When drafting bills and amendments in this state, there are a number of key reminders that are worth reviewing. At a most basic level, every bill draft should clearly describe who’s required or allowed to do what, what’s required, or allowed to be done. Any necessary definitions should be provided. Any exemptions, penalties, and administrative issues such as record-keeping should be set forth.

There are several shortfalls that often occur with bill and amendment drafting that you should strive to avoid. Some of these shortfalls include using too much legalese, a failure to use terms consistently, and using unclear language.

There are some key reminders to keep in mind when you begin drafting legislation or amendments to legislation.

  • Spend sufficient time thinking through the bill. Think through the issues presented in the proposed legislation and how those issues will be addressed.
  • Be consistent throughout. Consistency is key. And consistency applies to not only the language  but also the organization of the statutory scheme that you’re dealing with. The language and organization of the legislation you are drafting should be consistent with the entire area of law that it fits into.
  • Use the active voice. It is important to identify the who and the what in the statute, such as the person required to do something and the mandate that is being imposed on them. That is best accomplished by using the active voice.
  • Use the singular term. You reduce the likelihood of confusion and ambiguity by using the singular term instead of the plural. A plural term, for example, could be interpreted to require more than one person to engage in certain conduct in order for there to be a violation of the law.
  • Refrain from using gendered terms. If a proposed law applies to all persons, there is no reason to use gendered terms like he or she. Additionally, using the plural term they could add confusion to readers trying to interpret and abide by the statute. It’s better to use gender-neutral terms like person, licensee, applicant, etc.
  • Use the present tense of verbs. Not using the present tense could create confusion as to whether or not the proposed statute applies retroactively.
  • Be concise. Use short, simple sentences. Try to avoid unnecessary language. Be direct. As long as you properly convey the intent of the proposed language, you should be okay.
  • Properly deal with statutory references. Make sure that the new statute is properly integrated with existing laws.

You can read the transcript of today’s audio here.

There are two types of approaches to interpreting statutes; literalism and purposive. Literalism is generally defined as the interpretation of words in their usual or most basic sense, while purposive is generally defined as the interpretation of words based upon having or being done with a purpose. If you look at a historical context for legal systems based upon common law and derived from the English tradition, literalism is the basis for most legislative interpretation, while those systems based upon the civil law tradition mainly utilize the purposive technique to interpreting statutes.

These two main approaches to statutory interpretation are based upon either using the words of a statute based upon their literal meaning, that’s where we come up with the literalism theory, or using the words of a statute based upon their intended purpose or the purposive approach to statutory interpretation. The plain meaning rule is derived from this theory of statutory interpretation. Under this approach, a court takes a literal approach to legislative interpretation when the statutory language is hopefully precise and doesn’t contain ambiguity.

On the other hand, according to purposive interpretation, the purpose of the text is not part of the text itself. Instead, the judge determines the purpose of the statute, based upon information that the judge has obtained to ascertain the intent of the legislature.

In my mind, these two main theories of statutory interpretation result in judges and bill drafters being intertwined. This is because judges have developed their approaches to interpretation on the basis of the way legislation is drafted. In turn, legislative counsel are influenced by judicial practice on interpretation.

In the end, both theories of interpretation are intended to ensure that the judicial branch is interpreting the statute in the manner desired by the legislative branch of government. Statutory interpretation is intended to respect the fact that the Legislature is the supreme lawmaker in the land. Of course, judicial problems arise when the judiciary branch attempts to determine the intent of the Legislature when examining the language of a statute that is at the center of a legal dispute. In many instances, it’s difficult to ascertain the intent of the legislative branch from just the words of the text itself.

You can read the transcript of the audio in today’s post here.

GO-Biz serves as the State of California’s leader in job growth, economic development, and business assistance efforts. GO-Biz prides itself on offering free consultations for incentive identification, site selection, regulatory or permitting compliance assistance, foreign direct investment, and even export assistance. Every two years, GO-Biz submits an approved State Leadership Accountability Report to the department of finance and releases it to the public.

There are a number of laws in the Government Code that govern the operations of GO-Biz. It falls under sections that are known as the Economic Revitalization Act. Section 12096.2 actually establishes GO-Biz in state government within the governor’s office and also provides that a director shall oversee GO-Biz, and that director is appointed by, and responsible to the governor. Article 3 sets forth the powers and duties of GO-Biz, including that they shall serve the governor as the lead entity for economic strategy, as well as for marketing the State of California in regard to business development, private sector investment, and economic growth.

In addition, GO-Biz is called upon to encourage collaboration among both the public and the private sectors for promoting innovation, fostering relationships with overseas entities, conducting research regarding the budget, the state’s business climate, and efforts to support small businesses here in the State of California. The law also requires every member of the governor’s cabinet, all the agency secretaries, to identity a senior manager who coordinates business support activities with GO-Biz.

GO-Biz has a number of programs, including cannabis equity grants for local jurisdictions, the CalGold Program, California Community Reinvestment Grants, the California Competes Tax Credit, California Film Commission, California Made Program, the IBank, or Infrastructure Bank, International Trade and Investment, as well as the Office of the Small Business Advocate. GO-Biz also offers a number of digital service options that are provided to business owners to assist them with obtaining information and different resources for owning a business and operating a business here in the State of California. GO-Biz also assists in determining the types of permits that a business may need, how a business can apply for state tax credits, how to register a business, and, basically, how to find out any information on different regions and different occupations in the State of California.

You can find the full transcript of the audio in today’s post here.

Today we’ll take a look at the Governor’s Office of Emergency Services, also known as OES. OES is established in the California Government Code, Title II Division 1 Chapter 7, Article 5 – way down there. It covers sections 8585 to 8589.7 and pursuant to section 8585, OES is established in state government within the governor’s office itself. It’s under the supervision of a director and the Government Code in this area in Article 5, references the former Office of Homeland Security, which is now under OES. And in addition, OES succeeded to the former California Emergency Management Agency. Also pursuant to state law, OES is considered a law enforcement organization, and it can receive criminal intelligence information as well.

OES is specifically responsible for the state’s emergency and disaster response services, for any natural, technological or man-made disasters or emergencies. According to the Government Code, it’s the role of OES to take a proactive approach to addressing the risks, threats, and vulnerabilities facing the state of California, that form the basis of its mission and has been tested through real events.

OES took on its current role and title in 1970, and it actually took over responsibilities from several other state departments. For example, in 2004, OES merged with the Governor’s Office of Criminal Justice Planning and the old OCJP provided grants and funding to local communities. And then in 2009, OES took over the role of the Office of Homeland Security. And in 2013, OES took over the former California Emergency Management Agency, as well as the Office of Public Safety Communications.

Another section of the Government Code requires OES and the Department of Forestry and Fire Protection, called Cal Fire, to establish and lead the Wildfire Forecast and Threat Intelligence Integration Center. Also another code section that OES in cooperation with the State Department of Education, the Department of General Services and the Seismic Safety Commission, are required to develop an educational pamphlet for use in kindergarten through grade 14 personnel, to assist them in identifying and mitigating the risks posed by earthquake hazards.

Also, OES has to use all state and local fair properties as condition might require. And another section of the Government Code requires OES to establish the state Computer Emergency Data Exchange Program. Its responsibility is to collect and disseminate essential data for emergency management. And the Government Code also requires OES in consultation with the California Highway Patrol, as well as other state and local agencies, to establish a statewide plan for the delivery of hazardous material mutual aid. And then OES has to develop model guidelines for local government agencies and community-based organizations for their planning in order to develop disaster registry programs.

You can read the transcript of the audio in today’s post here.

Prop 54 was enacted by the voters in the November 2016 general election. It adopted two constitutional amendments and two statutory changes dealing with public access to legislative proceedings, recordings of legislative proceedings, bill amendments, and voting on those bill amendments.

The first constitutional amendment enacted by Prop 54 added two, extensive, new provisions to Article IV, Section 7, of the California Constitution dealing with the public’s right to attend open and public proceedings and to audio and video tape them. It also imposed the requirement that the Legislature make audio/visual recordings of every legislative proceeding available on the internet within 24 hours of the proceeding taking place, and to keep an archive of at 20 years-worth of those materials.

The second amendment added to Article IV, Section 8, and dealt with amendments and the final form of bills and when bills can be voted on after being amended. It says, essentially, that all amendments must be made and that a bill must be in its final form for at least 72 hours before the Legislature can vote on it. One exception is where the Governor has declared a specific state of emergency that needs to be addressed.

The other changes Prop 54 made were to California’s Government Code. The initiative added two clauses to Government Code section 9026.5 dealing with audio/visual recordings of all public proceedings of the Legislature. The second change took place in Government Code section 10248, which codified in the Government Code the requirements that audio/visual recordings that legislative proceedings by posted on the internet and remain available for a minimum of 20 years on the Legislature’s website.

The final result has been that the public has the right to record legislative proceedings that they attend and that the Legislature must also record and promptly make available all audio/visual recordings. And further, bills are required to be in their final form for at least 72 hours before legislators can vote on them on the floor of either the Assembly or Senate.

You can read the full transcript of today’s audio here.

One area of bill drafting worth studying is the use of transitional or savings provisions. What are the differences between the two and how are they used?

All transitional provisions come into play when new legislation amends or repeals existing law. For example, they address the issue of how activities or rights begun under existing law are then treated under the amended or repealed law. This is obviously important so that those who have relied upon existing law understand their rights or their status after the bill or the law has been amended or repealed. Basically, transitional provisions contain rules to ensure a proper and smooth transition from prior law to the new law.

Savings provisions are a type of transitional provision, and they’re generally used to retain an existing right or authority that might otherwise be affected by the new law. In essence, these savings provisions preserve the right or the authority despite the new law’s amendment or repeal of that former law.

Some examples of instances where transitional provisions could be used are:

  • Does the new law apply to cases or conduct that began under the former law?
  • Are there interim rules to be followed when transitioning from the former to the new law?
  • Any existing rights that should be preserved under the new law or the repealed law are matters under the former law to be treated differently under the new law?
  • Are pending legal proceedings to be conducted under the former law or the new law?
  • Should a new procedure or process be applied to existing cases?
  • Is there some sort of a phase-in period being provided?

Next to consider is how the bill drafter should handle these transitional provisions. The drafter must use express terms in these instances. For example, if the new law is intended to apply retroactively, then the drafter should be explicit in stating this rather than relying upon extrinsic aids to rebut the usual presumption against a statute applying retroactively.

Some examples of statutes that may require transitional provisions include:

  • the elimination of a state office and the appointees to it;
  • legal proceedings that have already commenced, but have not concluded;
  • licenses that have been issued, and in theory, remain in force;
  • some financial benefits such as tax incentives that may have been earned, but not used or claimed yet;
  • the authority to impose a penalty for an offense that was committed prior to the law’s repeal;
  • carrying out duties that were required at the time of the law’s repeal; and
  • legal documents that were in effect at the time of the law’s repeal.

To address some of these situations, the drafter could provide in the new statute that legal proceedings could be allowed to continue under the old statute or under the new statute. The drafter could also apply the new law to existing cases that began under the former law but have not yet concluded at the time of the repeal legislation.

You can read the transcript of today’s podcast here.

Like other forms of drafting legislation, when you prepare to amend or repeal existing statutes, there are several steps for the bill drafter to take. According to the Graduate Degree in Legislative Drafting program from Athabasca University, there are three steps – research, plan, and draft.

Research begins with researching the topic and existing statutes. A drafter should be reviewing existing legislation that covers the matter or matters that will be dealt with by the proposed amendment or repeal and all effected statutes need to be clearly identified.

After reviewing these existing statutes, the drafter needs to decide whether the existing law should be retained, changed or removed, either in part or in whole. This is generally determined by understanding whether the proposed amendment or repeal will be consistent with the existing statutory scheme or if existing statutes need to be changed in order to be consistent with the new legislation.

When amending, the drafter needs a complete picture of the new legislative scheme in order to work out how to change the existing legislation to produce the desired results. Next, the drafter needs to understand how to implement the proposed changes in the context of the existing statutory scheme. And then once amended, the statutory scheme has to be consistent and coherent.

The second step for the bill drafter is planning; to plan out what he or she is going to draft. For example, while proposing a repeal, the drafter needs to determine which existing laws are no longer going to be retained, which provisions can be retained but must also be amended, and which provisions can be carried over unchanged.

The third step is actually drafting the changes. In drafting repeal provisions, the bill drafter should use express provisions clearly identifying the provisions of existing law that are being repealed. This means that precise language should be used such as a direct statement. Other advice includes using separate sections for repeals and doing those in order when repealing multiple code sections. In drafting amendments, the bill drafter has to consider a number of approaches, including when new provisions of law will be added and whether there will be partial replacements of provisions. Here too, the drafter should make amendments by express provisions and he or she should use consistent language throughout the statutory scheme, draft in the present tense and avoid unnecessary or overly legalistic words.

You can read the transcript of the audio in today’s post here.

There are many who don’t realize that the highly trained attorneys in the California Office of Legislative Counsel will actually draft an initiative for the statewide ballot for members of the public. Basically, under existing state law, attorneys in the Legislative Counsel Bureau will assist in the preparation of drafting an initiative measure when they are requested to do so by 25 or more electors, meaning people who are registered to vote. We can find this in California’s Government Code buried in Title 2, Division 2, Part 2, Chapter 1, that deals with Legislative Counsel.

And then in Article 2 of that Chapter 1, which was added way back in 1945, there are several specified duties listed for the legislative counsel. Among them is found in Government Code Section 10243, and it says, “The Legislative Counsel shall cooperate with the proponents of an initiative measure in its preparation when: (a) Requested in writing so to do by 25 or more electors proposing the measure; and (b) In the judgment of the Legislative Counsel there is reasonable probability that the measure will be submitted to the voters of the State under the laws relating to the submission of initiatives.”

So, while the statute clearly requires the legislative counsel to cooperate with initiative proponents, there’s also some discretion that’s granted to the legislative counsel. If she, for example, judges that there is not a reasonable probability that the measure will be submitted to the statewide electorate.

So that’s our brief look at the statutory provision for the role of the Legislative Counsel in drafting initiatives.

You can find the full transcript of today’s audio here.

Both the California Constitution and the California Government Code describe in detail state mandated local programs. As a result of the constitution and the statutes in the Government Code, a California bill is identified as mandating or not mandating a local program.

If a mandated local program is going to be required, then the Legislature helps determine whether or not a local agency will be reimbursed for costs by the state. The constitution requires the state to reimburse local agencies and school districts for certain costs that are mandated by the state.

However, Section 6 of Article XIII (B), added to the California Constitution by Proposition 4 in 1970, which is the constitutional provisions requiring the state to reimburse local agencies and school districts for mandated local programs includes one important caveat. The Section uses the term may instead of shall. The Legislature may, but does not have to, provide funds for these mandates.

There are four types of legislative mandates that the Legislature does not have to provide reimbursement to local governments for.

  1. Any legislative mandates requested by the local agency that would be affected by the mandates.
  2. Legislation that defines a new crime or changes an existing definition of a crime.
  3. Mandates that are contained in a statute that is within the scope of certain provisions found in Article IV Section 3 of the California Constitution.
  4. Any legislative mandates enacted prior to January 1, 1975 – obviously no longer relevant today.

There are additional statutory provisions in the Government Code that establish procedures for making reimbursements to local governments. Among those is the provision that states the Commission on State Mandates actually determines if the bill contains costs mandates by the state. In other words, the Legislature does not have the final say on whether a requirement in proposed legislation is reimbursable.

In most instances, the Legislature declares that no reimbursement is required by a piece of legislation. The general rule is that a local agency or school district has the authority to levy service charges that the Legislature deems sufficient to pay for a program, a program expansion, or a higher level of service mandated by state law.

You can read the transcript of today’s audio here.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

In California, as in most states, a statute is presumed to operate prospectively. When construing statutes, there’s a general presumption against retroactive cases unless the Legislature plainly has directed otherwise. So how might the Legislature plainly direct otherwise? Generally it’s by means of express language of retroactivity or some sort of information that provides a clear and unavoidable implication that the Legislature, in fact, intended to retroactively apply a particular statute.

California’s Civil Code actually includes a specific codification of this general principle. In Section 3 of the California Civil Code, it says, “No part of this Code is retroactive unless expressly so declared.” In addition, the presumption against retroactivity applies with particular force to laws that create new obligations or impose new duties or exact new penalties because of any past transactions.

We know from different decisions issued by the California Supreme Court that the general rule in California is that if the Legislature clearly meant that an amendment to a statute is going to be, or is intended to be, applied retroactively, the court will honor that intent unless there is some sort of constitutional obstacle to doing so.

Basically, the California courts look at the text of the bill and the legislative materials to determine whether this bill that’s making a change in the law or the clarification of existing law, and then it asks itself, “Does the bill represent a clarification?” If it does, then the bill’s applied in all instances, both retroactively and prospectively. On the other hand, the courts generally find that if the bill enacts a change in the law, then the court has to look whether or not the Legislature intended this law change to be applied retroactively.

From my review of appellate court decisions in California, I found some key main points that provide guidance. This guidance is for lawmakers, bill drafters, and members of the general public when they look at whether or not to make a retroactive change to California statutes.

The questions to ask are:

  • Did the Legislature enact the change of law promptly (within a few months to less than a year) after an adverse court decision?
  • Has the Supreme Court rendered a final decision?

You can find the transcript of the audio in today’s post here.