The Role of the Legislative Counsel

clcBy Chris Micheli

Most Capitol observers know that the Legislative Counsel and her deputies serve as the attorneys for the California Legislature. But their role is much broader than that. This article briefly describes the numerous activities that must be undertaken by the Legislative Counsel.

Under Government Code Section 10207(a), the Legislative Counsel maintains the attorney-client relationship with each Member of the Legislature with respect to communications between the member and the Legislative Counsel, except as otherwise provided by the rules of the Legislature.

As a result, all materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by the Legislative Counsel, are not public records, except as otherwise provided by the rules of the Legislature or when released by the member for whom the material was prepared.

In addition, pursuant to Section 10207(b)(1), the Legislative Counsel maintains the attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. Under Section 10207(b)(2), whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or other legislative measure that is then pending before the Legislature, or of any amendment made or proposed to be made to that bill or measure, the Legislative Counsel delivers two copies of the opinion to the first-named author of the bill or measure as promptly as feasible after delivery of the original opinion, and also delivers a copy to any other author of the bill or measure who requests a copy.

The Legislative Counsel must be in attendance for all regular and special sessions of the Legislature under Section 10230.

Per Section 10231, the Legislative Counsel prepares and assists in the preparation, amendment and consideration of legislative measures when requested or upon suggestion as provided. And Section 10232 requires the Legislative Counsel to advise any State agency as to the preparation of measures to be submitted to the Legislature.

In addition, upon request per Section 10232.5, the Legislative Counsel may provide legal services to the State Auditor.

As required by Section 10233, upon request, the Legislative Counsel shall aid and assist any member of the Legislature as to bills, resolutions and measures, drafting them into proper form, and furnishing to the member the fullest information upon all matters in the scope of the bureau.

In addition to serving as legal counsel to the Legislature, state law also requires services be provided to the Governor regarding legislation. These requirements are specified in Section

10235. Subdivision (a) provides that the Legislative Counsel shall give such consideration to and service concerning any bill in the Governor’s hands for rejection, approval, or other action, as the circumstances will permit and the Governor requests.

Pursuant to Subdivision (b), upon request, the Legislative Counsel may provide to the Governor an opinion, orally or in writing, upon any question of law. And the Legislative Counsel may provide additional legal services to the Governor concerning any matter as the circumstances permit and the Governor requests under Subdivision (c).

The Legislative Counsel also prepares or assists the Legislative Counsel shall prepare or assist in the preparation or amendment of legislative measures at the written suggestion of any judge of the Supreme Court, the courts of appeal, or of the superior courts of the state under Section 10237.

Under Section 10242, the Legislative Counsel must advise the Legislature from time to time as to legislation necessary to maintain the codes and legislation necessary to codify such statutes as are enacted from time to time subsequent to the enactment of the codes.

The Legislative Counsel must annually prepare, publish, and maintain an electronic list of all reports that state and local agencies are required or requested by law to prepare and file with the Governor or the Legislature, or both, in the future or within the preceding year. This is pursuant to Section 10242.5.

Section 10243 obligates the Legislative Counsel to cooperate with the proponents of an initiative measure in its preparation when requests by 25 or more electors and there is reasonable probability that the measure will be submitted to the voters of the State under the laws relating to the submission of initiatives.

The Legislative Counsel cannot appear in any action or proceeding in the courts of this state or of the United States without the prior approval of the Joint Rules Committee. This is pursuant to Section 10245.

Under Section 10248(a), the Legislative Counsel must, with the advice of the Assembly Committee on Rules and the Senate Committee on Rules, make all of the following information available to the public in electronic form:

(1) The legislative calendar, the schedule of legislative committee hearings, a list of matters pending on the floors of both houses of the Legislature, and a list of the committees of the Legislature and their members.

(2) The text of each bill introduced in each current legislative session, including each amended, enrolled, and chaptered form of each bill.

(3) The bill history of each bill introduced and amended in each current legislative session.

(4) The bill status of each bill introduced and amended in each current legislative session.

(5) All bill analyses prepared by legislative committees in connection with each bill in each current legislative session.

(6) All vote information concerning each bill in each current legislative session.

(7) Any veto message concerning a bill in each current legislative session.

(8) The California Codes.

(9) The California Constitution.

(10) All statutes enacted on or after January 1, 1993.

As readers can see, there are quite a few statutorily-required activities for the Legislative Counsel. Diane Boyer-Vine is the current Legislative Counsel and oversees more than 85 attorneys who are employed in the Office of the Legislative Counsel, as well as all of the staff of the Legislative Data Center, which is also overseen by her.

Chris Micheli is a Principal with 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.

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