First-generation law students often find themselves facing unique challenges and difficulties that many of their peers do not. From the general environment and structure of law school, to financial matters, networking, and even simply feeling like you belong with your cohort, it can be extremely taxing to try facing these issues by yourself. However, first-generation law students at McGeorge are in good company because you are not alone!

A significant portion of each incoming class at McGeorge are either first-generation college students or first-generation law students who can empathize with and support one another, in addition to receiving the support of faculty and staff. You can share experiences and insights with your fellow first-generation students and take advantage of McGeorge’s resources, like the CDO, Alumni Network and Alumni Mentors, the Center for Inclusion and Diversity, and many student organizations. If you are a first-generation law student, be sure to check out these tips for overcoming the unique challenges you may face.

We are all in this together, and no one needs to make the journey alone.

There are multiple players who take part in setting education policy in the state of California.

Article IX, which focuses on education, of the California Constitution has sixteen sections. Section 2 provides that a Superintendent of Public Instruction, sometimes referred to as SPI, shall be elected by the qualified electors of the state at each gubernatorial election. And no Superintendent of Public Instruction may serve more than two terms. The SPI is a nonpartisan office, although it’s worth noting that it was originally partisan.

The SPI directs all the functions of the Department of Education, and the SPI executes the policy set forth by the Department or the Board of Education, and the SPI chairs the Board of Education. Generally, they viewed as the state’s chief spokesperson for the public schools who provides education policy and direction to the local school districts. And he or she serves as an ex-officio member of the CSU community college and UC higher education systems.

Next is the State Board of Education, SBE, which was established in 1852. SBE is the governing and policy-making body of the California Department of Education. The board itself is comprised of 11 members, and note that both the Constitution and state statutes assign the State Board of Education a variety of different responsibilities.

The SBE has also adopted statewide academic standards for content and student performance in all the major topics: English, language arts, history, social science, math, science, visual and performing arts, and even physical education. Now 10 of the board’s 11 members are appointed by the governor for staggered four-year terms. They’re subject to confirmation by the state Senate, but not by majority vote. Instead, by a two-thirds vote, and that has to occur within one year of their appointment to the board.

The 11th member is also appointed by the governor and subject to Senate confirmation. However, that individual serves a one-year term and is a California public high school student. Note that the student does enjoy full voting rights and all the rights and privileges of the board membership. The only difference, again, is he or she serves a one-year term.

Then there is the Department of Education, CDE. CDE is under the direction of the Superintendent and the CDE implements the policies that have been adopted by the State Board of Education.

The Constitution also spells out the role that Legislature has in education policy in California as well.

You can find the transcript of the audio in today’s post here.

California, like all other states and the federal government, have a system for the employment of individuals, our public employee system. Many of the provisions for California’s public employee system are spelled out in our state’s constitution.

Article VII was added to the California Constitution by Proposition 14 on the June 8, 1976, ballot. It contains eleven sections.

  • Section 1 – Civil Service includes every officer and employee of the state except for those provided for elsewhere in the Constitution. Permanent appointment and promotion in civil service must be made under a general system based on merit by use of competitive examinations.
  • Section 2 – establishes the State Personnel Board
  • Section 3 – requires the State Personnel Board to enforce civil services statutes, and gives the Board other duties
  • Section 4 – Exempts from civil service individuals who are employed or appointed by the Legislature; employed by council or commissions in the judicial branch; elected by the people of California; members of Boards and Commissions; selected by Boards and Commissions or appointed by the Governor; state officers appointed by the Governor; employees of the Governor’s or Lieutenant Governor’s office; and many others.
  • Section 5 – Temporary civil service appoints may be made to a position where there is not an employment list, but no person may serve in such a role for more than nine months in a twelve consecutive month period.
  • Section 6 – The Legislature may provide preferences for veterans and surviving spouses of veterans
  • Section 7 – Prohibits a person holding a lucrative office under the United States or another power from holding a civil office
  • Section 8 – Every person who has been convicted of having given or offered a bribe to procure personal election or appointment is prohibited from holding any office of profit in California.
  • Section 9 – any person or organization that advocates for the overthrow of the government of the US by force or other illegal means, or who advocates support of a foreign government against the United States can’t hold office or employment.
  • Section 10 – No person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate at the state or local level can retain the seat to which they’ve been elected if the libel or slander was a major contributing cause in the defeat of an opposing candidate.
  • Section 11 – Prohibits the Legislature’s retirement system from paying any retirement allowance to any person who entered office after January 1, 1987.

You can find the transcript of the audio in today’s post here.

Since the closing of the courts in Hawaii on March 17, 2020 due to the novel COVID 19 pandemic the courts have been operating on two online platforms. WebX and Zoom as well as in-person hearings under certain circumstances.

As a whole, the option to hold remote hearings was incredible. I observed higher participation from the public than pre-pandemic and from what I hear from many people who appear on either platform say they enjoy not having to travel, it is easier to speak to a judge, and they feel that they are on even playing grounds to the attorneys. Some disadvantages range from the court staff having to learn a new way to hold court proceedings, controlling large hearings, and the basic fact that many people do not have access to a phone or internet. Our Supreme Court has attempted to remedy these issues by allowing people to use public computers at the Supreme Court Law Library ((808)-539-4964) but this too is limited by a persons ability to make a call and travel to downtown Honolulu.

I am proud to admit I appeared on Law Week 2021 on behalf of the Young Lawyers Division Hawaii. Please check out the short video on general court procedures.

Law Week 2021: General Court Procedure

Another quick shout out to myself. I got elected to be Vice President of the Alumni Board to the law school I graduated from this month. Cheers!

Hope you all enjoyed this small post. More to come!

Hawaiian word of the day: kuleana: right, privilege, concern, responsibility, title, business, property, estate, portion, jurisdiction, authority, liability, interest, claim, ownership, tenure, affair, province; reason, cause, function, justification.

We have many kuleana. To ourselves, to our friends and family, and to our community. Please take care of one another and do the right thing.

Mahalo and A Hui Hou,

The Aloha Attorney

The California Air Resources Board, also known by its acronym, CARB, has a number of roles. Those roles include protecting the public from harmful effects of air pollution, as well as developing programs and actions to fight climate change in the state of California.

CARB is part of a coordinated three tier approach to cleaning up air pollution in California. The US EPA sets nationwide air quality and emission standards, as well as oversees state efforts and enforcement. Then CARB focuses on California’s unique air quality challenges. It sets the state’s own, stricter emission standards for a wide range of statewide pollution sources, including vehicles, fuels and consumer products. And then there are 35 local air pollution control districts that regulate emissions from businesses and stationary facilities. And these range from oil refineries to auto body shops and even dry cleaners.

CARB is governed by a 16 member board. 12 of those members are appointed by the Governor and confirmed by the State Senate. Of those 12 only one, the Chair of CARB, server on the board full-time. As far as the other eleven members are concerned five must serve on local air districts, four are experts in fields that shape air quality rules, and two are members of the public. The Governor can choose any of the members to serve as Chair of the board. The remaining four CARB members include two people representing environmental justice, or EJ, communities – one of whom is appointed by the Senate Committee on Rules and one by the Speaker of the Assembly – and two non-voting members are appointed for legislative oversight – one each appointed by Senate Rules and the Assembly Speaker.

CARB is established in Health and Safety Code Division 26, Part 2. It’s found in quite a few sections, from section 39500 to 39961. These sections cover many of the Air Resources Board’s duties, which include permit assistance, goods movement, emission reduction program, cruise ships and ocean-going ships, school bus idling, and idling at schools, toxic air contaminants, coordination with federal acts, identification of toxic air contaminants, control of these toxic air contaminants, special provisions for infants and children, its scientific review panel, Greenhouse Gas Reduction Fund Investment Plan and Communities Revitalization Act, global warming, and many other critical projects to reduce air pollution and protect public health.

You can read the transcript of the audio in today’s post here.

  1. Introduction

In the twenty-first century, there is an app for everything. Looking to buy more alcohol but do not feel safe driving to your local liquor store to replenish your alcohol supply? No need to worry because there is an app that will deliver alcohol straight to your doorstep. In 2012, three Boston College graduates created the first alcohol delivery app known as “Drizly.” Luke O’Neil, Thursty: A new app called Drizly delivers booze right to your doorstep, Metro.us (May 22, 2013). After completing the initial testing of the app in Massachusetts, the three co-founders expanded its reach to New York, Los Angeles and Chicago. Tom Huddleston, Jr., Ordering on-demand booze is about to get easier, Fortune (May 18, 2015). Today, Drizly is operating in the major cities of thirty states and even Alberta, Canada. Drizly.com (2021). However, Drizly is not alone in the delivery app market with competitors like Swill, Minibar, and Saucey offering similar services. But with Uber’s recent acquisition of Drizly for $1.1 billion, this app seems to be the top market participant. Tom Wark, Why Uber Will Not Be Challenging How Alcohol is Sold and Distributed, Fermentation Wine Blog (Feb. 15, 2021).

So, how does Drizly actually work? After a user downloads the app onto their smartphone device and makes an account, the user is able to search for their desired alcoholic beverage and place an order with one of Drizly’s retail partners. O’Neil, (2013). The retail partner then processes, fulfills, and delivers the order to the consumer within thirty to sixty minutes from the time the consumer finalized their order. Id. From this basic explanation, a few initial concerns are obvious. First, how do alcohol delivery apps fit within the three-tier system and other relevant alcohol regulations? Second, if the app does not fit within the three-tier system, how are Drizly and its competitors cheating the system? The answer to these questions is that they do not fit within the current framework and have carefully crafted their business model to avoid regulation. To be properly regulated, alcohol delivery apps require their own separate fourth tier.

  1. The Laws That Exist Today

There are four areas of the law that are implicated by alcohol delivery apps: the three-tier system, distribution, licensing, and legal drinking age. However, it is important to first understand who has the power to regulate this area and how they do so. The Twenty-First Amendment of the United States Constitution not only repealed the Eighteenth Amendment’s Prohibition, but it also confers onto the states the authority to regulate the transportation and importation of alcoholic beverages. U.S. Const. amend. XXI.  In California, the State’s Constitution vests the Department of Alcohol Beverage Control (“ABC”) with the exclusive power to regulate the manufacture, sale, purchase, possession and transportation of alcohol. CA Const. Art. 20 § 22. The ABC’s regulations can be found in the California Business and Professions Code, Division Nine, commonly known as the “Alcohol Beverage Control Act” (the “Act”) and is a set of permissive statutes. Cal. Bus. & Prof. Code §§ 23000-25762. The Act will be the main reference for the laws at issue here.

First, the three-tier system is the area most implicated by alcohol delivery apps. Since the end of Prohibition most states use this regulatory scheme to separate and regulate the different actors in alcohol: manufacturers (tier one), wholesalers (tier two) and retailers (tier three). Gregory E. Durkin, What Does Granholm v. Heald Mean for the Future of the Twenty-First Amendment, the Three-Tier System, and Efficient Alcohol Distribution?, 63 Wash. & Lee L. Rev. 1095, 1097 (2006). The three-tier system generally prohibits any one tier from intermingling with another. Id. This basically means manufacturers cannot directly sell to consumers, instead they must sell their products to licensed wholesalers who then sell the products to licensed retailers. Id. Further, each tier has their own separate set of regulations that permit and prohibit specific conduct.

Second, alcohol distribution is heavily regulated. This area of law can be complicated to understand since some of the more complex regulations are found here such as strict distribution agreement requirements and franchise laws. Further, while all fifty states regulate the sell and distribution of alcohol, they all have different methods in doing so. Regardless of the different state approaches, the three-tier system and tied-house laws generally require distributors to act as the middle-man between producers and retailers. The role of distributors is to sell the manufacturers’ products to retailers, requiring distributors to have sales representatives who visit bars and take orders for multiple different brands (manufacturers) they represent. John Szymankiewicz, Beer Law (2017). The brands they represent make up a wholesaler’s portfolio and it is the wholesaler’s responsibility to sell the brands’ products by investing time and money into each individually. Id. Further, every brand in the portfolio must have entered into a distribution agreement with the wholesaler. Distribution agreements, also called franchise agreements, have multiple mandatory provisions which includes defining an exclusive sales territory and tough termination protections that overwhelmingly favor distributors over brewers. Cal. Bus. & Prof. Code §§ 25000.5, 25000.7.

While most states have a mandatory second tier, there are limited exceptions for self-distribution in some states, including California. Like the rest of the Act, self-distribution is heavily regulated. As such, the costs of self-distribution and other factors lead most manufacturers to use a wholesaler. Szymankiewicz, (2017). Nonetheless, there may be some hope for the self-distribution realm. There is current proposed legislation in California that would expand a beer manufacturer’s distribution rights by allowing them to obtain a beer direct shipper permit and ship directly to California consumers. Beer manufacturers: direct shipper permits, Senate Bill No. 517, 2021 Cal. Leg. 2021-2022 Sess.

Third, all players in the alcohol business must obtain a license to participate. Cal. Bus. & Prof. Code § 23300. The relevant code section provides that “No person shall exercise the privilege or perform any act which a licensee may exercise or perform under the authority of a license unless the person is authorized to do so by a license issued pursuant to this division.” Id. Therefore, any person or entity without a license is prohibited in engaging in any conduct that falls within the ABC’s scope and can face criminal charges for engaging in such conduct. Id. at §23301. Further, an authorized licensee is only permitted to exercise the rights and privileges specified for the license they hold. Id. at §23355.

Finally, all licensees that have the authority to sell alcohol are prohibited from selling to individuals under the legal drinking age of twenty-one. Cal. Bus. & Prof. Code § 25658. A violation of this law can result in criminal charges and fines up to $1,000. Id. Further, the licensee does not need to have actual knowledge that the individual is not twenty-one to be held liable. Id.

  • How Alcohol Delivery Apps Are Cheating The System

With a basic understanding of the different laws being implicated by alcohol delivery apps, how are alcohol delivery apps cheating the system? The credit is due to their carefully crafted business model. Drizly’s website boasts that their “model is built to be compliant with the regulatory bodies in every state we operate in.” Drizly.com (2021). The most important part of their business model is the partnership relationship between Drizly and local retailers. Drizly’s robust network includes over 4,000 retail partners from coast-to-coast. Id. Furthermore, in 2018 Drizly entered into a partnership with none other than Anheuser-Busch. Drizly Partners with Anheuser-Busch to Stock Office Fridges, Brewbound (July 11, 2018). However, this partnership agreement is different than its regular retailer partnerships as Drizly’s sole job is to stock Anheuser-Busch offices with cold beer. Id. In a regular partnership, Drizly does not actually bring in any profits from the transaction between consumers and retailers. Ni Xu, Drizly: the disruptor of the 3-tier system?, Digital Initiative (Dec. 9, 2015). Instead, Drizly brings in money by charging a monthly license fee to its local retailers. Id. Furthermore, the person who delivers the alcohol to the consumer is not employed by Drizly, but rather the retail partner. Id. Basically, Drizly is simply an interface that retailers use to bring their shelves to the internet which allows consumers to purchase alcohol from wherever they desire.

In light of the three-tier system, where do alcohol delivery apps fit? By not engaging in the actual sale or distribution of alcohol, Drizly and its competitors are able to completely escape regulation. Drizly’s own website states “Drizly was uniquely designed to operate within the three-tier system.” Drizly.com (2021). But is this statement true? The app does not seem to operate within the system, but rather it operates around the system. By strategically not taking any money from the transaction, a delivery app cannot be seen as neither a retailer nor distributor. Instead, they become yet another middle-man, but this time it is between retailers and consumers. While it is natural to see Drizly as a distributor, they stretch the laws even further by avoiding distribution agreements. Again, Drizly’s own website says “we do not guarantee exclusivity to any one store in a given area,” which means they do not enter into distribution agreements with its retail partners. Id. Further, Drizly leaves it up to its retail partners to determine its delivery zone, hours, fees, minimum purchase amounts and more. Id. Drizly’s business model shows that they have carefully reviewed the different states’ alcohol regulations and found a way to operate around the three-tier system and distribution regulations.

Drizly again escapes regulation by not needing a license to operate. In California, the laws require anyone wanting to operate under the Act to obtain a license. Cal. Bus. & Prof. Code § 23300. The Act defines a wholesaler as “any person other than a manufacturer, winegrower or rectifier who is engaged in business as a jobber or wholesale merchant, dealing in alcoholic beverages…” Id. at § 23021. Further, it gives a weak definition of retailers by considering a retailer to be “any on- or off-sale licensee.” Id. at § 23023. With these working definitions, delivery apps do not seem to fall into either tier, even if the wholesaler definition is analyzed broadly. A delivery app certainly is not a manufacturer, winegrower or rectifier (“a person who colors, flavors or otherwise processes distilled spirits”). Id. at § 23016. But can they be considered jobbers or wholesaler merchants? These terms both define the same concept of distributors: people who buy products in bulk from manufacturers and then resell to retailers. Bob Adams, Wholesalers, Jobbers, Distributors & Importers, BusinessTown (2021). Since the apps do not purchase from alcohol or resell to retailers, they are not wholesalers. Further, delivery apps are not on- or off-sale licensees as they are not the actual business consumers are buying from. Therefore, since delivery apps do not fit within either definition and do not sell or deliver the alcohol, they are not required to obtain a license under the current laws.

Lastly, Drizly uses an identification catalog system called Mident to ensure the person receiving the alcohol is of legal drinking age. Dennis Keohane, How Amazon is getting beat by an upstart alcohol delivery app in its own backyard, Pando (Apr. 8, 2015). Drizly provides its retail partners with a Mident identification scanner which allows the delivery driver to scan the consumer’s ID and confirm the consumer’s age. Id. Thus, without a valid ID proving the consumer is of legal drinking age, they will not be given the alcohol. Furthermore, since Drizly is not involved with the alcohol purchase and the person delivering the alcohol is employed by the retailer, it is the retailer’s responsibility to ensure the person accepting the delivery is twenty-one or older. As such, the final concern is avoided, allowing Drizly and other delivery apps to completely evade state alcohol regulations as they currently exist.

  1. How Alcohol Delivery Apps Affect Craft Breweries

It is still not clear whether alcohol deliveries apps like Drizly have a negative or positive effect on craft breweries. With Drizly being the largest e-commerce alcohol platform in North America and its new owner being Uber, it seems Drizly will likely have a negative effect on small breweries. O’Neil, (2013). While Drizly does not directly determine what products are on a retailer’s shelves, wholesalers will be more likely to sell a certain brand to Drizly’s retail partners because of the positive profits. Further, Drizly tracks consumer drinking habits and regularly publishes reports on the data. Uber Acquires Beer Delivery App Drizly in $1.1 Billion Deal, Hop Culture (Feb. 2, 2021). Therefore, if big beer is selling better through Drizly than craft beer, wholesalers will sell more big beer products to maximize the profits for all three tiers. Also, Drizly and most other alcohol delivery apps currently only operate within major cities. This means that if a craft brewery’s distribution agreement does not reach a major city, they will be excluded from Drizly’s robust market. In order to combat this issue, larger wholesalers will need to start representing more small producers, but this solution is not likely.

  1. The Proposed Solution

The manufacture, sale, purchase, possession and transportation of alcohol is one of the most heavily regulated areas. While the three-tier system is not perfect, it does work in a way to protect craft breweries from being overran by big beer. If lawmakers continue to ignore this sleeping giant, it may eventually become so big that post hoc regulation will be difficult to achieve. Therefore, state legislatures need to act quickly to amend their current three-tier system to find a home for Drizly and its competitors, and that home is a new fourth tier. To actually promote temperance and keep alcohol out of the hands of minors, alcohol delivery apps need to be regulated through the ABC. As of now, a user can order as much alcohol as they like and have it delivered on-demand to their doorstep. As long as the recipient has a valid ID they are able to collect the alcohol order, but it is likely easy to use a fake ID or another person’s ID who is over twenty-one. Lastly, while it is positive that the consumer is not driving under the influence to get more alcohol, should we really promote an app that capitalizes off drunk consumers?

State lawmakers need to add alcohol delivery apps to their regulatory scheme because as of now, this money making machine has evaded regulation. Drizly and its competitors are utilizing a loophole in the ABC by not gaining any profits from the direct sale itself and not employing the delivery drivers. Currently, there are no laws that control alcohol delivery apps from profiting off alcohol and it is clear they do not fit in the normal regulation scheme. Therefore, legislators need to act now to create a fourth tier for Drizly and its competitors to be actually regulated under the Act.

The Career Development Office (CDO) at McGeorge provides students with tools and resources for lifelong professional development in the legal community. Whether you are a 1L still trying to figure things out or a recent graduate, the CDO is here to help you be your best when looking for a job. Join us at one (or several!) of our many career-oriented events throughout the year, take advantage of our networking resources, or make an appointment to review your application materials and discuss your career goals and the best path to achieve them. With an experienced team leading the way, the CDO gives students at McGeorge a leg up on the competition.

Dean Molly Stafford is the Assistant Dean of the Career Development Office & External Relations and is a 2002 graduate of Northeastern University School of Law. She came to McGeorge from California Rural Legal Assistance, Inc. (CRLA), where she was a staff attorney and manager of the CRLA Rural Fair Housing Center (RFHC). During her 4 years at CRLA, she practiced civil litigation in many areas of law — wage/hour, landlord/tenant, real property, unlawful termination and special education — and provided state-wide fair housing litigation support to CRLA’s 21 offices.

She passed the California State Bar in 2003 and began practice at the AIDS Legal Referral Panel in San Francisco where she represented tenants relating to all aspects of their housing, presented training on fair housing law for clients, staff and major law firms. Molly taught practical legal skills to students in the Honors Lawyering Program as an Adjunct Professor at Golden Gate University School of Law in San Francisco.

Professor Leah Adams, a 2007 graduate of McGeorge School of Law, is the Director of CDO Communications, Programming, & JD Employment, and an Adjunct Professor of Global Lawyering Skills. Before returning to McGeorge, Prof. Adams managed her own practice as a criminal defense attorney and family law litigator in the Bay Area. Prior to that, she worked for a litigation boutique law firm in San Jose and as a volunteer attorney with the Pro Bono Project of Silicon Valley. Leah also has experience working for public agencies, including an Arizona public defender and the State of California.

In addition to general career advising and document review (for all McGeorge students and alumni), Prof. Adams is our go-to networking expert and is available to work with students and alumni to develop their individual career search and networking plans. She works with on-campus student organizations, professors, alumni, and outside legal organizations to plan and implement innovative career-related programming, and she also manages and oversees the CDO’s communications strategies.

Professor Erin O’Neal Muilenburg is the Director of Capital Lawyering Concentration and Government & Capital Employment, as well as a professor of Global Lawyering Skills. She is a 1997 graduate of Stanford Law School. Prior to joining McGeorge, Prof. Muilenburg worked as a federal civil litigator for a national law firm in San Francisco as well as a boutique law firm in Sacramento. Erin also has clerkship experience, having served as a judicial clerk for federal district Judge Jon P. McCalla in the Western District of Tennessee. Prior to attending law school, Erin was a California Senate Fellow in the office of Senate President Pro Tempore Bill Lockyer.

In addition to working with all JD and LLM students and alumni, Prof. Muilenburg places emphasis on strategizing with those interested in McGeorge’s Capital Lawyering concentration, government and public interest employment, legislative work, judicial clerkships, and lobbying, and students in our MPP, MPA, and MSL graduate programs. She also serves as an Adjunct Professor of Global Lawyering Skills, and works to provide in-depth instruction on persuasive written and oral advocacy in order to enhance and deepen students’ experience in legal research, writing, and analysis and prepare McGeorge graduates to be practice-ready as they begin their careers.

Ms. Isabella Hannon is the CDO’s Assistant Director of Recruitment. She came to McGeorge with more than 10 years administrative experience, primarily as the executive assistant to the CEO of Tesco Controls, Inc., an environmental controls systems and manufacturing corporation. She also has experience as a staffing recruiter for Spherion, Inc, making her ideally suited to help students prepare for interviews and learn the “do’s and do not’s” when meeting employers. At the CDO, Isabella manages the On-Campus Interview Program (OCI), handles job postings on McGeorgeCareersOnline, organizes major CDO events, and much more.

Mr. Rydder Kramer is the Coordinator for the CDO, the Externships Program, and the Faculty Support Office. At the CDO, Rydder helps organize the various events and programs the office hosts throughout the year, coordinates reciprocity with other law schools, and manages the CDO’s blog site, McGeorge @ Work. He previously worked at a mergers and acquisitions firm in Seattle, WA, where he served as the Senior Marketing Coordinator with an emphasis on event management, digital marketing, prospect management, and staffing within the marketing department. He also brings large-scale project coordination experience from his time with Boeing, and has previous experience working closely with students as a Spanish tutor at Gonzaga University.

Come by Northwest Hall or make an appointment to start planning your career!

One way to determine the legislative intent behind a particular bill is to review a letter to the Daily Journal for that measure. While you may find the same letter for a bill in the Daily Journal of both houses, generally a letter related to an Assembly Bill is found in the Assembly Daily Journal and a letter related to a Senate Bill is found in the Senate Daily Journal. These letters are used by the author of the bill to, among other things, explain ambiguity in the measure or explain the purpose of the particular changes in the law that are being done by the bill.

In either house, the process of submitting a letter is a pretty formal matter. The letter has to be on the legislator’s letterhead and signed by the legislator. The general custom and practice of both houses of the California Legislature is to have the respective leadership staff, meaning both the majority and minority party staff, review the contents of these proposed letters to the Journal and determine whether either party has an objection. If staff and leadership on both sides of the aisle approve of the contents, then the letter is published. But what happens is approval is not received by folks on both sides of the aisle?

In this case, the author of the letter, the legislator, can request that the letter be printed by a roll call vote of the house. If such a request is made, then it only takes a simple majority of those present and voting to approve the printing of that letter in the respective house’s Daily Journal. And while only a simple majority is necessary, usually letters to the Journal are passed with unanimous consent.

California courts can use these letters to help determine the intent of the Legislature. Although different versions of the bill, committee analyses, floor analyses, and other items of extrinsic evidence are generally given greater weight than these letters to the Journal. Nonetheless, for advocates and practitioners, these journal letters may frankly be the best indicator that’s available regarding the intent of the bill’s author.

You can find the transcript of the audio in today’s podcast here.

The judicial branch of government is generally reluctant to review the record-keeping practices of the Legislature that is used to determine the validity of statutes. This limitation on judicial inquiry is known as the enrolled bill rule. It’s a legal doctrine that holds that if an act in the Legislature is “properly enrolled, authenticated, and filed,” then it is presumed that all of the required and necessary steps for passage of legislation were in fact properly taken by the Legislature. Interestingly, the courts have generally said even the Daily Journal of the Assembly and Senate can’t be utilized to impeach that authentication process. More on that later.

The rule comes from the enumerated separation of powers doctrine in Article III, Section 3 of the California Constitution. While there has been some criticism of this legal principle, the courts have ruled as recently as 2009 that the enrolled bill rule is still in full force and effect in California.

As far as I can tell, the enrolled bill rule dates back to 1866, in the case of Sherman v. Story. In its decision, the Court refused to consider any uncontradicted legislative journals as well as oral testimony that alleged that certain proposed amendments that were rejected by the California Assembly, we mistakenly incorporated into the final version of the bill that passed the State Senate. In 1901, in the case of County of Yolo v. Colgan, the Court rejected a claim based on an entry in the Senate Daily Journal that noted the bill did not have enough votes to pass. Despite the bill in question not having the necessary 21 votes, the Court ruled that the separation of powers doctrine vested the powers to determine whether or not the appropriate formalities of passing a bill had been complied with in the Legislature. In Planned Parenthood Affiliates v. Swoap in 1985, the matter at hand was a section of the budget bill, Section 33.35 to be precise, was removed in conference committee. However, in the final signed version of the budget bill Section 33.35 was included by mistake. Its inclusion was challenged but because of the enrolled bill rule, the Court determined that it lacked the power to strike the erroneously included section.

There is one narrow exception to the enrolled bill rule. That exception is found in the Levin decision. Basically, the Levin decision stated that the exception to the enrolled bill rule applies when there is a procedural defect in the adoption of local charter amendments that could be evidenced on the face of the resolution that was adopted by the Legislature.

You can find the transcript of the audio in today’s blog post here.

 

McGeorge alumna and Wood, Smith, Henning & Berman associate Melissa Aristizabal (’17) was recently appointed to the New York City Bar Association Minorities in the Profession Subcommittee for a second year. Committee work is a service that, given the opportunity, we encourage all lawyers participate in because it allows for exploration of personal interests outside of day-to-day practice, in addition to the advances made to the community. We are so proud of the impact being made across the country by McGeorge alumni, faculty, and staff.

Congratulations, Melissa!