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Urgency or special? That is the question

The Assembly chamber at the state Capitol in Sacramento. (Photo: Felix Lipov, via Shutterstock)

California courts are occasionally faced with scrutinizing the lawmakers’ decisions to label some bills as urgency statutes and others as special statutes.  

It may sound unexciting, but the reality is this: The courts’ rulings can affect millions of Californians.

Whether it is a statement to justify an urgency statute or a statement to justify a special statute, the courts decide whether the Legislature has provided a solid enough explanation to justify the need for either designation.

There needs to be a concise, but thorough, explanation to provide the basis for either the urgency statute or the special statute.

However lawmakers define their bills, the courts evaluate them on their legal merits.

An urgency bill requires two-thirds votes in both houses for approval and takes effect immediately. These bills typically deal with taxes, elections and appropriations, and those  that are “necessary for immediate preservation of the public peace, health, or safety,” the state constitution says.

A special statute is essentially a law that applies to a particular person, place, or interest. These bills typically do not draw a lot of public attention, unless questions are raised about the motives behind the bill or whether someone is unfairly benefiting.

The special bill is distinguished from the general bill, which is more familiar to the public. A general statute is essentially a law that pertains uniformly to an entire community or all persons generally. The Legislature is empowered to act on both types of bills.

When it comes to deciding whether a bill is urgent or special, California’s courts look beyond the statements contained in bills for urgency clauses and special statute clauses. 

It is imperative that the bills’ authors assist the lawyers at the Office of Legislative Counsel — which writes the formal bills — to craft the measures with language persuading the courts to uphold these provisions.

Specifically, there needs to be a concise, but thorough, explanation to provide the basis for either the urgency statute or the special statute. Without sufficient justification, these bills could be in jeopardy of those designations.

Working with the bill’s author, the Office of Legislative Counsel decides whether an urgency clause will pass constitutional muster

Because both urgency statutes and special statutes are constitutional grants found in Article IV of the California Constitution, they are properly subject to judicial review.

Because of this review by state court judges, legislators should make it as easy as possible for the courts to understand the intent of the Legislature.

If there is insufficient justification, then a court may not uphold that designation despite the Legislature’s intent. Just because there is a short statement contained in a bill’s “plus section,” that does not mean the courts will automatically agree.

Rather than forcing the courts to make an educated guess or to infer what the Legislature intended, lawmakers should simply be clear by explaining why an urgency clause or a special statute is needed.

Obviously, it is the legislative branch that is the lawmaking branch of state government. However, in order to properly fulfill this role, the Legislature has to make its declaration pursuant to the requirements of the state Constitution. 

Working with the bill’s author, the Office of Legislative Counsel decides whether an urgency clause will pass constitutional muster and, if so, how the bill language should be drafted.

With an urgency statute bill, a reader will see the following language in the measure:

“This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: ____”

A general statute is essentially a law that pertains uniformly to an entire community or all persons generally.

Thereafter, the bill must contain an explanation of the need for an urgency clause. It is up to the bill’s author to provide Legislative Counsel attorneys the language that should replace the blank space above. Unfortunately, these clauses are often too short, such as the following example (taken from a prior session bill):

“In order to pay judgment and settlement claims against the state and end hardship to claimants as quickly as possible, it is necessary for this act to take effect immediately.”

There should be more explanation contained in this declaration. A court is not going to simply accept this one sentence. Instead, a state court will likely look for other evidence to justify this statement. Rather than force judges in this state to engage in further research, one should simply include in the statement the “back-up” or evidence for this simple statement.

A general statute is essentially a law that pertains uniformly to an entire community or all persons generally.

Under the constitutional prohibition of special legislation, “a law is ‘general’ when it applies equally to all persons in a class founded upon some natural, intrinsic or constitutional distinction, and it is ‘special’ if it confers particular privileges or imposes peculiar disabilities or burdensome conditions, in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law.” City of Pasadena v. Stimson (1891) 91 Cal. 238, 251-252.

The test for determining whether a statutory classification violates the constitutional provision that a “local or special statute is invalid in any case if a general statute can be made applicable” is “similar to that used to determine a statute’s constitutionality under the equal protection clause.

For more than 100 years, California courts have entertained challenges to the Legislature’s attempts to designate urgency statutes and special statutes.

The constitutional prohibition of special legislation does not preclude legislative classification but only requires that the classification be reasonable.” Law School Admission Council, Inc. v. State (2014) 222 Cal.App4th 1265, review denied

Thereafter, the bill must contain an explanation of the special nature of the bill and why a bill of general application will not work in these particular circumstances. The following is an example of such language (taken from a prior session bill):

“The unique island location of ___ and its proximity to large military installations requires a special law. In addition, the complexities of amending a general plan and a local coastal plan for the ___ will take significantly longer than six months. As a result, a general law cannot be made applicable.”

Here, too, there should be more explanation contained in this declaration.

A court is not going to simply accept these two sentences. Instead, a state court will likely look for other evidence to justify these statements. Rather than force judges in this state to engage in further research, lawmakers should simply include in the statement the “back-up” or evidence for these two sentences.

For more than 100 years, California courts have entertained challenges to the Legislature’s attempts to designate urgency statutes and special statutes. While some courts have deferred entirely to the legislative declarations contained in those clauses, the better approach is for bill authors to provide plenty of explanation to justify either of these designations.

Then, there will not be concern that the judicial branch may not uphold the intent of the Legislature.

Editor’s Note: 
Chris Micheli is an attorney and lobbyist for the Sacramento governmental relations firm of Aprea & Micheli, Inc. He also serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program, as well as a Lecturer at the UC Davis King Hall School of Law.

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