Making Sense of Technical Amendments

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By Chris Micheli

In the California Legislature, there are technical and substantive amendments that are made to bills, whether by the bill’s author or by the committee or floor considering the particular measure. While substantive amendments deal with the core of the bill, there are also important technical amendments that need to be made to legislation sometimes to ensure that the bills are properly enacted into statutes.

According to California’s Legislative Counsel, an amendment is a proposal to change the text of a bill after it has been introduced. Amendments must be submitted to the Legislative Counsel for drafting or approval. The use of chaptering amendments, double-jointing language, and contingent enactment language is often misunderstood in the legislative process. These generally are used when measures are in conflict.

In such cases, the Legislative Counsel send the authors a “conflict notification” which identifies the measures that appear to be in conflict with each other. Pursuant to this notification, “a conflict exists when two or more bills and/or constitutional amendments amend, add, repeal, or amend and renumber the same section, article, chapter, division, tittle, or heading.”

Chaptering-Out Amendments

Chaptering-Out refers to when provisions of one chaptered bill amend the same code section(s) as another chaptered bill does. The bill with the higher chapter number prevails over the lower chapter number bill. Chaptering Out can be avoided with the adoption of “double jointing” amendments to a bill prior to passage by both houses of the legislature and signature by the governor.

Double-Jointing Amendments

Double-Jointing requires technical amendments prepared by Legislative Counsel that will prevent the amended bill from “chaptering out” the provisions of another bill when both bills amend the same code section. According to Legislative Counsel, “double-jointing amendments to a bill provide that the amended bill does not override the provisions of another bill, where both bills propose to amend the same section of law.”

Unlike contingent enactment, double-jointing is not driven primarily by policy considerations. Rather, double-jointing is a solution to the technical problem known as “chaptering out.” Government Code Section 9605 provides that, when two or more bills amending the same code section are passed by the Legislature and signed by the Governor, the changes made by the bill with the higher chapter number (i.e., the one signed last by the Governor) prevails over the changes made by the bill with the lower chapter number.

This will occur unless the bill with the higher chapter number contains a provision to the contrary. If a bill with the higher chapter number does not contain language addressing this situation, its changes will supersede (called “chapter out”) the changes made to the same code section by the bill with the lower chapter number. Double-jointing amendments are used to prevent this chaptering-out problem from occurring by allowing all of the changes to a code section proposed by two or more bills to take effect. The double-jointing language must occur in both measures in order to be effective.

Contingent Enactment Amendments

Observers should also be aware of “contingent enactment language,” which is language that connects two bills so that one bill will not become operative unless the other bill also takes effect.

An example of this language was contained in AB 1676 from the 2016 Session:

SEC. 3.  Section 2.5 of this bill incorporates amendments to Section 1197.5 of the Labor Code proposed by both this bill and Senate Bill 1063. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 1197.5 of the Labor Code, and (3) this bill is enacted after Senate Bill 1063, in which case Section 2 of this bill shall not become operative.

How is contingent enactment language distinguished from double-jointing language? Contingent enactment language connects two bills that one bill does not become operative unless another bill also takes effect, even if it has passed both houses and is signed by the Governor. Generally, contingent enactment language is used for policy reasons rather than to resolve technical issues. Contingency enactment language makes the policy goals contained in one bill dependent upon the policy goals contained in another bill.

On the other hand, double-jointing occurs when two bills amend the same code section but in different ways and the Legislature wants both bills to be enacted. In such a case, technical amendments are drafted which add provisions to the bill that would make all of the changes in a section of a code if each bill is chaptered. Double-jointing prevents the problem of chaptering out.

 

Chris Micheli is a Principal at the Sacramento governmental relations firm of Aprea & Micheli, Inc. He is an Adjunct Professor in the Capital Lawyering Program at McGeorge School of Law.

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