Last week, I testified before the Milton Marks "Little Hoover" Commission on California State Government Organization and the Economy concerning Governor Jerry Brown's 2012 Reorganization Plan.  My written comments are available here.

The hearing was held in a state auditorium with the Commissioners sitting high on a stage before the audience.  Speakers spoke from a lectern hard against the stage and directly below the Commissioners' feet.  This arrangement forced speakers to look up to the Commissioner, a fact that I mentioned in my own remarks to the Commission.

This experience reminded me of many hearing rooms in the state capital building where witnesses are consigned to tables placed several feet beneath legislators.  A far different message would be imparted if the legislators were forced to sit below and look up to the people that they serve.  I don't know whether this is what the British architect, Norman Foster, had in mind when he designed the Reichstag Dome, but his design allows visitors to look down on the reunified German government's parliamentary proceedings.

The Commission itself is truly an odd duck.  Pursuant to Government Code Section 8501, it consists of 13 members.  The Governor appoints five citizen members, the legislature appoints four citizen members.  There are also two members of the Senate and two members of the Assembly.

So, is it a part of the legislative or executive branch?  The legislature says that for purposes of expenditures for the Commission's support, the Commission "shall be deemed to be within the executive branch of state government".  Government Code Section 8502.  However, that same statute goes on to say that the Commission "shall not be subject to the control or direction of any officer or employees of the executive branch except in connection with the appropriation of funds approved by the Legislature."  Further, the Commissioners who are members of the legislature are considered a joint committee of the two houses constituted and acting as an investigating committee.  Government Code Section 8504.

I haven't researched the question, but all of this leaves me wondering how all of this squares with the first builder of our laws - California Constitution.  Article III, Section 3 provides:

The powers of state government are legislative, executive, and judicial.  Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.

When considering the mysteries of the legislature's having deemed of the Commission to be in the executive branch for at least some purposes while removing it from the control of the executive branch, I am reminded of Justice Antonin Scalia's dissent in Mistretta v. U.S., 488 U.S. 361, 420 (1989):

I doubt whether Congress can 'locate' an entity within one Branch or another for constitutional purposes by merely saying so . . .

Perhaps, it can be argued that the Commission survives constitutional muster because it is a branchless agency within state government - an agency that simply provides advice and exercises no real power.  However, this argument ignores the fact that the Commission has some executive responsibilities.  It has oversight responsibilities with respect to the Bureau of State Audits.  See Government Code Sections 8542 and 8543.

And so, I am troubled by the Commission's architecture.