Chris Micheli

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...

Should Sunset Dates Be Required for All New Laws?  By Chris Micheli             I have a proposal for consideration for the upcoming 2027 California Legislative Session. Should all new statutes have a sunset date? And perhaps a required report to the Legislature and Administration? This is already a requirement for all new or expanded tax expenditure programs (TEPs) pursuant to Revenue and Taxation Code Section 41. What began as a legislative committee rule (i.e., a TEP could not be passed out of the policy committee without a sunset date and reporting requirement) became a state statute and has been in effect for the past decade. In addition, the Legislature requires new (and existing) regulatory boards and commissions to go through the “sunrise” (to determine whether a licensing scheme is appropriate and necessary) and “sunset review” (to determine whether continued regulation is necessary) processes. So, why not appl...

Can Vetoed Bills Be Overridden in the Second Year of Session?  By Chris Micheli Now that the California Legislature has concluded its 2026 Session, and Governor Newsom has until September 30 to act on all of the bills that reached his Desk this year, are vetoed bills considered by legislators in the second and final year of the biennial session? Article IV, Section 10(a) of the California Constitution states, in part, “The Governor may veto it by returning it with any objections to the house of origin, which shall enter the objections in the journal and proceed to reconsider it. If each house then passes the bill by rollcall vote entered in the journal, two-thirds of the membership concurring, it becomes a statute.” As a result of these constitutional provisions, the Governor has discretion whether to sign or veto a bill presented to him/her by the Legislature. Likewise, the Legislature can decide whether to vote to override a veto. It “proceed[s] to reconsider it” by conside...

Some Key Words to Watch in Legislation  By Chris Micheli             As we head towards the end of the 2026 California Legislative Session, and review hundreds of amended bills, there are some words or phrases that bear a closer examination. In general, we should be concerned with problematic words in proposed statutes that are not clear or are ambiguous. These are likely to create confusion and may result in unintended consequences for those attempting to comply with the statute’s provisions.             As a result, some of the common types of problematic statutory words are those words or phrases that are ambiguous (that have more than one reasonable meaning), vague (that generally lack an objective definition), or outdated (that may not apply well to current circumstances). So, what are some of these words and phrases in bills that we should pay close attention to...

Some Data on the 2026 California Legislative Session  By Chris Micheli             With the 2026 California Legislative Session coming to an end, I wanted to provide some data on interesting aspects of the Legislature: 2026 Senate Data How many Senate Standing Committees are there? 25 What is the average size of a Senate Standing Committee? 9 Which Standing Committee has the most members? Budget with 18 Which Standing Committee has the fewest members? There are seven committees with 5 members Which Senators have the most committee assignments? Senators Ochoa-Bogh and Seyarto with 8 each Senators Caballero, Gonzalez, Grayson, Laird, Menjivar, Reyes, and Richardson have 7 each What is the average number of committee assignments per Senator? 5 During the 2025-26 Session, there were: Total number of SBs: 1,447 Total number of SCAs: 5 Total number of SJRs: 19 Total number of SCRs: 197 Total numbe...

Who Is Exempt from Civil Service in California?  By Chris Micheli             In Article VII of the California Constitution, which deal with public officers and employees in this state, the civil service system is established. Section 1 of Article 7 states that “the civil service includes every officer and employee of the State except as otherwise provided in this Constitution.” In addition, “in the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.”             While the vast majority of employees of the State of California are in the civil service system, there are some who are not. Section 4 of Article 7 sets forth the following thirteen categories of individuals who are exempt from civil service: ·        Officers and employees appointed or empl...