Rules of Statutory Construction (transcript)

Today’s post is on rules of statutory construction primarily for the non-lawyer.

For those working in and around the California State Capitol, it’s important to understand general rules of statutory construction whether you’re a lawyer or a non-lawyer.

The general rule of statutory construction is to effectuate the intent of the Legislature, which basically requires the courts to give the statutory language its usual and ordinary meaning.

The fundamental rule of statutory construction is known as the plain language rule. Basically, this rule provides that when the meaning of a statute is clear and unambiguous, there’s usually no need for a court to apply any of those rules of statutory construction because the plain meaning of the statute can be ascertained without resorting to what we call the use of extrinsic aids to help in understanding the language.

Under this rule, if the statute is clear then the courts presume the Legislature meant what they wrote in the statute and the courts give effect to the plain meaning of that statute.

In order to resort to the general rules of statutory construction, a court must determine that there’s ambiguity in the statutory language and as a result it’s unclear what was intended by the Legislature in enacting the particular statute. The courts have determined that a party demonstrates statutory ambiguity by providing an alternative meaning to the statutory language and, as a result, the statutory language can be given more than one interpretation, then a court generally should consider extrinsic aids to determine the purpose of the statute and the intent of the Legislature.

Among the extrinsic aids are the legislative history of the statute, the public policy surrounding its enactment, the statutory scheme in which the language is found, and other related issues. In this regard, the language of a statute should be construed in light of the rest of the statutory scheme in which the particular statute is found. The goal of the court is to harmonize the parts of the statute by considering the context of the statutory framework in which this particular statute is found.

 

Court Cases Related to California’s Legislative Process (transcript)

Today’s post is an overview of specified court cases related to California’s legislative process.

As you can imagine, there are a number California Appellate Court decisions that related to the legislative process. These cases deal with a number of separate and distinct issues. While I don’t cover all of them, there are some major cases that capitol observers and insiders should be aware of.

The first one is Kaufman & Broad Communities v. Performance Plastering which was a California in Appellate Court decision 2005. The 3rd District Court of Appeal clarified that a determination of the existence of any ambiguity occurs not at the time of a motion for judicial notice but by the panel of judges that hear the appeal. The case has been cited more than 80 times by other appellate courts in California for what documents may be utilized to ascertain legislative intent in interpreting statutes.

Another case you should aware of is Yamaha – Yamaha Corporation of America v. the State Board of Equalization. This case was decided by the California Supreme Court in 1998. The decision says that in general the deference afforded to an agency’s interpretation of a statute by the agency that is charged with enforcing and interpreting that statute will vary based on a legally informed and common sense assessment of the statute’s context.

The next case of interest is Association for Retarded Citizens v. Department of Developmental Services. It was decided in 1985 by the California Supreme Court. The lawsuit alleged that certain spending decisions issued by the Director of the department were void. The Court entered an order granting a preliminary injunction at the lower level and said administrative action that is not authorized by or is inconsistent with acts of the Legislature is void.

This is just a sampling of the cases I go over in today’s podcast.

The California Legislature’s Organizing Session (transcript)

With this year being an even numbered year, the California Legislature’s organizing session will take place next Monday, December 3. Today’s post and podcast is an overview of California’s legislative organizing session.

As you may be aware, the California Legislature operates during two-year legislative sessions. At the commencement of the two-year session, the Legislature must organize itself.

In that regard there are several provisions related to organizing the Legislature. The first is found in the California Constitution, and the other provisions in the California Government Code. According to Article IV, Section 3a of the state constitution, “The Legislature shall convene in regular session at noon on the first Monday in December of each even numbered year, and each House shall immediately organize.”

This date falls every two years, roughly three weeks – perhaps four on occasion – after the statewide General Election has taken place. The two houses convene that first session at noon and it generally lasts about two hours.

At these organizing sessions, both the elected officials and their families and supporters are in attendance. They rarely engage in regular business other than introducing their first bills, which not all legislators do on that first day in session.

They’ll often visit with colleagues and former legislators, and attend and enjoy the pomp and circumstance of that organizing session. Thereafter, in the first week of January when they reconvene, that’s when legislators commence the serious work ahead that will last for the following two years.

Please be sure to listen to today’s podcast which covers the sections of California’s Government Code that dictate the rules for the California Legislature’s organizing session.

 

Methods of Floor Voting (transcript)

Today’s post is on the methods of voting on the floors of the California State Assembly and State Senate.

In the two houses of the California Legislature, there are differences in how voting by legislators is conducted on the floors of the State Assembly and State Senate. The main difference is that the Assembly uses an electronic means of recording votes on the floor while Senators record their votes with a verbal response to an announced roll call. The other major difference is that Assembly Members may change their votes under specified circumstances. Generally, Senators cannot.

We’ll first look at the rules governing voting in the Assembly. Under Assembly Rule 105 the ayes and noes are recorded by the electrical voting system on the final passage of all bills. The names of the Legislators and how they cast their votes are then entered in the Assembly Daily Journal. And pursuant to Assembly Rule 106, when begun, voting may not be interrupted except that before the vote is announced any legislator may have the total pending vote flashed on the visible screen recorder and then any Legislator may move a Call of the Assembly after the completion of the roll before that final vote has been announced.

Now let’s look at the Senate. Pursuant to Senate Rule 44, whenever a roll call is required by the Constitution or the Rules or it is ordered by the Senate or demanded by at least three legislators, every legislator within the Senate without debate answers aye or no when his or her name is called. This Rule requires that the names of legislators be called alphabetically, and a Senator may not vote or change his or her vote after the announcement of the final vote by the presiding officer.

There is an exception for the two party leaders. Under the Senate Rule, on a legislative day when the President Pro Tem or the Minority Floor Leader is in attendance throughout a session but he or she in absence of any objection may instruct the Secretary of the Senate to add his or her vote to any previously announced vote that was taken while he or she was performing a responsibility of their respective office. Here, then, is the limitation: provided that the outcome of the vote is not changed by the addition of their vote. As explained by Senate Rule 44, the intent of this paragraph is to allow the President Pro Tem and the Minority Floor Leader to carry out their unique and special duties that their offices hold without losing the opportunity to vote on matters before the State Senate.

 

Conducting Business on the Floors (transcript)

Today’s post is on conducting business on the floors.

The California Legislature conducts its business both in policy and fiscal committees as well as on the floors of the State Assembly and the State Senate. Each house determines its own rules and specifies how business will be handled on their respective floors. This process of conducting their activities on the floors is called the Order of Business.

The processes between the two houses are similar in many regards, but there are a few differences as well. So let’s look at the Assembly and the Senate and how each conducts business on the floors.

Pursuant to Assembly Rule 40A, the Assembly’s Order of Business is:

  1. Roll Call
  2. Prayer by the Chaplain
  3. Reading of the Previous Day’s Journal
  4. Presentation of Petitions
  5. Introduction and Reference of Bills
  6. Reports of Committees
  7. Messages from the Governor
  8. Messages from the Senate
  9. Motions and Resolutions
  10. Business on the Daily File
  11. Announcements, and
  12. Adjournment

In addition, under Assembly Rule 63 the following constitutes the Order of Business of pending legislation as contained in the Assembly Daily File:

  1. Special Orders of the Day
  2. Second Reading – Assembly Bills
  3. Second Reading – Senate Bills
  4. Unfinished Business
  5. Third Reading – Assembly bills, and
  6. Third Reading – Senate Bills.

As for the State Senate, under Senate Rule 4, the Order of Business of the Senate is:

  1. Roll Call
  2. Prayer by the Chaplain
  3. Pledge of Allegiance
  4. Privileges of the Floor
  5. Communications and Petitions
  6. Messages from the Governor
  7. Messages from the Assembly
  8. Reports of Committees; Motions, Resolutions, and Notices
  9. Introduction and First Reading of Bills
  10. Consideration of the Daily File in the following order:
    1. Second Reading,
    2. Special Orders,
    3. Unfinished Business, and
    4. Third Reading
  11. Announcement of Committee Meetings
  12. Leaves of Absence, and finally

There are no additional special rules for the Senate found in the Senate Rules. When a bill is taken up that is not on the Daily File, it is done so without reference to file – most often known as its acronym WORF. When a bill is subject to a WORF, what the Senate or Assembly is actually doing is suspending the Orders of the day as set forth in their respective rules providing the order of business.

 

 

Floor Items (transcript)

This post is on floor items. We’re going to cover, briefly, the unfinished business file, the inactive file, the use of floor managers, and WORFs. What are they?

The unfinished business file: both the Assembly Daily File as well as the Senate Daily File contain a portion titled “Unfinished Business.” This is the section of the daily file that contains the bills that have returned to their House of origin from the opposite House.

This section of the daily file also contains bills that were vetoed by the governor. Note that vetoed items remain on the daily file for a 60‑day period following the gubernatorial veto. Thereafter, unless voted upon, they are removed from the daily file and can no longer be considered.

What’s the inactive file? Another portion of the daily file to be aware of is for bills that made it to the floor of either the Assembly or the Senate but, for whatever reason, the bill’s author has chosen not to proceed with the measure.

Bills that have failed passage can be moved to the inactive file for further consideration. If an author has moved the bill to the inactive file, he or she can remove it from the Inactive File at a later date, with specified public notice, for further consideration on the respective floor.

What are floor managers? When the bill’s author presents his or her bill on the floor of the bill’s House of origin, that is, when the Assembly bill is presented by an Assembly Member or a Senate bill is presented by the Senator, that’s different when the bill is for consideration in the opposite House.

While a bill’s author is responsible for taking up his or her measure on their own floor, a floor manager is required in the other House. A member of the other House, designated by the bill’s author when the bill is considered by the other House, is called the bill’s floor manager.

What’s a WORF? According to the rules of both Houses, bills that are not listed on the daily file can only be taken up with either unanimous consent by the members of that House or by suspension of the rules.

A bill that is not listed on the daily file but which is taken up nonetheless is referred to as a WORF. The process of taking up a WORF’ed bill is without reference to file, W‑O‑R‑F.

In order to WORF a bill, a majority of the House’s membership, that’s 41 votes in the Assembly and 21 votes in the Senate, is required to take up the bill without reference to file.

On today’s episode, we talk about the legislative, legal, and policy issues that face my favorite special interest in California state government and politics – craft beer. And to get more insight into that topic I brought Tom McCormick of the California Craft Brewers Association (CCBA) and McGeorge Professor – and craft beer law expert – Dan Croxall on the show to talk with.

Like Tom said, the best way to learn more about the craft beer industry is just to go spend time at your local craft brewery. But if you want to learn more about CCBA specifically – as well as the California Craft Beer Festival – you can always check out their website here.

You can also follow CCBA on Facebook and Twitter, and you can follow Tom on Twitter @CCBATom.

You can find Professor Croxall on Twitter @GoodBeerLawProf.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or Stitcher Radio, and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also stay in touch with us and let us know what you thought about today’s show and think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

Ethics for Legislative Staff (transcript)

Today’s post is on ethics for legislative staff.

Just like California legislators, who are bound by laws and codes of conduct, there are also guides for the conduct of legislative staff as they serve these elected officials and the public. For example, the National Conference of State Legislatures – NCSL – has published a model code of conduct for legislative staff. This comprehensive guide is an invaluable resource for legislative staff across the country.

The purpose of this code of conduct is to provide guidance to legislative staff so that they can better serve the public and legislative branch of state government. These staffers are invaluable to the legislative process and the institution itself. But they are also public servants, just like the elected legislators for whom they work. And just like these legislators, staff too are there to carry out the mission of the Legislature. They have a relationship of trust to the institution and the public generally.

In that regard, staff must conduct themselves appropriately towards legislators, the public, lobbyists, and their fellow staff members. Any code of conduct must detail how legislative staff should conduct themselves so that the public trust is always protected. In addition to any code of conduct, there are relevant state laws that apply to staff such as the California Government Code that provides extensive guidance to public employees.

While many of the prohibitions in the Government Code may seem obvious, they are important for staff to keep in mind as they perform their valuable public service while working in the California State Legislature. In reviewing the NCSL’s model code, it provides a number of helpful guides to legislative staff.

For a more in depth discussion of Proposition 7, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 7: Daylight Saving Time

Current Law

  • In 1949, California voters adopted Proposition 12 an initiative titled “An Act Providing For Daylight Saving Time in the State of California.”
  • The key provisions established United States Standard Pacific Time as standard time within the state and provided that time advance one hour during a period from the last Sunday in April until the last Sunday in September.
  • The United States Congress passed the Uniform Time Act in 1966 to create daylight saving time nationwide, which effectively replaced the existing California law.
  • Currently under federal law, daylight saving time starts the second Sunday in March and ends the first Sunday in November.
  • Despite this fact that the existing language in the California Government Code still says that daylight saving time ends on the last Sunday in September, daylight saving time in California ends the first Sunday in November as required by federal law.
  • California’s current daylight saving time law, Daylight Saving Time Act of 1949, does not allow the California legislature to update the language in the current statute or ask the federal government to stop the twice per year time change with voter approval.

Proposed Law

  • The repeal of the Daylight Saving Time Act would allow the legislature to control changes to daylight saving because the voter initiative would be replaced by the proposed legislative initiative and no longer require voter approval to any daylight saving changes.
  • Proposition 7 updates California’s daylight saving time dates to be consistent with the federal Uniform Time Act.
  • Proposition 7 gives the California Legislature the power to ask Congress to allow California to go onto daylight saving time all year. The Legislature would need a two-thirds (2/3) vote to ask the federal government if California can change to have full-time daylight saving time, rather than changing the clocks in March and November.

Policy Considerations

Yes on Proposition 7 No on Proposition 7
  • Would allow the Legislature to update the current daylight saving language and to ask the federal government to have daylight saving time all year.
  • Does not guarantee that California would be able to stop changing the clocks because the Legislature may not ask the federal government for all year daylight saving time, or the federal government could say no.
  • The Legislature would not have to ask the voters for permission to change daylight saving laws in the future.
  • Would not change anything because California must follow the federal government’s daylight saving time rules.
  • The existing nonconforming language in the California Government Code would remain unchanged.
  • The Legislature would not have the ability to change daylight saving laws without voter approval in the future.

Analysis of Proposition 7 provided by Anna Lisa Thomas and Sarah Steimer.

Earlier this week, The National Law Review recently published the work of McGeorge Capital Lawyering adjunct professor Chris Micheli. You can find Micheli’s aritcle – A Review of 2018 Labor and Employment Legislation in California – here.

Micheli overviews the fourteen major labor and employment bills that were signed into law, as well as seven other significant pieces of legislation that made it through the Legislature but were ultimately vetoed by Governor Brown. Many of the bills that Micheli looks at are pieces of legislation inspired by the #MeToo movement that swept the nation as well as the We Said Enough movement that started here in California’s capital.

Chris Micheli – Attorney; Adjunct Professor, McGeorge School of Law; Principal, Aprea & Micheli