Chris Micheli

Codifying Canons: Should California Formally Define its Rules of Interpretation?  By Chris Micheli             Unlike some states that have a robust, codified "Code Construction Act," California spreads its interpretive rules across random segments of a number of the 29 Codes, including the Civil Code and Code of Civil Procedure, as well as decades of judicial precedent.             Unfortunately, what I have seen for many years is essentially a practical disconnect between bill drafters using general legislative drafting guidelines to pass laws and courts using distinct judicial canons to interpret them. And, 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 alrea...

Tension Between Legislative and Judicial Branches on Statutory Interpretation  By Chris Micheli             Is there a natural tension between the legislative and judicial branches of state government on statutory interpretation? I suggest that there is an inherent tension between the two separate, but co-equal branches. Why?             Recently I came across the following provision in a bill from the 2026 California Legislative Session:   This paragraph shall not be interpreted to require coverage as provided in Division 7 (commencing with Section 16000) of the Vehicle Code. While the Legislature occasionally puts in state statute these types of provisions (another common one requires a statute “to be liberally construed”), as a practical matter, the legislative branch cannot tell the judicial branch how to interpret the law (because the role of the judiciary...

Considering Legislative Statements with Unambiguous Statutes  By Chris Micheli             As a general rule, California courts only consider extrinsic evidence (such as committee or floor analyses) when a statute is ambiguous. In other words, if a statute is clear, then the plain meaning of the language controls and there is no reason to consult other evidence of legislative intent. However, I raise the question whether legislative statements, such as findings and declarations, that are codified or uncodified by the bill adding or amending the statute at issue in litigation be considered by the courts regardless of whether the language is “ambiguous” to them. In other words, even if a statute is “unambiguous,” (although if it is that abundantly clear, why would there be litigation?) should the courts review legislative findings and declarations or statements of legislative intent in order to ensure that the court’s inter...

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...

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...

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. ·  ...

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...

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...

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...

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.  ...

Which California Legislative Process Rules Can Be Waived or Suspended?  By Chris Micheli             While the Joint and individual house Rules in the California Legislature can be waived or suspended, what about the constitutional procedural rules that comprise the California legislative process? Can they be waived or suspended? The following chart sets forth several of the procedural rules and whether (and by what means) they can or cannot be waived or suspended:   Procedural Rule Waiver or Suspension Permitted 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. (30-day in Print Rule) ¾ vote of the house(s) No bill may be passed unless it is read by title on 3 days in each house. (3 Readings Rule) 2/3 vote of the house(s) No bill may be passed or ultimate...

Why Defining Words by Cross-Reference Should Cease  By Chris Micheli             When adding a new law to California statutes, there are basically two ways of defining a word or phrase in that new statute. The first is to define the word or term in the new statute. The second is to cross-reference an existing definition that is contained in another section of law.             With a cross-reference, the definition of the word or phrase could come from the same Code in which you are adding a new section, or it could come from a different Code (recall there are 29 Codes that contain 156,000 statutes in California law). Why do I think it is not a good idea to cross-reference a definition? First, and most importantly, it requires the reader to go find that other section of law to see the definition that is applicable. It is much easier for the reader to see the definiti...