They are known as the Legislature’s lawyers. The Office of Legislative Counsel—also called the Legislative Counsel Bureau—is a nonpartisan public agency that produces legal opinions, drafts legislative proposals and offers various confidential legal services to the Legislature. Its responsibility includes computer services, data networking and related customer services. The office drafts bills, constitutional amendments, resolutions and proposed amendments to those measures. Its legal insight is used to render legal opinions on issues of constitutionality, statutory interpretation and other legal matters. The Office of Legislative Counsel represents the Senate and Assembly in litigation, prepares contracts for the Senate and Assembly as well as provides legal services to the governor. Office leadership consists of the Legislative Counsel and two chief deputy legislative counsels. An additional 70 attorneys complete the office’s roster. The legislative counsel is selected by the Legislature via resolution at the beginning of each legislative session.

Firm Overview (Legislative Counsel website)

Oral History Interview with Bion Milton Gregory (pdf)

The predecessor for the Office of Legislative Counsel was the Commission for the Revision and Reform of the Law, founded in 1895 when the California Legislature recognized the need for a legal adviser. The commissioners attended legislative sessions upon request and acted as legislative advisers and counsel.

The Legislative Counsel Bureau was established as a staff agency in 1913 to assist the Legislature with bill drafting and statutory revision. The initial counsel was chosen by the governor and two members of each house of the Legislature. In 1917, the position changed to appointment by the governor. In 1927, the law was changed to the current process of selection of the legislative counsel by the Legislature, by adopting a concurrent resolution at the beginning of each session. By law, the selection has to occur without reference to political party affiliation and only on the all-around fitness to perform the duties of the office.

The Office of Legislative Counsel installed its first computer equipment in 1972 for the composing and printing of legislative bills and other publications. A fire in 1977 destroyed all of the computer equipment. A new IBM mainframe system was installed to take its place.

In 1985, the Legislative Counsel was required to review each piece of pending legislation to determine if it mandates a new program or a higher level of support and service. If that is the case, the Finance Department provides an estimate of the additional cost.

History (Legislative Counsel website)

Legislative Data Maintained in Electronic Form (Minnesota History Center) (pdf)

Along with its role as a legal resource and adviser, the Office of Legislative Counsel provides a wide range of legislative support services. Most importantly, it writes the legislative draft of virtually every piece of legislation and prepares legal opinions on legislation for lawmakers and the governor. The Legislative Counsel also reviews bills to determine if they would result in a reimbursable state mandate. If that is the case, the Finance Department then creates an estimate of costs associated with the legislation.

Preparing amended bills for printing, compiling and indexing California statues and codes are among the services the offer. During every legislative session, the office prepares as an index of pending bills known as the Legislative Index and tables that identify sections of existing laws affected by pending measures.

At the end of each legislative session, the office’s Indexing Unit compiles and indexes the state publication of the session laws, including the “Summary Digest of Statutes Enacted,” a compilation for the bills that were enacted into law. The office also produces the Legislative Counsel’s Digests—an analysis and index of the bills—and a table of the sections of law affected by the bills.

The Legislative Counsel also operates the Legislative Data Center, which maintains the legislative information systems and processes legislative measures. Since 1994, the Legislative Counsel has managed a website for public information on legislation that includes information regarding pending legislation and existing law.

Legal Services (Legislative Counsel website)

Information Services (Legislative Counsel website)

State Mandates (State Auditor) (pdf)

More than 80% of the office’s budget is allocated from the state’s General Fund. Its 2011-12 budget of $89.3 million was an increase of nearly 10% over its 2010-11 budget. About 70% of the office’s budget is spent on salaries and benefits and the rest goes for operating expenses and equipment.

3-Year Budget (pdf)

Legislative Data Center Hacked

The Legislative Counsel operates the Legislative Data Center, which provides a range of technical computer service to the Legislature. The data center consists of more than 500 servers, a mainframe computer, more than 3,000 personal computers and wireless devices, and sophisticated storage management systems.

During an investigation of a power outage in August 2011, it was discovered that the data center’s computers had been hacked. Legislative Counsel Diane Boyer-Vine said that a server had been accessed and that 50 employees of the state Assembly, including some lawmakers, were warned that their personal information stored on the computer may have been compromised.

Computer Hacking Sparks Assembly Warning to Dozens of Aides (by Kevin Yamamura, Sacramento Bee)

Hackers Breach California Assembly Computer System (Associated Press)

Los Angeles Mayor’s School Plan

Antonio Villaraigosa campaigned for mayor in 2005 on a platform that included a substantial takeover of the troubled Los Angeles Unified School District. After initially seeking complete control, he scaled back his attempt and sought legislative passage of Assembly Bill 1381. The bill, which gave the mayor direct control over a cluster of K-12 schools, a role in selecting the school superintendent and other authority, passed in August 2006.

But it did so despite a legal opinion from the Legislative Counsel that the law was unconstitutional. “In our view,” wrote Legislative Counsel Diane Boyer-Vine, “an amendment of the California Constitution would likely be necessary” because the mayor lacks “authority to operate and administer the schools of a school district.”

“A court would likely conclude that authority or control over educational functions currently performed by a school district may not be transferred by statute to the mayor of a charter city,” Boyer-Vine wrote.

The mayor’s legal counsel, Thomas Saenz disagreed with Boyer-Vine’s assessment and said he was confident the bill would survive a court challenge because, although it “would be a very good argument if this was the mayor of Los Angeles independently trying to usurp authority over the school district without legislative authorization, that is not the situation..”

The bill did not survive the challenge. Opponents of the legislation won in Superior Court and then again on appeal. Superior Court Judge Dzintra Janavs wrote in the early decision that the law “makes drastic changes in local governance of the (Los Angeles Unified School District), giving the mayor a role that is unprecedented in California.”

In May 2007, Villaraigosa decided not to pursue an appeal.

Villaraigosa Ends Legal Battle Over Control of LAUSD (California School Boards Association)   

Los Angeles Mayor Antonio Villaraigosa Loses His Bid To Take Over The Public School System (ParentAdvocates.org)

Mayor's School Plan Is Likely to End in Court (by Mitchell Landsberg, Los Angeles Times)

LAUSD Reform Legislation Approved by Senate, 23-14 (by Nancy Vogel and Michael Muskal, Los Angeles Times)

DUI Checkpoints

California law enforcement officials called 2010 the “Year of the DUI Checkpoint.” Fines, towing fees, impound charges and sales of impounded vehicles at auction netted local communities a windfall along with the scrutiny of activists who complained that Latinos were being unfairly targeted by the expanded DUI operations.

The impounds also received the attention of Legislative Counsel Diane Boyer Vine who, in 2007, said, “If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle.”

The Legislative Counsel has no authority over local police departments, but her opinion echoed a ruling in 2005 by the Ninth U.S. Circuit Court of Appeals in an Oregon case, in which it said that law enforcement cannot impound a vehicle just because the driver doesn’t have a license. 

In October 2011, Governor Jerry Brown signed into law AB 353, which restricts the ability of authorities to impound the vehicle of sober drivers stopped at DUI checkpoints just because they are unlicensed. 

Gov. Jerry Brown Signs Bill Placing Limits on DUI Checkpoints (by Patrick McGreevy, Los Angeles Times)

DUI Checkpoints, Auto Impounds, and the Undocumented Immigrant Driver (by Daniel Shanfield, Avvo)

Car Seizures at DUI Checkpoints Prove Profitable for Cities, Raise Legal Questions (by Ryan Gabrielson, California Watch)

Opening the Legislative Database

The Office of Legislative Counsel maintains a database of legislation with information that includes how state lawmakers vote on individual bills. However, until 2009 that information was only available for viewing and printing but could only be accessed one bill at a time, making analysis of the data difficult.

In July 2008, MAPLight.org., a nonpartisan research organization that deals with the connection between money and politics, was refused a copy of the electronic database used to create the Legislative Counsel’s website and filed suit with the California First Amendment Coalition for access.

Shortly after the lawsuit was filed in 2009, the Legislative Counsel posted a structured database with all the information the suit had requested. “It shouldn't take a lawsuit for the government to realize its data belongs to the people,” MAPLight.org's Executive Director Daniel Newman said. “In this new era of highlighting transparency, we hope this settlement serves as an example to city and state governments across the country to provide public access to public information.”

CFAC and MAPLight.org Win Public Access to California Database of Lawmakers' Votes (by Pamela Heisey, MapLight.org)

MAPLight and CFAC v. Office of the Legislative Counsel (pdf)

Settlement Agreement (pdf)

Wiretap Law

In a centerpiece of his 2001 State of the State address, Governor Gray Davis proposed letting state and local law enforcement obtain roving wiretaps on suspected criminals. The December proposal came as Davis prepared to launch his re-election bid and just months after the 911 terrorist attacks.

President Bush signed legislation in October 2001 that broadened federal wiretapping abilities to target terrorists, but the law did not expand the capabilities at the state and local level.

Davis hoped to attach his proposal to legislation already sponsored by Los Angeles County Sheriff Lee Baca and District Attorney Steve Cooley that would allow surveillance of email and internet communications. A roving wiretap would allow the authorities to maintain surveillance even if a suspect attempted to dodge them by switching their means of communication.

Civil libertarians criticized the proposal as an unnecessary expansion of police power. “These are the types of scattershot investigative tools that result in the widespread loss of personal privacy,” said Francisco Lobaco of the American Civil Liberties Union. USC professor of constitutional law Erwin Chemerinsky said Davis appeared to have acted without availing himself of legal analysis.

Shortly after the governor’s speech, the Office of Legislative Counsel released its opinion of the proposal and called it illegal. The opinion said the proposal exceeded the federal government’s wiretapping law by extending those powers to local prosecutors.

Chemerinsky called the Legislative Counsel's analysis a "very strong opinion" showing that state and local governments cannot engage in wiretapping except as permitted by federal law.

Legal Office Sinks Davis' Wiretap Bill (by Miguel Bustillo and Nancy Vogel, Los Angeles Times)

Redevelopment Plan

The Legislative Counsel strives to maintain a nonpartisan role in government to facilitate its core function of providing technical expertise in the drafting and reviewing of bills for the Legislature and governor’s office.

But, from time to time, it is drawn into the fray. Such was the case when Governor Jerry Brown announced his plan to eliminate redevelopment agencies. Brown’s plan calls for local governments to send $1.7 billion to the state in 2011-2012 as reimbursement for trial court and health care services. The state is responsible for financing those activities, even though they are delivered by local governments.

Against

In May 2011, the Office of the Legislative Counsel balked at Brown’s plan, stating in a memo that Brown’s plan is unconstitutional because the state cannot reimburse itself with local property taxes. The Legislative Counsel supported its argument by stating that the state cannot force local governments to send that money to the state. Instead, it said the money must remain locally.

The Legislative Counsel does not consider the elimination of redevelopment agencies illegal, but only the method in which the state plans to take money the initial year.

Department of Finance Spokesman H.D. Pallmer publicly disagreed with the interpretation, stating that the Legislative Counsel was finding intent that cannot be found in the Constitution.

Southern California Cities File Redevelopment Lawsuit (by Kevin Yamamura, Sacramento Bee)

Court Halts Dismantling of CA Redevelopment Agencies (by Marisa Lagos, San Francisco Chronicle)

California Seizure of Redevelopment Funds Blocked by State Court (by Karen Gullo and James Nash, Bloomberg BusinessWeek)

Legislative Counsel Says Brown's Redevelopment Plan Illegal (by Kevin Yamamura, Sacramento Bee)

Community Redevelopment Opinion (Legislative Counsel) (pdf)

Should California End Redevelopment Agencies? (Legislative Analyst’s Office)

SB 77: Redevelopment Proposal

Bion M. Gregory, 1976-2001

George Murphy, 1964-1976

Angus Morrison, 1961-1964

Ralph Kleps, 1950-1961

Fred Wood, 1927-1950

Thomas Gannon, 1923-1927

John A. McGilvray, 1923

George B. Bush, 1920-1923. No relation to the presidents of the same name.

Arthur Will, 1914-1920