“Laws are like sausages, it is better not to see them being made.” — Otto von Bismarck (1815-1898)

“It is far easier to beg for forgiveness, than to ask for permission” – Too Many Authors to Count

“Puck em, if they can’t take a joke.” – The Reciprocal to the Above Assertion

After another year enduring a litany of university rules, regulations, statutes, limitations, procedures, restrictions etc. – enough to slow any progress down to molasses – Almost DailyBrett finds it peculiarly refreshing to contemplate how the California State Legislature railroaded through a sweeping civil liability law in 1987 – “The Napkin Deal” — on the morning after the legally mandated last night of session.cocktailnapkin

If a legislative body wants to pull out the plug on the clock on the wall at 11:59 pm on Thursday, September 10 to ensure that every minute thereafter remains … Thursday, September 10, the absolute last day of session … so be it.

Yes, the California Legislature could miraculously make time stop.

For the rest of the world, it was already Friday.

If a legislative body wants to suspend all of its rules, including an orderly committee process, and convene a “committee on the whole” hours after the clock struck midnight on the last day of session … que sera sera.

If a legislative body wants to act upon the design for a comprehensive civil liability agreement – benefitting powerful insurance, medical, manufacturing and of course, trial lawyer special interest lobbies – which is eternally enshrined on a watering hole cloth napkin – that’s how the pot sticker rolls.

As a wise scribe once told a green-behind-the-ears cub reporter, covering the Los Angeles County Board of Supervisors in 1978: “A legislative body can do whatever it damn well pleases.”

That very same cub reporter later moved to Sacramento and listened late into the night on the squawk box in the Office of the Governor as the clock plug was being pulled out of the wall socket in the Assembly chamber. This action could mean one thing, and one thing only: The state legislative leadership was “recessing” to Frank Fat’s.

Frank Fat’s Cloth Napkin

Conceivably every state capital has a watering hole right down the street (not sure about Salt Lake City). And for California’s capital, Sacramento, it’s “Fat’s,” a Chinese restaurant that also serves yummy strip steaks.frankfats

It was here on a hot Central Valley night that Speaker Willie Brown, State Senator Bill Lockyer and others cemented a five-year, civil-liability peace agreement between the cobras and the mongooses (i.e., lawyers, docs, manufacturers and insurers). These mortal enemies were not about to become friends, but at least they were not going to cannibalize each other for a few years.

The trick was to steamroll the later-to-be-written in all of its legal niceties legislative language, which was outlined on the Frank Fat’s cloth napkin, through both houses of the Legislature, and send the resulting bill to my boss, Governor George Deukmejian.

Over the strenuous and legitimate objections of legislators speaking on behalf of consumer groups, asking for delays and hearings, Willie Brown invoked the Rule of 41. Simply translated, if 41 or more state Assembly members (California’s “green” lower house) are ready or compelled to vote “aye” for the provisions on a watering hole napkin … well … a legislative body can do whatever it damn well pleases.

Sue them if you wish.

The watering hole napkin … err legislation .. was now shipped to the upper “pink” house, the state Senate, for the suspension of all rules, convening of a committee as a whole, consumer lobbyists screaming, and the invoking of the Rule of 21 (or more out of 40 senators).

The bill was now being sent in the direction of Governor Deukmejian, who himself served for 16 years in the Legislature (Assembly four years) and (Senate 12 years). He instinctively knew the extraordinary measures that were required to hammer out this kind of deal and get it through both houses of the Legislature (easier said than done).

As was our practice, we held a news conference the morning after the official (and unofficial) close of session to discuss what the Legislature had done, and maybe (or maybe not) to give hints about expected bill signings and of course, vetoes by the “Iron Duke.”

Outraged reporters wanted to know if the governor was offended by the way the Legislature had suspended rules in both houses and rammed through a grand compromise that existed primarily in the form of a watering hole cloth napkin.sausagelaw

With an eye on the constitutionally prescribed separation of powers between the executive branch (e.g., Office of the Governor, state agencies and departments) and the legislative branch (e.g., state Assembly and state Senate), the governor stated his responsibility was to deliberate only on the language that reached his desk.

What did Bismarck say about “sausage” and the “law”?

Sometimes you have to break at least some, if not all the rules, if you want to get anything done.