January 17, 2022

Volume XII, Number 17

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Coping with COVID: How the California Legislature Engaged in Lawmaking During the Pandemic

When the COVID-19 pandemic caused the California Legislature to temporarily shut down in March 2020, numerous questions were raised by the Capitol community regarding how the Legislature would operate during the pandemic, and whether the pandemic would result in short-term or long-term changes to the legislative process. Among the operational questions that were posed in the early days of the pandemic were:

  • Would the public be allowed into the State Capitol building for office visits, committee hearings, and floor sessions? Would the public be allowed into the Legislative Office Building housing numerous policy committee and other legislative staff offices?

  • How would committee hearings be conducted and would the public be allowed or required to participate remotely or in person?

The other process area that generated significant debate was how legislators would participate in official legislative deliberations. For example, would they have to attend committee hearings and floor sessions in person? Or would they be allowed to participate remotely? And, if they participated remotely, could they cast votes remotely or only engage in legislative debate remotely? Finally, what about the idea of proxy voting for those legislators who could not physically come to Sacramento?

Naturally, the Legislature consulted with the Office of Legislative Counsel that serves as the in-house lawyers for the legislative branch of government, in addition to their bill drafting duties. The Office of Legislative Counsel (OLC) advised early in the pandemic that it was likely unlawful for the Legislature to engage in either remote voting or proxy voting. While the Assembly accepted this legal advice, that house decided that it wanted to pursue an amendment to the California Constitution to allow such forms of voting and remote participation.

On the other hand, the State Senate sought outside legal advice and received an opinion from a private law firm that state senators could engage in remote voting with safeguards. The Senate took that advice and established a process by which legislators could participate remotely in committee hearings and floor sessions, but could only vote remotely in committee hearings and not on the Senate Floor.

In the meantime, the Assembly and Senate created a remote testimony system for members of the public to provide telephone testimony at all legislative committee hearings. In most instances, state officials were allowed to provide testimony by Zoom, which was projected onto a screen in the Capitol hearing room or on the Assembly or Senate Floors, and which was televised for those watching the hearing on television.

The Assembly additionally set-up remote testimony sites just outside North entrance to the State Capitol and, on occasion, at state buildings in several large cities such as San Francisco, Fresno, San Diego, and Los Angeles.

This article explores some of the legal and practical issues faced by the Legislature as it began addressing how to conduct its official legislative proceedings during the pandemic.

In addition, this article considers some of the key arguments for and against remote and proxy voting in the California Legislature. From this author’s perspective, the decision whether such activity is permissible under the state Constitution depends upon one’s view of Article IV, which establishes the California Legislature and the legislative process.

One viewpoint is that the state Constitution grants plenary authority to the Legislature and that the Constitution does not explicitly prohibit proxy or remote voting. As a result, it is allowed because it is not prohibited in Article IV. This author believes such a view that does not consider other provisions of the state Constitution, as well as existing practice. Moreover, one could argue that the plenary authority court decisions are not relevant to the issue of remote or proxy voting because those appellate court decisions deal with the substance of legislation, rather than the legislative process.

The other viewpoint is that the state Constitution implicitly prohibits remote or proxy voting because the language of Article IV contemplates the physical presence of legislators in the State Capitol building for their official deliberations and voting, which was strengthened by language adopted by the voters by Prop. 54.

There are some other interesting sections of Article IV that are explored as well. For example, what about Section 7(a) that grants authority to the Legislature to adopt its internal rules? Or is there a distinction between substantive and procedural rules? And, what about the impact of the Enrolled Bill Rule? As California courts have taken a narrow view of the EBR, would the EBR preclude consideration of a bill passed by remote or proxy voting?

The following describes the actions taken by legislators during the 2020 and 2021 Legislative Sessions of the California Legislature after introductory material is provided.

Seat of Government

The seat of a government is generally defined as the building or buildings where a government exercises its duties and responsibilities as set forth in a government’s constitution or charter. In most jurisdictions, the capital of the city, state or country is its seat of government.

California’s Government Code, in Title 1 (General), Division 3 (Seat of Government, Political Divisions, and Legal Distances), Chapter 1 (Seat of Government), which was enacted in 1943, sets forth the seat of state government. Chapter 1 contains Section 450 of the Government Code, which specifies that the “permanent seat of government of the state is at the City of Sacramento.”

Section 450 does authorize the Governor to designate, by a written proclamation, an alternative, temporary seat of state government. This alternative seat is only in the event of war or an enemy-caused disaster, or the imminent threat of such an event or disaster. No such event has occurred due to the pandemic. The Governor’s written proclamation must be filed with the Secretary of State. Governor Gavin Newsom has not filed any such proclamation.

A different, temporary seat of state government may be designated “at any time as circumstances indicate the desirability of such a change.” In such an instance, the Director of General Services, and any other state agency as directed, would be required to provide facilities of any kind at the temporary seat of government as appear desirable for the functioning of state government.

This raises the obvious question of whether the seat of government provision requires the Legislature to always meet in Sacramento at the State Capitol? As the seat of government is designed by state law as being in Sacramento, and the State Capitol is where the Legislature regularly meets to conduct official legislative business, it would seem that this question should be answered in the affirmative.

Does that perspective change during the time of a pandemic? The seat of government question has not been a source of major discussion or debate during the pandemic.

Legislative Operations During Emergencies

As a result of the COVID-19 outbreak, numerous state legislatures around the country have acted upon or considered measures to deal with legislative operations, such as recesses and bill deadlines. And, as in other states, California’s Legislature examined whether it could conduct its official business remotely. California, like many other states, provides for legislative operations during emergencies and the state Constitution speaks to such circumstances.

Recess

At least half of the state legislatures temporarily adjourned or recessed their legislative sessions in spring 2020 as a result of the pandemic. California is one of the states that has a constitutional provision that requires the consent of both houses of the state legislature to recess. Article IV, Section 7(d) of the state Constitution provides, “neither house without the consent of the other may recess for more than 10 days or to any other place.” This is done by a resolution.

The California Legislature recessed its session for an initial six-week period in the spring of 2020, although its initial plan was to recess for three weeks, including its planned spring recess in early April. The Assembly and Senate took an extensive summer recess that year, which meant that the Legislature missed nine weeks of its 2020 Legislative Session.

Special Session

In 36 states, the governor and the legislature have the ability to convene a special session. In the remaining 14 states, however, only the governor has that authority. In California, a “special” session is one convened pursuant to a proclamation issued by the Governor. Pursuant to Article IV, Section 3(b) of the state Constitution, “on extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session. When so assembled it has power to legislate only on subjects specified in the proclamation but may provide for expenses and other matters incidental to the session.”

While the Legislature must convene the special session once it has been called by the Governor, there is no legal requirement that any legislation be enacted, nor even be voted upon. Aside from the fact that a special session is limited to the subject matter for which it was called, there are no significant differences in legislative process between a regular and special session.

However, the effective dates for bills enacted during a special session are somewhat different than those for a regular session. Regular session bills, except urgency clause bills that take effect when the Governor signs them, generally take effect on the following January 1. On the other hand, special session bills take effect on the 91st day after adjournment of the special session.

Both regular sessions of the Legislature and any special sessions not previously adjourned are adjourned sine die at midnight on November 30 of each even-numbered year. As such, neither a regular nor a special session will continue indefinitely. Governor Newsom did not convene the California Legislature is special session during either its 2020 or 2021 Legislative Sessions.

Remote Voting

At least eight states reviewed electronic or remote meetings and voting so far during the pandemic. However, many state constitutions require legislatures to meet in person. As a result, the legislatures in many of these states may be precluded from passing a resolution or adopting a statute to allow remote meetings or voting by state legislators.

As the National Conference of State Legislatures explains, “In normal circumstances, legislatures typically operate under a ‘you must be present’ rule—that is, legislators must be physically present in committee or on the chamber floor to participate in debate or voting. The rationale for this rule centers on the integrity of the legislative process.

Requiring members’ physical presence creates a comfort level that procedures can more easily be controlled and the public can witness debate and voting. State legislatures, however, more often allow the use of technology to facilitate public input into committee meetings.”

In two states—Oregon and Wisconsin—specific provisions allow remote or virtual meetings of the legislature if emergencies exist. In 2012, Oregon voters approved a constitutional amendment relating to catastrophic disaster. Wisconsin’s constitutional provision on continuity of civil government allows the legislature to “adopt such other measures that may be necessary and proper for attaining the objectives of this section.” In both instances, the state legislatures are relying upon grants of authority under their respective constitutions.

In California, one must examine our state Constitution in Article IV, Section 7. Prior to the adoption by the voters in 2016 of Prop. 54, Section 7(c) already provided: “The proceedings of each house and the committees thereof shall be open and public.” As a result of the passage of Prop. 54, this constitutional provision was strengthened by language that begins, “The right to attend open and public proceedings…” There are exceptions in the state Constitution, but those are for the traditional closed sessions to consider employment or security matters or to confer with legal counsel. There is no language in Section 7 dealing with pandemics, etc.

There are also provisions of the California Government Code that provide that the “seat of state government” is in the City of Sacramento. While the Governor by proclamation can designate a different seat of government, that is only allowed during war or an enemy-created disaster pursuant to Government Code Section 450.

In a similar vein, the Joint Rules of the California Assembly and Senate (see JR 60(a)) prohibit bill actions from occurring outside the State Capitol. This is why only “informational hearings” can be conducted around the state by legislative committees, but no bills can be considered or voted upon outside of the State Capitol building. This begs the question whether the Legislature can conduct any remote voting or any other official business outside the State Capitol.

California Senate Allows Remote Voting

Nonetheless, California’s State Senate adopted SR 86 on March 16, 2020, which added Rule 56 to the Senate Rules, and is entitled, “remote participation in meetings during emergencies.” It allows committees to conduct remote meetings by electronic means and allow senators to participate remotely in those proceedings. The State Assembly has not adopted any such rule and the Joint Rules have not been amended.

This leads to the question, if the Legislature proceeds with remote hearings and voting, how will members of the public participate? Ultimately, the practical question would be whether someone or some group would sue to overturn a statute that was passed utilizing remote voting. And, if so, would a state court overturn such a statute under pandemic circumstances?

When the State Senate adopted SR 86, Senate President pro Tempore Toni Atkins announced the use of remote voting under certain circumstances. She explained that the Senate was authorizing the use of remote voting to protect the health of those involved in the legislative process and to be “consistent with our Constitution.” Senator Atkins stated that the Senate had consulted with legal experts and open government groups before implementing this new procedure.

The Senate limits the use of remote voting to their policy and fiscal committees; it is not authorized for use on the Senate Floor. Senators who request to vote remotely have to obtain approval for their accommodation request “due to COVID-19” and will have to participate in the committee hearing from their district office. In addition, the committee chair and a majority of legislators on the committee have to be physically present in the Capitol for the committee hearing to take place.

 Senate Rule 56 only applies during “emergencies,” which is defined as a state of emergency of local emergency proclaimed pursuant to the Government Code, or even an imminent threat of such an emergency. It allows the Senate Leader to assign, remove or replace any Member on a standing committee of the Senate as well as establish a special committee that is deemed necessary.

During such an emergency, the Senate Leader may authorize meetings to be held and for Members of the committee to participate remotely by telephone, teleconference, or other electronic means. In addition, the public may also participate remotely in the committee hearing by any means that the Senate committee would make available.

Pursuant to SR 56, a senator who participates remotely is to be considered present and in attendance at the committee meeting, including for purposes of determining if a quorum is present. With a quorum present, either in person or remotely as verified by the chair of the committee, a vote of a majority of the members of a committee will still be required to report a bill, constitutional amendment, or resolution out of the committee.

SR 56 also authorizes the entire Senate to conduct meetings at which one or more Members will participate in the meeting remotely. Under the current procedure, that would not occur, but may be considered in the remainder of the 2020 Legislative Session.

Finally, Senator Atkins released the following requirements for permitting a Senator who needs a COVID-19 related accommodation to participate and vote during Senate committee hearings from his or her District Office, effective July 29, 2020:

• The Senator must submit a request for accommodation to the Secretary of the Senate and obtain approval from the Secretary prior to participating or voting outside the Capitol.

• The request for accommodation must be specific as to the day or days for which the accommodation is requested, and must be resubmitted at least weekly.

• Senators who are approved to participate and vote remotely must be present in their District Office for any committee hearings for which they are approved to participate and vote remotely. The District Office background must be visible without video alteration.

• While participating and voting remotely, the Senator may have only one person present with him or her, and that person must be a Senate staff person, who is to be identified by the Senator.

• While participating and voting remotely, a Senator may not chair committee hearings. A temporary chair will be appointed for this purpose.

• A Senator who votes remotely shall certify each vote in writing using the form or format provided by the Secretary.

• This accommodation for remote voting is adopted pursuant to Senate Rule 56 (adopted by Senate Resolution 86 of 2020) and will be in effect for the remainder of the 2019-20 Legislative Session.

Senate committee hearings conducted during the period for which remote voting is permitted must be presided over by a chair who is present in the Capitol and must have a quorum of the committee members in the Capitol. Senator Atkins did note as part of her announcement that remote voting on the Senate Floor “does remain an option for the Senate depending on how conditions develop.” She also noted that the “Senate and Assembly are taking different approaches.”

 This memo raises the question of whether there is a legal difference between remote voting in committee versus remote voting on the Floor? If there is, what would that legal distinction be? Is there a distinction between remote voting and proxy voting? If so, what is the legal distinction(s)?

A Contradictory View on Remote Voting

 In general, the Office of Legislative Counsel has opined that remote voting is not permitted under any circumstances, a conclusion supported by this author. This has been the OLC’s view for more than three decades at least. The OLC’s view is that virtually all provisions of Article IV assume that the Legislature is meeting in-person and that Prop. 54 explicitly provides that the public has the right to attend official legislative proceedings in-person, which could not happen if legislators were remote or proxy voting.

Moreover, general parliamentary procedures hold that no legislator may vote if not present for a question or bill. And, the Legislature has already defined what “legislative convening” is and that is explicitly states in-person. The OLC does acknowledge that there is nothing in the state Constitution that explicitly prohibits remote voting, but there are other constitutional provisions suggesting in-person legislative deliberations are required.

 There are state statutes that contemplate in-person legislative proceedings as well. For example, Government Code Article 2.2 is entitled “Open Meetings” and contains Sections 9027 – 9031. Section 9027 specifically provides:

9027. Except as otherwise provided in this article, all meetings of a house of the Legislature or a committee thereof shall be open and public, and all persons shall be permitted to attend the meetings. As used in this article, “meeting” means a gathering of a quorum of the members of a house or committee in one place for the purpose of discussing legislative or other official matters within the jurisdiction of the house or committee. As used in this article, “committee” includes a standing committee, joint committee, conference committee, subcommittee, select committee, special committee, research committee, or any similar body.

 This section of state law clearly provides that all meetings, including committee hearings, of the California Legislature must be open and public and all persons are allowed to attend all legislative meetings. How would that requirement be fulfilled if the legislators themselves were not there in person?

California Assembly Allows Proxy Voting

The State Assembly adopted a new rule to allow proxy voting. Introduced on July 27, 2020, the first day back from the Legislature’s extended summer recess, House Resolution 100 (Calderon) adopted a rule to allow proxy voting during the COVID-19 state of emergency.

HR 100 first contained five “Whereas” clauses setting forth the need for the proposed rule change. The resolution noted that Governor Newsom proclaimed the state of emergency on March 4 as well as certain stay-at-home orders. It also noted that the pandemic affected Members of the Legislature and their ability to participate in legislative proceedings. It also claimed to “threaten to undermine the constitutional duty and authority of each house to convene and to compel the attendance of its Members.”

The resolution also noted that Article IV, Section 7 provides that each house may adopt rules for its proceedings, to define a quorum necessary to conduct business, and establish rules for compelling attendance of absent Members. HR 100 did not amend the existing Assembly Rules. Instead, it adopted a standalone “authorization,” but did begin with the proviso, “Notwithstanding any other rule of the Assembly.”

This rule created by HR 100 authorizes the Assembly Speaker to permit proxy voting by designated Members for floor session (but not committee hearings) during the COVID-19 state of emergency. Eligible Members of the Assembly must request authorization from the Speaker and to be “eligible” the Member “shall be at a higher risk from the COVID-19 virus.” The proxy authorization was terminated when the 2020 Session adjourned November 30, 2020.

In order for an Assembly Member to request authorization to proxy vote, he or she must submit a letter requesting it prior to the floor session at which the voting would occur. If the Speaker approves the request, then that authorization is provided to the Chief Clerk and printed in the Assembly Daily Journal. The Chief Clerk must post the list of any Members voting by proxy on the Assembly website prior to any Floor session at which proxy voting will occur.

Once a Floor session begins, but before proceeding with business contained in the Assembly Daily File, the presiding officer (usually the Assembly Speaker pro tempore) must announce the names of Members who are voting by proxy that day. The Member voting by proxy must submit written voting instructions prior to the Floor session and the instructions must identify each legislative action on which that absent Member will be voting by proxy.

Those written instructions must be submitted to the Chief Clerk. A Member voting by proxy can only change those instructions with another written instruction prior to the presiding officer opening the roll on a legislative action. The proxy votes, along with a brief written explanation by the absent Member if desired, will be identified for each roll call vote in the Assembly Daily Journal. A Member voting by proxy cannot add on or change his or her vote after the proxy vote is cast.

There are four legislative leaders who are authorized to actually cast the proxy votes of the absent Assembly Members: The Speaker (Anthony Rendon), Majority Leader (Ian Calderon), Republican Leader (Marie Waldron), and Republican Floor Manager (Heath Flora). The rule specifically authorizes those four Members to operate electronic voting switches of the absent Members. As a single house resolution, HR 100 only needed to be adopted by a majority vote of the Assembly (neither the Senate nor the Governor has a role in HR 100).

A Contradictory View on Proxy Voting

The Institute of Governmental Advocates (IGA), the association of Capitol lobbyists, had strongly opposed HR 100 because the organization does not believe that the Assembly has authority to allow proxy voting and because such a rule would undermine our representative democracy as enumerated in the state Constitution. IGA argued unsuccessfully that the resolution would permit authorized Assembly Members to conduct official legislative business without being physically present in the State Capitol by use of “proxy voting” during current COVID-19 state of emergency.

IGA believes that “the business of the people” should never be conducted in this manner – under any circumstance. In fact, our state Constitution does not presently dispense with these foundational principles even in the face of “war-caused or enemy-caused disaster” (Article IV, Section 21). IGA state that, under HR 100, a majority of the Assembly could apply to cast proxy votes. However, even with intended safeguards in your resolution, IGA believes that proxy voting should never be permissible, under any situation, under our system of government. 

ACA 25: Assembly Passes Measure to Amend the Constitution, Senate Rejects It

  California’s lobbyist association, the Institute of Governmental Advocates (IGA) lobbied against ACA 25, stating, “the Legislature should never reject, even in the face of crisis, the structural underpinnings of our representative democracy as enumerated in our State Constitution. The foundational constitutional provisions include:

  1. “The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good” (Art. I, § 3(a).)

  2. “The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Art. I, § 3(b).)

  3.  “Except as provided in paragraph (3) [permissible closed session matters], the proceedings of each house and the committees thereof shall be open and public.” (Art. IV, § 6(c).)

  4. “The right to attend open and public proceedings includes the right of any person to record by audio or video means any and all parts of the proceedings and to broadcast or otherwise transmit them...” (Id.)

  5. “No bill may be passed or ultimately become a statute unless the bill with any amendments has been printed, distributed to the members, and published on the Internet, in it is final form, for at least 72 hours before the vote, except [for bills necessary to address the declared state of emergency by the Governor].” (Art. IV, § 8(b)(2).)

  6. Our Constitution requires legislative action to be taken by “roll call vote entered intothe journal” (See, e.g., Art. IV, sec. §§ 7, 8, 10).

ACA 25 would have allowed legislative business to be conducted “without being physically present” and/or by “proxy voting” during “the pendency of a state of emergency declared by the President... or the Governor.” The definition of “state of emergency” found in ACA 25 was viewed as overly broad (e.g., “conditions of disaster...within the State, or parts thereof”) that it could authorize the Legislature to withdraw from the Capitol and work remotely at almost any time it desired.

For example, under ACA 25, as written, the Legislature could have invoked its ability to legislate remotely on November 30, 2018 when the Governor declared a state of emergency in Shasta County as a result of fire – that declaration was in place for over a year. Indeed, there has been a Declaration of Emergency in place at one point or another during every year over the last decade or more.

In addition, IGA opposes the use of “proxy voting” under any scenario. While ACA 25 does not specify proxy voting as a result, it could have permitted the Legislature to draft rules allowing for such voting.  IGA argued that such a process to be fundamentally antithetical to representative democracy. Moreover, it is unnecessary as the Constitution presently authorizes the Legislature to “compel the attendance of absent members” (Art. IV, § 7(a).)

While ACA 25 passed the Assembly on a bi-partisan basis, the Senate never considered the measure and, as a result, it failed to be placed on the statewide ballot for consideration by the electorate.

Internal Rules of the Legislature

There are some other interesting sections of Article IV that may play into the debate over remote or proxy voting. For example, what about Section 7(a) that grants authority to the Legislature to adopt its internal rules? Or is there a distinction between substantive and procedural rules?

Pursuant to Article IV, Section 7 of the California Constitution, “each house shall choose its officers and adopt rules for its proceedings.” The judiciary will generally defer to the legislature regarding its internal rules and procedures. For example, the Assembly Rules, Senate Rules and Joint Rules are given deference because they involve the internal operating rules of the legislative branch of government. The Legislature is granted this authority pursuant to the state constitution and so it is unlikely that a challenge to any provisions of the internal rules of the Legislature will survive in court.

The seminal case was decided on May 21, 1986, by the Court of Appeals of California, Third Appellate District, in People’s Advocate, Inc. v. The Superior Court of Sacramento County; California Legislature, Real Party in Interest. The general rule from this appellate court decision is that the Legislature is in charge of its own rules and how it wants to conduct its operations. Those internal rules of procedure are for the Legislature to determine and not to be second-guessed by another, co-equal branch of government.

The appellate court in this case ruled that, “since the subjects of statutory laws and rules of internal proceedings categorically differ, a statute may not control a rule of internal proceeding.” Does that mean anything that is the subject of an Assembly, Senate or Joint Rule cannot be the subject of a statute and vice versa? It is also interesting that the court found “the apparent anomaly that the Legislature has in fact adopted statutes which purport to regulate the internal proceedings of its houses”?

Another appellate court decision, in Mission Hospital Regional Medical Center v. Shewry, determined that each house of the Legislature has the power to adopt any procedure and to change it at any time and without notice. Both the California Assembly and Senate have the power to adopt their own rules of proceeding including rules for hearings and notice, and these rules of proceeding are the exclusive prerogative of each house.

However, a different point of view is that there should be a distinction between substantive and procedural rules adopted under Section 7(a). For example, some observers believe that Section 7(a) rules do not concern substantive matters, but purely procedural items. Examples of procedural rules could be how much notice must be given to the public before a committee hearing, or which committees the Senate or Assembly will create.

On the other hand, under this point of view, substantive rules (such as casting a vote through a colleague or casting a vote while not being physically present at a committee hearing or floor session) do not fall under Section 7(a). The courts have not addressed the applicability of Section 7(a) with such specificity, so it is unclear how state appeals courts might rule on such a distinction between substantive and procedural rules.

Enrolled Bill Rule and the Legislature’s Proceedings

Would the Enrolled Bill Rule (EBR) preclude judicial review of a statute that was enacted under a proxy or remote voting scheme? In general, the judicial branch is loath to review the record keeping practices of the Legislature to determine the validity of statutes that the legislative branch of government has enacted.

This limitation on judicial inquiry is known as the “Enrolled Bill Rule” and this legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated and filed,” then it is presumed that “all of the steps required for its passage were properly taken,” and “even the journal of the Legislature is not available to impeach it.”

Almost 100 years ago, the California Supreme Court ruled in Taylor v. Legislature (1927) 201 Cal. 327, 332, that "a statute, properly enrolled and authenticated, conclusively establishes not only the contents of the law but the due performance of all steps requisite to its passage by the legislature. This is the general law and has long been the rule of decision in this state."

Earlier, in County of Yolo v. Colgan (1901) 132 Cal. 265, the California Supreme Court rejected a claim that, based on an entry in the Senate Daily Journal, a statute had not received the requisite number of votes for passage and was thus invalid; in so ruling, the court cited the separation of powers doctrine, concluding that "while the constitution has prescribed the formalities to be observed in the passage of bills and the creation of statutes, the power to determine whether these formalities have been complied with is necessarily vested in the legislature itself..."

With the California courts narrowly applying the EBR, could it be argued that a bill that has been “properly enrolled, authenticated and filed,” even if it were enacted by proxy or remote voting, could not be overturned by a court in this state?

Conclusion

We may never get a judicial determination whether remote or proxy voting is permissible under the California Constitution. First, proxy voting has not been utilized, even though it was authorized during the 2020 Legislative Session by the Assembly. The Assembly Speaker simply did not approve its use by any Assembly Members who had applied for permission to proxy vote.

 Regarding remote voting, the Senate only used it for committee votes, which is not a final vote on a bill like a Senate Floor vote would be. Moreover, no bill passed by a Senate committee was dependent on one or more remote votes cast. As a result, it could not be said that a bill in either the 2020 or 2021 Legislative Session only passed because a remote vote was cast.

As a practical matter, it is unlikely that a court in California, let alone an appeals court, will see a direct challenge to either proxy or remote voting. Such a decision, if there were to be one, would be significant decision affecting the California Legislature, the legislative process, and public participation in this process.

In the meantime, the California Legislature did make a number of modifications to how it conducts its official legislative proceedings during pandemic times. Its efforts have ensured that members of the public are able to participate in policy and fiscal committee hearings so that legislators can hear and consider the viewpoints of their constituents and interest groups.

© 2022 University of the Pacific, Calif. All rights reserved.National Law Review, Volume XII, Number 11
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About this Author

Chris M. Micheli, Attorney, California legislative advocate eSacramento governmental relations firm of Aprea & Micheli
Adjunct Professor

Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc. As a lobbyist in the labor and employment field, he was directly involved in the development of California’s changes to its Equal Pay Act. The Wall Street Journal (July 1998) called him "one of the top three business tax lobbyists in the state." The Los Angeles Times (May 2005) described him as an "elite lobbyist," and Capitol Weekly (August 2006) described him as a "prominent lobbyist." He received his B.A. in Political Science - Public Service (1989) from the...

(916) 448-3075
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