California legislative rules and the constitution

Occasionally I have been asked whether the Legislature’s adopted rules – the Assembly Rules, Senate Rules, and Joint Rules – have equal standing as legislative process rules found in the California Constitution. This question is particularly relevant because these three sets of legislative rules flow from a specific grant of authority in the state Constitution.

Specifically, Article IV, Section 7(a) provides: “Each house shall choose its officers and adopt rules for its proceedings.” As a result of this state constitutional provision, both houses of the California Legislature have specific authority, in fact are required to do so, to adopt rules to govern their proceedings.

Moreover, of course, the Legislature is a separate, co-equal branch of state government and should have the ability to fully exercise its lawmaking power. In order to exercise that power, they must have rules for their proceedings (i.e., the legislative process).  As a result, it would be logical to assume that these three sets of the Legislature’s rules are commensurate with constitutional provisions related to the legislative process.

As many are aware, in the California Constitution, Article IV, there are legislative process rules and procedures, such as the requirement that bills be read on three separate days (absent a super-majority vote to dispense with that rule), that bills cannot be acted upon for 30 days after they are introduced (absent a certain vote), and that bills must pass by at least a majority vote, etc.

In addition to this constitutional authority and constitutional procedural requirements, the California Government Code provides a number of statutes governing the “Legislative Department.” These provisions of state law are found in Division 2, Section 8902 to 10606. For example, there are state statutes concerning legislative code of ethics, officers, enactment of statutes and adoption of resolutions, operation of statutes and resolutions, legislative publications, legislative powers, rules, and aids to the Legislature.

In the hierarchy of laws, of course, the state Constitution sits atop of all our state’s laws, followed by statutes, and then regulations (adopted by executive branch agencies). But where do these three sets of Rules fall? Of course, these legislative Rules cannot contravene the state Constitution, nor can they contravene state statutes. In other words, these Rules must be consistent with any legislative process rules set forth in the California Constitution or any statutes contained in the California Codes.

So, even though these three sets of legislative Rules are adopted each 2-year Session of the Legislature, that does not mean that these Rules have equal standing with the state Constitution or can be inconsistent with state statutes. Nonetheless, the courts in this state are unlikely to reject any statute based on an alleged legislative rule violation because those rules are within the exclusive purview of the California Legislature.