Chris Micheli

California Courts and Ex Post Facto Laws  By Chris Micheli             What is an “ex post facto” law? This phrase comes from Latin that basically means “after the fact” and its describes when a law is changed retroactively to capture previous conduct and subject that conduct to legal consequences. Ex post facto laws are prohibited by the federal and state Constitutions because otherwise these types of laws would make people criminally liable for conduct that was not unlawful at the time they occurred. The U.S. Supreme Court has held that people must be aware of the possible criminal penalties for their actions at the time they act. California courts have explained that, “A statute must do one of three things to be an ex post facto law: (1) criminalize an act previously committed, which was innocent when done, (2) increase the punishment for a crime, after its commission, or (3) withhold a defense available according to the...

California Courts and the Legislative Open Records Act  By Chris Micheli The main appellate court case involving the Legislative Open Records Act (LORA) is Zumbrun Law Firm v. California Legislature  (2008) 165 Cal.App.4 th  1603, review denied. In that case, according to the courts, the Legislature’s response to a LORA record request satisfied the statutory requirement that the Legislature justify in writing the withholding of exempt records where the Legislature’s response stated that any additional responsive documents in its possession fell within the statutory exemptions and stated that examples of such exemptions were “preliminary draft, notes or legislative memoranda,” “correspondence of and to individual members of the Legislature and their staff,” and “records the disclosure of which is exempted or prohibited”. Unlike an evidentiary privilege, an exemption from LORA is not waived when some documents are disclosed.   In this case, “the plaintiff, the...

Why Would the Legislature Request?  By Chris Micheli             We know in drafting California statutes, the term “shall” is mandatory and the term “may” is permissive. In other words, required conduct found in a statute uses the word “shall,” while discretionary conduct found in a statute used the word “may.” So, would the Legislature “request” something? In other words, why would the Legislature not tell someone or some entity to do something or authorize them to do something, rather than request them to do something?             Although it is not common in California statute for the Legislature to request something, this term does need to be used when it comes to legislation affecting the University of California, which enjoys some degree of constitutional autonomy. As a result, although the Legislature can require the California State University system and the com...

A Different Type of Legislative Statement?  By Chris Micheli             In reading sections of the California Military and Veterans Code, I came across statutory language that is similar to legislative findings and declarations, which are common throughout California’s 29 Codes. In addition to codified findings, there are thousands of instances in which legislative findings and declarations are in uncodified statutes.             However, the language contained in Section 1830 of the Military and Veterans Code does not use the standard “findings and declarations” language. Instead, Section 1830 provides, in part: “the Legislature recognizes all of the following” and then lists five statements similar to what a reader would see in findings and declarations, such as “(d) Nine hundred family members of Vietnam era POW/MIAs reside in California.”    ...

Sunset Clause Versus Repeal Clause  By Chris Micheli             What is the difference between a sunset clause and a repeal clause in California legislation? I could only find two California Code sections using a sunset date, both of which are concerning the “sunset” or expiration of an existing tax. On the other hand, there are thousands of instances of the term “repeal” or “repealed” being used in state statutes. The answer the question is none. The difference is that the technical term is “repeal clause” (other jurisdictions often refer to it as a “repealer clause”), while the commonly-used term is “sunset clause” or “sunset date.” While either term can be used, repeal date and repeal clause are the better terms and should be used more regularly. Nonetheless, we see “sunset date” even in legislation. For example, there were bills in the 2024 California Legislative Session that stated, for example: “The bill would ...

Describing a Spot Bill  By Chris Micheli   In the California Legislature, a “spot bill” is basically used as a placeholder for a future measure to be amended into the spot bill. Bills introduced in the California Legislature without substantive language in them are called “spot bills.” These are to be distinguished from “intent bills,” which are also a placeholder but express a statement of legislative intent. Spot bills make technical changes to an existing statute. For example, a spot bill could simply change “a person” to “any person.” Spot bills are deemed to be nonsubstantive changes to the law. As described by the Office of Legislative Counsel, a “spot bill” is one that does not make any substantive change to existing law, “and would not otherwise affect the ongoing operations of state or local government.”   When a reader comes across a spot bill among the introduced bills, they will see in the Legislative Counsel’s Digest one of the following two statement...

The Legislature’s First Day of Session By Chris Micheli The Senate and Assembly met this afternoon to convene the 2025-25 California Legislative Session. I tried to catch the formal actions… ASSEMBLY All 80 Assembly Members were sworn-in today, including 23 new Members, 12 of whom are female. There is one vacancy as Vince Fong was elected, but he chose to keep his Congressional seat – a special election will be called by Gov Newsom As such, the Assembly is operating with 79 Members The Assembly elected Robert Rivas as Speaker. For the first time in many years, Republican Leader Gallagher was nominated and voted for by 19 Republicans. The Assembly adopted: HR 1 – Standing Rules, including reducing the bill introduction limit from 50 to 35 bills for the 2-year Session. HR 2 – Chief Clerk and Chief Sgt. at Arms were elected HR 3 – Assembly organized and notified the Senate They also adopted SCR 2 – Legislative Counsel Jenkins was elected; SCR 1 – adoption of Joint R...