Chris Micheli

Guidance for Drafting a “Declaratory of Existing Law” California Statute  By Chris Micheli             On occasion, you may see a bill in the California Legislature that has the following provision: “The amendments made by this act do not constitute a change in, but are declaratory of, existing law.” This statement is straightforward and easy to draft. But what are some considerations for the bill drafter when asked to draft a bill with this language?             First, if the courts view the bill as representing a clarification of existing law, then the bill is applied to all instances, both retroactively and prospectively.             Second, if the courts view the bill as representing a change in the law, then the court looks to determine whether the Legislature intended for the law change to be applied retroactively. In this regard, the court basically asks, did the Legislature make a clear intent to apply the amendment retroactively?             As a result, I believe that

Frequently Asked Questions about Judicial Branch Support Agencies  By Chris Micheli             California’s judiciary branch of government is supported by several important entities that assist the judicial branch in operating efficiently.             What is the Commission on Judicial Appointments (CJA)? The CJA is charged with reviewing gubernatorial appointments to the appellate courts in this state. Who comprises the CJA? It is comprised of the Chief Justice of the Supreme Court, the Attorney General, and the most senior presiding justice on the court of appeal of the affected district (for a court of appeals appointee) or the state’s most senior presiding justice of the Courts of Appeal (for a Supreme Court appointee).             What happens with a gubernatorial appointment? When an attorney is nominated by the Governor, the appointee must be reviewed by the CJA. There is a public hearing that is held on the nomination so that the appointee’s credentials can be consid

Guidance for Drafting a Retroactive California Statute  By Chris Micheli As a general rule, there is a presumption against retroactive application of a statute, unless the Legislature plainly has directed otherwise by means of express language of retroactivity or other sources that provide a clear and unavoidable implication that the Legislature intended retroactive application of the statute.   So, as a court of appeal explained, the presumption against retroactivity applies with particular force to laws creating new obligations, imposing new duties, or exacting new penalties because of past transactions. In re Marriage of Reuling (1994) 23 Cal. App. 4th 1428, 1439. As a result, when drafting entirely new statutes, they are likely to apply prospectively. As state courts have explained, and as bill drafters must appreciate, the basic rule in California is that “a statute may be applied retroactively only if it contains express language of retroactivity or if other sources prov

Frequently Asked Questions about Retroactivity of California Statutes  By Chris Micheli Is a statute presumed to operate retroactively? In California, as in most states, a statute is presumed to operate prospectively.   How do California courts generally view applying a statute’s provisions? In Quarry v. Doe I (2012) 53 Cal.4 th 945, 955, the state Supreme Court explained that, in construing statutes, there is a presumption against retroactive application, unless the Legislature plainly has directed otherwise by means of express language of retroactivity or other sources that provide a clear and unavoidable implication that the Legislature intended retroactive application of the statute.               What does state law provide regarding application of statutes? T he California Civil Code, for example, includes a specific codification of this general principle by stating in Section 3, "No part of this Code is retroactive, unless expressly so declared."   How

Frequently Asked Questions about the Order of Enumeration  By Chris Micheli             Do bills in the California Legislature require a title? Pursuant to Article IV, Section 9 of the California Constitution, there is a requirement for each bill to have a title. The constitutional provision states: “ A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title.”                  What is required of a bill’s title? Joint Rule 7 specifies: “The title of every bill introduced shall convey an accurate idea of the contents of the bill and shall indicate the scope of the act and the object to be accomplished. In amending a code section, the mere reference to the section by number is not deemed sufficient.”             What is required of a bill that amends more than one Code section? Joint Rule 8 provides: “A bill

Can Proposition 54 and the 72-house in Print Rule Be Waived?  By Chris Micheli             Proposition 54, which was enacted by the voters at the November 2016 general election, adopted constitutional and statutory changes dealing with bill amendments and recordings of legislative proceedings. The proponents of Prop. 54 (in ballot arguments) were specifically concerned with “gut-and-amend” bills that contain “last-minute amendments to bills [that] are frequently used to push through political favors without comment or with little advance notice. Moreover, complex bills are often passed before members of the Legislature have any realistic opportunity to review or debate them, resulting in ill-considered legislation.” Article IV, Section 8 was amended by Prop. 54 to provide (additions are in italics): (a) At regular sessions no bill other than the budget bill may be heard or acted on by committee or either house until the 31st day after the bill is introduced unless the house dis

Can June 27 Deadlines Be Waived?  By Chris Micheli   According to the California Secretary of State and the California Legislative Calendar, June 27 is the last day for a legislative measure to qualify for the Nov. 5 General Election ballot pursuant to Elections Code Section 9040. So, if the Legislature wants to place a measure, such as a climate bond or a constitutional amendment, on the November ballot, this is the last day to do so.   Specifically, Elections Code Section 9040 requires any constitutional amendment, bond measure, or other legislative measure to be submitted to the People and proposed by the Legislature must be adopted at least 131 days before the election. That is Thursday, June 27. Nonetheless, by statute (i.e., a bill that is enacted), the Legislature can essentially waive this deadline by enacting language to state “notwithstanding Section 9040…” and then direct the Secretary of State to place a constitutional amendment, bond measure, etc. on the November 5 bal

Frequently Asked Questions about Differences in Legislative Floor Operations B y Chris Micheli   How does each house of the Legislature handle “concurrence items”? For example, under Assembly Rule 77, concurrence in any Senate amendment to an Assembly Bill requires the same affirmative recorded vote as the vote required by the California Constitution for the passage of the bill.   When can a concurrence vote take place in the Assembly? The vote on concurrence may not be taken until the bill has been on the Unfinished Business File for one calendar day. This is referred to as the “one-day wait period” used when amended ABs return from the Senate. However, the one-day wait period does not apply the last two legislative days preceding the end of Session.   When can a concurrence vote take place in the Senate? Under Senate Rule 29, a  Senate bill returned from the Assembly for concurrence in Assembly amendments may not be considered until the measure appears under Unfinished B

What Are the Requirements for a Governor’s State-of-the-State Address?  By Chris Micheli   Like in 2023, Governor Gavin Newsom will not be delivering the traditional State-of-the-State address in the Assembly Chambers in the historic California State Capitol in 2024. Can he do that? The answer is yes.   Article 5, Section 3 of the California Constitution states: “The Governor shall report to the Legislature each calendar year on the condition of the State and may make recommendations.” This language is clear that an annual report must be made to the Legislature, but what form that report takes is not specified.   In other words, the state Constitution does not specify whether a written or verbal report is done. In addition, Section 3 does not specify when that report must be made, although historically it has been done in January or early February, similar to the U.S. President’s annual State-of-the-Union address to a Joint Session of the U.S. Congress.   Despite that, to

Frequently Asked Questions about Influences on California Legislation  By Chris Micheli   The following list is certainly not comprehensive, but it gives the reader an idea of some of the influences impacting decisions by lawmakers at the State Capitol, including:   What is the role of political parties? One of the biggest influences, and most reliable predictors, of how a legislator will vote is the legislator’s political party affiliation. Legislators often inquire about the position of the party’s caucus and its vote recommendation.   What is the role of legislative districts? It is crucial for a legislator to take into consideration the needs and interests of his or her district and constituents. Is the legislator voting his or her district? On a controversial measure, he or she may also need to consider any potential “political costs” to the proposed legislation. The fundamental concern is how will the vote on this bill impact the legislator in his or her district? Leg

Frequently Asked Questions about California’s Constitution  By Chris Micheli             When was California’s Constitution first adopted? It was first adopted in 1849, just prior to California becoming a state in 1850. When was the current state Constitution adopted? The current California Constitution was ratified on May 7, 1879.   It is the governing document for the State. Is the California Constitution considered lengthy? By most accounts, the state Constitution is one of the longest in the world. In fact, it has been amended or revised over 500 times.             Are state agencies established in the state Constitution? It authorizes a number of state agencies, such as the University of California (and Stanford University for certain property), the State Compensation Insurance Fund, and the State Bar of California. Does the state Constitution establish local governments? The state Constitution provides for counties and cities, as well as charter cities, whose local

Frequently Asked Questions about Two-Year Bills By Chris Micheli   How long are Sessions of the California Legislature? The Legislature convenes in two-year sessions and bills are introduced in both of those two years.   What is a 2-year bill? Under the state Constitution, bills introduced in the first year of the Session (i.e., the odd-numbered year) can be carried over to the second year of the Session (i.e., the even-numbered year).   What is the basis for the 2-year bill? Article IV, Section 10(c) provides as follows: “Any bill introduced during the first year of the biennium of the legislative session that has not been passed by the house of origin by January 31 of the second calendar year of the biennium may no longer be acted on by the house.”   To what types of bills does this provision apply? Any 2-year bill, even those that contain an urgency clause or are deemed to be a tax levy, must pass their house of origin by January 31 of the second year.   Does

PAGA Reform Legislation Unveiled  By Chris Micheli             On June 18, 2024 Governor Gavin Newsom, Assembly Speaker Robert Rivas, and Senate President pro Tempore Mike McGuire announced a legislative compromise to make changes to California’s Private Attorneys General Act (PAGA) statute, contained in Labor Code Sections 2699, et seq. The PAGA reform package is contained in two bills, one by the Assembly Judiciary Committee Chair and the other by the Senate Judiciary Committee Chair. In addition, 28 Assembly Members and 19 Senators are co-authors of the two measures. Both bills became public in the late afternoon on Friday, June 21. Both bills contain urgency clauses, so they will take effect immediately once signed by Governor Newsom, which is expected on Thursday, June 27. However, the bills provide that their provisions will apply to any civil action brought on or after June 19, 2024. Finally, the bills must both be enacted for them to be effective. The following is a review