.

Government Code Section 9923 states that no special or select committees, nor any subcommittee, is allowed to be established in either the Senate or the Assembly except by two-thirds vote of the Committee on Rules of the house in question. Membership of special or select committees or subcommittees is determined by two-thirds of a vote of the membership of the house in question.

Government Code Section 9924 specifies that no joint committee can be established except by passage of a concurrent resolution with two-thirds of the membership of each house concurring. The membership of each joint committee is to be allocated equally between the Senate and the Assembly. The delegation from each house are chosen in the manner that’s specified in Government Code Section 9922.

Finally, Government Code Section 9925 which states that each house of the Legislature must provide in its rules for appropriate voting procedures on the floor and in committees of subcommittees. However, no member is allowed to cast a vote for another member nor may any member be allowed to change his or her vote or add a vote to the roll after the vote is announced without the consent of four‑fifths of the membership of the house. Nor may any vote be taken any committee or sub‑committee of the house in the absence of a quorum.

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

McGeorge Adjunct Professor Chris Micheli

An area that is rarely talked about in California’s capitol community concerns the infrequent lobbying of bill referrals. In other words, how does someone get a bill referred to a favorable committee, or perhaps an unfavorable committee, or even to multiple committees?

In most instances, the policy committee to which a bill will be referred is relatively straightforward. A bill amending the Code of Civil Procedure is most likely to be referred to the Judiciary Committee; a bill amending the Streets and Highways Code will often be referred to the Transportation Committee. Nonetheless, sometimes a lobbyist may want a bill to be referred to a friendlier committee, perhaps for a sponsored bill, or a more hostile committee for a bill that he or she opposes.

There really is little formal guidance on lobbying bill referrals. And few lobbyists ever try to influence where a bill is or is not referred. As such, the best advice is like that which is given in other similar lobbying situations. It’s usually most valuable to talk with all the persons who can and do provide input on the referral of bills in the Assembly and the Senate.

In the instances where a lobbyist would prefer a bill go to a specific committee – or two, or three – or would prefer a bill avoid a particular committee for whatever reason, a determination must be made about possible committees that may be appropriate recipients of the bill.

First, you’ve got to review the bill in detail. You should review the Code section or sections that are being added, or amended, or repealed in the bill. This is often the key issue for determining where is the appropriate policy committee for a bill to be referred. Next, review the subject matter because policy committees have jurisdiction over subject matters. And take a look at the committee’s membership and staff to determine how the particular bill might be received by that committee.

After that you can work on the Rules Committee. In each house there’s a staff person who is responsible for reviewing and recommending all bill referrals. This person’s title is the Bill Referral Consultant. Start with this person. Then, after talking with the Bill Referral Consultant who is initially charged with reviewing and making recommendations regarding to which committee or committees a bill should be referred, then you got to go and tackle the members of the Rules Committees, starting first with the Chair and the Vice-Chair. But remember that ultimately, the decision is made by a majority of the full Rules Committee, but they generally follow the Chair’s recommendation, who in turn follows the Bill Referral Consultant’s recommendation.

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

McGeorge Adjunct Professor Chris Micheli

With Super Tuesday now behind us, and races for State Senate and State Assembly seats starting to take shape, let’s take a look at who judges the qualifications of its members, aside from voters when they exercise their right to vote Assemblymembers and State Senators in and out of office, or when they exercise their right to a recall election.

California’s Constitution, in Article IV, Section 5(a)1, specifies that “each house of the Legislature shall judge the qualifications and elections of its members and by roll call vote entered in the journal, two-thirds of the membership concurring, may actually expel a member.” This is also found in Article IV but in Section 5(a)2(a), which essentially says that each house of the Legislature may suspend a member by motion or resolution adopted by a roll call vote requiring two-thirds of the membership. And, the motion or resolution must contain findings and declarations that set forth the basis for that particular suspension.

The courts have been clear in deferring to the Legislature on the question of judging the qualifications and giving full respect to the explicit language in the state constitution. As a result, challenges to whether a member of the Legislature is entitled to take his or her seat, or whether to remain in office is rarely considered by the courts.

One of the most famous cases was a dispute between then-Assemblymembers Gil Ferguson and Tom Hayden. Under Article IV, Section 5, the Legislature is granted the sole jurisdiction to determine the qualifications of its members and the sole right to expel them from membership. However, a veterans’ group sought to disqualify an Assemblyman from holding office because of his alleged support of North Vietnam during the U.S. conflict, they relied upon the Constitution, Article VII, providing that no person who advocates the support of a foreign government against the United States, in the event of any hostilities, is allowed to hold any office or employment under that particular provision. The trial court properly dismissed the complaint.

The appellate court ruled that under the same constitutional principle of separation of powers, plaintiffs were foreclosed from attempts to prohibit the Attorney General, or the Secretary of State, or even the County Registrar of Voters from certifying the election results, or the swearing-in, or disbursement of money to the Assemblyman or interfering in the Legislature’s determination of the qualifications, fitness, and elections of its own members. This decision was issued in 1986 by the California Appellate Court called California War Veterans for Justice versus Hayden.

There are numerous other cases, dating as far back as 1905, that all defer the judgment of the qualifications of members of the Legislature to the Legislature. Those decisions are based upon a clear reading of the state constitution and the exclusive power that’s vested in the Legislative branch of government to determine the qualifications of its members.

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

I sat down with McGeorge alum and adjunct professor Chris Micheli to talk about the new textbook he co-edited with Ray LeBov – as well as co-wrote with Ray and nearly 40 other lawyers, lobbyists, and political pros in Sacramento – A Practitioner’s Guide to Lobbying and Advocacy in California. The new book is a first of it’s kind in that there are no other books out there that teach lobbying in California.

Which, when you think about it, is kind of nuts. When it comes to public policy in the United States, there’s DC, and there’s Sacramento. California has the sixth-largest economy in the world and is home to counties that have larger populations than many other states in the U.S. Those factors alone require innovative public policies and to affect those kinds of changes, you need to know how to navigate the legislative and regulatory processes here in California, which are unlike those in D.C. or in other states.

The book is available in hard copy and digital; and all proceeds from the sale of the book go to scholarships for political science graduate students.

McGeorge Adjunct Professor Chris Micheli

On occasion, I’ve been asked whether there’s any recourse if the Legislature and Governor enact a law that somehow violated the state and/or federal constitutions. Obviously, the first action would be to challenge the enacted bill in either a state or federal court, depending on the basis for that constitutional challenge. Another avenue is the referendum process in California. However, to determine whether an enacted law is constitutional or not, there’s really only one avenue, the state or the federal courts.

Assume the proper court determines that a law conflicts with the Constitution and declares the law invalid, either in part or in whole. Is there any recourse, or a second action against either or both branches of government? Can the Legislature and/or the Governor be held, if you will, accountable for having enacted an unconstitutional state law? Would it matter whether they were informed, say by the Legislative Counsel or opponents of the bill, that the proposed law might be unconstitutional?

I think the short answer is no. It’s not the role of the legislative or executive branches of government to determine whether or not a proposed statute is constitutional or not. Rather, that role is reserved to our third branch of government, the judicial branch.

Note that under federal law, there is a civil private action for damages that may be brought against a public officer who acts under an unconstitutional statute. There are so-called Section 1983 Actions. And Section 1983 was enacted after the Civil War to hold a state official accountable for violating a federal law. But these laws generally apply to executive branch officials who are acting pursuant to a law. They don’t apply to those elected officials who enact a law that’s later declared invalid.

While sometimes in the legislative process elected officials push the proverbial envelope on public policy issues, it certainly doesn’t mean that our elected officials should or can be held liable for enacting unconstitutional state statutes.

Our elected officials and their actions are ultimately answerable to the state’s electorate come election time. If the citizens believe that unconstitutional laws are being enacted, then they can seek to recall the elected officials, or they can simply vote them out of office at the next ballot.

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

McGeorge Adjunct Professor Chris Micheli

Most capitol observers don’t often come across bills that delineate between general or special statutes. What’s the difference? A general statute is essentially a law that pertains uniformly to an entire community or to all persons generally. On the other hand, a special statute is essentially a law that applies to a particular person, place, or interest. California law provides for both types of statutes.

Section 16 of Article IV of California’s Constitution provides that all laws of a general nature have uniform operation and that a local or special statute is invalid in any case if a general statute can be made applicable. As a result, general statutes are the main type of bills considered by the Legislature and they apply uniformly by their language. However, special statutes can be pursued so long as a general statute would not apply in the particular circumstance being addressed by the special statute.

The Office of Legislative Counsel, working with the bill’s author, makes a determination as to whether a special statute will pass constitutional muster and, if so, how the bill must be drafted to do so.

The initial determination is whether the proposed legislation can be addressed by a bill of general application. If not, then a special law would be required. With a special statute bill a reader may see the following type of language in that bill, “The Legislature finds and declares that a special law is necessary and that a general law cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because …” blank, and Legislative Counsel helps draft the language that fills in the blank.

Thereafter the bill must contain an explanation of the special nature of the bill and why a bill of general application will not work in the particular set of circumstances. An example of this explanatory language is the following, taken from a prior enacted bill, “The unique island location of the City of Coronado and its proximity to large military installations requires a special law. In addition, the complexities of amending a general plan and a local coastal plan for the City of Coronado will take significantly longer than six months. As a result, a general law cannot be made applicable.”

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

On today’s podcast, I talk with Harold McDougal, a Professor of Law at Howard University, about this year’s election and the many impacts it could have, depending on the outcome, on socioeconomic justice. If you’re thinking to yourself that this sounds familiar, today’s podcast is nothing like my prior podcast with Professor Jeremy Bearer-Friend. Today’s conversation looks less at specific policies and more at the roadblocks and how to overcome those roadblocks to public policy that could enact socioeconomic justice.

Roadblock 1 is the obvious one – the 2020 general election. All the big policy ideas that are being discussed by Democratic candidates – Medicare for All, free or affordable college for all, expanded parental leave – go nowhere unless a Democrat wins in 2020. Like I said, obvious enough. Roadblock 2 is the courts. Something Prof. McDougal pointed out in our conversation is the Warren era on the US Supreme Court was a historical anomaly. The institution that wrote Brown v. Board of Education and Roe v. Wade is the same institution responsible for Dredd Scott, Plessy v. Fergusen, and Citizens United. Essentially, don’t look to the judiciary to assist in making progressive change.

So where do the people turn then, to advance progressive changes? The plan/movement/vehicle is a campaign the SEIU is spearheading, unions for all. The concept fits with some of Prof. McDougal’s writings on civic infrastructure with unions for all being an accelerated form of the process.

As always, you can find the conversation on Apple Podcasts, Spotify, Stitcher Radio, and everywhere else you listen to podcasts. And also as always, we really appreciate it if you take the time to subscribe to the podcast and leave a five-star review if you haven’t already.

If you’re interested in following Prof. McDougall more, you can find his research here, or you can visit his Howard University faculty page.

McGeorge Adjunct Professor Chris Micheli

Although California’s constitution provides for the amendment of the state constitution, it does not actually define the term. California’s Legislative Counsel defines a constitutional amendment as a resolution proposing a change to the California Constitution. It may be presented by the Legislature or by initiative, and it’s adopted upon voter approval at a state‑wide election.

Note that while there is a legal distinction between amending the constitution and revising the constitution, there is not a definition in our state constitution to distinguish between these two types of modifications. The courts, however, have defined the difference and Article XVIII of the California Constitution sets forth the difference between amending and revising.

In Section 1 of Article XVIII, the Legislature is granted the authority to propose either an amendment or a revision to the constitution. Both proposed amendments and revisions require a vote of the people. If a revision is requested by the Legislature and the voters approve it, then a Constitutional Convention must be convened and, in Section 3, the people are only allowed to amend the constitution not revise it.

In California, there are two methods to propose amendments to the state constitution, either via the Legislature or via the people. For amendments via the Legislature, the Legislature must pass a resolution with the proposed amendment by a two-thirds supermajority vote in both houses and then, to be enacted, the amendment must be approved by a simple majority vote from the people. Note that the Governor does not have a formal role in this process as constitutional amendments passed by the Legislature are not presented to him or her for signature or veto.

The process for the people to propose amendments to the constitution is laid out in Article II, Section 8. The proponents of the amendment must submit a petition to the Secretary of State with the text of the proposed constitutional amendment and signatures from a number of voters equal to eight percent of all the votes cast for governor in the previous gubernatorial election. If this sounds similar to the process to place an initiative statute on the ballot, that is because it is. However, the signature threshold for initiative statutes is lower, only five percent of votes cast for governor, than the threshold for constitutional amendments.

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

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

 

Today we’ll take a brief look at how to have effective meetings with legislators and their staff. First, note that there are basically two types of meetings you can have with elected or appointed officials, relationship-building meetings and policy meetings.

Relationship building meetings are an important first step prior to meeting on a policy matter. These can consist of taking the legislator or his or her staff on a tour of your facility, hosting them for a town hall, or having them write an article for your organization’s newsletter.

Policy meetings are used to discuss public policy issues such as bills, regulations, issues, or to seek an official act. Some common asks made in policy meetings are to introduce or coauthor a bill, to vote for or against a measure, or to talk with another legislator about a bill or regulation.

So, what are some do’s and don’ts for having effective meetings with legislators and their staff? Here are my tips for what to do prior to, during, and after meetings to ensure that the meetings are effective.

Prior to Meeting

DO

  • Schedule the meeting with the legislator – generally 2-3 weeks in advance
  • Research the legislator you are meeting with
  • Determine what your ask will be

DON’T

  • Forget to confirm the meeting a few days in advance.
  • Dress inappropriately. This is a business meeting.
  • Go in without practicing what you and others in your group, if there are other joining you, are going to say
During the Meeting

DO

  • Be polite.
  • Be flexible. If you need meet in the hallway instead of an office, or with a staff member instead of the legislator, happily go along with the changes.
  • Personalize your message and explain why the issue you are talking about matters to you.

Don’t

  • Be late.
  • Discuss any political campaigning or political contributions in legislative offices or with legislative staff.
  • Make vague or generalized requests of the legislator or their staff.
After the Meeting

DO

  • Send a thank you note for taking the time to meet
  • Follow up
  • Be a resource

DON’T

  • Overstay your welcome. If there are ongoing issues, it’s appropriate to check back in every few months.
  • Be impatient.
  • Forget to acknowledge any positions the legislator has taken in the past, such as if they committed to voting yes or no on a particular measure.

A full transcript of today’s podcast can be found here.