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.

The deadline for Governor Jerry Brown to sign or veto bills has come and passed so there are now no more bills in legislative limbo. This is the final rundown of how the bills we looked at this year fared.

Assembly Bills

  • AB 186: Controlled substances: overdose prevention program – Vetoed
  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Signed into law
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Signed into law
  • AB 2780: Family Law: support orders – Signed into law

Senate Bills

  • SB 320: Medication abortion at public universities – Vetoed
  • SB 822: Net Neutrality – Signed into law
  • SB 901: Wildfires – Signed into law
  • SB 906: Mental health service, peer support specialist certification – Vetoed.
  • SB 923: Criminal investigations: eyewitness identification – Signed into law
  • SB 1004: Mental Health Services Act: prevention and early intervention – Signed into law
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Signed into law

So, now that the Governor has finished acting on legislation that makes the final count 4 bills dead in the Legislature, 9 bills signed into law by Governor Jerry Brown, and 2 vetoed bills.

On today’s episode of The CAP·impact Podcast, I sit down with McGeorge adjunct professor, and very good friend of the podcast, Chris Micheli, to talk about recent California Supreme Court decision in Dynamex Operations West, Inc. v Superior Court.

For those unfamiliar with the case, it, in essence, drastically changed how independent contractors are classified in California. Chris and I talk about what the old rules were, how the Dynamex decision will effect employers in the traditional economy space – as well as the new gig economy – and what we can reasonably expect to see the Legislature do in the upcoming year to address some of the issues raised by the business community by Dynamex.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

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

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.


Enrolled Bill Reports and Gubernatorial Actions on Bills (transcript)

Today’s podcast on enrolled bill reports and gubernatorial actions on bills.

Once an enrolled bill reaches the Governor’s desk for final action, enrolled bill reports, or EBRs are produced for the Governor and his senior staff to consider the merits of the bill pending on the Governor’s desk. An enrolled bill is the final version of the bill that has passed both houses of the Legislature and is pending final action by the Governor.

California’s Governor has three choices with a bill that reaches his or her desk: sign the bill, veto the bill, or allow the bill to become law without his or her signature. The enrolled bill report, or again most often referred to as an EBR, is the analysis of a bill with information and a recommendation for action by the Governor written by staff.

EBRs are prepared for bills but not for constitutional amendments or resolutions because these measures are not acted upon by the Governor. Generally, there are at least three EBRs that are prepared for the Governor’s review with each bill that reaches his or her desk. The first is from the Department of Finance, the second is the relevant agency that has jurisdiction over the subject matter of the bill, and the third is by the Legislative Counsel.

The Governor’s bill file normally contains letters from outside parties that are urging the Governor to sign or veto the particular bill. They’re often submitted by interest groups that have supported or opposed the bill as the measure traveled through the legislative process. The Governor’s staff may have their own notes from meetings they’ve held with proponents and opponents of the bill.

All of these documents are clearly intended to provide the Governor and his or her staff with the information that they need to make an educated decision about whether to sign or veto the bill. Depending on the bill and how the particular Governor approaches decisions on pending legislation, these EBRs can be the critical basis for whether the bill gets signed or vetoed that year.

Thank you for joining today.

The Role of Leadership Staff (transcript)

Today’s post is on the role of leadership staff in the lawmaking process.

As you probably are familiar, there are four legislative leaders representing the two political parties in the two houses of the California Legislature. These four individuals are elected by their respective members.

In addition, for the Assembly Speaker and the Senate President Pro Tempore their elections are confirmed by a majority of their respective houses after their caucus members have nominated them for that office.

The two minority leaders of the Assembly and Senate are elected to their respective positions by their caucus members, rather than the entire legislative house.

Staff for these four legislative leaders play a critical role in ensuring that the legislative process goes smoothly during the entire legislative session. As you know, the Legislature considers and votes upon thousands of bills as well as the state budget and a number of corresponding trailer bills to that budget. These staff members, like their four bosses, must balance competing interests all the while keeping their respective caucus members happy and supportive. Many have described this process as akin to herding cats.

Both leaders have large policy staff who are assigned several policy committees to keep tabs on. These individuals must monitor the activities of the policy and fiscal committees for which they have jurisdiction, become involved in the major bills as they make their way through the legislative process, certainly ensure that the caucus priorities are being attained, and apprise the house’s leader regarding any problematic issues or measures. These policy consultants for the Assembly Speaker and the Senate President Pro Tem report to their respective Policy Director that’s housed in the Speaker’s Office or the Pro Tem’s office.

The Policy Director in each house is an individual who oversees the policy consultants and is the main liaison between the caucus members and the house leader on pending legislation. The Policy Director is an experienced individual with years of service in the Legislature who has been exposed to numerous policy issues and fully appreciates the political and policy implications of pending legislation in the major public policy issues facing the state of California.

Also serving the two house leaders are Budget Directors, found in the Assembly Speaker’s office and the Senate President Pro Tem’s office. The Budget Directors ensure that the caucus priorities are reflected in the budget bill and corresponding trailer bills that follow them. These individual staffers know the ins and outs of the state budget, the legislative and budget processes themselves, and they’ve usually served on the Budget Committee staff for years prior to being named to be the Budget Director.

These individuals help negotiate the budget’s provisions, certainly when they require the involvement of the leaders – the Speaker and the Pro Tem. These individuals naturally work very closely with the Governor’s staff and the senior leadership of the Department of Finance.

Both of the legislative leaders have Press Secretaries and communications individuals. These persons serve as a liaison with the Capitol Press Corps, and they certainly work to ensure that the media cover the top issues and legislation in the best light for the majority and minority parties.

These individuals have often been journalists themselves. Sometimes they’ve worked on campaign press operations. But they most certainly have an appreciation for the role the media play in the legislative process.

Three Readings (transcript)

Today’s post is about the three readings of a bill that are required by the California Constitution.

The California Constitution requires a bill to be read three times before it can be debated and voted upon by either house. A reading of a bill in the state Assembly or the state Senate is defined as being, “The presentation of the bill before the entire house by reading the bill’s number, the author, and the title.”

Each time the bill is read, those three provisions are read aloud on the floor by the reading clerk in either the Senate or the Assembly. There’s a misconception that the three constitutionally required readings of a bill are all the same. In fact, each is for a different specified purpose.

The first reading of a bill occurs upon introduction of the bill. The second reading occurs after a bill has been reported to the floor from committee, with or without amendments. The third reading occurs when the measure is about to be taken up on the floor of either house for final debate and passage.

Note that the three readings requirement under the Constitution can be suspended by a two‑thirds vote in either house. Let’s cover the three readings.

The first reading of a bill takes place when it is actually introduced in either house. The bill is placed across the desk of the Assembly or Senate, which is the official act of introducing a bill in the Legislature.

The second reading of the bill takes place after the bill has been reported out of committee, either the policy or the fiscal committee, to the floor of either the Assembly or the Senate.

The third reading of the bill takes place when the bill is about to be taken up for consideration ‑‑ that is, its presentation debate and vote on either the Assembly floor or the Senate floor.

Those are the three readings of a bill. Hope you enjoyed today’s post.

Today’s post is on securing gubernatorial appointments.

The Governor has the authority to appoint several thousand individuals to serve in his or her administration during his or her four-year term of office. Some of these positions require the advice and consent of the Senate. There are two aspects to these types of gubernatorial appointments. First, securing the appointment from the Governor and then secondly, getting the appointee confirmed by the Senate.

The likely more difficult aspect of gubernatorial appointments is not confirmation but actually securing the appointment in the first place. While there are many appointed positions across California state government, the Governor usually makes only a handful of appointments that are either controversial or are such an important post that they generate interest. A lobbyist usually comes into play more during the Senate confirmation process.

The first step in securing a gubernatorial appointment is applying for a position. There are documents that can be found on the Governor’s website including the statutory index on all available appointments. Then, there’s information on the boards and commissions including descriptions, salaries, stipends, how often they meet, etc., which is under a separate tab. And then there’s the actual appointment application, which involves an online application that allows an individual to apply for up to ten positions for consideration by the Governor and his staff.

All of these are found on the Governor’s official website.

After an individual has been notified of receiving an appointment, it must be determined whether he or she needs to be confirmed by the California State Senate. If there is no confirmation, then the individual assumes the position once he or she has been officially appointed by the Governor.

For those that require confirmation, there will be Senate Rules Committee review of that gubernatorial appointee. Now, there are two types of individuals that receive Senate Rules Committee review. There are those that are required to appear before the committee in an open hearing and then there are others who are quote: “subject to confirmation but not required to appear before the Senate Rules Committee.” These individuals submit written responses to Committee Members’ questions, but they don’t have to testify or appear in an open hearing. And of course, interest groups can submit written comments to the Rules Committee members if so desired.

Regular vs. Special Sessions (transcript)

Today’s podcast is on the differences between regular and special sessions of the California Legislature.

As you may be aware, the California Legislature can be in regular, or special, or even joint sessions. A session is the designated period of time in which the Legislature meets. There are three types.

Our state constitution provides the dates for convening and adjourning the regular session. Other than that, the Legislature has the freedom to set its own calendar for meetings and recesses.

Generally, the Legislature begins meeting in the first week in January of each calendar year and concludes its work for the year either in mid‑September during the odd‑numbered years, or August 31st, the constitutionally mandated adjournment date in the even‑numbered years.

In terms of the period of time in which the legislature meets, they may do so in either regular or special session. A regular session is the one convened in December of the even‑numbered year pursuant to Article 4 Section 3A.

That section of our state constitution states, “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. Each session of the Legislature shall adjourn sine die,” that is for good, “by operation of the Constitution at midnight on November 30th of the following even‑numbered year.”

A special session, on the other hand, is one that’s convened pursuant to a proclamation that’s issued by the governor of the state. Found in Article 4 Section 3B of the state constitution, this section reads, “On extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session.

When so assembled, it has power to legislate only on subjects specified in the proclamation, but may provide for expenses and other matters incidental to the session.”

One common misconception is that the Legislature must enact bills when called into special session. While the Legislature must convene a special session once it has been called by proclamation by the Governor, there is no legal requirement that any legislation actually be enacted, nor even be voted upon.

A joint session can occur in either a regular or a special session. A joint session is one in which both houses of the Legislature ‑‑ that is the Assembly and the Senate ‑‑ meet for a specified purpose. Due to its physical size, joint sessions are normally held in the chambers of the State Assembly.




California’s Open Meeting Laws (transcript)

Today’s podcast is an overview of local and state open meeting laws here California. California has three types of open meeting laws that apply to local and state governmental entities.

These laws have been adopted over a number of years, and they equally apply to state agencies and departments, the Legislature, and local entities.

The open meeting acts are generally referred to Bagley‑Keene, LOMA, and Brown Act. What do all those mean, and to whom do they apply?

The Bagley‑Keene Act applies to state entities, the LOMA applies to the Legislature, and the Brown Act applies to local entities. You need to be aware of all three laws so that you can properly participate and be aware of what is happening at local and state governments and the meetings of relevant legislative and executive branch entities.

The Bagley‑Keene Open Meeting Law, generally referred to as “Bagley‑Keene,” was adopted by the State Legislature in 1967, and essentially implements relevant provisions of the California Constitution which requires meeting of public bodies and the writings of public officials and agencies to be open to public scrutiny.

What’s the practical impact of Bagley‑Keene? The Bagley‑Keene Open Meetings Act is applicable to state agencies and departments. The act requires that members of the public be able to address agenda items in public meetings of different state agencies and departments.

Of course, before one has the ability to comment on such agenda items, the public has to be made aware of meetings of these state agencies.

As a result, the notice of state agencies or department meetings must be provided to any person who makes such a request ‑‑ an interested party ‑‑ in writing, at least, 10 days in advance of the meetings of those state entities.

As you would imagine, those notices must include a specific agenda, the items of business to be transacted or discussed by the state entity, and no item can be added to the agenda after the notice has been issued.

Now, there are some instances where state entities can take action on items of business that were not on the agenda, but that’s in certain limited circumstances. Basically, it’s limited to the instances where a majority voted that state entity has deemed an emergency situation to exist.

As you can also imagine, the Bagley‑Keene Open Meeting Act requires all state agencies to conduct any meetings or functions in any of their facilities. It cannot occur where there’s any prohibition on admittance of people for protected classifications.

By the way, if Bagley‑Keene is violated, the decision of a body could be overturned so long as it’s challenged within 90 days. Of course, violations can be stopped or prevented by court action.

Next up is LOMA, the Legislative Open Meetings Act. That’s also in the Government Code like Bagley‑Keene, and it binds the California Legislature.

Now, be aware of a couple of things when it comes to LOMA. Caucuses of the Legislature ‑‑ party caucuses, Democrat and Republican in both houses ‑‑ have full authority to meet in closed session. Remember, state agencies have very limited authority to meet in closed sessions unless it’s for a specified exception, like litigation or personnel actions. That’s not applicable to legislative caucuses.

Legislators can meet informally, outside of committee hearings and floor sessions, to discuss policies so long as no formal actions are taken, and so long as less than a majority of the body is involved.

Last is the Ralph M. Brown Act which was adopted in 1953. The Brown Act applies to open meetings of counties and cities. It’s found also in the Government Code, around Section 54950.

Now, the purpose of the Brown Act is to guarantee the public’s right to attend and participate in the meetings of local elected bodies. It applies to city councils, the board of supervisors, and local government bodies so that they can’t hold secret workshops or study sessions.

Keep in mind that the Brown Act applies solely to city and county governments, as well as their agencies, boards, councils, etc.

What are some of the major provisions? The majorities of decision‑making bodies may not decide amongst themselves on issues within their own jurisdiction, except when they’re done so in open and publicly held meetings.

As a result of the Brown Act, local agencies have to publicize where and when their meetings will occur, as well as what will be discussed on the agenda. Of course, then the public can observe those meetings.

Now, at the local level, the Brown Act requires 72 hours or 3 days’ notice. Remember, that’s different than the Bagley‑Keene Act which requires 10 days’ notice. No action can be taken by those local bodies unless an item’s been placed on the agenda for consideration.




The Role of the Judicial Branch in the Legislative Process (transcript)

Today’s podcast is on the role of the judicial branch in the lawmaking process here in California. Members of the state and federal judiciary branches play a role in California lawmaking in the actual legislative process, as part of our state government system of checks and balances. When California statutes or regulations are legally challenged, for example, then the state or federal court that makes a determination establishes a public policy for the state.

Of course, California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state lawmaking process. In addition to these legal challenges, both federal and state courts may be called upon to interpret California statutes or regulations.

Statutory interpretation is a primary role of the judicial branch of government in the state lawmaking process. In fact, courts are regularly called upon to interpret state statutes and regulations, sometimes to the dismay of elected officials in the executive or legislative branches of government.
This third branch of government does play a crucial role in the lawmaking process when the courts determine what the legislative intent was of a statute, or whether a regulation comports with the Administrative Procedure Act, or whether a statute or regulation is constitutional. This, of course, is the most critical role of the judicial branch in the state lawmaking process.

Occasionally, the California Legislature passes a law that does not comport with the state or federal constitutions. Despite claims by judges that they leave lawmaking to the elected branches of government, when judges modify statutes or issue a determination of how a statute or regulation is to be interpreted and applied, then judges do, to some degree, become a critical part of the state policy making process.

Hence, from my perspective, all three branches of state government do, in fact, play a role in the development of state public policy.