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.

McGeorge Adjunct Professor Chris Micheli

Today I’ll be taking an in-depth look at California’s Constitution, and also do a brief comparison of California’s Constitution to the U.S. Constitution.

California’s Constitution was adopted in 1849, just prior to California becoming a state in 1850. It is the governing document for the state of California. By most accounts, our state’s constitution is one of the longest in the world. It has been amended or revised some five hundred times.

The main reason why California’s constitution is so lengthy is that there are numerous provisions adopted by the people – either through ballot measures at statewide elections or through other means. One factor in that is that the signature requirement to place a constitutional amendment on the ballot is one of the lowest of all the states.

California’s constitution provides for cities and counties, as well as charter cities, whose local ordinances can be insulated from state laws. The state constitution also specifies that cities are allowed to pay counties to perform governmental functions, such as public safety services.

When comparing the U.S. Constitution to California’s Constitution, the first that thing stands out is that the U.S. Constitution spells out the powers of the Legislative, Executive, and Judicial branches in its first three Articles – respectively – the California Constitution does not cover the three branches of government until Articles IV through VI. The California Constitution instead sets forth personal rights in Article I, provisions of direct democracy in Article II, and in Article III California’s Constitution provides for the establishment of the state’s government system and other institutions like the University of California.

I go into greater detail about the California and U.S. Constitutions in today’s podcast, and also have a broader discussion about the similarities and contrasts between the two governing documents in the audio as well.

On this week’s episode of The CAP⋅impact Podcast, I talk with former Chair of the IRS Advisory Council and Professor of Law at the University of California, Davis School of Law, Dennis Ventry.

Professor Ventry is a long-time advocate for tax reform, specifically reforming the federal free file program. The intent of the federal free file tax program is to allow low-income taxpayers to file their tax returns for free. His critique of the program is in the implementation. The IRS does not administer the program – in fact, the IRS has only three people who oversee the free file tax program. Instead, the IRS has an MOU with companies like Intuit – which makes TurboTax – H&R Block, and others to administer the program. These companies – combined, their lobbying group is known as the Free File Alliance – were fully expecting and hoping to be able to charge all consumers to file their taxes. Those companies blatantly ignore parts of the MOU and engage in false a deceptive trade practices ranging from attempting to upsell taxpayers products they do not need instead of redirecting them back to the IRS’s free file tax program portal to putting code in their website to ensure that a search for that company’s free file tax software will actually direct the person to the company’s fee-based commercial site.

Of course, because these companies do not like that Professor Ventry was critical of them for abusing the public’s trust, they hit him with California Public Records Act and Freedom of Information Act requests. You can listen to the podcast to learn more about how it impacted him, or read this article in the New York Times – that features Prof. Ventry – but is about how private groups are weaponizing FOIA and state PRA’s to go after researchers who look into things they don’t want those researchers looking into.

You can learn more about Professor Dennis Ventry on his University of California, Davis School of Law faculty page. You can also find Professor Ventry’s published works on eScholarship.

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.

McGeorge Adjunct Professor Chris Micheli

Like the federal government, California laws are found in three places: the state constitution, the codes or the statutes, and regulations. The hierarchy of laws in California is the same as under federal law, with the Constitution on top, statutes in the middle, and regulations on the bottom. The following is a brief overview of these three sources of California laws.

The California Constitution is one of the longest in the nation. It’s about 110 pages in length. The following are the articles of the constitution and what they cover: Article I, Declaration of Rights; Article II, Voting Initiative and Referendum and Recall; Article III, State of California; Article IV, Legislative; Article V, Executive; Article VI, Judicial; Article VII, Public Officers and Employees; Article VIIII, Education; Article X, Water; etc.

Next comes the statutes. There are 29 titles in the state. They contain over 150,000 statutes according to the Legislative Council Bureau. The following are the codes: Business and Professions Code, Civil Code, Code of Civil Procedure, Commercial Code, etc.

Now, California has over 200 state agencies that make public policy via their authority to adopt regulations. They adopt between 500 and 600 new regulations each year. The website of the Office of Administrative Law provides direct access to the California Code of Regulations. The CCR is organized under 27 different titles. Remember, our statutes are in 29 codes, and our regulations are in 27 titles.

Title 1, General Provisions; Title 2, Administration; Title 3, Food and Agriculture; Title 4, Business Regulations; Title 5, Education; Title 7, Harbors and Navigation; Title 8, Industrial Relations; Title 9, Rehabilitative and Developmental Services; Title 10, Investment; etc.

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

McGeorge Adjunct Professor Chris Micheli

Lobbying is advocating on behalf of a client or cause – generally for payment but also sometimes on a volunteer basis – to attempt to influence official action of either legislative or executive branch officials, and their staff. Individuals, or groups of individuals, lobby elected and appointed officials and their staff in an attempt to influence those officials’ decisions.

Lobbying at a professional level is done primarily by paid advocates who are employed by companies, associations, or even individuals, to advocate on their behalf. Lobbying occurs with personal visits, including office meetings, committee testimony, even telephone conversations. Lobbying also occurs through written communications such as research reports, advocacy letters, grassroots contacts, and even the news media. Lobbying can be at times challenging, fascinating, intellectually interesting and at other times perhaps mundane.

Some have described lobbying activities as being either direct or indirect lobbying. Direct lobbying is often defined as meeting in person with legislators and staff and providing them with information relevant to their decision making. Indirect lobbying is usually defined as grassroots advocacy. The intended result is to have constituents and other interest groups contact elected and appointed officials and their staff. Indirect lobbying also involves the use of the news media, sometimes called earned media. The lobbyists who are successful can benefit from the media attention for or against a public policy issue or even a particular piece of legislation or regulation.

Almost every interest has a lobbying organization. Heck, even lobbyists have their own organizations at both the federal and state levels. While many folks only think of lobbyists as paid professionals, there are also many volunteer lobbyists, whether paid or volunteer the US Constitution specifies the right to petition the government for the redress of grievances under the First Amendment to the Constitution.

As protected speech lobbying will always have an important role in governmental deliberations. In fact, the lobbying profession is a necessary and appropriate part of the political process and a part of our democracy. Decisions made by the federal, state and local governments impact individuals, groups, and organizations. Those who are impacted, appropriately, want to influence those individuals who make decisions impacting these groups and organizations. Decision-makers also want to understand the impacts of their decisions. As a result, lobbyists are needed to communicate the impacts of those decisions.

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