‘Final form’ and the 72-hour rule

Friday, June 2 represented the Legislature’s house-of-origin deadline. To stay alive, Assembly bills were required to have passed out of the Assembly and Senate bills had to have been passed out of the Senate.

During Assembly floor debate, the issue was repeatedly raised whether the Assembly had properly complied with the provisions of Proposition 54, which California voters approved in November as a transparency measure. See here for our latest story on this issue.

One of the sponsors of Proposition 54 publicly claimed that the Assembly had violated the law when it voted upon 95 bills that were passed after they had been amended but had been in print fewer than 72 hours.

As readers will recall from our in-depth February piece, Proposition 54 prohibits the Legislature from passing any bill unless it has been in print and published on the Internet for at least 72 hours before the vote, except in limited cases of public emergency declared by the governor.

Proposition 54 also contains requirements allowing the public to record legislative hearings. It requires the Legislature to record all public hearings and post them online within 24 hours. Those provisions, which apply to both video and audio, were not at issue in this debate, however.

Proposition 54 amended Article IV, Section 8(b) of the California Constitution. This amended section now reads as follows (repealed language is in strikeout, while new language is in italics):

(b)(2) No bill may be passed or ultimately become a statute unless until the bill with any amendments has been printed, and distributed to the members, and published on the Internet, in its final form, for at least 72 hours before the vote, except that this notice period may be waived if the Governor has submitted to the Legislature a written statement that dispensing with this notice period for that bill is necessary to address a state of emergency, as defined in paragraph (2) of subdivision (c) of Section 3 of Article XIIIB, that has been declared by the Governor, and the house considering the bill thereafter dispenses with the notice period for that bill by a separate roll call vote entered in the journal, two thirds of the membership concurring, prior to the vote on the bill.

To complicate the Assembly debate, the Senate insisted that it would comply with the 72 hours in print rule (note that the requirement is based upon hours, despite some observers improperly calling it a “three-day in print” rule), but the Assembly is of the legal opinion that Proposition 54 is not invoked during the house-of-origin deadline.

The Senate takes the same position, but chose to comply with it nonetheless.

Also, the Assembly adopted internal rules, Assembly Rules 76 and 46, to put Proposition 54 into effect. That provision was contained in HR 1, which was adopted on Dec. 5, 2016. On the other hand, the Senate rules do not contain any mention of Proposition 54’s provisions.

The Assembly rules limit Proposition 54 in two ways.

First, the proposition applies only to Senate bills that have been amended in the Assembly.

Second, it does not apply to resolutions or constitutional amendments. This is because Proposition 54 added language about a bill  “…ultimately becom[ing] a statute.” Naturally, neither a resolution nor a constitutional amendment by the Legislature results in a statute.

For those familiar with the California Legislature, the fundamental problem with the 72-hour in-print rule contained in Proposition 54 is that it applies to bills that are in their “final form.”

What does that mean? This term is not used in the Legislature, and a definition of this term is not found in the glossaries of terms that are published by the Legislative Counsel, or the Assembly or Senate.

For those working in and around the state Capitol, bills are almost never referred to as being in their “final form.”

In fact, some have suggested that the “final form” of a bill is the version that is submitted to the governor for final action, after engrossing and enrolling have been completed. As Capitol observers note, legislators do not vote on the enrolled version of a bill.

In doing some research on this matter, there is only one provision of the California Constitution that uses the term “final form” — Proposition 54.

But this term is found in a number of statutes in California law, most often referring to documents that are in their final form and need to be filed with state agencies or departments.

Nonetheless, two other statewide ballot measures adopted by the electorate use the term “final form.”

Civil Code Section 1431.4 was added in June 1986 by Proposition 51 and Government Code Section 81012 was added in June 1974 by Proposition 9. Although these two statutes use that obscure term, there are differences between them and the language contained in Proposition 54.

Proposition 51 can be amended if the bill furthers the purpose of the law, two-thirds of the Legislature votes in favor, and “if at least 20 days prior to passage in each house the bill in its final form has been delivered to the Secretary of State for distribution to the news media.”

Similarly, Proposition 9, the Political Reform Act, can be amended if the bill furthers the purpose of the PRA, two-thirds of the Legislature votes in favor, and “if at least 12 days prior to passage in each house the bill in its final form has been delivered to the commission for distribution to the news media and to every person who has requested the commission to send copies of such bills to him or her.”

So, if the proponents of Proposition 54 decided to use these existing code sections as the basis for their use of the term “final form,” then they failed to include an important provision that specifies “in each house.”

Does this mean that the Assembly is correct in not applying the 72-hour in print rule to the house of origin deadline?

Passing a bill out of its house of origin is a procedural matter. For a bill to ultimately become a statute, it must pass both houses of the Legislature and be signed into law (unless the governor allows it to become law without his or her signature). Failure to include the phrase “in each house” provides a basis for the Assembly not applying Proposition 54 to the house of origin deadline.

Readers should also be aware of how the Assembly rules handle bills that amend the Political Reform Act of 1974 or the California Stem Cell Research and Cures Act because they also shed light on the Assembly’s interpretation of Proposition 54.

According to Assembly Rule 69.1, a bill to amend the PRA “may not be passed until, 12 days prior to being considered for passage, the bill in its final form has been delivered by the Chief Clerk to the Fair Political Practices Commission for distribution to the news media and to every person who has requested the commission to send a copy…”

Meanwhile, regarding the stem cell agency, Assembly Rule 69.2, states “the bill may not be passed until, 14 days prior to the date of passage, copies of the bill in its final form are made available by the Chief Clerk to the public and the news media.”

In both instances, the Assembly applies these Rules to the house-of-origin deadline. Why does the Assembly do so?

Because the underlying statute requires that the days-in-print rule apply to “passage in each house.” If Proposition 54 contained this same language, we may assume the Assembly would apply Assembly Rule 76 to the house-of-origin deadline as well.

As a result, the Assembly says the limitations imposed by Proposition 54 only apply to final passage of the bill and not the house-of-origin deadline.

As further evidence of the consistent treatment of these “in print” rules, the Joint Rules of the Assembly and Senate similarly address two types of bills that require measures to be in print for a specified period of time.

Perhaps the sponsors of Proposition 54 should have used the language that was contained in certain proposed ballot measures that were considered (but never adopted) by the Legislature. These measures contained language that is clearer than that in Proposition 54.

For example, SCA 4 (Wolk) in 2016 would have added this phrase to the state constitution: “No bill may be passed in either house until the bill, in the form to be voted on, has been made available to the public by publishing it on the Internet for at least 72 hours before the vote in that house.”

This issue being debated around the state Capitol ultimately may be decided by the courts, assuming the sponsors of Proposition 54 decide to challenge any Assembly actions in court.

The case would be a relatively simple one of statutory interpretation. A bill would need to be important and substantive enough to warrant a costly and long-term legal battle that may have to be decided by the state Supreme Court.

Nonetheless, this is potentially only an issue if a bill were amended with fewer than 72 hours in print prior to the house of origin deadline and that bill is not amended in the other house.

In other words, of those 95 bills passed by the Assembly on June 1, how many will be amended in the Senate? If all of them are, then they will have to come back to the house of origin to be voted upon again and in those cases there could not be a violation of Proposition 54, assuming compliance with the Legislature’s rules.

There could only be a possible issue that would be subject to a lawsuit if a bill passed both houses (after having passed the house of origin in an amended form and the bill had been voted on after having been in print fewer than 72 hours) and was signed by the governor.

Obviously, if vetoed by the governor, the issue would be moot. So, the claims by proponents of Proposition 54 that they are contemplating litigation now makes little sense until the governor has acted upon a measure that they allege violated Proposition 54.

Until that time, there cannot be a violation.

Finally, an easy remedy to address any alleged violation is to simply have the house of origin take a procedural vote to pass the bill one more time prior to the bill being sent to the governor’s desk, sort of like confirming the Assembly’s prior vote that had taken place on June 1. That would eliminate any alleged violation of Proposition 54.

In this author’s opinion, Proposition 54 represents another example wherein the Legislative Counsel should be the one drafting ballot measures before they can be placed on the ballot.

Although we can point to examples of ambiguous statutes being drafted by the Office of the Legislative Counsel, in this particular instance, Proposition 54 could have been more clearly drafted, certainly along the lines found in prior SCAs.
—
Ed’s Note: Chris Micheli is an attorney and legislative advocate with the Sacramento governmental relations firm of Aprea & Micheli. He can be reached at (916) 448-3075.