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.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Drafting penal code statutes is an important undertaking for any bill drafter because of the consequences for those who violate such statutes, which can include imprisonment as well as financial penalties, and because the courts at both the state and federal levels generally strictly construe these types of statutes. As a result, those who draft criminal laws must take a number of issues under consideration.

There are a number of factors to consider, such as ensuring that legislation does not violate any fundamental right or freedom that’s guaranteed under the state or federal constitution, as well as some specific items, such as guaranteeing a right to a fair hearing, restricting the seizure of an individual’s property, limiting in clear language enforcement authority, providing adequate review of prosecutorial conduct.

In general, there are four major provisions to criminal statutes.

  1. Offenses are defined and usually classified as different offenses, such as a serious crime.
  2. The level of culpability.
  3. General defenses.
  4. Definitions of the parties.

Beyond the major provisions, what are some good general guidelines to follow or questions to ask oneself when drafting the content of penal code provisions?

  • Is similar conduct already subject to existing law? Would provisions of this statute create a double jeopardy problem?
  • What conduct, precisely, is being prohibited?
  • Should the mental element be expressly addressed?
  • Is it a strict liability offense, or does it require proof of mens rea?
  • What is the maximum and/or minimum penalty for committing the offense?
  • Is the punishment a fine, imprisonment, or both? Does that change for a second or subsequent offense?
  • Are any special defenses allowed?

One more thing to keep in mind when drafting criminal statutes is how the jurisdiction’s rules where the drafter is writing for impact how the offense can be expressed. There are three ways an offense is generally expressed – declaratory, conditional, or mandatory.

  • Declaratory – A person who does X commits an offense.
  • Conditional – If a person does X, that person commits an offense.
  • Mandatory – A person is prohibited from doing X, or that person commits an offense.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

California, like most other states, uses sunset dates or sunset clauses in their legislation. It has the effect of making the law, what’s enacted, to expire on a specified date unless the Legislature enacts another bill to either extend or eliminate the sunset date.

Generally, we see sunset dates running from one to three years to as long as a decade or more. The sunset, or sometimes called expiration or expiry clauses in other jurisdictions, are generally used to allow the legislative branch to revisit a statute.

Sunset clauses are primarily used by state legislatures. The U.S. Congress uses them sparingly. One example is the federal PATRIOT Act, where several of its provisions have sunset provisions.

There are other instances when the Legislature may want a statute to be temporary in its application. For example, legislation that’s often viewed as experimental or being tried for the first time may be subjected to a sunset clause. The Legislature may want to check on how the law has worked for a few years before they decide to make it permanent.

Another example might be controversial legislation, which may be established with a sunset date as a possible compromise. Here, the Legislature may choose to give a contested bill an opportunity to prove itself.

A sunset clause may also be appropriate when a law is necessary to address a temporary situation or perhaps fulfill a short-term need, such as a state of emergency or a disruption in the economy. The Legislature may impose a sunset date to ensure that a review is automatically triggered before the statute will be extended or made permanent.

In California, we usually see the sunset or repeal clauses in one of two forms. It usually reads, “This section shall remain in effect only until December 1st, 2020. And as of that date is repealed.” or “This section shall become inoperative on July 1, 2020, unless a later enacted statute, which becomes operative on or before July 1, 2020, deletes or extends the date on which it becomes inoperative and is repealed.”

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Definitions can play an important role in legislation. Defining words or phrases is done to provide the reader of the legislative text with clear guidance regarding how these words or phrases are to be understood and used in the forthcoming legislation.

Where there are multiple definitions, they are most often found near the beginning of legislative text. This is because it makes it easier for readers and instructs the reader how these words or phrases should be used when they’re reading the remainder of the statutory provisions. Now in some jurisdictions including the United Kingdom, definitions are actually placed at the end of legislation, and that’s pursuant to their own parliamentary practice. That is not the case in California.

Definitions can perform two different functions, labeling and stipulating. A labeling definition’s purpose is to allow the term to be used instead of a longer sentence. It has to set forth the definition repeatedly throughout the legislative text. A stipulating definition’s purpose is to provide a specific meaning for the defined term or phrase as it’s going to be used in the forthcoming legislation.

When drafting, the word phrase that is being defined is placed in quotation marks. That’s the California drafting style. In some different jurisdictions, they utilize boldfaced or italics instead for the word or phrase that’s going to be defined. Now generally across all jurisdictions, that first word is not begun with a capital letter and they don’t include a definite article the word the, or an indefinite article a or an in the definitions.

These are some of the types of definitions that we find in legislation.

  • Comprehensive definition – a complete statement of what the defined term actually means.
  • Restricting definition – the effort is to limit the use of a term to a specific context, particularly with that specific legislation.
  • Enlarging definition – extends the usual definition of a word.
  • Excluding definition – removes something from the usual meaning of the word or phrase.
  • Referential definition – utilizes a defined term that’s from a different area of the statutes. And this section specifically refers to that particular definition and where it is found elsewhere in the law.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

One of the issues that is often discussed in legislative drafting is how to make legislation more readable. In other words, how to make the text of legislative measures easier to understand by those who are reading it, those who are subject to the law, or those who need to administer or even interpret the legislation.

Some suggestions provided to students in Athabasca University’s graduate diploma in legislative drafting include providing overviews, following standard writing practices, using standardized language, and even using diagrams or similar modes of communicating information.

In terms of providing overviews, some drafters argue that it’s easier for readers to understand the relationship between statutory provisions and detailed requirements of a series of rules if the readers have, basically, a framework for what is coming. A drafter can achieve this by including in the statutory scheme a purpose clause – better known as a statement of legislative intent in California – headings, or section notes.

Legislative drafters also use several standard writing guidelines to present the text of legislation, such as using the present tense of verbs, using the active voice. Drafters should also avoid the uses of provisos that create too many exceptions or qualifications to a general legal rule.

The other important guideline for making legislation more readable is to use standard language that’s known to the general public and that’s in common usage. Legislative drafters should generally avoid Latin words, other forms of legalese, and, for lack of a better term, old words. All of the modern drafting standards are intended to assist readers of legislative measures once they’re implemented by drafters of these measures.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Like many other states, California requires the office of the Legislative Counsel to draft measures – including bills, resolutions, and constitutional amendments – in a gender-neutral manner.

In 2018, California adopted Assembly Concurrent Resolution 260. According to the language of ACR 260, it is intended to encourage the Legislature to engage in a coordinated effort to revise existing statutes and introduce new legislation with inclusive language by using gender-neutral pronouns, or even reusing nouns to avoid the use of gendered pronouns. In addition, ACR 260 encourages state agencies to engage in similar efforts to use gender-neutral pronouns and avoid the use of gendered pronouns when drafting policies, regulations, and other guidance.

Basically, in California and most of the other states, bill drafters are told to avoid male or female gendered terms except when a gender-specific term is applicable. Nonetheless, in most instances, drafters are admonished to make sure that neither intent nor clarity of language is sacrificed when using gender-neutral language.

Legislative drafters are also making their way through existing statutes in order to transition over to gender-neutral language with existing laws. In addition to using gender-neutral language in drafting new statutes that are being proposed, legislative counsel around the country are looking at existing code sections and reviewing them, and modifying them to ensure compliance with this guidance.

What are some examples of this? Drafters should use police officer, rather than policeman, or Presiding Officer, instead of Chairman. In other instances, it may be more difficult to use gender-neutral language. As a result, suggestions to legislative drafters include repeating the subject of the sentence or the original noun, omitting the phrase with the pronoun if you don’t need that particular phrase, or even rewriting the entire sentence to avoid the need for using any sort of pronoun.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

On occasion, a bill reader may come across a severability or savings clause contained in a California bill. Basically, the severability clause is a statement by the Legislature that if a part of a law that’s enacted is subsequently held to be invalid or unconstitutional, then the unconstitutional provision doesn’t invalidate the rest of the remaining law.

A general rule that’s been developed and applied by the courts over a long period of time is that if a portion of a statute is invalidated or declared unconstitutional, then generally the remaining portions of the statute remain valid and enforceable. In other words, they stand on their own.

On the other hand, the courts have ruled that if those remaining portions are somehow completely dependent on the stricken portions or those portions of the statute that were invalidated or ruled unconstitutional, then all the remaining portions, the entire statute, is somehow deemed invalid then.

So why are severability clauses used in legislation? In some instances, the Legislature wants a statute to stand or fall on its own. In fact, sometimes a bill drafter may insert a non-severability clause at or near the end of a bill to avoid a court interpretation that might allow a statute to remain in effect after a portion of the statute has been invalidated by the courts.

There is another school of thought in bill drafting that a severability clause is unnecessary for legal purposes because, again, the courts have repeatedly ruled that generally, regardless of whether a severability clause is absent or is present in a statute, that historically the courts will just sever the invalid portions and keep the remaining valid portions alive and well. What that means is that some observers argue that a severability clause is not necessary because, again, both statutes and common law or court decisions, make statutory provisions severable by their nature.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Today we’ll take a look at some things that legislative drafters need to consider when drafting legislative constitutional amendments in California.

As you know, in the California Legislature there are constitutional amendments that can be introduced in either the Senate or the Assembly and those constitutional amendments require a two-thirds majority vote in both houses in order to be placed on the statewide ballot. Once on the ballot, the amendment takes effect if a majority of qualified voters cast their ballots in favor of the measure.

Usually, constitutional amendments are submitted to the people at the general election. However, the Governor can call a special election for legislative constitutional amendments.

An initial question that the drafter needs to answer in considering these legislative constitutional amendments is whether the measure will amend, add, or repeal provisions of the California Constitution. Of course, if the proposal is to amend or repeal any existing provisions of the state constitution and its more than two dozen articles and several hundred sections then the bill drafter obviously knows where to start.

On the other hand, if the proposal is to add a provision or multiple provisions then the bill drafter needs to determine whether there’s an existing article of the state constitution in which to add those provisions. Or is an entirely new article needing to be added?

Just like with bills, legislative constitutional amendments have a title drafted for them, as well as a Legislative Counsel’s Digest that explains what the amendment would do. Also, like bills, the Digest is followed by Digest Keys, and it has the same keys as a bill does – vote, appropriation, fiscal committee, and local program. The keys are followed by a Resolving Clause, and then the text of the proposed constitutional amendment.

As for the drafting of the language of the amendment? It basically requires the drafter to follow the utilize the usual guidelines for bill drafting as well as following the drafting style for California measures.

You can find the transcript of the audio in this post here.