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Statutory Exemptions from the Public Rulemaking Process

Statutory Exemptions from the Public Rulemaking Process  By Chris Micheli             Why does the California Legislature continue to adopt partial or full exemptions in statute from the Administrative Procedure Act (APA)? A fundamental purpose of both the federal and California Administrative Procedure Acts is to allow public participation, including notice and comment, in the federal and state rulemaking processes. The only regulations that do not fall under the purview of the APA are those carved out by a statutory exemption. Providing notice to the public of the proposed rulemaking, as well as an opportunity to be heard during the rulemaking process, is key to having meaningful public participation in the quasi-legislative actions of executive branch agencies, departments, boards, commissions, and bureaus. And there are over 200 of those entities in California statute government. However, with any exemption from the f...
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Supreme Court Cited a Lobbyist’s Memo as Legislative History

Supreme Court Cited a Lobbyist’s Memo as Legislative History  By Chris Micheli             As a general rule, California courts exclude or heavily discount statements by lobbyists as cognizable legislative history when interpreting ambiguous statutes. Based upon the landmark decision in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. decided by the Third District Court of Appeal, California courts restrict cognizable legislative history to documents that shed light on the collective, objective intent of the Legislature as a whole, rather than subjective or unilateral opinions (which a lobbyist’s point of view likely represents).             As a result of the Kaufman decision, unilateral letters, testimony, or position papers submitted by lobbyists, individual interest groups, or private proponents or opponents are typically viewed as expressions...
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Some Statistics from the 2025-26 Legislative Session

Some Statistics from the 2025-26 Legislative Session  By Chris Micheli               Because I am a self-professed legislative geek, I share the following statistics from the recently-concluded 2025-26 California Legislative Session:   ·        There were 1,846 bills introduced during the 2026 Legislative Session. Of those bills: o    583 were Senate Bills. o    1,263 were Assembly Bills. ·        Total bills passed by the Assembly in 2026 Session: 857 (68% of introduced bills) ·        Total bills passed by the Senate in 2026 Session: 521 (89% of introduced bills) ·        There were 414 spot bills between the two houses in the 2026 Session. ·        There were 179 intent bills between the two houses in the 2026 Session. ·  ...
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Why Might a Bill Be Referred to More than One Committee?

Why Might a Bill Be Referred to More than One Committee?  By Chris Micheli             Bills in the California Legislature are referred to at least one policy committee in each house, and just over 80% of those bills also get re-referred to the respective Appropriations Committees for a hearing on the fiscal impacts. In some instances, bills get “double-referred” or even “triple-referred” to multiple policy committees. In other words, these terms refer not to a policy and a fiscal committee, but rather to two or more policy committees.             Why might a bill be referred to more than one policy committee? As a general rule, a bill is referred to the committee(s) that have jurisdiction over the provisions of the bill based upon the rules of the respective house and past referral decisions.                In the Senate...
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The Labyrinth of “Underground Regulations” in California Administrative Law

The Labyrinth of “Underground Regulations” in California Administrative Law  By Chris Micheli We know that California state agencies, departments, boards, commissions, and bureaus often issue guidelines, manuals, bulletins, or policy letters that have the practical force of law, but which completely bypass the formal public notice, comment, and Office of Administrative Law (OAL) review processes for regulations.             California law sets forth a statutory threshold under Government Code Section 11340.5. And OAL’s Regulations define an underground regulation. However, practitioners and the regulated community come across instances in which an agency's seemingly "internal guidelines" or "frequently asked questions" can inadvertently become an illegal, underground regulation if they are used as standards of general application. Recall that an “underground regulation” in California is any unadopted rule, guideline, or e...
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Types of Definitions Used in California Statutes

Types of Definitions Used in California Statutes  By Chris Micheli             There are several ways to define terms in state law and the 29 Codes have numerous examples. Obviously, definitions in statutes is the process of defining specific words and phrases within a statute to create legal certainty, eliminate ambiguity, and shorten text.             The two main types of definitions used in California statutes are: Exclusive (or “closed scope”) which uses the term “means” after the defined word; or, inclusive (or “open scope”) which used the term “includes” after the defined word.             Using the words “means” is meant to be a comprehensive definition. Bill drafters use the word "means" when a definition is exhaustive and complete. On the other hand, drafters use the word "includes" to extend a term's or...
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Poking Holes in Your Own Draft: How to Read Your Bill Like a Judge

Poking Holes in Your Own Draft: How to Read Your Bill Like a Judge  By Chris Micheli             When drafting a bill or even extensive amendments to a bill, I believe it is important to review your preliminary work from the perspective of the judicial branch of state government, which will have the final say regarding what your statutory language actually means.             Just like the bill drafting attorneys at California’s Office of Legislative Counsel, outside attorneys, legislative committee counsel and consultants, staff, lobbyists, and others who work extensively with bills and amendments should examine their language using a “judge’s lens” test. This is when the legislative drafter puts aside their work for 24 hours and approaches their draft language as a skeptical judge looking for ambiguities would, rather than as a policy advocate, for example.  ...
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