Part I – Constitutional Provisions
The purpose of this article is to examine the constitutional provisions related to California’s Legislature and some of the appellate court decisions that provide insights into how these provisions are interpreted by the courts.
Article IV provides powers to the Legislature and specifies aspects of the legislative process, including the consideration of legislation and the state budget. Some provisions are general in nature, while others are specific. Any student or practitioner of the legislative process needs to be familiar with these constitutional provisions and the appellate court decisions that provide guidance in interpreting them.
Part I – Constitutional Provisions
Article IV of the California Constitution deals with the legislative branch of government. Here are some interesting provisions about the legislative branch found in the state’s constitution (along with the relevant section):
The Legislature must convene its regular session at noon on the first Monday in December of every even-numbered year and they must undertake their organization that day (e.g., election of leaders). And the Legislature must adjourn by midnight on November 30 of the following odd-numbered year.
CHRIS MICHELI DISSECTS CALIFORNIA LIKE NO ONE ELSE—ONLY ON THE GLOBE:
• Direct Democracy and California’s Constitution Article II
• The Legislature and California Constitution Article IV (part II)
• The Legislature and California Constitution Article IV (part I)
• The Governor and California’s Constitution Article V
• Everything You Thought You Knew About Lobbying is Probably Wrong
• Unique Aspects of California’s Electoral System
• Who Makes the Rules for the Judiciary?
Only the Governor can call extraordinary sessions (aka “Special Sessions”) of the Legislature and does so by proclamation. The Legislature does not have to conduct any business in a special session but, if it does, then they only have power to legislate on the subject(s) specified in the Governor’s proclamation.
A legislator cannot receive travel and living expenses (aka “per diem”) during the times that the Legislature is in recess for more than three calendar days, except in specified instances. This explains why the Legislature will hold its normal Thursday floor session on a Friday preceding a Monday state holiday.
The Legislature has the sole power to judge the qualifications and elections of the Members of the Assembly and Senate. They also have the power, by a 2/3 majority vote, to expel a Member. The same vote is required if either house wants to suspend a legislator. Such a suspension requires findings and declarations setting forth the basis for the legislator’s suspension. No such requirement exists for the expulsion of a legislator.
Legislators are prohibited from accepting any honorarium (e.g., a legislator cannot be paid for giving a speech to an interest group). The Legislature is also charged with enacting laws to ban or strictly limit gifts that might create a conflict of interest.
Legislators cannot accept compensation for taking any action on behalf of another person regarding any state government board or agency. This prohibition does not extend to actions before any local government board or agency, but in such cases a legislator is banned for one year from using his or her official position to influence any action that would have a direct and significant financial impact on that person and not affect the public generally.
This prohibition does not extend to activities for the legislator himself or herself, or where the legislator is acting as an attorney before any court or in workers’ compensation appeals. Legislators are prohibited from lobbying the Legislature for compensation for 12 months after leaving office.
Both the Senate and Assembly must choose its officers and adopt rules for their proceedings. Each house must keep and publish a journal of its proceedings. The proceedings of the Senate and Assembly, as well as their committees, must be open and public. And the public can record these proceedings by audio or video means. The Legislature must make audiovisual recordings of all of its proceedings and post them on the Internet within 24 hours after their conclusion and must maintain an archive of the recordings for 20 years.
Closed sessions are allowed in specified circumstances such as employment matters, litigation, safety and security, and party caucuses. Neither house may recess for more than 10 days without the consent of the other house.
No bill, other than the budget bill, may be heard or acted upon by a committee or either house until it has been in print for 30 days after introduction. Either house can dispense with this rule by a ¾ majority vote of that house. The Legislature can only make a law by statute and statutes can only be enacted by bills. A bill cannot be passed unless it has been read by its title on 3 separate days in each house. Tis rule can be dispensed with by a 2/3 majority vote of the house’s members.
A bill cannot be passed or become a statute unless that bill and any amendments have been in print and published on the Internet for at least 72 hours before the vote, unless the Governor has submitted a statement that it is needed to address a state of emergency. No bill may be passed unless a majority of members of each house votes in favor of the bill.
A statute goes into effect on January 1 in a regular session and on the 91st day after adjournment of a special session. Statutes calling elections, statutes providing for tax levies or appropriations for the usual current expenses of the State, and urgency statutes go into effect immediately upon their enactment (i.e., the day the bill is chaptered by the Secretary of State).
Urgency statutes are defined as those necessary for the immediate preservation of the public peace, health or safety and a statement of facts constituting the necessity must be set forth in a section of the bill. An urgency bill and the urgency clause require a separate vote and both require a 2/3 majority vote for passage in each house. An urgency statute may not create or abolish any office or change the salary, term, or duties of any office, or grant any franchise or special privilege, or create any vested right or interest.
There is a single subject rule for legislation (similar to the constitutional provision for ballot measures). That subject must be expressed in the title of the bill. There is a re-enactment rule that provides that a section of an existing statute may not be amended unless that section is re-enacted as amended by a bill.
Each bill passed by the Legislature must be presented to the Governor. The bill becomes a statute if it is signed by the Governor or the Governor may veto a bill if he or she returns it to the house of origin along with any objections. If the Legislature votes again to pass the bill by a 2/3 majority vote, then the bill becomes a statute (i.e., when the Legislature overrides the Governor’s veto).
Any bill in the possession of the Governor after adjournment of the Legislature that is not returned within 30 days becomes a statute. Any other bill presented to the Governor (i.e., prior to the end of session) becomes a statute if it is not returned within 12 days. Any bill that was introduced in the first year of the 2-year session that has not been passed by its house of origin by January 31 of the second year may no longer be acted upon by either house.
No bill may be passed by either house after September 1 in an even-numbered year, except those measures calling elections, statutes providing for tax levies or appropriations for the usual current expenses of the State, and urgency statutes, and bills passed after being vetoed by the Governor. The Legislature is prohibited from presenting any bill to the Governor after November 15 in the second year of the session.
The Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill. In such a case, the Governor must include a statement of the items reduced or eliminated with the reasons for his or her action. Any appropriation item reduced or eliminated must be considered separately and can be passed over the Governor’s objections by a 2/3 majority vote.
The Senate or Assembly or both houses may adopt a resolution that provides for the selection of committees to conduct the business of the Legislature.
Within the first 10 days of each year, the Governor must submit to the Legislature a budget for the forthcoming fiscal year (which begins July 1). This is why the Governor’s first budget proposal is called the Governor’s “January 10 Budget.” The budget must include an explanatory message, as well as itemized statements for expenditures and estimated revenues.
The Governor may require a state agency or employee to furnish whatever information he or she deems necessary to prepare the budget. The budget bill must be introduced immediately in each house by the budget committee chairs of the Senate and Assembly. The Legislature must pass the budget by midnight on June 15.
Until the budget bill is enacted, the Legislature cannot send any bills to the Governor that propose to appropriate funds during the upcoming fiscal year unless it is an emergency bill recommended by the Governor. No bill, except the budget bill, may contain more than one item of appropriation.
All appropriations bills require a 2/3 majority vote, except the budget bill, budget trailer bills with appropriations, and those for public school appropriations (all of which require a simple majority vote). The Legislature can control the submission, approval and enforcement of budgets and the filing of claims for all state agencies. Legislators cannot be paid any salary or expenses in any year in which the budget bill is not passed by the Legislature by midnight on June 15.
A legislator cannot hold any office or employment with the state other than the elected office for the Assembly or Senate. This limitation applies during his or her elected term.
A legislator cannot be served a civil summons during a Legislative Session or for 5 days before Session and 5 days after Session.
A person who attempts to influence a legislator’s vote or action by bribery, intimidation or other “dishonest means” is guilty of a felony. This also applies to a legislator who has been influenced by such means.
General laws have uniform operation, while a local or special statute is limited in its operation. A local or special statute is invalid when a general statute applies. This is why bills that are deemed special statutes must contain an explanation of why a general statute will not apply in the bill’s particular circumstances.
The Legislature does not have power to grant extra compensation to a public officer, employee or contractor after service has been rendered or to authorize payment of a claim against the State or a local jurisdiction. This is why each year the Appropriations Committee Chair will carry a “claims bill” to require the State to pay claims properly owed by the State.
Only the Assembly has the power to impeach, but any impeachment must be tried by the Senate, and an individual can only be convicted of impeachment if the Senate votes to do so by a 2/3 majority. The power of impeachment applies to statewide elected officers, members of the Board of Equalization, and state court judges. These individuals are subject to impeachment only for misconduct in office. When a conviction occurs, that individual is removed from office and disqualified to hold any state office thereafter.
The Legislature has authority to divide the State into fish and game districts and may protect fish and game in those districts.
When each regular session convenes, the President pro tempore of the Senate, the Speaker of the Assembly and the two minority leaders must report to their houses the goals and objectives of that house during that session. At the close of each regular session, these four legislative leaders must report on the progress made toward meetings those goals and objectives.
No bill can take effect as an urgency statute if it authorizes or contains an appropriation for any alteration or modification of the State Capitol or the purchase of furniture for the Capitol.
Next: Part II – Selected Court Decisions
- Overview of Gov. Newsom’s Retroactive ‘Revenue Raising Proposals’ in the May Budget Revise - May 24, 2020
- Considerations in Drafting California Legislation – Part II - April 29, 2020
- Governor’s Executive Orders – How Far Can They Go? - April 28, 2020