McGeorge Adjunct Professor Chris Micheli

One of the important roles for any capital lawyer, particularly those in state or federal government, is knowing how to properly draft bills and amendments to those bills.

A critical factor is whether the bill’s language is clear enough to accomplish the intent of the bill’s author and its sponsor and, also, of course, whether the bill language can be easily understood by third parties, who may not have been privy to all of the legislative discussions and negotiations over the particular statutory language.

Now, California legislative rules require all bills and amendments to be, in what we call, Legislative Counsel Form prior to the bill being introduced or any amendment being made.

The Legislative Counsel Bureau, of course, is the Legislature’s lawyers. They’re in charge of drafting bills and amendments. Neither the Senate Desk nor the Assembly Desk can process any bills or amendments unless they are in that Legislative Counsel Form.

Regardless of whether a third party does the initial drafting of a bill or an amendment, it’s the attorneys with the Office of Legislative Counsel who ultimately do the formal bill drafting. Sometimes they tweak the language that’s been previously written in order to keep the proposed statutory language consistent with the other code sections.

On occasion, a legislator and his or her staff may actually direct the attorney at Legislative Counsel to not make any changes to the bill language. Why might they do that? Perhaps because the bill language was carefully crafted as a part of negotiations to address the needs or desires, or maybe to remove opposition of interested parties say, for example, when a compromise was achieved on particular bill language.

As a result of this, legislators and their staff often work closely with Legislative Counsel deputies on the desired bill language from start to end of the legislative process. In fact, on some drafting requests, the legislator or the sponsor of the bill knows exactly the bill or amendment language they desire and so, they give it to the Legislative Counsel deputies.

As you could imagine, it’s a very valuable skill to possess to properly draft bills and amendments. I think it also provides some pretty keen insight into how statutes are interpreted by the courts. Once you’ve had the experience of writing statutory language, you realize, often, how difficult it is even when you know what you want to say.

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

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