McGeorge Adjunct Professor Chris Micheli

Most of the provisions pertaining to the California Legislature can be found in Article IV of the California State Constitution, although provisions affecting the legislative branch of government appear in nearly half a dozen other articles of the state constitution. The California Constitution is generally looked at in order to determine whether it prohibits an action by the Legislature rather than as a source of power for the legislative branch of state government.

I discuss some of these provisions on the Legislature in today’s post and cover more of them in today’s audio. Section 4 of Article IV prohibits the legislators from receiving any salary or earned income from lobbyists, lobbying firms, or anyone with a contract with the Legislature for the past 12 months. No legislators can accept any honorarium and the Legislature is required to enact strict limits on gifts. Legislators are prohibited from accepting compensation or taking any other action on behalf of another person before a state agency or board.

California’s revolving door prohibition is enshrined in Article IV as well and prohibits legislators from lobbying the Legislature for 12 months after leaving office.

If the general fund revenues decline substantially below the estimate for the fiscal year, then the governor may issue a proclamation declaring a fiscal emergency and call the Legislature into a special session. If the legislature fails to pass a bill to address the fiscal emergency within 45 days, then no other bill may be acted upon, nor may the Legislature adjourns for recess.

Section 18 grants the sole power of impeachment to the Assembly. Impeachments are tried in the Senate. A person can only be convicted by the Senate by a two-thirds majority vote. Statewide elected officials, Board of Equalization members and state court judges are subject to impeachment for misconduct in office and they can be removed from office by the Senate.

This is just a sampling of the constitutional provisions on the Legislature contained in Article IV of the California Constitution. I discuss more provisions in today’s podcast.

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

Yesterday, Governor Gavin Newsom signed Senate Bill 338 (Hueso) the California Senior Disability and Justice Act into law. The press release announcing the signing of the bill into law signaled a major accomplishment for Stephanie Chavez and Spencer Saks. SB 338 was the bill that Stephanie and Spencer worked on while in the Legislative and Public Policy Clinic at McGeorge School of Law. After a year of hard work, collaborating closely with the office of Senator Ben Hueso and Arc of California, Spencer and Stephanie have a new law to show for their efforts.

“This was definitely a team effort,” said Spencer Saks after learning SB 338 had become law, “I’m excited to know that our work could help elderly and disabled Californians have access to the justice they deserve.”

Not only did the bill become law, but it navigated its way through the California Legislature without receiving a single no vote.

According to the Senate Floor Analysis of the legislation, SB 338 “establishes the “Senior and Disability Justice Act” which requires a local law enforcement agency that adopts or amends its policy regarding senior and disability victimization after April 13, 2021, to include information and training on elder and dependent adult abuse as specified.”

The Legislative and Public Policy Clinic at McGeorge School of Law is taught by Elizabeth Fenton and Cathy Christian.

McGeorge Adjunct Professor Chris Micheli was published in the National Law Review. His new article, Using Letters to the Daily Journals for Determining Legislative Intent; Compilation of Assembly and Senate Letters from Bill Authors – 2019 Update, was published last Friday. You can also find the complete list of his articles published by the National Law Review here.

Chris Micheli is an attorney and partner at the Sacramento governmental relations firm Aprea & Micheli. As an adjunct faculty member at McGeorge School of Law, he co-teaches the Lawmaking in California and Legislative and Public Policy Clinic courses in McGeorge’s Capital Lawyering Concentration.

McGeorge Adjunct Professor Chris Micheli

There are several ways in which the California Legislature can influence the rulemaking activities of these executive branch entities. Primarily the Legislature does this through lawmaking and the budget.

Generally speaking, the authority of California’s agencies and departments to adopt policy through its rulemaking activities is both defined and restricted by state statute. It’s an established principle of administrative law that a state agency cannot exceed its legally prescribed authority to regulate. Now keep in mind that the underlying statute confers either broad or limited powers to the state agencies. Some of the broad rulemaking authority is vested in state agencies such as the Department of Motor Vehicles, the Air Resources Board and the Department of Fair Employment and Housing.

There is also a legislative review of regulations under the Joint Rules of the California Legislature. The California Joint Legislative Rules Committee, as well as the respective Rules Committees of both the Assembly and the Senate, can approve any requests from a legislator to give priority review of a regulation. If such a request is approved, then the Joint Rules Committee must submit any approved requests to the Office of Administrative Law. In addition, under these joint rules, any member of the Senate may request the Senate Committee on Rules, and any member of the Assembly may request the Speaker of the Assembly to direct any standing policy committee in their respective houses, or the Assembly Office of Research or the Senate Office of Research to study any proposed or existing regulation or group of related regulations.

Now, upon receipt of such a study request from a legislator, the Senate Committee on Rules or the Speaker of the Assembly will determine whether a study will be made of the regulation or regulations requested. In reviewing such a request, the Senate Committee on Rules or the Speaker of the Assembly must determine

  1. the cost of making that study,
  2. the potential public benefits that would be derived from the study, and
  3. the scope of such a study.

Under the joint rules, the study may consider among other things, seven different items:

  1. Do the proposed or existing regulation exceed the agency statutory authority?
  2. Does it fail to conform to the legislative intent of the enabling statute?
  3. Does it contradict or duplicate other regulations adopted by federal, state, or local agencies?
  4. Does it involve an excessive delegation of regulatory authority to a particular state agency?
  5. Does it unfairly burden particular elements of the public?
  6. Does it impose social or economic costs that outweigh its intended benefits to the public?
  7. Does it impose unreasonable penalties for violation?

This review must be done in a timely manner, and any concerns must be transmitted to the Senate Committee on Rules, or the Speaker of the Assembly, as well as the relevant state agency that is promulgating the regulation. In the event that a state agency takes a regulatory action that the reviewing entity finds to be unacceptable, then the entity must file a report for publication in the Assembly Daily Journal, or the Senate Daily Journal, indicating the specific reasons why the regulatory action should not have been taken.

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

McGeorge Adjunct Professor Chris Micheli

Under our state constitution’s separation of power provisions, the laws of the state are generally enacted by the legislative branch of government, administered by the executive branch of government, and interpreted by the judicial branch of government. With the executive branch being charged with both administering and enforcing the law, state agencies and departments tasked with administering the law need to engage in rulemaking activities that are quasi-legislative in nature.

In delegating authority to the executive branch of government, one question that arises is whether a legislature can be expected to adopt statutes that address every detail of public policy. In some instances they can, but in many other instances they cannot. As a result, it is expected that there is to be some delegation of legislative authority to the executive branch of either the federal or state levels of government. There is an issue of which powers can be delegated to the executive branch of government and to which of the agencies or departments, as well as to what extent that delegation can take without running afoul of constitutional limitations.

So, how broadly can the California Legislature delegate authority to state agencies and departments? Generally, when the Legislature delegates some of its authority, it will also articulate guidance in the use of that authority by that particular state agency. There are many state appellate court decisions in this area of state constitutional law. As a general rule, an unconstitutional delegation of authority occurs when the Legislature:

  1. Leaves the fundamental policy issues to others, or
  2. Fails to provide adequate direction for the implementation of the particular policy.

In the end, the fundamental issue that the courts look at is how much legislative authority can be delegated to agencies and departments in the executive branch. It appears, that the more that the authority is delegated, the more likely the delegation will be deemed unlawful.

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

Earlier today, McGeorge School of Law sent the email below out across the country to highlight the amazing professors that I’ve had the chance to talk to on The CAP⋅impact Podcast. As you know, earlier this year we re-imagined The CAP⋅impact Podcast. We took a show that was one of many podcasts looking at legislation and policy issues in California and transformed it. From January onwards, we’ve been exploring how legal scholars are changing law and public policy at all levels of government across the country. The goal was to demonstrate that the work and research that happens in the “ivory tower” has a real-world impact. I am proud to say that through the collection of interviews we published over the first half of 2019 that we accomplished that goal.

I have been fortunate to interview twenty different professors with a wide variety of specialties ranging from climate change to data privacy to voting rights. Every professor I have talked to has blown me away with their knowledge, experience, and expertise. It’s exciting to see this podcast get pushed out nationally, and I am looking forward to continuing to having these engaging conversations about public policy.

The picture below links to the email, which has links to the individual episodes, or you can listen to all our episodes of The CAP⋅impact Podcast on Apple Podcasts, Spotify, Stitcher Radio, and everywhere else that podcasts are listened to.

And if you are a law professor who is shaping or changing public policy and I haven’t talked to you yet, I want to talk to you. Please send me an email at jwainwright@pacific.edu and let’s talk about the work that you are doing.

 

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

 

There are a number of political institutions in California. California’s constitutional officers, that is those who are provided for by the California Constitution, are among those important political institutions. I’ll provide a brief overview of all of California’s Constitutional Officers, save the Governor, below. Two of the officers below are usually appointees of a Governor in other states – the Insurance Commissioner and the Superintendent of Public Instruction – but are elected here in California.

Lieutenant Governor

The Lt. Governor runs separately from the Governor – unlike how the President and Vice President run on the same ticket. The role is largely ceremonial. The Lt. Governor is the President of the State Senate, but only has the authority to cast a vote in the case of a tie. They also serve on a number of state boards.

Attorney General

The Attorney General is the chief law enforcement officer for the state of California. He or she is responsible for ensuring that the laws of the state are followed. They carry out their constitutional duty through the Department of Justice (DOJ) which has more than 4,500 employees that are engaged in a variety of law enforcement and legal services throughout the state.

Controller

The Controller is the chief fiscal officer of the state of California. They are responsible for the accounting and disbursement of California’s fiscal resources, as well as auditing the state departments that use those resources. They also serve on seventy different boards and commissions.

Treasurer

The Treasurer has broad authority in the areas of investment and finance. They also serve as the state’s lead asset manager, banker, and financier.

Secretary of State

The Secretary of State’s office oversees campaigns and elections, lobbyist filings, campaign expenditure filings, and business filings in California. The SOS’s office is comprised of more than five hundred people.

Insurance Commissioner

The Department of Insurance, which is headed by the Insurance Commissioner, was created in 1865 as part of a national effort to regulate state insurance. Today, the California Department of Insurance (CDI) claims to be the largest consumer protection agency in California. CDI oversees more than 1,300 insurance companies, based in and out of California.

State Superintendent of Public Instruction

The State Superintendent, also known as the SPI, is a nonpartisan office. They execute all the functions of the California Department of Education. They are also the state’s chief spokesperson for California’s public schools and is an ex officio member of the governing boards for California’s higher education system.

Board of Equalization

The job of the BOE primarily focuses on property tax assessments. In 2017, the Legislature created the California Department of Tax and Fee Administration and reassigned many of the BOE’s functions to the newly created CDTFA.

McGeorge Adjunct Professor Chris Micheli was published yesterday in the National Law Review. His new article, California Enacted Three Major Tax Billsanalyzes AB 147 by Assemblymember Autumn Burke (D – AD 62), AB 91 which is also by Assemblymember Burke, and SB 92 by the Senate Budget and Fiscal Review Committee. All three bills have been signed by Governor Newsom and chaptered into law.

Chris Micheli is an attorney and partner at the Sacramento governmental relations firm Aprea & Micheli. As an adjunct faculty member at McGeorge School of Law he co-teaches the Lawmaking in California and Legislative and Public Policy Clinic courses in McGeorge’s Capital Lawyering Concentration.

McGeorge Adjunct Professor Chris Micheli was published yesterday in the National Law Review. His article, California Adopts “ABC Test” For Employee Classification, analyzes the recently passed AB 5, which was signed into law by California Governor Gavin Newsom earlier this week.

Chris Micheli is an attorney and partner at the Sacramento governmental relations firm Aprea & Micheli. As an adjunct faculty member at McGeorge School of Law he co-teaches the Lawmaking in California and Legislative and Public Policy Clinic courses in McGeorge’s Capital Lawyering Concentration.

On today’s episode, I talked with Elisabeth Haub School of Law at Pace University Professors Bridget Crawford and Emily Gold Waldman about the campaign to repeal the tampon tax, and their innovative reason for doing away with sales taxes on tampons, pads, and other feminine hygiene products – the tax on those products is unconstitutional.

That’s not to say that there aren’t policy reasons for repealing the tampon tax. We discuss many reasons in this week’s episode. A few, and I’m sampling from Asm. Cristina Garcia’s AB 31 to give some California-centric examples are:

  • “Menstrual products, including tampons, pads, and menstrual cups, are the only gender-specific items in California’s tax laws.”
  • “Menstrual products are not luxuries, and, in fact, are necessary health products for menstruating women to participate in society.” and
  • “The sales and use tax laws exempt items that are deemed “necessities of life,” such as food and medicine.”

The constitutional argument for repealing the tampon tax essentially boils down to no matter which way you slice it, taxing feminine hygiene products violates equal protection. Professor Waldman does a much better job of explaining how than I ever could, so … just listen to the podcast and hear her explain how the tax violates the U.S. Constitution.

As mentioned in the podcast, you can keep with the campaign to repeal the tampon tax by visiting Period Equity and by following Professor Bridget Crawford and Professor Emily Gold Waldman on Twitter, @profbcrawford, and @egwaldman, respectively. You can also download their paper that we referenced frequently in the episode, The Unconstitutional Tampon Tax, here.

If you enjoyed this week’s episode of The CAP⋅impact Podcast with Professor Ventry, 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.