Some Recent Trends in California Legislative Drafting

Some Recent Trends in California Legislative Drafting By Chris Micheli

            In reviewing thousands of bills making their way through the legislative process each year, and co-teaching a course on Legislative Drafting at UC Davis King Hall School of Law for the past five years, I have noted a number of recent trends in California bills.

            In particular, three common recent trends in bills in the California Legislature include: 

1. Including legislative findings and declarations, often followed by statements of legislative intent.
2. Including a severability clause in bills.
3. Making a bill contingent upon a future budget appropriation.

More Legislative Findings and Declarations

             More and more bills over the last few Sessions have included legislative findings and declarations, as well as statements of legislative intent. Previously, bills often put findings and declarations in one bill section, and intent statements in a second bill section. The more common approach is to have the findings and declarations, as well as the intent statements, in the bill section. There are about 280 bills containing these clauses in the 2025 Session.

            The following is an example of findings and declarations, followed by an intent statement, from a 2025 Session bill: 

(a) The Legislature makes the following findings and declarations:

(1) In 2023, more than 11,000 Californians died because of fentanyl and other overdose deaths. California’s overdose death toll increased by 4 percent in 2023, while the number of deaths nationally declined for the first time in five years.

(2) Excessive alcohol use resulted in an additional death toll of almost 20,000.

(3) Drug-related overdose deaths were the sixth leading acute cause of death with an age-adjusted death rate of 29.4 per 100,000 residents in 2023. The drug-related overdose age-adjusted death rate was greater than the age-adjusted death rates for chronic obstructive pulmonary disease, lung cancer, kidney diseases, and congestive heart failure.

(4) New addiction medications and treatment strategies can dramatically reduce overdose deaths and reduce heavy drinking. Contingency management treatments strongly reduce stimulant use.

(5) Almost 30,000,000 Californians are enrolled in health plans regulated by the Department of Managed Health Care and have coverage that includes treatment for substance use disorder.

(6) Current measures for post-emergency department followup care report that only 28.6 percent of Medi-Cal members who visited an emergency department for an overdose or substance use disorder diagnosis received followup care after 30 days.

(b) It is the intent of the Legislature that the state establish a goal of reducing alcohol- and drug-related addiction deaths by 50 percent by 2033 and that this goal continue in existence and be used to maintain and continue reductions of overdose death and addiction beyond 2033.

More Severability Clauses

            More and more bills over the last few Sessions have included severability clauses, regardless of whether the bill is constitutionally suspect. As a canon of statutory construction in California, statutes are presumed to have sections that can be severed while remaining, valid ones, will continue in existence. As a result, practitioners generally believe that such clauses are unnecessary. Nonetheless, more bills are using them. There are about 125 bills containing these clauses in the 2025 Session.

            The standard severability clause language used in California bills is the following: 

The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

More Bills Contingent on Future Budget Funding

            More and more bills over the last few Sessions have included contingent operative language, meaning that these bills, although enacted and effective (i.e., they are “on the books”), can only be operative if funding is made in a future bill or the state budget. Otherwise, the statute is in law, but is inoperative without funding being appropriated. There are about 180 bills containing these clauses in the 2025 Session.

            The standard subsequent appropriation language used in California bills is the following:

This chapter shall become operative only upon an appropriation by the Legislature for its purposes in the annual Budget Act or another statute.

            While legislative drafting standards get updated on occasion (e.g., our transition to gender-neutral drafting), some new provisions are added, while others become more common. The three areas discussed above can certainly be found in legislation throughout the years, their particular use has become more prevalent recently.