By Chris Micheli
The judiciary is the forgotten branch of state government when it comes to the lawmaking process. The courts can and do play a key role because judges interpret the laws and their decisions may comport with the interpretation intended by the Legislature or may result in something quite different.
The courts can also strike down a statute or narrow its application. And, every year, there are bills considered by the California Legislature because of a court decision. Those types of bills may clarify existing law, overturn a court decision, or amend a law to comport with the court’s interpretation.
Members of the state and federal judicial branches play a role in the California lawmaking process as a part of our government’s system of “checks and balances.” Obviously, the judiciary represents the third branch of government and is, of course, a co-equal branch with the Legislature and the Governor.
When California statutes or regulations are legally challenged, for example, then the state or federal court that issues a decision establishes a policy for the state. California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state’s lawmaking process when they issue a written decision based upon a legal challenge to a new or existing law.
The other major way in which the courts make state public policy is through statutory interpretation. In this instance, there is a statute or group of statutes which may be unclear in their language or even silent on some aspect of public policy or area of the law. The court is asked to fill in the gap (i.e., to discern the intent of the legislature) and give meaning to the law.
Thus, to invoke this approach, the party challenging the statute will need: (a) a statute or statutory scheme which is unclear or silent on some public policy matter, and (b) a cause of action and standing to sue to that they can properly bring a lawsuit. This formal process results in lobbying the judicial branch of government.
In addition, pending litigation can preclude consideration of legislation out of concern that the bill could impact the current legal case and legislators are often unwilling to interfere with a pending case. In other words, if a lawsuit is currently pending, then the legislative branch of government often declines to act until the judicial branch has concluded its process.
Another aspect to consider is that a party might have been successful in the legislative process, and maybe even in the regulatory arena. But they may be called upon to defend the legislative and/or regulatory victory in the courts. Consider that your opponents may challenge those legislative or executive branch victories in the courts, which could lead to a reduction in the legislative or regulatory victory, or it could result in the loss of the entire statute or regulation due to an adverse court decision.
As strange as it may sound, there is “lobbying the judicial branch”. Interest groups work to influence the courts in several ways, the most common of which is filing “friend of the court” briefs in which they present supporting or opposing arguments in a case. Some interest groups even file lawsuits against the government challenging the interpretation or enforcement of statutes or regulations.
Lobbying the judiciary is sort of the forgotten or even unknown form of lobbying. This does not mean ex parte communications with judges (which can occur in the legislative process), which are prohibited; instead, it means filing amicus curiae (“friend of the court”) briefs with the court, which is the formal process of “lobbying” the judiciary branch of state government.
The state and federal judiciary can significantly impact laws and regulations, sometimes modifying or even undoing what the legislative and executive branches of government do. Because of this, lobbyists and interest groups should actively monitor the formal decisions of trial and appellate courts in the State of California in case such a decision adversely impacts a statute or regulation, or gives rise to a need to change the law.
Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.