McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The judicial branch of California government engages in policymaking through the Judicial Council.

The Judicial Council is chaired by the Chief Justice of the California Supreme Court. It pursues a number of different goals, including: providing access, fairness, and diversity in our court system; ensuring independence and accountability of the judiciary; modernizing the management and administration of the state’s court system; ensuring quality of justice and service to the public; and providing adequate, stable, and predictable funding to ensure a fully functioning branch of state government.

While the Council employs a staff to assist it, it also relies heavily on a number of advisory bodies and task forces. It has six internal committees, which include: the Executive and Planning Committee, the Judicial Branch Budget Committee, the Judicial Council Technology Committee, the Legislation Committee, the Litigation Management Committee, and the Rules Committee. There are also more than two dozen task forces that assist the Judicial Council as well.

It should be noted that our Judicial Council has been at the forefront of many of the historical reforms in terms of the judicial administration of our state’s court system, such as trial court unification – where we unified our municipal and superior courts. The Council also maintains annual reports on workload information related to the courts, their annual outlook reports, different court statistics, and legislative reports in terms of legislation/new laws that have affected the court system.

With the historical materials, the Judicial Council provides a valuable wealth of information about the state’s court system, as well as its operation and administration of justice here in the state of California.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The final weeks of the legislative session are the proverbial sprint to the finish line. Policy committees have finished the bulk of their work, but many bills get significant amendments that require the policy committees to hear additional bills as the session winds down. The main focus then becomes the fiscal committees and their votes on measures that are pending on the respective suspense files in the appropriations committees of the Senate and Assembly.

Then, the final two weeks of the legislative session are a whirlwind. Several hundred bills are considered on the floor of the second house with most bills having to return for a final vote on the floor of their house of origin. Once the session adjourns, the work is not done. Instead, the focus turns to the Governor’s office and his or her consideration of the hundreds of bills that reach his or her desk. Now, what are some of the constitutional and statutory requirements?

First, the bill cannot be passed or become a statute unless that bill and any amendments have been in print and published on the internet for at least 72 hours before the final vote unless the Governor has submitted some sort of a statement that the bill is needed to address a state of emergency.

The bill becomes a statute if it’s signed by the Governor or if the Governor returns it without any objections. The governor may also veto a measure. That requires that a bill be returned to the house of origin with any objections. The Legislature can vote again to pass the bill. If a two‑thirds majority vote does so, then the bill becomes a statute.

At the close of each regular session, the President Pro Tempore of the Senate, the Speaker of the Assembly, and the two minority party leaders must report on the progress that was made in meeting the goals and objectives outlined at the beginning of the legislative session.

Finally, at each session, the Governor must report to the Legislature any reprieves, pardons, or commutations granted including the reasons for doing so. That’s basically what transpires during the final weeks of the legislative session and the consideration, generally, of hundreds of bills.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The California State Assembly is poised to adopt a new rule to allow proxy voting. On July 27th, the first day back from its extended recess, Assembly Majority Floor Leader Ian Calderon introduced House Resolution 100 which would adopt a rule to allow proxy voting during the COVID‑19 state of emergency.

HR-100 notes that the pandemic has affected members of the Legislature and their ability to participate in official legislative proceedings to the point that the pandemic threatens to undermine the constitutional duty and authority of each house to convene and to compel the attendance of members during COVID-19.

The resolution does not amend existing Assembly Rules, but rather, adopts a standalone resolution. If adopted by a majority the Assembly, the Speaker of the Assembly would be authorized to permit proxy voting by designated members for floor session, but not during committee hearings.

Eligible members must request authorization from the Speaker. In order to be eligible, the Assemblymember must be at a higher risk to contract the COVID-19 virus.

The proxy authorization will be terminated when the 2020 legislative ends sine die on November 30, when the state of emergency ends, or when the Speaker withdraws the authorization – whichever comes first.

To request authorization to vote by proxy, the Assemblymember must submit a letter requesting it prior to the floor session at which the voting would occur. If approved by the Speaker, the authorization is provided to the Chief Clerk of the Assembly and printed in the Assembly Daily Journal. Once floor session begins, but before proceeding with the business contained in the Daily File, the presiding officer must announce the names of the members who are voting by proxy on that particular day.

The Assemblymember voting by proxy must submit written instructions prior to the floor session. Their instructions must identify each legislative action on which the absent member will be voting by proxy. Proxy votes will be identified for each roll call vote in the Assembly Daily Journal for that day. An Assemblymember voting by proxy cannot add on or change his or her vote after the proxy vote has been cast.

Only four legislative leaders are authorized to actually cast the proxy votes of any absent members. They are the Speaker, the Assembly Majority Leader, the Minority Leader, and the Minority Floor Manager.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Since the California State Senate has authorized the use of remote voting, let’s take a look at how the process in the Senate works. Note, at this time, that the Assembly has not authorized remote voting yet.

First, remote voting is limited to only policy and fiscal committees. It is not currently authorized for floor votes. If a Senator wants to be able to vote remotely, they must obtain approval for that accommodation request, and the request must be COVID-19 related. If approved, the Senator has to participate in the Committee hearing from their district office.

In addition, for a Senator to be able to participate remotely in a committee hearing, the Committee Chair and a majority of the members of the committee must be physically present in the Capitol for the committee hearing.

Per the resolution that enacted these new provisions, Senate Resolution 86, the remote voting rules only apply during emergencies, which include – a state of emergency declared by the Governor, a local emergency that was proclaimed pursuant to the Government Code, or an imminent threat of such a local or state emergency.

Senators participating remotely may do so by use of a telephone, teleconference, or other electronic means. The public can also participate remotely in committee hearings. They can do so by any means that the Senate committee makes available. In addition to in-person testimony, Senate committees have also allowed remote video testimony and telephone testimony.

Although remote voting on the floor of the Senate is not currently authorized, Senate President Pro Tem Toni Atkins has noted that it remains an option for the Senate depending on conditions related to the COVID-19 state of emergency develop.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

California’s judicial branch is supported by several important entities that assist the judiciary in operating efficiently. These include the Commission on Judicial Appointments and the Commission on Judicial Performance. Let’s take a look at what they do, and who make up the memberships of these Commissions.

Commission on Judicial Appointments

The Commission on Judicial Appointments, CJA, is charged with reviewing gubernatorial appointments to the appellate courts or Supreme Court in our state. When an attorney is nominated by the Governor, that appointee must be reviewed by the CJA. There is a public hearing that’s held on the nomination so that the appointee’s credentials can be considered in a public forum. The appointment of an appellate or Supreme Court justice is effective once the CJA confirms the individual.

CJA is comprised of the Chief Justice of the California Supreme Court – currently Tani Cantil-Sakauye – and California’s Attorney General – currently Xavier Becerra. The third member of the Commission depends on whether the nominated justice is being appointed to a court of appeals in California or to California’s Supreme Court. In the case of an appellate court, it is the most senior presiding justice on the court of appeal of the affected district. In the case of Supreme Court nominee, the third member is the state’s most senior presiding justice from the court of appeal.

Commission on Judicial Performance 

The Commission on Judicial Performace, CJP, is charged with overseeing judges in the state. It is an independent state agency. The powers granted to the CJP by California’s Constitution include the authority to remove a judge or censure a judge for any action that constitutes willful misconduct or if there is persistent failure or inability for the judge to perform their duties. The CJP also has the authority to publicly or privately admonish a judge who engaged in some sort of improper actions or dereliction of duty. It can also retire a judge for disability when it seriously interferes with the performance of the judge’s ability. Any CJP proposal to remove, censure, admonish, or retire a judge is subject to review by the California Supreme Court.

The Commission on Judicial Performance has 11 members, each of whom serve four-year terms. It’s membership includes:

  • 3 judges appointed by the Supreme Court
  • 4 members appointed by the Governor, 2 of which must be attorneys
  • 2 members appointed by the Assembly Speaker
  • 2 members appointed by the Senate Rules Committee

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The twin goals of the APA at the federal and state levels are to ensure for purposes of any proposed rulemaking that there’s notice to the public and an opportunity for the public to be heard. With that in mind, there are a few items of interest for those who participate in rulemaking activities of California state agencies. Also keep in mind that the defined purpose of a regulation is to “implement, interpret, and make specific” a statute.

The California APA provides six statutory standards of review that our Office of Administrative Law, OAL, must use in its review of proposed regulations. The role of OAL is to ensure that the state agency abided by the APA when adopting a regulation.

Clarity is one of those six standards, and from what I understand, it’s one of the main reasons that OAL rejects a proposed regulation. It’s usually due to ambiguous or undefined terms that are used in the proposed regulation. Hence, if the proposed regulation that you’re commenting on is lacking in clarity, then this may be your best avenue for success in attempting to thwart the adoption of the proposed regulation.

Lack of necessity, which is another standard, is also a common reason for OAL to reject a proposed regulation. Generally, under this statutory standard of review, OAL is looking at issues such as has the agency distinguished between what we’ll call the what and the why. The why is often not done sufficiently by the state agency. The agency usually does a pretty good job of explaining what the regulation proposes to do. However, agencies tend to have shortcomings when it comes to explaining why the regulation is necessary.

Another important thing is for practitioners to understand the difference between the authority standard and the consistency standard. The authority standard is whether the agency has general or specific authority to adopt the regulation. Most major agencies, such as the Department of Motor Vehicles, have general rulemaking authority. Specific authority is an instance where specific grant or statute gives that agency the power to adopt a regulation.

Consistency is about whether the regulation is consistent with the underlying statute. So, for instance, if you’re trying to defeat a regulation on this standard, you should claim or argue that the consistency standard is not being met and that the proposed regulation is inconsistent with the statute.

McGeorge Adjunct Professor Chris Micheli

Urgency statutes are found in Article IV, Section 8 of the California Constitution. Bills signed into law by the Governor that contain an urgency clause become urgency statutes.

Article IV, Section 8(c)(3) of the Constitution lays out the major difference between a regular bill and an urgency bill. A regular statute goes into effect on January 1 of the year following its passage and signature, or later. Urgency statutes take effect immediately upon being chaptered by the Secretary of State. Of course, a provision in the bill could move back its operative date.

So what makes a statute an urgency statute? Section 8(d) of Article IV specifies that urgency statutes are those that are necessary for immediate preservation of the public peace, health, or safety. Because of this definition, an urgency measure must contain an urgency clause, which specifies why the bill qualifies for the special status based upon this particular constitutional definition. In this regard, Section 8(d) requires a statement of facts constituting the necessity shall be set forth in one section of the bill.

That leads to the second difference between urgency statutes and regular statutes. While most regular statutes only require a simple majority vote to pass. With urgency statutes, there is a floor requirement that there be two votes by legislators on the bill – one on the urgency clause itself, and another on the bill in chief. To pass, both of those votes need to clear a two-thirds supermajority threshold.

McGeorge Adjunct Professor Chris Micheli

There’s often confusion in the California legislative process regarding effective versus operative dates. The most common effective date, basically the so-called default effective date, is January 1 following the year a bill was enacted.

As for operative dates, in 1956 the Attorney General declared that a statute may be worded to provide for an operative other than the effective date. While the operative date may be the same as the effective date, it may also be later. In 2012, in People v. Verba, the court of appeal in California ruled that a bill’s operative date is the date upon which the directives of the statute are actually implemented and that the operative date is set by the Legislature in its own discretion. An effective date, on the other hand, is determined according to immutable rules written into the State Constitution.

The general rule concerning the effective date of statutes is found in Government Code Section 9600(a), which provides that a statute enacted at a regular session goes into effect on January 1 next following a 90-day period following the date of enactment of the statute. A statute enacted in a special session of the Legislature shall go into effect on the 91st day after the adjournment of the special session in which that special session bill was passed.

Why the 90-day delay from enactment to effective date? Effectively, the delay is to permit the circulation and presentation of a referendum petition to have the electorate throw out the statute in part or in whole.

There are also exceptions to the rules in Government Code Section 9600(a). Government Code Section 9600(b) provides that statutes calling for elections, statutes providing for tax levies or appropriations for the usual, current expenses of the state, or urgency statutes go into effect immediately upon enactment.

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

McGeorge Adjunct Professor Chris Micheli

As one would imagine, the organization and structure of the California Legislature is found in Article IV, and there are half a dozen sections in Article IV that relate to the organization and structure of the Legislature. What are in these sections? I’ve included a sampling of some of the more comprehensive sections in the text today and cover more in the audio in today’s blog post.

Section 2 includes:

  • The composition of the Legislature – 40 Senators, half of which face election every two years, elected to 4-year terms and 80 Assemblymembers elected to two-year terms.
  • A lifetime term limit of 12 years in the Legislature.
  • The qualifications to serve in the Legislature:
    • Is registered to vote and has been a resident of the legislative district for one year
    • Is a US citizen
    • Has been a California resident for the three years immediately leading up to that election
  • States that when a vacancy in the Legislature occurs, the Governor must “immediately call an election to fill that vacancy.”

Section 3 covers the convening of the Legislature, which includes:

  • Regular session convening at noon on the first Monday in December of each even-numbered year and adjourning sine die at midnight on November 30th of the following even-numbered year.
  • Providing for special sessions, also known as extraordinary sessions, which are convened by a proclamation from the Governor requiring the Legislature to assemble and legislate on only the subject(s) specified in the gubernatorial proclamation.

Section 7 specifies how the Legislature will conduct its official duties. This includes:

  • Each house chooses its own officers and adopts its own rules for proceedings.
  • Each house must keep and publish a Daily Journal of its proceedings, which are generally open to the public.
  • The Legislature must make an audio-visual recording of every Legislative proceeding, in its entirety, and make that available via the internet within 24 hours after those proceedings have recessed.
  • Permitting the Legislature to meet in closed session for specific purposes or for caucuses to meet in closed session
  • Prohibits either house of the Legislature from recessing for more than ten days without the consent of the other house.

You can read the transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli

Provisions about nominations and commissions made by the Governor are found in California’s Government Code in Title 1, Division 4, Chapter 2, Article II. Article II deals with nominations by the Governor. Article III provides for commissions by the Governor.

Starting in Article II, with nominations, Government Code Section 1320 requires nominations that are made by the Governor to the Senate to be in writing, to designate the residence of the nominee, as well as the office for which he or she is nominated.

Government Code Section 1321 requires the Secretary of the Senate, when the Senate agrees with a nomination, to deliver a copy of the resolution of concurrence to the Secretary of State and a copy to the Governor.

Government Code Section 1322 specifies 20 different officers that are subject to confirmation by the Senate. Section 1323 provides that any officer or any member of a board or commission whose salary is provided in the Government Code – related to salaries as specified positions – are all subject to confirmation by the State Senate.

Article III of the Government Code, Title 1, Division 4, Chapter 2 focuses on commissions made by the Governor

Government Code Section 1340 requires the Governor to commission all officers that are elected by the Legislature, all officers of the militia, and all officers that are appointed by the Governor.

Section 1341 specifies that the commissions of all officers that are commissioned by the Governor are to be issued in the name of the People of the State of California. These commissions are signed by the Governor and attested to by the Secretary of State.

Finally, Section 1342 requires that the commissions of all other officers were no special provision is made by law are to be signed by the Presiding Officer of the body or by the person who is making that particular appointment.