Chris Micheli

California Courts and Prospective Application of Laws  By Chris Micheli             California courts follow the statutory construction principle that statutes are to be applied prospectively unless there is clear evidence that the Legislature intended retroactive application as well. What are some recent appellate court statements on the topic of prospective application of new laws? The following are two recent examples: California Medical Assn. v. Brown , 193 Cal.App.4th 1449 (2011) In the absence of a clear legislative intent to the contrary, statutory enactments apply prospectively. “‘[I]n the absence of a clear legislative intent to the contrary statutory enactments apply prospectively’” ( Strauss v. Horton (2009) 46 Cal.4th 364, 470), and the legislative history in this instance indicates that no retroactive application was intended. The legislation originated in an Assembly Bill which when first introduced stated t...

Number of Registered Lobbyists in California  By Chris Micheli In California, there are over 3,200 registered lobbyists with the state. Note that in most large cities in California there are also registration and reporting requirements for those engaged in local government lobbying (i.e., city councils and boards of supervisors). How does California’s number compare to other large jurisdictions? Official accounts peg the number of lobbyists in Washington, DC at 12,000 (those lobbying the US Congress and federal executive branch) and 29,000 in Brussels, Belgium (those lobbying the EU Parliament), which is up from 25,000 in 2020. How have the number of registered lobbyists grown in Sacramento in lobbying the legislative and executive branches? Based upon data from the California Secretary of State’s Office obtained by Sameea Kamal of CalMatters, the following chart tracks those registrations by 2-year Legislative Session and compares the number year-over-year and from 25 y...

California Courts and State Mandates in Statutes  By Chris Micheli             In County of San Diego v. Commission on State Mandates  (2018), the California Supreme Court dealt with the Sexually Violent Predators Act (SVPA) which, among other provisions, imposed duties on county governments. For the first 15 years of the SVPA's existence, it was the State of California that –– according to the Commission on State Mandates (CSM) –– had to foot the bill. In early 2013, the Department of Finance (DOF) asked the CSM to reconsider its earlier decision and declare that the SVPA was no longer a state-mandated program. The DOF argued that the state's financial responsibility ceased on November 7, 2006, when the voters enacted The Sexual Predator Punishment and Control Act: Jessica's Law (Proposition 83), which “substantively amended and reenacted various sections of the Welfare and Institutions Code that had served as the bas...

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.”    ...