McGeorge Adjunct Professor Chris Micheli

Before you can really set off drafting legislation in California, you need to understand the format of California’s Codes. There is a specific way that our Codes our organized. Codes read, from top to bottom: the Code, Title, Division, Part, Chapter, Article, and then lastly, Section – which is the actual piece of law.

Legislation also has a specific format. At the top of it is the date introduced or amended, the bill number, and then the type of legislation. If it’s a bill, then it begins with an act to do something. If it’s a resolution, it’s relative to something. That is followed by the Legislative Counsel’s Digest, and then the substantive provisions of the legislation. And within the bill there is a hierarchy of provisions – starting with a section, then subsection, then paragraph, subparagraph, clause, and lastly, subclause.

So, what are some questions you should ask yourself, or steps you should take, when drafting legislation? One of the first questions you want to ask is, “What’s the issue to be addressed?” The basic intent of this question is to set the stage for understanding the author’s goal.

Some other questions worth considering after you’ve answered that first question are:

  • To whom does the bill apply?
  • Are there individuals or groups to be excluded?
  • When would it take effect?
  • Who would be responsible for enforcement?
  • Is there any penalty for failure to comply?
  • How would it interact with existing laws?

Those are just a sampling of the questions to consider. The other goal for one to aim for in legislative drafting is to ensure that the legislation fulfils the plain meaning rule. Essentially, are you writing it so that the average person can read and understand the language in the bill or resolution, and are you limiting technical and legal jargon as much as necessary?

You should also make sure you recognize the proper use of terminology. For example, there is a clear difference in outcomes when using either “shall” or “may.” Shall requires an action to happen. May means the action is permissible, but not required. There are other examples of needing to carefully choose your words throughout legislation.