Chris Micheli

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...