Is “Encouragement” Sufficient in Legislation?

Is “Encouragement” Sufficient in Legislation? By Chris Micheli

            In reviewing legislation in the California Legislature over the years, we are well aware of statements of legislative intent. Sometimes there are single statements of intent and, in other instances, there are multiple intent statements. Recently, I came across a bill in which, rather than an intent statement, there was a different word used. In this particular instance, the statement was one of “encouragement.”

            Specifically, this bill during the 2023 Legislative Session contains the following statement: “The Legislature encourages county offices of education to establish their own respective County Working Group on Fentanyl Education in Schools.” In most instances, we would expect to find a statement such as: “the Legislature intends the county offices of education to establish…”

            Although I had not recalled seeing this type of encouragement statement in legislation, there are actually 66 existing California statutes that begin with: “The Legislature encourages…” These 66 statutes are found in the following:

            Business and Professions Code

Corporations Code

Education Code

Government Code

Health and Safety Code

Penal Code

Public Resources Code

Public Utilities Code

Unemployment Insurance Code

Vehicle Code

Water Code

Welfare and Institutions Code 

Nonetheless, I would think that a stronger approach than “encourage” would be to utilize the either the word “intends” or the word “intent.” Those words certainly are more common in statutory language and would seem to be a more affirmative statement. While those words are not as strong as the word “shall,” which is used to mandate an action in California statutes, I think they are better than the nominal encouragement statement. 

By the way, tn reviewing existing California statutes, I found 132 statutes that use the phrase: “The Legislature intends…” However, the most widely used statement, “It is the intent of the Legislature that…,” is found in 3,263 statutes.

 

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