After a summer hiatus, The CAP⋅impact Podcast is back!

On this week’s episode, I talked with Colin Starger, a professor of Law at the University of Baltimore. Maryland recently enacted bail reform by changing its pretrial procedures to lessen the use of money bail as a means for someone accused of a crime to maintain their freedom pre-trial. The change made it so that money bail was to be the option of last resort when deciding is the accused should be held without bail, released without bail, or released on bail. At the topline level, the bail reform worked, and the use of money bail as a means to one’s freedom dropped. However, thanks to Professor Starger’s research, a report looking at Prince George County in Maryland found that the rate of accused persons being held without bail spiked. For those like Professor Starger who were hoping the reforms would help address prison overcrowding, the jump in people being held without bail felt like a game of Whack-A-Mole gone wrong. They got one mole square on the head only for a new one to pop up in its place.

California also recently made moves in the bail reform arena by eliminating cash bail. That change is on hold pending a referendum on the 2020 ballot. My conversation with Professor Starger is equal parts a look into California’s bail-less future and walking through how California can avoid the same pitfalls experienced in Maryland.

You can learn more about Professor Colin Starger on his University of Baltimore School of Law faculty page. You can also find Professor Starger’s published works here.

If you enjoyed today’s conversation on bail reform with Professor Starger, please share it with a friend or colleague. You can also help more people find the show by subscribing to The CAP⋅impact Podcast on Apple Podcasts – or wherever you listen to podcasts – and leave the show a 5-star review.

McGeorge Adjunct Professor Chris Micheli

Today I will be discussing the stages of the lobbying process. These four stages were put together by my colleague, Ray LeBov. A lobbyist needs to be aware of the work to be done in each of the four stages as part of the strategic and tactical work that they do for their clients.

The four stages are diagnosis, analysis, strategy, and tactics.

Diagnosis

Not only should a lobbyist understand the issue that they will be lobbying early in the process, but they should also understand where their particular issue fits in the overall picture. In this stage, an aspect of an effective lobbyist’s approach to any effort is to diagnose all the factors and forces at play. At this point, an effective lobbyist should be asking themselves these, and similar, questions:

  • Who has a stake in the outcome of the bill?
  • Why would they care about this particular issue?
  • What can the lobbyist present to them that they’ll respond to, and why will they respond?
  • How does the issue interplay with other issues being faced by legislators or regulators?
Analysis

Analysis starts by building on the diagnosis and analyzing the situation the lobbyist’s issue or bill will be going in to. For example, if a lobbyist sponsoring a bill, they have to find a legislator to be the author of the bill. To determine whom they should ask to carry the bill, an experienced lobbyist will want to consider a wide range of factors, such as:

  • A potential author’s subject matter expertise,
  • His or her relationship with the four legislative caucuses and the Governor,
  • His or her committee and/or leadership roles,
  • Which staff member or members are likely to be assigned to your bill, and
  • The potential to use working on this bill to build a beneficial future relationship with that elected official
Strategy

In-depth knowledge of California’s legislative process, procedures, and rules is necessary for being a lobbyist, but knowledge alone is not sufficient for success. When creating the game plan for success, an effective lobbyist will look at the totality of the forces potentially at play in their issue or bill and how those forces may interrelate. Even with the best game plan in place, including planning for foreseeable contingencies, an experienced lobbyist is still likely to encounter twists and turns and needs to have the flexibility and nimbleness to reassess and redraw the game plan as often as warranted.

Tactics

An old Chinese general once said, “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” The last stage is a lobbyist’s ability to implement their game plan. This can involve a wide range of skills to perform the day-to-day activities that are necessary and appropriate for attaining success.

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

McGeorge Adjunct Professor Chris Micheli

There are mainly two types of lobbying at the state level in California – legislative and regulatory. Some advocates may add budgetary and procurement lobbying to this list, but the main two types involve lobbying the legislative and executive branches of state government. At its core, legislative lobbying is advocating for or against legislation while regulatory lobbying is lobbying for or against regulations. Today, we’re looking at a brief overview of legislative lobbying.

A legislative lobbyist, versus a regulatory lobbyist or a procurement lobbyist, is focused on the state legislature. He or she represents clients before the legislative branch of government and expresses those clients’ positions on pending legislation including budgetary matters being considered by the legislative branch of government.

Legislative lobbyists in California interact with the 80 members of the State Assembly and the 40 members of the State Senate. In addition, they lobby the staff of these legislators as well as the staff of the more than 50 Assembly and Senate policy and fiscal committees.

As a part of lobbying state legislation, these lobbyists will also interact with the Governor’s office, as well as state agencies and departments that have jurisdiction over the particular subject matters of their lobbying. These legislative lobbyists may work for a single employer, such as a company or an association, or they may work for a firm that represents several clients. Their goals are to educate officials and staff about their clients’ interests and attempt to influence decisions of those officials that impact their clients.

Lobbyists prepare briefing materials, such as one page explanations to in depth policy papers explaining important issues as well as positions on pending legislation. They prepare advocacy documents including position letters and committee testimony. Their educational and advocacy efforts are intended to explain the likely ramifications or impacts of pending legislation and what will happen to their clients individually, or perhaps an industry as a whole, due to the implementation of the proposed legislation.

Legislative lobbyists also work with their clients throughout the process to explain the impact of these bills and recommend a course, or courses, of action as the measures wind their way through the legislative process. When changes are made that may result in a change in position, the clients need to be made aware of them, as well as legislators and their staff.

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

McGeorge Adjunct Professor Chris Micheli

Negotiating bills and amendments in the California legislative process is an important skill for lobbyists and others to have as they work measures through this process.

Many advocates spend their time supporting or opposing bills on policy or fiscal grounds and they don’t engage in the actual negotiation of bill language for any number of reasons. For example, it may be due to their client being philosophically opposed to a measure. In that case, there’s no need to propose any amendments to the bill.

In other instances, however, a client’s position may be opposed unless amended. In that case, the lobbyist will need to draft amendments or have someone who can. When seeking amendments to a bill, some lobbyists simply describe verbally or in writing the amendment or amendments that their client desires without providing specific language; other advocates draft bill language so that they can provide proposed bill amendments for consideration to the bill’s author, staff, fellow lobbyists, or the bill’s sponsor.

There’s an art to negotiating bills like negotiating in general. For example, one thing you should try to assess is are both sides trying to achieve success so that there’s a win-win outcome for all parties or is one party being more aggressive and then the negotiation might create a win-lose outcome?

Another thing to think about is what type of approach you will use to advocate in your negotiations. Will you be passive? Will you be aggressive? Will you make requests? Will you make demands? Are you in a position of strength or one of weakness? Is the bill important or not very consequential? These are just some of the questions that might arise as well as a host of different factors that may influence what position an advocate takes in negotiating bills and amendments.

I discuss other tactics and strategies that successful lobbyists use to negotiate bills and amendments in today’s podcast. You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

While the legislative publications of the California State Assembly and California State Senate have the same names and are intended to serve the same purposes, when we look a little bit more closely, there are several keen differences between the Senate’s and the Assembly’s legislative publications.

The Assembly Daily Journal and the Senate Daily Journal are essentially the same because they simply document the major actions of the committees and the floors of each house of the Legislature. However, the Senate Daily File and the Assembly Daily File, as well as the Senate Weekly History and the Assembly Weekly History, do have differences. Let’s first take a look at the Daily Files.

The Daily Files set forth the agendas of the Senate and the Assembly, and they contain information such as committee hearing notices and measures that are eligible for floor action. When an individual picks up a hard copy at the bill room or looks at the Senate or Assembly Daily File online, they’ll notice that they are substantially similar. Nonetheless, to the discerning eye, while some items may be the same, other aspects are in fact different, and certainly the order that the information is presented is slightly different.

The Weekly History is a publication of both the Senate and the Assembly that provide a comprehensive list of all the actions taken on every single bill and is published weekly by each house. And like the Daily Files, when you pick up a hard copy or you review them on the internet, you’ll notice again that the Assembly Weekly History and the Senate Weekly History are substantially similar. Also like the Daily Files of the State Senate and Assembly, there are other aspects that are different, and the order that the information is presented is slightly different.

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

McGeorge Adjunct Professor Chris Micheli

During California’s last legislative session, the 2018 legislative session, the Legislature and Governor enacted 1,016 new laws – most of which took effect on January 1, 2019. This particular statistic raises the age old question – Is the California Legislature too much of a bill factory?

I will leave the answer to that question, and whether the answer is good or bad, to another day. In this post, I’ll compare that piece of data to those of other states and let you decide on an answer to the question.

More than 15,000 bills were enacted in the fifty states in 2018. Just a few states were not in session and did not enact any bills. Now, according to news media reports and other sources, I put together a sampling of states that enacted new laws in 2018, and the total number of new laws. Note that no state was close to California’s total.

  • Michigan – 689 new laws
  • Kentucky – 624 new laws
  • Tennessee – 612 new laws
  • Illinois – 595 new laws
  • New York – 522 new laws
  • Utah – 486 new laws
  • Colorado – 424 new laws
  • Arizona – 347 new laws
  • Massachusetts – 343 new laws
  • New Jersey – 329 new laws
  • Washington – 306 new laws
  • Wisconsin – 241 new laws
  • Maine – 200 new laws
  • Florida – 193 new laws
  • Pennsylvania – 179 new laws
  • North Carolina – 162 new laws
  • Oregon – 153 new laws
  • Alaska – 145 new laws
  • Kansas – 118 new laws
  • Ohio – 115 new laws
  • Minnesota – 100 new laws
  • Georgia -15 new laws

It is obvious from this data that California has enacted many more new laws than other states. However, 2018 was a high water mark for Governor Brown’s administration. California has averaged 700-800 enactments pretty consistently.

One other interesting data point is the percentage of bills that become law in California. In very broad terms, the California Legislature introduces about 2,200 bills a year, and roughly 40% of those bills become law each year. That’s a pretty high percentage of bills getting enacted in comparison to the number of bills actually introduced. At the federal level, for example, roughly 2-3% of the introduced bills actually become law. So not only does the California Legislature introduce a lot of bills, but they also get a very high percentage of those bills becoming law each year.

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

McGeorge Adjunct Professor Chris Micheli

The determination of legislative intent is important because there are instances in which there are legitimate legal disputes between the parties as to what statutory language may mean or what was intended by the language. In these cases, both parties will attempt to argue that their interpretation is the correct one that should be adopted by the court. Obviously then it’s up to the judiciary to determine whose view is the correct one. The concern from this author’s perspective is that the courts utilize an unrealistic viewpoint in determining which legislative intent materials can be properly used by a court, to make a determination.

In determining the intent of the Legislature in enacting state laws, California courts have historically taken a limited view of legislative materials that can be utilized to determine the intent of the Legislature. For example, the courts have determined that documents available to all legislators are the proper ones to use. Of course, this is based on the unrealistic assumption that all legislators read all of the materials before casting their votes on a particular bill. That is not a criticism of the Legislature, but an acknowledgement that legislators cannot be expected to read every bill and all of the background materials and the analyses and thoroughly understand the intent behind each and every measure.

The main source of legislative intent, in the California Legislature is found in the committee and floor analyses. Unfortunately, these committee and floor bill analyses, rarely provide details or insights into why specific bill language was or was not used in a bill. Generally, these bill analyses explain existing law, changes to the law being proposed by the bill, arguments for and against the bill, and a few staff comments regarding the bill’s provisions. However, rarely is specific language discussed and the reasons why that particular language was used. As a result, there are definite limitations in gleaning insights into the language used by the Legislature when it comes to particular bills.

Because of these factors, California courts’ reliance on certain legislative materials is important, but the state courts often take an unnecessarily narrow view of which items of legislative history can be appropriately used to determine the intent of the Legislature. One possible reason is that the judicial branch does not have a fundamental understanding of the legislative process.

Sometimes a statute’s plain reading can be followed, but at other times that may not be so easy and the courts will have to rely upon the limited evidence of legislative intent that is available to them to use. Thanks for joining today’s podcast on finding legislative intent.

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

McGeorge Adjunct Professor Chris Micheli

The committees of the California Legislature can conduct several types of hearings including bill hearings, investigative or oversight hearings, and informational hearings. Most hearings have a similar purpose, which is to educate the legislators and their staff about the subject matter that has come before them for consideration. Bill hearings are obviously those that are conducted to hear specific bills, however, there are informational hearings beyond those that hear, consider, and vote upon legislation or bills.

Informational hearings are used to gather information about the subject matter at the particular hearing, often in preparation for consideration of future legislation. The Chair of the committee, as well as the members or the staff of the committee generally come up with the subject matter of the hearing. Sometimes a hearing will be held prior to the introduction of the bill as a means, or for the purpose, of gathering specific information that the committee can then turn around and use in shaping the particular legislation.

Another type of hearing by the Legislature is to conduct oversight, or investigations, generally of the executive branch of state government. In these hearings, the committee might consider whether there’s some concern about how an executive branch agency or department is administering a particular program. Or perhaps the committee has a concern about how a law is being interpreted or enforced.

Some observers distinguish oversight from investigative hearings. For example, in an investigative hearing, there may be an allegation of wrongdoing by a public official, and that is the subject of the investigative hearing. This hearing could be of an adversarial nature rather than one of information gathering.

There are also confirmation hearings, which are generally only held by the State Senate, except those rare instances when both houses of the Legislature must consider a gubernatorial appointment of a constitutional officer. The confirmation hearings are generally conducted by the Senate Committee on Rules to provide advice and consent on the gubernatorial appointments that have been made.

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

McGeorge Adjunct Professor Chris Micheli

There are federal and state judicial branches of government and separate court systems at both of these levels of government. The federal courts are established in Article III of the US Constitution. California’s courts are established in Article VI of the state Constitution.

Article III of the US Constitution contains three sections. Section 1 vests the judicial power of the country in the Supreme Court and also mentions the inferior courts that Congress may establish. It also specifies that there are no term limits for federal judges and establishes the Chief Justice, but neither the size of the Supreme Court nor other specific positions on the Court.

Section 2 of Article III of the Federal Constitution sets forth the powers of the federal courts. Essentially, federal court jurisdiction is limited to cases that arise from the federal Constitution or the laws and treaties of the federal government, those involving multiple states or foreign governments, and some other specified areas. The Supreme Court has original jurisdiction with ambassadors, with states that are a party to a case, and juries must be used for federal criminal prosecutions. Finally, Section 3 of Article III defines treason and it specifies that Congress may punish it. There are also specified requirements for treason cases and how treason as a crime can be punished.

All state constitutions create their respective state court systems. They all have a high court, generally referred to as the Supreme Court. Many states have an intermediate appellate court. All of them, of course, have trial courts, some of which are called circuit or district courts. Most states provide for the courts to handle specific legal matters including things like probate and family law matters. Here in California, Article VI of the California Constitution contains 23 different sections.

Note that there are differences between the states and the federal judiciary when it comes to the selection of judges. The US Constitution states that federal judges are to be nominated by the President and confirmed by the United States Senate. They hold office typically for life. State court judges are selected in several different ways including election and appointment by the Governor. Generally, they either have specified terms or life terms. In California, trial court judges are elected, generally, but the Governor may appoint judges to fill vacancies. Appellate court justices are appointed by the Governor and then confirmed by the Commission on Judicial Nominations – or the JNE Commission.

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

McGeorge Adjunct Professor Chris Micheli

California’s Commission on State Mandates derives its power from Article XIII B, Section 6 of the California State Constitution, which deals with a government spending limitation.

Section 6 of Article XIII B provides that whenever the Legislature or any state agency mandates a new program or a higher level of service on any local government, then the state must provide a subvention of funds to reimburse that local government for the cost of the program or the increased level of service. Section 6 provides an exception that the Legislature may, but not need provide a subvention of funds for the following specified mandates:

  1. Legislative mandates requested by the local agency that was affected.
  2. Legislation defining a new crime or changing an existing definition of a crime.
  3. Legislative mandates that were enacted prior to January 1, 1975, or executive orders or regulations initially implementing legislation that was enacted prior to 1/1/75.
  4. Certain legislative mandates contained in statutes.

A mandated new program, or a higher level of service, includes a transfer by the Legislature from the state to cities, counties, cities and counties, or special districts of complete or partial financial responsibility for a required program for which the state previously had complete or partial financial responsibility.

Pursuant to California law, the Commission on State Mandates has four primary duties.

  1. Adheres and decides test claims alleging that the Legislature or a state agency imposed a reimbursable state mandated program on local agencies, school districts, or community college districts.
  2. Adheres and decides claims alleging that the State Controller has incorrectly reduced a reimbursement claim for a state mandated program.
  3. Adheres and decides request to adopt a new test claim decision to supersede a previously adopted test claim decision upon a showing that the state’s liability for that decision, pursuant to Article XIII B Section 6A, has been modified by subsequent change in the law.
  4. Determines the existence of significant financial distress for applicant counties that seek to reduce the level of aid that they provide under General Assistance and General Relief.

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