Should "Notwithstanding" Phrase Be Used?

Should "Notwithstanding" Phrase Be Used? By Chris Micheli

            We often find in California statutes the opening phrase, “notwithstanding any other provision of law.” In other instances, we find the phrase, “except as provided in subdivision (a).” Which phrase should be used? Which phrase should be avoided?

            In some states, they try to avoid the term “notwithstanding” to express a limitation of a general provision of the same act. For example, Utah’s Bill Drafting Manual explains, “The term "notwithstanding" is often used as a shortcut to avoid conflicts with other laws. It is preferable for a drafter to rewrite the section so that there is no conflict. If a conflict cannot be avoided, a drafter should specify the existing section that is in conflict and indicate that the provisions of the bill supersede that section. It is important to be as specific as necessary to explain which provision is being superseded. Only if it is impossible to specify a section that is in conflict should a legislative drafter state that the section supersedes conflicting sections.”

            In California, both variations exist in the 29 Codes. The phrase “notwithstanding any other section of law” is rarely used; instead, there are over 2,500 sections that use the phrase “notwithstanding any other provision of law.” On the other hand, the phrase “except as provided in subdivision” appears in nearly 1,400 sections of law.

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