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