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.

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

As you know, there are three types of resolution in the California Legislature – House, Joint, and Concurrent. Two of these types of resolution – Concurrent and Joint – require adoption by both houses of the Legislature before they can take effect. Passage of a resolution does not require the signature of the Governor, and all three types of resolution only require a simple majority vote to pass. Like other legislative measures, a title for a resolution is drafted, as well as a Legislative Counsel’s Digest.

Because there is not an existing law as it relates to a resolution there is not a statement of existing law in the Legislative Counsel Digest for resolutions. Instead, there is a one sentence explanation of what the resolution does.

A Legislative Counsel Digest for a Concurrent Resolution usually begins with the language, “This measure would,” or a Leg Counsel Digest of a Joint Resolution, it usually begins with the intro, “This measure would urge the Congress and the President of the United States to,” do something. On the other hand, a House resolution simply has a heading that begins with, “Relative to,” like, “Relative to Commemorating,” a certain date or a group, for example. Note that a House Resolution is called a House Resolution if its house of origin is the State Assembly and is called a Senate Resolution if it originates from the Senate.

Like other pieces of Legislation, the Legislative Counsel Digest keys are used with resolutions, except in the case of a House Resolution. There are no keys to a House Resolution. Concurrent and Joint Resolutions have one key, Fiscal Committee. In other words, does the Concurrent or Joint Resolution need to be referred to the fiscal committee for consideration of any fiscal impacts due to the language of the resolution?

After that, the text of the resolution begins, which utilizes paragraphs that begin with, “Whereas,” and close with, “Resolved.” These are the whereas clauses and ultimately the resolved clauses.

There aren’t any limitations on the number of these whereas clauses, there’s usually a half a dozen or so, but some resolutions may have just two or three, while others may contain a dozen or more whereas clauses.

More details on considerations for drafting legislative resolutions are in today’s audio.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

In the California Legislature all types of legislative measures – bills, resolutions, constitutional amendments, and amendments to all those kinds of measures – can only be introduced or processed at the Assembly and Senate desks if they are in what’s called Legislative Counsel Form. The purpose of this is to ensure greater consistency in California statutes. The nonpartisan Office of Legislative Counsel – which serves as legal counsel and principal bill drafter to California legislators and the Governor – is tasked with ensuring that measures are in Legislative Counsel Form.

The attorneys in the Office of Legislative Counsel staff lawmakers, legislative staff, committee staff, the governor’s office, executive branch agency staff, and also some people who do not work for the state but who have been authorized by a legislator to speak with a deputy legislative counsel. So how do these attorneys fit into the bill drafting process?

The short answer is that once a bill or amendment is submitted to the Office of Legislative Counsel, they start drafting it, and fundamentally, the bill drafter’s job is to determine the objectives of the proposed legislation and the goals of the legislator who is authoring the measure. But it is worth looking at how they draft legislation as well. The process generally begins with a legislator contacting the Office of Legislative Counsel and presenting their policy idea. The attorney then starts researching the issue and works with the legislator or their staff to develop a draft of the measure.

The bill drafter has to be familiar with the area of law that’s being targeted by the legislation and understand the most effective way to meet the legislator’s intent. The bill drafter does not consult on the politics of the measure. They focus on explaining existing law and possible changes to the law to accomplish the legislator’s goal, ultimately, incorporating the lawmaker’s ideas into the proper legislative format.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

Pursuant to Article IV, Section 9 of the California State Constitution, each bill must have a title. In fact, the State Constitution specifically states, “A statute shall embrace but one subject which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title.”

The purpose of the title is to provide a description of the bill for purposes of the public and legislators, and bill drafters usually draft the bill’s title after drafting the contents of the bill. Because each bill is required to contain only one broad subject matter, that subject matter must also be expressed in the bill’s title. Again, pursuant to California’s Constitution, an enacted bill is void if the subject is not properly expressed in the bill’s title.

As a general rule, the title needs to be broad enough to be germane to the general subject matter of the bill. The title should not be so narrow that it is essentially a detailed description of what the bill does or how the bill does it – otherwise, any provisions that did not fit that detailed description would be held invalid. But on the other hand, the title should not be so broad as to conceal the true nature or contents of the provisions of the bill.

For example, a reader of a bill might see a bill with a title like An Act Relating to Personal Income Tax. You wouldn’t want to find a title of the same bill as, “An Act Relating to Personal Exemptions Under the Income Tax Law for Persons 65 Years of Age or Older,” because if the title were to include a detailed description of the subject of the bill, then the title would have to basically express every detail of the bill or else any detail not included in the title could be held invalid.

On the other hand, a bill title cannot be so broad that it does not meet the constitutional requirements in Article IV, Section 9. One example of a bill in Oregon that would not meet the requirements in California’s Constitution was titled “An Act Relating to the Activities Regulated by State Government.” Oregon’s Supreme Court said that the bill failed to identify a single subject because it was so broad that it did “little more than define the universe with respect to which the legislature is empowered to act.”

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

During this pandemic, I’ve been researching and reading quite a bit about legislative drafting and studying some of the materials on the subject that are available to the public. One of these is the Seven C’s of Legislative Drafting, as put together by the people in the Graduate Diploma in Legislative Drafting at Athabasca University in Alberta, Canada.

The Seven C’s come from addressing seven standards that experts have determined users of statutes and legislative measures expect when they read the law. The seven C’s, and their corresponding standards are:

  1. Capable of being complied with/Tell the reader what they want to know
  2. Clear/It is easy to read and understand
  3. Comprehensible/It is not obscure
  4. Concise/It uses the shortest space
  5. Complete/It deals with all the necessary points
  6. Consistent/It contains no contradictions
  7. Certain/It leaves no doubts

But what practices are used to achieve the goals of the Seven C’s and address these standards? In the program at Athabasca University, prospective legislative drafters are taught seven practices to address the Seven C’s.

  1. Analyze and plan – The drafter should have a solid idea of what they need to communicate when beginning to draft the measure. This requires having background knowledge of the bill proposal and its policy rationale as well as  an understanding of existing law.
  2. Provide a rational structure to the text of the measure – The contents of the measure are well-organized and that the statute will flow in a logical and understandable way for the reader.
  3. Follow legislative drafting standards – The drafter needs to follow the legal requirements, drafting style, and other standards in their jurisdiction.
  4. Use an effective writing style – The drafter should focus on the Seven C’s, make sure the text is easy to read and understand, write in Standard English, follow proper grammar rules, and use simple and concise legislative sentences.
  5. Choose a good presentation – The text needs to be easy to digest, which includes using short sentences and appropriate paragraphs.
  6. Provide aids to use the text – The bill drafter makes it easy for the reader to find their way around the text. This might include appropriate section headings and organizing the statute into a logical, straightforward manner.
  7. Check, recheck, and scrutinize – The drafter reviews each version of the bill as if they’re a first time reader. They will make any required changes, including eliminating unnecessary details, removing superfluous words, or shortening sentences.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

What exactly is legislative drafting, sometimes also called bill drafting? To start, legislative drafting is defined more broadly to include primary legislation and secondary legislation.  Primary legislation is what immediately comes to mind when you think of legislation – bills, resolutions, and constitutional amendments that are debated and voted on by the legislative branch. Secondary legislation is regulations, executive orders, and other types of rules generally written by executive branch agencies.

In California, this work is done by the Office of the Legislative Counsel. The approximately 80 attorneys in the office draft five to seven thousand bills per year and write an additional eight to eleven or twelve thousand amendments to those measures. All states have some variation of a central legislative drafting office like California’s Office of Legislative Counsel.

Let’s take a look at the who, what where, when, and how of legislative drafting.

Who

There are professionals around the country who draft legislative measures. However, only a handful of law schools offer legislative drafting clinics. There is also a graduate diploma in Legislative Drafting offered from Athabasca University in Alberta, Canada, and an LLM in Legislative and Regulatory Drafting at the University of London.

What

These individuals draft legislative measures, which include bills, resolutions, and constitutional amendments. They may also advise on the constitutionality of proposed legislation. Many state and federal executive branch agencies also have lawyers who draft, again, what’s called secondary legislation, like regulations, notices, executive orders.

Where

Professionals draft measures at statehouses around the country, as well as in numerous state agencies and departments. There are just a handful of full‑time professional drafters in the private sector. Most bill drafters are actually employed by the public sector.

When

Most state legislatures meet a few months each year. California, some other states, and the US Congress, have full-time legislatures.

How

Professional bill drafters utilize skills that they’ve developed through drafting measures, primarily through on‑the‑job experience and some training, like in the California Legislative Counsel Bureau. Legislative drafters have to select their words carefully, avoid unnecessary prose, and write in simple, consistent language to reduce the potentials for ambiguity and misunderstandings.

Some often characterize legislative drafting as more of an art than a science. In other words, you might have three drafters with the same proposal but draft three different versions of the same statute. Of course, each might have proponents or detractors of those three different versions of a similar statute.

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

McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The next legislative session starts on Monday, December 7, at 12 noon. Despite the fact that it is technically starting in 2020, it will be designated the 2021/2022 Legislative Session. As you might imagine, there are numerous provisions around convening the new session laid out in the Constitution, state law, and Assembly Rules.

The California Constitution, in Article IV, Section 3(a), states that “The Legislature shall convene in regular session at noon on the first Monday in December of each even‑numbered year, and then each house shall immediately organize.” Also, each session of the Legislature ends sine die, or for good, per the Constitution at midnight on November 30 of the following even-numbered year.

Moving to state law, California Government Code Title 2, Division 2, Part 1, Chapter 1.5, Article II, Section 9020 to 9026.5 has a number of important provisions about convening the new legislative session. 

Section 9020 of California Government Code reiterates the constitutional mandate around when the session shall convene but adds that the session shall convene in the City of Sacramento without specifying the State Capitol building.

Section 9022 sets out special rules for the State Senate. It provides that the President of the Senate or the most senior member takes the chair, calls the members and members-elect, and then the Secretary of State calls the senatorial districts in order from which the members have been elected. Section 9023 is a similar set of rules for the State Assembly but designates the Chief Clerk of the Assembly – not a member of the Legislature, or the senior Assemblymember-elect to take the chair and calls the members-elect to order and then goes to the roll of counties in alphabetical order.

Per Section 9025, the oath of office is taken by members of the Legislature, and their oaths are entered into the Daily Journal of their respective houses.

The State Assembly also has an additional rule, Assembly Rule 13.1, regarding the election of the leaders of the political parties in the Assembly. The rule says that within two days after the November general election then the two caucuses may meet for the purpose of selecting their officers at the upcoming regular sessions. The convening of the majority party is up to the Speaker of the Assembly, and of course, the Minority Leader has the discretion to call their caucus within two days of the general election.

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