Unique Aspects of California Bill Drafting

ABRAHAM LINCOLN EXHIBITSBy Chris Micheli

While some aspects of drafting bills and amendments in California are generic in nature to all types of legislative bill drafting, there are also several unique aspects that are a part of bill drafting in this state.

In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there is the generic “plain meaning rule” where the judiciary will look to the plain meaning of the statutory language.

Of course, in a legal dispute, the statutory language rarely has the same “plain meaning” to both parties. On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help with interpretation of the bill language.

Those who draft and analyze bill language are aware that there are many other “canons of statutory construction” but, after these general rules, bill drafters in California need to think about some of these other issues as well:

Conflicts with other bills – Does the bill you are drafting amend the same code section(s) as another bill that is pending at the same time? If so, these bills will need to be reconciled or else “chaptering out” amendments will need to be added to the bills so that one bill does not repeal the provisions of the other bill.

Urgency clause statements – When an urgency clause is in a bill, there must be a statement explaining the cause of the urgency. Urgency clauses are allowed in California so that bills with them take effect immediately. While these statements explaining the urgent need for the bill are generally not challenged by the courts, a legitimate statement must be included in the bill to justify the need.

Retroactive v. prospective nature of bills – In most instances, bills are prospective in their application and generally effective on January 1 of the following year. In some instances, a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will apply retroactively. What effective date is contemplated? Should the bill drafter include a statement that the bill “clarifies existing law”? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited, unless a “public purpose” is expressed in the bill that justifies the retroactive application of the bill.

Proper code section – The bill drafter needs to determine which code section(s) to put the bill’s changes into existing statutes. Are you amending an existing code section? If so, that is easy to do. However, if you are adding a new code section, then a determination needs to be made regarding where in the 29 codes the bill’s language will be added. An understanding of the legislative scheme is necessary.

Single subject rule for bills – The state constitution limits bills (just like initiatives on the statewide ballot) to a single subject. While sometimes broadly defined by the courts, the bill drafter needs to determine in advance how many related or unrelated items can be included in one bill so that the measure is not subject to legal challenge.

Codified v. unmodified sections – There are 29 codes that contain California’s half a million statutes. There are also uncodified statutes which have the same effect as laws, but they are just not found in the codes. These could be one-time measures, such as naming a state building or the annual budget bill because it is changed each year.

Legislative intent language – Some bills include “intent” language expressing findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and cons of using intent language. The following is one appellate court’s statement of such language: “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body. (See Ballard v. Anderson (1971) 4 Cal.3d 873, 881 [95 Cal.Rptr. 1, 484 P.2d 1345]; Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 603 [45 Cal.Rptr. 512] (hg. den.).) Other extrinsic aids to determine legislative intent are generally more persuasive.”

There are other aspects of bill drafting in California, but the highlighted ones in this article give you a sense of some of the factors to consider in drafting bills in California.

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.

 

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