Chris Micheli

This Is an Interesting Limit on Rulemaking Power  By Chris Micheli             In perusing statutes in California’s 29 Codes, and with a keen interest in administrative law and the rulemaking process, I came across this interesting provision of state law: Fish and Game Code Section 6885 states that the Fish and Game Commission has “no power to modify the provisions of this article by any order, rule, or regulation.” What makes this statutory provision interesting? Executive branch agencies, departments, boards, commissions, and bureaus can engage in quasi-legislative activity (i.e., rulemaking) generally through a statutory grant of lawmaking authority that obviously comes from the enactment of a statute by the Legislature (who is granted lawmaking power by the state Constitution) and signed into law by the Governor (who essentially oversees the executive branch bureaucracy). However, in this case, the Legislature enact...

Probate Code Could Be a Basis for Statutory Interpretation Principles  By Chris Micheli             In reading sections of California’s Codes (the 29 Codes contain the state’s more than 156,000 statutes), I came across several interesting sections of the California Probate Code which could serve as a basis for codified statutory construction principles. Division 11 (“Construction of Wills, Trusts, and Other Instruments”), Part 1 (“Rules for Interpretation of Instrument”), Chapter 2 (“Ascertaining Meaning of Language Used in the Instrument”) of the California Probate Code could be used for other statutory interpretation principles that could be codified in California law.             Section 21120 provides that the words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions...

What Is a “Loophole” in California Tax Laws?  By Chris Micheli             For years around the State Capitol, and this year in particular, we have heard the claim of tax increase proponents in the Legislature or proposed initiatives on the ballot are simply “closing a tax loophole.” So, what exactly is a “loophole” in the tax laws?             According to a dictionary definition: loop·hole /ˈlo͞opˌ(h)ōl/ noun an ambiguity or inadequacy in the law or a set of rules. Similarly, according to Wikipedia, “A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.” Other observers have defined a loophole as “basically a technicality that allows one to escape violating the law through some activity.” My takeaway from these definitions...

 A n All-encompassing Legislative Statement  By Chris Micheli             As a legislative geek, in reading provisions of the California Fish and Game Code, I came across the following section of interest: 1850. (a) The Legislature finds and declares that it would be beneficial to identify species and habitat conservation initiatives at a regional scale, including actions to address the impacts of climate change and other wildlife stressors, in order to guide voluntary investments in conservation, and compensatory mitigation for impacts to ecological resources, including impacts to threatened and endangered species, other sensitive species, natural communities, ecological processes, and wildlife corridors. (b) The purpose of this chapter is to promote the voluntary conservation of natural resources, including biodiversity and ecological processes, and to enhance resiliency to climate change and other thre...

There Is More to Lawmaking than Passing Bills  By Chris Micheli Yes, Article IV, Section 1 of the California Constitution grants the lawmaking power to the legislative branch of state government (which it actually shares with the People through direct democracy). Nonetheless, I think lawmaking does not just mean passing bills and creating new laws. It also means oversight and accountability, as well as constituent services. This is not a partisan stance, nor does it matter who is in office in either the legislative or executive branches of state government. Instead, it is based upon a strong belief that a key responsibility of the Legislature is to evaluate existing laws and determine their effectiveness. This is especially true in tough budget times when the state cannot afford to be wasteful or duplicative in providing critical services. While California continues to face a myriad of public policy issues that demand attention by the Legislature, simply enacting additio...

Should California Codify Additional Interpretive Directives?  By Chris Micheli The more I delve into statutory interpretation, the more I am confronted from a legislative drafting perspective whether interpretive guidance should be provided to the courts in this state by placing additional directives in statute. The California courts already use a number of judicial principles when interpreting ambiguous statutes. As a general rule, our courts rely upon the plain meaning of the statutory language. However, when there is ambiguity, the judiciary will turn to the goal of determining the intent of the Legislature. As a result, it raises with me whether the Legislature should codify this goal and others for the courts to follow when interpreting an ambiguous statute (i.e., when statutory language is susceptible to more than one reasonable interpretation). In other words, should California have in statute this goal, as well as other interpretive directives for the state judges and...