Chris Micheli

More on Drafting Definitions in California Legislation  By Chris Micheli             Definitions found in statutes need to be carefully written and ensure clarity in laws. Definitions are generally provided when a word has several different usages, as well as to avoid repetition of a phrase. There are a number of important guidelines when drafting definitions in statutes.             For example, use the word “means” to set forth a full meaning of a word. Use the phrase “includes, but not limited to,” to set forth a meaning in addition to a word’s usual use. According to some legal commentators, a definition that is restrictive is followed by the word "means." A definition that is extensive is followed by the word "includes."             It is important to not use the defined word in the definition itself, as well as to not include substantive provisions in a definition. For example, do not include a requirement that an agreement must be in writing by defining

Express Versus Implied Repeals of California Statutes  By Chris Micheli             What is the difference between an express repeal and an implied repeal of a statute? An express repeal is relatively obvious because the Legislature has definitely “expressed” its intent to repeal a particular statute. A reader may see language such as the following: ‘Section 1 is repealed as of January 1, 2024.” This language is simple and straightforward.             An implied repeal is a little harder to determine. An “implied repeal” is generally defined as a later enacted law that cannot be reconciled with a prior law and does not expressly repeal the prior law. Legal commentators and the judiciary generally disfavor a repeal by implication because they are implying that the Legislature intended something that was not clearly expressed. As a result, in most instances, courts generally only find an implied repeal when there is an irreconcilable conflict between two related statutes and when t

Federal Constitutional Limitations on the California Legislature  By Chris Micheli When drafting and considering bills in the California Legislature, bill drafters and legislators in this state need to be aware of some of the limitations on state legislatures imposed by the federal Constitution. The United States Constitution is generally viewed by legal commentators as granting powers to the U.S. Congress, while the Constitution of California is viewed as one providing limitations on the legislative power. The 10th Amendment to the federal Constitution provides that all powers not delegated to the United States nor prohibited to the states are reserved to the states. Perhaps the most important limitation on state legislatures is found in Article VI of the federal Constitution, which provides: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall

Types of Penalties to Draft in Statutes  By Chris Micheli             There are basically three types of penalties that we find in statutes around the country, including criminal, civil, and administrative penalties. In general, a civil penalty is a financial payment assessed by a court for violation of a statute or regulation. It is primarily sought to compensate the state for harm done. Any bill including a civil penalty should indicate who is assessing the civil penalty and where the civil penalty collected will be deposited. There should also be a limit on the amount of the penalty. An administrative penalty is an enforcement tool similar to a civil penalty. It resembles a fine and it is for violation of prohibited conduct that usually must be proved only by a preponderance of the evidence, rather than the stricter burden of proof that applies to a criminal penalty. The major differences between an administrative penalty and the civil penalty is who assesses it and the proc

  Why Is a Constitutional Amendment Given a Resolution Chapter?  By Chris Micheli             When a bill has been enacted by the Legislature and signed into law by the Governor, the last step in the legislative process is the ministerial duty of the Secretary of State to assign a “chapter number” to that enacted bill. According to the Office of Legislative Counsel, “after a bill has been signed by the Governor, the Secretary of State assigns the bill a Chapter Number, for example, ‘Chapter 123, Statutes of 1998,’ which subsequently may be used to refer to the measure.”             Chapter numbers are assigned to bills in numeric order as they are enacted into law. And, the chapter numbers are used for only a single calendar year legislative session (rather than the 2-year session). That means that, at the start of each calendar year, the Chapter numbers begin with “1.” In the 2022 Legislative Session, there were 997 chaptered laws.             In addition, two of the three types

Are Bills with Only Findings and Declarations Considered Substantive?  By Chris Micheli             In the California Legislature, we know that bills that lack proposed substantive law changes are considered “placeholder” measures and generally do not get referred to a policy committee by the Senate or Assembly Rules Committees.             In almost all instances, those placeholder bills are either spot bills or intent bills. A spot bill is one that make a nonsubstantive (or technical) change to an existing statute, while an intent bill simply expressed the intent of the Legislature to enact a bill on a particular topic (either general or specific). But what about a bill that provides just legislative findings and declarations?             In some limited instances, an introduced bill may contain only findings and declarations. I have seen some that include a statement of intent following those findings and declarations, which would more likely be viewed as an intent bill, and t

Senators Temporarily Cover “Unrepresented” Areas of California  By Chris Micheli As a result of the interaction of different provisions of law, and the odd-numbered and even-numbered Senate districts, there are instances each ten years for a geographic area of the state to either not have an elected senator representing some areas of the state, or other instances where an area is represented by a second senator. This anomaly is corrected in the following election cycle (e.g., in 2024).   In order to address this anomaly, the Senate Committee on Rules assigns current Senators to “represent” those currently “unrepresented” areas of the state for 2023 and 2024. Once new senators are sworn into office on the first Monday in December 2024 (representing the odd-numbered Senate Districts), this coverage will no longer be necessary.   On January 18, 2023, the Senate Rules Committee adopted what it calls the “Deferred Area Assignments.” The Senate’s Deferred Area Assignments are based

Legislative Findings and Declarations Versus Intent Statements  By Chris Micheli             In reading bills in the California Legislature, you may encounter findings and declarations, or intent statements, or a combination of the two. Which should be given greater weight by the courts? Or are they of equal weight? Does it matter if one is codified and the other is not? These and other questions could be raised when determining how these types of statements should viewed, particularly by the judicial branch of state government.             The following is a recent example from a bill introduced in the 2023 California Legislative Session with the legislative findings and declarations contained in Section One of the bill (and would be uncodified if the bill were enacted) and the statements of legislative intent contained in Section Two of the bill (and would be codified if the bill were enacted): SECTION 1 (in part): The Legislature finds and declares all of the following: (a

Saving v. Grandfathering Clauses  By Chris Micheli             What is the difference between a saving clause and a grandfathering clause? They are both types of transitional provisions found in legislation. A saving clause is generally used to retain an existing right or authority that would otherwise be affected by a new law. In essence, the saving provision preserves the right or authority despite the new law’s amendment or a repeal of the former law.             On the other hand, the term “grandfathering” is defined by the California Office of Legislative Counsel as “a legal exemption whereby a situation is governed by an old law while a new law applies to all future, similar situations.” According to other states’ bill drafting manuals, a saving clause is used to exempt existing rights, obligations, or procedures from a new law’s provisions, thereby limiting the application of the bill when it becomes law. Moreover, a saving clause provides a means to enforce rights or r

Drafting Legislative Counsel Digests  By Chris Micheli             The purpose of the Legislative Counsel’s Digest, according to the Office of Legislative Counsel, is to summarize t he effect of the proposed bill on current law. It is obviously prepared by the Office of Legislative Counsel and provides a brief summary of the changes the proposed bill would make to current law. The Digest is found in the beginning of each bill.             The following is an example from a recently introduced bill in the 2023 Legislative Session: LEGISLATIVE COUNSEL'S DIGEST SB 71, as introduced, Umberg. Jurisdiction: small claims and limited civil case. Existing law provides that the small claims court has jurisdiction over actions seeking certain forms of relief, including money damages in specified amounts and claims brought by natural persons, not exceeding $10,000, except as specified. Existing law requires an action or special proceeding to be treated as a limited civil case if cert

Specific Bill Drafting Guidance in California  By Chris Micheli In the California Legislature, there are quite a few specific bill drafting principles, just as they exist in most other states. Although California does not publish its bill drafting manual, a majority of states do so. The following are some of those principles I have found in the drafting manuals of other states, which appear to apply in California based upon my review of legislation over the years:   ·          If a department is defined, then all subsequent references in the statute should be to "the department." The department's full name need not be written out, except when confusion would result from references to other departments. ·          Use lower case for titles of public officials. ·          Capitalize short titles of acts. ·          Express numbers in the text with words followed by numerals in parentheses. ·          Hyphenate numbers from twenty-one to ninety-nine. ·       

The Use of "Shall" Versus "May" in California Statutes  By Chris Micheli What are the differences between the words “shall” and “may” in statutes? As a general rule, the use of the word "shall" is to impose a duty on a person or people or to mandate action by a person or people. In other words, a bill drafter should use the word "shall" to say a person or people "has a duty to" do something or "has to" do something. In other jurisdictions, the word “must,” rather than "shall," is viewed as the proper action verb to use when the action is only required to achieve an end. Also, some states try to avoid using the word “shall” to confer a right. In almost all jurisdictions, including California, bill drafters use the word "may" to express permission to do something or preserve power to do something. Basically, the word "may" is used to authorize or permit, rather than command. Most of Californ

"That" Versus "Which" in California Statutes  By Chris Micheli In California statutes, the word “which” is often found. However, the Office of Legislative Counsel in California is in the process of mainly deleting the term “which” and replacing it with the word “that.”. This raises the question whether the word “which” should be changed throughout California’s existing laws. Aa a general rule, bill drafters are encouraged to use the word “that," not preceded by a comma, to introduce a restrictive clause. In these states, bill drafters are instructed to use the word "which," preceded by a comma, to introduce a nonrestrictive clause. What is the difference between these two types of clauses? Basically, a restrictive clause or phrase limits or identifies to which several possible things or ideas the clause or phrase refers. As a result, the restrictive clause is essential to the meaning of the sentence. On the other hand, a nonrestrictive clause or

What Is a Proviso in California Law?  By Chris Micheli Have you heard the term “proviso” in describing a provision of a bill or statute? Basically, a proviso is language used to exempt something from a general statutory declaration and to provide for it specially. Some legal commentators believe that provisos are too frequently used in bill drafting. A reader of a bill or statute can readily find a proviso because it usually begins with a phrase such as "provided that," or "provided, however, that." Some provisos are ambiguous because they may add an additional declaration, or even a new idea not necessarily connected with the preceding clause. This case obviously could be problematic. As a result, some states advocate for not using provisos in statutes. Instead, these states believe that a proviso should be used with language that begins, "except that," or even "however." In addition, some states advocate that, if there are several conditi