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.

McGeorge Adjunct Professor Chris Micheli

The general business affairs of each house of the California Legislature are conducted by each house’s respective Committee on Rules. While the roles of the Senate and Assembly Committee on Rules are largely similar, they are different in several aspects.

As far as similarities are concerned, both committees:

  • Consider substantive legislation
  • Continue in existence during any recess of the Legislature, after final adjournment, and until the convening of the next regular session
  • Refer all bills and resolutions to the appropriate standing committee(s)

As to differences, one of the key ones is that the powers vested in the Speaker of the Assembly are the same powers vested in the Senate Committee on Rules. Some other differences between the two committees include:

  • The Assembly Rules Committee has a Chair, a Vice Chair, nine other members and two alternates, all of whom are appointed by the Speaker of the Assembly. The Senate Rules Committee has a Chair – the Senate President Pro Tem – and four other members who are elected by the entire Senate via a resolution.
  • The Senate Rules Committee confirms gubernatorial appointees whereas the Assembly Rules Committee does not.

It is also worth noting some other specific duties of each house’s Rules Committee. For example, in the Senate,  at each regular session the Rules Committee appoints a member of the Senate to Judicial Council and has the ultimate authority to fill a vacancy in that position during a joint recess of the Legislature.

This is not an exhaustive list, and more similarities are covered in the audio included in this blog post.

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

 

Full disclosure: I tried, way too hard I might add, to make a fracking pun in the title of this podcast. Couldn’t make it work. Most likely because all the good fracking puns have been done to death. But enough of the peek behind the curtain, on with the show – and the blog post.

Today’s guest is Hannah Wiseman, a professor of law and expert on fracking and oil & gas production who currently teaches at Florida State University’s College of Law but is transitioning to Penn State Law. Her work has extensively looked at the states that have experienced booms in oil and gas production and how much those states regulate the industry. Her work is also colored by having lived in two states – Texas and Oklahoma – where there have been major oil and gas production booms due to unconventional production methods.

We talk about how the law splits rights for the persons who own land on the surface and the people who own the mineral rights for the natural resources below the ground, the disparities between states when it comes to regulating the industry or providing protections to surface owners, and land on some surprises for who has the most stringent and least stringent regulations and enforcement of those regulations. We also talk about the lack of federal regulation, why that is, and where there is room for federal regulation to improve.

You can find the conversation with Professor Hannah Wiseman on Apple Podcasts, Spotify, or on your favorite podcast app. You can read Professor Wiseman’s research on SSRN. If you are looking for something specific to read, I came across this new article on LinkedIn that Professor Wiseman co-authored with James Coleman and a former CAP⋅impact podcast guest Tara Righetti.

If you enjoyed today’s conversation, let us know by leaving a positive review on Apple Podcasts. You can help The CAP⋅impact Podcast grow by subscribing to the show on your favorite podcast app  You can also keep up with all things Capital Center by following the Capital Center for Law & Policy on Facebook, Twitter, and Instagram.

On today’s bonus podcast, I talked with McGeorge’s own Professor of Law, Ederlina Co, and Maggy Krell, who is General Counsel for Planned Parenthood Advocates of California about Monday’s decision from the US Supreme Court in June Medical Services.

There’s a lot to unpack from the narrow decision and we spend a solid chunk of our time parsing out the thinking of Chief Justice Roberts who some would say has surprised observers by joining the more liberal bloc of justices by concurring on this decision as well as joining the majority in the DACA and Bostock decisions.

We also get the immediate reactions from both Professor Co and Maggy Krell – we recorded the podcast on Monday just hours after the decision was released – and discuss the impact of this decision and what it could mean for policy changes in state policy across the country and what the recent SCOTUS decisions could mean for the 2020 election.

You can keep up with Professor Co by following her on Twitter @McGeorgeProfCo and you can learn more about her by visiting her McGeorge faculty page. You can also follow Maggy Krell on Twitter @maggykrell.

As always, you can help The CAP⋅impact Podcast grow by subscribing to the show on Apple Podcasts, Spotify, or your favorite podcast streaming app. You can follow McGeorge’s Capital Center for Law & Policy on Twitter and Instagram @McGeorgeCapCtr, and you can also Like the Capital Center on Facebook.

McGeorge Adjunct Professor Chris Micheli

There are a number of sections in California’s Government Code that set forth the operation of statutes and resolutions. These statutes in the Government Code were enacted back in 1943 and can be found in Title II, Division 2, Part 1, Chapter 6 of California’s Government Code.

Included in the many sections of this part of the Government Code are:

  • Provisions governing the enactment date of statutes, with four exemptions (Section 9600)
    • If enacted during a regular session, on January 1 of the following year
    • If enacted during a special session, on the 91st day after the adjournment of the special session
  • Provisions governing the effective date of resolutions (Section 9602)
    • They take effect upon filing with the Secretary of State
  • The general rules of statutory construction (Section 9603)
  • Restatements of statutes (Section 9604)
    • When provisions of one statute are carried into another and required to be construed as restatements or continuations (not as new enactments) then any reference made by any statute, charter, or ordinance to that restatements must be deemed as a reference to the restatement or continuation.
  • Repealed Statutes (Section 9605)
  • Vested rights (Section 9606)
    • Any statute may be repealed at any time except when vested rights would be impaired.
  • Revival of repealed statutes (Section 9607)
    • No statute or part of a statute that’s been repealed by another statute is revived by the repeal of the repealing statute without express words reviving the originally repealed statute.
  • Termination or suspension of laws (Section 9608)
    • If a law creating a criminal offense is terminated or suspended does not constitute a bar to the indictment of information or punishment for an act already committed in violation of the law unless expressly declare by an applicable provision of law.
  • Amending a repealed statute (Section 9609)
  • Public salaries (Section 9610)
  • Suspended provisions of laws (Section 9611)

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

McGeorge Adjunct Professor Chris Micheli

Before you can really set off drafting legislation in California, you need to understand the format of California’s Codes. There is a specific way that our Codes our organized. Codes read, from top to bottom: the Code, Title, Division, Part, Chapter, Article, and then lastly, Section – which is the actual piece of law.

Legislation also has a specific format. At the top of it is the date introduced or amended, the bill number, and then the type of legislation. If it’s a bill, then it begins with an act to do something. If it’s a resolution, it’s relative to something. That is followed by the Legislative Counsel’s Digest, and then the substantive provisions of the legislation. And within the bill there is a hierarchy of provisions – starting with a section, then subsection, then paragraph, subparagraph, clause, and lastly, subclause.

So, what are some questions you should ask yourself, or steps you should take, when drafting legislation? One of the first questions you want to ask is, “What’s the issue to be addressed?” The basic intent of this question is to set the stage for understanding the author’s goal.

Some other questions worth considering after you’ve answered that first question are:

  • To whom does the bill apply?
  • Are there individuals or groups to be excluded?
  • When would it take effect?
  • Who would be responsible for enforcement?
  • Is there any penalty for failure to comply?
  • How would it interact with existing laws?

Those are just a sampling of the questions to consider. The other goal for one to aim for in legislative drafting is to ensure that the legislation fulfils the plain meaning rule. Essentially, are you writing it so that the average person can read and understand the language in the bill or resolution, and are you limiting technical and legal jargon as much as necessary?

You should also make sure you recognize the proper use of terminology. For example, there is a clear difference in outcomes when using either “shall” or “may.” Shall requires an action to happen. May means the action is permissible, but not required. There are other examples of needing to carefully choose your words throughout legislation.

Five years ago today, the United States Supreme Court, in the Obergefell decision written by Justice (and long time McGeorge Professor) Anthony Kennedy, made same-sex marriage the law of the land, and as today’s guest put it, “There was no armageddon. There was just Cinderella.” That guest is Yale Law School’s Professor William Eskridge, who along with Christopher Riano wrote the upcoming book Marriage Equality: From Outlaws to In-Laws. Last week the Supreme Court expanded protections for LGBTQIA+ persons in the United States in Bostock by declaring that Title VII protections against sex discrimination in the Civil Rights Act extend to LGBTQIA+ persons.

The book, and our conversation today, track the history of the marriage equality movement, the key people in the movement, the people who don’t get enough credit for their role in the movement, and so much more. We also talk about what this recent decision in Bostock means in the context of the broader LGBTQIA+ equality movement, where the overall civil rights movement goes from here, and what other civil rights movements like Black Lives Matter and the Abortion Choice movements can take away from the successes of the marriage equality movement.

You can follow Professor Eskridge on Twitter @EskridgeBill, and you can find a list of his books and articles on his Yale faculty page.

You can find today’s podcast episode on Apple Podcasts, Spotify, or wherever you get your podcasts from.

If you enjoyed the podcast, please help us continue to grow by subscribing to The CAP⋅impact Podcast on Apple Podcasts or your favorite podcast app, if you have not done so already, and by leaving a review with your feedback for the show on Apple Podcasts.

A quick heads up – today will be the first of some extra podcasts here and in your podcast feeds for The CAP⋅impact Podcast related to the recent SCOTUS decisions this month. Keep your eyes peeled for podcasts on Bostock, faithless electors, and the president’s tax returns. But today, we’re taking a look at DACA, and what the Supreme Court’s ruling to let the program stand means. For the legal perspective, we have Blake Nordahl, who is a Professor of Lawyering Skills and the supervising attorney at the Immigration Clinic here at McGeorge. For a more personal perspective on the decision, we also have Set Hernandez who is a documentary filmmaker, a media specialist at the California Immigrant Policy Center, and a DACA recipient.

Long story short, the decision to keep DACA in place is a win for the immigrant community in the United States. However, it is a short term win. The current administration is already working on new challenges to the program based on their assertions that DACA is both illegal and bad policy – although Prof. Nordahl does rebut both of those assertions.

Set talks through his much more complicated feelings about DACA. Because of his DACA, he has access to healthcare through his employer, but his mother doesn’t. There are grants and other philanthropic sources to fund documentaries that he doesn’t have access to because he isn’t a citizen or a permanent resident. And a lot of the policies that make life easier for him as an undocumented resident of the United States are California state policy, not federal policies.

To make sure that you do not miss any of these bonus podcasts about SCOTUS decisions, make sure to subscribe to The CAP⋅impact Podcast on Apple Podcasts, Spotify, Stitcher Radio, or wherever you get your podcasts from.

As mentioned on the podcast, the McGeorge Immigration Clinic is open and can be reached at 916.340.6080.

You can also find the California Immigrant Policy Center on Facebook and Twitter.