Why California Should Publish Its Bill Drafting Manual

Why California Should Publish Its Bill Drafting Manual By Chris Micheli

            According to the National Conference of State Legislatures (NCSL), about half of the states publish the manual used by their state’s legislative drafting attorneys. California and its Office of Legislative Counsel (OLC) is one of those states that does not. Why do I think our state should publish its bill drafting manual? I believe it would enhance the ability of the state’s judiciary to better interpret statutes.

When first reviewing a statute, judges and justices rely upon the plain meaning of the words in the statute. However, when that statute is ambiguous, then our state courts will try to ascertain the intent of the Legislature. And, in my mind, one helpful document to assist the judicial branch in interpreting the statute could be the drafting manual used by the attorneys in the OLC. Why?

This manual sets forth the rules that the California Legislature's attorneys follow when drafting bills and amendments that ultimately become statutes in the state’s 29 Codes. Knowing how and why statutes are drafted in a certain manner, in my opinion, can benefit the judges who are trying to understand and interpret statutes crafted by the Legislature’s attorneys.

While allowing judges access to the OLC drafting manual will not answer all questions by any means, there are undoubtedly valuable insights that can be gleaned by an examination of the manual's directives and the basis for those directives. While judges certainly desire to rely primarily on the textual language of a statute, having insights into drafting practices will give the judicial branch a better understanding of the legislative perspective.

As I have often said, I think legislators and their staff should get first hand experience in statutory interpretation training from the judicial branch. And, I think judges should get first hand experience in the legislative process and legislative drafting training from the legislative branch. This would give both judges and legislators a better perspective of each other's roles.

While the courts do not have to follow the drafting manual when interpreting an ambiguous statute, just as they do not have to follow codified statutory construction principles, for example, being able to consult with the manual could come in handy and bring helpful insights to the judiciary.

More importantly, if the stated goal of interpreting an ambiguous statute is to try and ascertain the intent of the Legislature, the drafting manual could shed light on that goal and assist judges and justices in this crucial endeavor. Again, that is because the Legislature's drafting attorneys have a method of drafting, some of which is unique to California.

Even the federal courts rely on the drafting manuals from the U.S. Congress. For example, the drafting manuals are used to understand the grammatical structure of complicated provisions in light of the drafting practices of the U.S. House and U.S. Senate Legislative Counsel. United States v. O’Brien (2010) 560 U.S. 231.

The judicial branch could also suggest in their published decisions when appropriate changes are warranted in the drafting manual, or suggest an addition when the manual is silent. In other words, having access to this manual could actually help both branches of state government. California continues to be less of a common law state and more of a statutory state. As such, we should assist the judicial branch in its interpretation of state statutes.