McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

Direct democracy is the term we in government use to describe the ability of the voters to take matters into their own hands. In other words, it is the ability of the voters to enact or repeal laws, or recall elected officials. California is one of two dozen states that gives voters these checks on elected officials. The three forms of direct democracy – recall, initiative, and referendum – are not available at the federal level because neither the US Constitution nor federal law provide for them. California’s Constitution was amended in 1911 to provide for these forms of direct democracy.

Recall

Local and state elected officials can be recalled from office, meaning voters can vote to remove an elected official from their office before the next scheduled election. This process requires a petition that must be signed by a specified number of voters. Once that threshold is certified by either the Secretary of State or the County Registrar of Voters for state or local elected officials, respectively, the recall petition is then placed before voters within a specified amount of time.

In many instances recalls are used for purely political purposes because an individual or an interest group feels that a legislator voted for or against something that greatly displeased them. In other words, recalls are often not due to a violation of the public’s trust, or unethical or criminal conduct, but rather a specific vote.

Initiative

This form of direct democracy is for voters to make laws. They can use this process to add, amend or repeal statutes or the California Constitution. The number of signatures required to place amendments to the California Constitution on the ballot – 8% of the votes cast in the previous statewide gubernatorial election – is higher than the number required for initiative statutes – 5%. Neither nor the Governor nor the Legislature have a formal role in an initiative, although the Legislature must conduct an informational hearing on ballot measures.

The Legislature can place constitutional amendments on the ballot through a vote on either an Assembly Constitutional Amendment (ACA) or a Senate Constitutional Amendment (SCA), but doing so requires a two-thirds vote in the Legislature. The Governor does not act on ACAs or SCAs. Once the initiative is placed on the ballot, it requires a simple majority vote to be enacted by the voters. Constitutional amendments can add, amend, or repeal sections of the California Constitution, but they cannot revise the Constitution.

Referendum

The referendum allows voters to repeal a statute that was adopted by the Legislature and signed by the Governor. There are some restrictions on the referendum process. The number of required signatures must be acquired within 90 days of the bill being signed into law, versus 180 days for initiatives. While the vast majority of bills can be subject to referenda, some cannot. Bills that contain an urgency clause, a tax levy, or make appropriations for certain state expenditures are exempt from referenda. It is also worth noting that once a referendum qualifies for the ballot the bill – or the piece of the bill – that is subject to the referendum does not go into effect until after voters have had their say.

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

McGeorge Adjunct Professor Chris Micheli

California’s Constitution was first adopted in 1849, just prior to California becoming a state in 1850. The current constitution was then ratified on May 7, 1879 and is the governing document for the state of California, similar to the U.S. Constitution being the governing document for the entire country.

The California constitution has been amended or revised several hundred times and is one of the longest constitutions in the world. This is mainly attributed to it being adopted over the decades by the people through the use of ballot measures on statewide ballots. In fact, California is known well for placing measures on the ballot, mainly because it has one of the lowest thresholds of all the states for placing measures on the statewide ballot.

It’s interesting to note that California’s constitution authorizes a number of state agencies, such as the University of California (but not the CSU or community colleges) and Stanford University for some of its property, our State Compensation Insurance Fund, and even the State Bar of California for regulating licensing attorneys in the state. This is to protect these particular state institutions from some level of governmental interference.

The state constitution also provides for counties, cities, and charter cities – which are those that have local ordinances that are somewhat insulated from state laws. According to the constitution, cities are permitted to pay counties to perform governmental functions.

In order to appreciate the length and the complexity of our state’s constitution, let’s just take an overview of the articles of the California constitution.

The first article, of course, is a declaration of rights and it has 32 sections, including Article 1 Section 1: the right to privacy in the state. Article 2 deals with voting, the initiative and referendum, and the recall, and this article has 20 sections. Article 3 is a general article dealing with the State of California and has nine different sections. Article 4 is the first branch of government, the Legislative, which has 28 sections. Then we have Article 5, dealing with the executive branch which has 14 sections. Then Article 6 deals with our third branch of government, the judiciary, and has 22 different sections.

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

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

California’s budget process continues to be and have a major impact on the state’s public policy agenda. From my vantage point, this is because numerous policy changes are enacted every year as part of the state budget. In other words, state public policy continues to be done as part of the funding of our state government.

For decades our state budget required a two-thirds super majority vote for adoption. This often resulted in a late adoption of the state budget and unfortunate partisan wrangling over priorities for spending state tax dollars. With the Legislature generally controlled by the Democratic Party and the Governor’s office often occupied by a Republican chief executive, the state budgets were often negotiated with the “Big Five” which included the Governor, the Senate President Pro Tem, the Assembly Speaker, the Senate Republican Leader, and the Assembly Republican Leader.

Some of the Republicans viewed the budget negotiations as an opportunity to, if you will, leverage their votes that were needed in order to get to that magical two-thirds threshold. They started thinking what can we leverage our budget votes for? What they quickly figured out was that they would often use those votes to address policy issues or even specific bills that they wanted passed but they couldn’t get through the normal Democrat-controlled Legislature and the normal legislative process.

After a fair amount of time of this, repeated budget delays, and, frankly, a feeling of being leveraged for policy changes that sometimes the Democrat-majority found difficult to accept, interest groups placed a statewide ballot measure, Prop 25, before the electorate which reduced the vote threshold from that two-thirds majority to a simple majority. That’s been in effect the last half a dozen years. As a result of this measure that was adopted by the voters, there is now on time budgets and negotiations are no longer amongst the Big Five.

Some people certainly thought that legislators’ votes would no longer be leveraged to perhaps adopt objectionable policy changes sometimes as part of the annual budget deal. The reality, of course, is that policy changes still occur in those budget negotiations. All those years of adopting policy changes as part of the state budget has certainly created proponents of that process in both the Governor’s office as well as in Democratic legislators’ offices.

Essentially they all like the idea of the expedited review and adoption of bills and policy changes that occur in that shortened budget process rather than pursuing bills through a lengthy and often contentious bill process that can begin in January or February with the introduction of your bill and continue – if it’s an even numbered year through August 31st, or if it’s an odd numbered year through the middle of September.

These policy changes are accomplished through the use of trailer bills. Trailer bills make policy changes necessary to implement the spending in the state budget. They are called trailer bills because they trail the main budget bill. There used to be just a handful of these trailer bills, but now their number has seemingly mushroomed as the need for more and more policy changes has grown. We often end up seeing many more of these bills being used to adopt sometimes controversial law changes that may or may not have been successful had they been tried through the normal legislative process.

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

McGeorge Adjunct Professor Chris Micheli

Today’s post and podcast looks at some of Governor Jerry Brown’s vetoes of labor bills from the 2018 legislative session.

While this series of posts has focused on bills that became law, there were a number of significant labor and employment law related bills that were vetoed by Governor Brown that merit discussion. I will highlight some of the vetoed bills in the post, but there are more covered in today’s podcast.

AB 1867

AB 1867 was authored by Assemblymember Eloise Reyes and it dealt with employment discrimination and sexual harassment records. The bill would have required an employer with fifty or more employees to maintain records for a minimum of five years and authorized DFEH to seek an order to enforce that provision.

AB 1870

AB 1870 was also authored by Assemblymember Eloise Reyes. It dealt with employment discrimination and a limitation on actions. AB 1870 would have extended the statute of limitation period from one year to three years for complaints alleging employment discrimination.

AB 2079

AB 2079 was authored by Assemblymember Lorena Gonzalez-Fletcher. The bill dealt with janitorial workers and sexual violence and harassment prevention training. It would have required multiple new provisions to ensure proper training and prevention was taking place.

AB 2732

AB 2732 was also authored by Assemblymember Lorena Gonzalez-Fletcher and dealt with unfair immigration practices, and also involved janitorial workers. Among its provisions were: imposing civil and criminal penalties for employers who knowingly destroy, or conceal, or possess passports or other immigration documents and requiring employers to provide employees with copies of a Worker’s Bill of Rights.

That is a brief overview of some of the labor bills that were vetoed by Governor Brown in his final term in office. I cover more of the bills, as well as the Governor’s rationale for each of the vetoes, in today’s podcast.

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

On today’s episode of The CAP⋅impact Podcast I talked with Heidi Robertson, who is a Professor of Law at Cleveland State University Cleveland Marshall College of Law. She is also an environmental law expert and advises local governments on the impacts of various environmental policies. One form of environmental policy that Prof. Robertson advises cities on are Community Bills of Rights that include provisions for the rights of nature.

Rights of Nature

The rights of nature are a key component of many Community Bills of Rights is a provision establishing the rights of nature. The core idea of this is that natural resources should have legal rights like people do. Essentially, just like people have certain rights by nature of existing, natural resources like rivers of lakes should have rights just by nature of existing.

Community Bill of Rights

In terms of rights of nature, a Community Bill of Rights is a way to establish what rights a natural resource has and who would stand in court for that resource. This takes many forms. Ecuador has the most expansive rights of nature provisions – granting rights to almost all natural resources and giving anyone the right to defend those rights in court. New Zealand has a less expansive provision that extends to one river and establishes a council of indigenous people and government officials are the defenders of the river’s rights. A recent vote in the City of Toledo established the City as the defender of Lake Erie’s rights, but that was quickly put down in court which is a fairly common outcome for a Community Bill of Rights in the U.S.

Impacts

There are a couple of ways to look at the impacts that Community Bills of Rights have had on rights of nature. From a local government’s perspective, a Community Bill of Rights almost inevitable lands the City in litigation. Further, depending on whether the Community Bill of Rights was structured as a charter amendment – if you think of a City’s charter as its constitution, a charter amendment is equivalent to a constitutional amendment – or an ordinance – a law at the city level – then other city ordinances could be called into question. These legal and political hurdles have led to Community Bills of Rights having minimal immediate practical impact in the U.S.

But in a less practical sense, by popping up in localities across the U.S. Community Bills of Rights have success in moving the Overton window on the rights of nature discussion. Essentially, by forcing the discussion on the topic Community Bills of Rights have moved the conversation from the fringe of public discourse into a more mainstream position.

You can learn more about Professor Heidi Robertson on her Cleveland-Marshall School of Law faculty page and you can find her published work here. As always, if you enjoyed today’s conversation please share it with a friend. Or, if you haven’t already, please subscribe to The CAP⋅impact Podcast on Apple Podcasts or your preferred podcast listening app and leave us a positive review and 5-star rating on Apple Podcasts.

McGeorge Adjunct Professor Chris Micheli

Just like the federal government, California has three branches of its state government – legislative, executive, and judicial. Article VI of the state constitution provides for the judicial branch of government. With a population just shy of 40 million it’s not a surprise that California’s judicial branch of government is the largest in the country.

It handles over 10 million criminal and civil cases each year. There are more than 2,000 judicial officers in this state and over 18,000 employees in the judicial branch of the state. There are three levels of courts in California – the Superior Courts, the Courts of Appeal, and the Supreme Court. The administration of the courts is overseen by the Judicial Council.

There are also several other support entities for the judicial branch of government in California, including the Commission on Judicial Performance, the Commission on Judicial Appointments, the State Bar of California, and the Commission on Judicial Nominees.

California initially had a Supreme Court of only three justices. Eventually, in the late 1800s, a constitutional change established a seven-member high court with 12-year terms that exist today. The Supreme Court’s decisions were also required to be in writing. In the early 1900s, the Courts of Appeal were created. Around that time, the current system of gubernatorial appointments of the justices was adopted.

There are more than 400 Superior Court locations up and down California. There are more than 2,000 Superior Court judges and Superior Courts are located in each of California’s 58 counties. These trial courts have jurisdiction over criminal and civil cases, including specialized areas of the law such as family and probate law. Cases in this state are tried before juries and judges. Superior court judges are appointed by the governor when a vacancy occurs and they serve six-year terms. These trial court judges are also elected at the county level in general elections.

The Courts of Appeal are located in six districts, covering the entirety of California. These intermediate appellate courts have jurisdiction over appeals from cases tried in the superior courts. They also have jurisdiction over certain cases, such as: habeas corpus, mandamus, prohibition, certiorari, and challenges to decisions that are made by certain state boards.

Courts of Appeal justices are appointed by the Governor and confirmed by the Commission on Judicial Appointments. At the end of their terms, and in gubernatorial elections, the justices must also be approved by the voters. There are just over 100 justices who serve on the appeals courts.

Finally, there is the state Supreme Court, which is the highest court in the state. Among its numerous duties, the Supreme Court must review all death penalty cases. The high court has discretion to review civil appeals and other criminal appeals from the state’s Courts of Appeal. Cases from the appellate courts are based upon petitions for review and the justices decide to accept or decline the cases at their weekly conferences. Only a small number of cases are accepted for review. The Chief Justice and the six Associate Justices of the Supreme Court are appointed for 12-year terms by the governor.

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

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

AB 3249 enacted a new State Bar Act for the state of California.

The bill amended over one hundred sections of California’s Business and Professions Code, as well as numerous sections of the Civil Code, the Government Code, the Insurance Code, and the Revenue and Taxation Code to make numerous changes to the laws regarding attorneys. Some of the major provisions of this omnibus bill are covered below and more are covered in today’s podcast.

The bill replaced the terms member, membership, and dues with the terms licensee, license, and fees throughout the Act. It also specifies that any reference to member of the State Bar is now deemed to mean licensee of the State Bar.

AB 3249 also changed the filing deadline to January 1 for the February California Bar Exam, and changed the deadline to June 1 for the July Bar Exam. It further prohibits an application for examination from being accepted after January 1 or June 1.

The bill requires the State Bar to develop and implement a plan to meet certain goals relating to access, fairness, and diversity in the legal profession, as well as the elimination of bias in the practice of law, and to prepare and submit a report on the plan for the implementation to the California Legislature ever two years, starting on March 15, 2019.

The Act requires the State Bar court to order the involuntary inactive enrollment of an attorney who is sentenced to incarceration for 90 days or more as a result of a criminal conviction, and it would require an attorney placed on inactive enrollment to comply with a specified rule of the California Rules of Court.

Further, the Act requires the Supreme Court to disbar an attorney after the judgment of conviction if the offense is a felony and either the facts or circumstances of the offense involve moral turpitude, or an element of the offense in the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude.

Again, this is an abbreviated list of major provisions in 2018’s AB 3249. I cover more provisions in today’s podcast.

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

SB 1208 concerns rules for judicial emergencies.

SB 1208 was authored by the Senate Committee on the Judiciary, and was signed in to law by Governor Jerry Brown on August 24, 2018 as Chapter 201. It took place January 1, 2019. The law creates new authority for the judiciary to deal with emergency situations in California to allow for the orderly operations of the courts.

According to the Judiciary Committee, recent emergencies like the fires in Sonoma County and Southern California as well as mudslides in Montecito have drawn attention to the need to modernize existing statutes and provide courts with more flexibility in responding to these and other emergency situations.

The Senate Floor Analysis on SB 1208 provides that this bill updates Section 68115 of the California Government Code to replace certain enumerated emergency situations, such as pestilence and insurrection, with acts of terrorism, natural disasters, epidemics, and other substantial risks that threaten the orderly operation of the courts, in order to ensure that the judicial system is granted proper flexibility to respond to such incidents.

SB 1208 also allows the Chairperson of the Judicial Council to authorize extensions of the deadlines for bringing civil cases to trial when certain emergency situations occur that are specified in the statute. At the request of a presiding judge in a county, the Chair may grant further extensions upon making a renewed determination that circumstances warranting relief continue to exist.

The supporters of the bill included California Defense Counsel, the Civil Justice Association of California, and the Judicial Council of California.

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

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

Today’s post and podcast is an overview of California’s executive branch of government. Today’s post will be broken into two sections, the provisions for the executive branch in California’s state constitution and the levels of executive branch government in California.

Constitutional Provisions

The executive branch of California state government is set forth in Article V of our state constitution, and of course, like its federal counterpart, is one of three branches of state government. The following is an abbreviated list of the key provisions that affect the Governor and his or her administration.

  • Section 1 vests the executive power in the Governor and his or her administration.
  • Section 2 states the Governor is elected every four years, that he or she must be a U.S. citizen, and that that must have been a California resident for the past five years.
  • Section 3 requires the Governor to report on the condition of the state to the Legislature.
  • Section 5 allows the Governor to fill a constitutional office vacancy by appointment, however that appointment is subject to confirmation by a majority vote of both the Assembly and State Senate.
  • Section 10 provides that the Lieutenant Governor will become Governor when a vacancy occurs, during an impeachment, when the Governor is out of the state, or when the Governor has a temporary disability.
Levels of Executive Government

There are essentially three levels to the executive branch in California’s state government. The first level is what political scientists refer to as plural executives. These refer to the nine constitutional offices, including the Governor, that are elected statewide by the state’s electorate every four years.

The next level below that are the so-called independent agencies. These are the entities that even though they may have appointees by the Governor, they serve independently from direct influence by the chief executive. A good example would be the University of California and its Board of Regents. The Regents serve twelve-year terms, with a Governor only able to serve a maximum of two, four-year terms for a total of eight years. A Regent’s term survives that of the appointing entity to ensure that they have independence from the appointing authority.

The third level of state government are what are called line agencies, and they draw that name from the line that begins with the box of the Governor on the state organization chart, and goes down to the state agencies that go down to the departments. Essentially, line agencies report directly to the Governor.

There are essentially four types of line agency: agencies, departments, some boards, and commissions. Agencies occupy the highest level in the state government and the executive branch. Under state agencies are numerous departments. Like agencies, the leadership of departments are all appointed by the Governor. Boards and commissions are usually headed by an executive officer or an appointed board and they usually report to a particular department.

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

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

SB 954 concerns new requirements imposed on attorneys in mediation proceedings.

Except in the case of class actions, SB 954 requires an attorney, representing an individual who participates in the mediation, to provide his or her client with a printed disclosure that contains certain confidentiality restrictions that apply to mediations. The attorney is required to obtain a printed acknowledgment, signed by his or her client, that provides that the client has read and understands these confidentiality restrictions.

In addition, SB 954 specifies language that is deemed to be compliant with the printed disclosure and acknowledgement requirements that are set forth in current California law. Failure to comply with these requirements does not invalidate an agreement prepared in the course of a mediation. Compliance with these requirements, or the lack thereof, may be used in attorney disciplinary proceedings, in specified circumstances.

This bill amends Evidence Code Section 1122, and adds new Section 1129, both effective January 1, 2019. Also, it adds Evidence Code Section 1129(a), concerning the provision that a client agrees to participate in the mediation, and that he or she reads and acknowledges the printed disclosure on confidentiality restrictions.

In new section 1129(c) that printed disclosure must abide by the following:

  • It must be printed in the preferred language of the client, in at least 12 point font.
  • It must be printed on a single page that is not attached to any other document that is provided to the client.
  • And it must include the names of the attorney and the client, and be signed and dated by both the attorney and the client.

The new Code Section subdivision (d) provides that a disclosure notification and acknowledgement, that is deemed to comply with the requirements of law, is actually set forth in the statute.

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