Some Notes on Bills Declaring Existing Law

Some Notes on Bills Declaring Existing Law By Chris Micheli

As we near the end of the California Legislative Session, we see more bills that claim to make changes to statutes, and those amendments are claimed to be "declaratory of existing law." How is that done and how do California courts view those types of legislative proclamations?

            To begin, in most instances, legislation applies prospectively, meaning after the law has been enacted and takes effect. Nonetheless, there are times when the Legislature desires statutes to be applied retroactively, and sometimes they also specify a prospective application date.

            The following is an example of specific language contained in a bill that is intended to apply retroactively: 

The requirement to provide COVID-19 supplemental paid sick leave as set forth in this section shall take effect 10 days after the date of enactment of this section, at which time the requirements shall apply retroactively to January 1, 2021.

            Another approach used on occasion is the following is an example of language where the Legislature states its intent that a court apply the bill retroactively: 

It is the intent of the Legislature that a court interpret this section, as amended by the act adding this subdivision, in a manner consistent with the interpretation of this section as it read prior to January 1, 2013.

And, in unique circumstances, the following is an example of one of these declaratory of existing law statements: 

The amendments to this subdivision made by Section 11 of Chapter 256 of the Statutes of 2021 do not constitute a change in, but are declaratory of, existing law.

Is this statement sufficient? I do not believe so, which leaves it susceptible to judicial challenge. That is because I believe the Legislature actually needs to explain to a reviewing court why the amendatory language should be applied retroactively.

            So, how could the statement above be strengthened and make it more likely to be acceptable to the courts of this state?

1.     Explain immediately after the declaratory statement why the amendment(s) to the earlier statute do not change existing law, but simply clarify it.

2.     Add legislative findings and declarations and a statement of legislative intent in Section 1 of the bill, which could be codified or uncodified language. These statements should explain in detail why the amendment(s) to an existing statute are not changing the existing law.

3.     Ideally, the Assembly and Senate Floor Analyses should also describe in detail the intended retroactive application of the law change. Floor analyses are communicated to the Legislature as a whole, which is the guiding principle for courts in citing persuasive legislative history.

Comments

Post a Comment

Popular posts from this blog

CA Regulatory Explainer: Overview of the California Rulemaking Process

CA Regulatory Explainer: Overview of the California Rulemaking Process  By Chris Micheli   California has over 200 State agencies, departments, boards, and commissions that make public policy through their authority to adopt regulations. A list of State agencies that have adopted regulations can be found on the website of California’s Office of Administrative Law (OAL), which is found at www.oal.ca.gov   OAL’s website also provides direct access to the California Code of Regulations (CCR), which is organized under various subject matter titles, of which there are 28 titles. These titles contain the over 60,000 state regulations that are currently in effect.   California’s Administrative Procedure Act (APA) contains required procedures for rule-making and administrative hearings conducted by all of these agencies and departments. The APA is found at Chapter 3.5, 4 and 5 commencing with Section 11340 of Part 1 of Division 3 of Title 2 of the Government Code. ...
Read more

An Orientation to the California State Capitol and Swing Space for Lobby Day Attendees

An Orientation to the California State Capitol and Swing Space for Lobby Day Attendees  By Chris Micheli             This article is intended to provide an orientation to the California State Capitol and its accompanying Swing Space for individuals participating in a lobby day.   The State Capitol The California State Capitol is the seat of state government, located in Sacramento. The building houses the chambers of the State Legislature, which is comprised of the Assembly and the Senate, We often refer to this building as the historic side of the Capitol. The first floor holds the original offices of California’s Governor (actually a 3-room suite), two offices of the Treasurer, Attorney General, and Secretary of State. There is also a State Library exhibit room and a State Archives exhibit room. The Senate has two hearing rooms on the first floor – 112 and 113. There is a small meeting room as well. The Asse...
Read more

Additions and Amendments to California’s Constitution

Additions and Amendments to California’s Constitution  By Chris Micheli To preface this brief article, I readily admit to being a legislative geek as I read and researched our state’s constitution. The current (and second) California Constitution was adopted in 1879. The first one was adopted in 1849, the year before California became a state. Several of its original sections remain unchanged since their adoption 146 years ago. Of course, while the Legislature or the people can place constitutional amendments on the statewide ballot, they are adopted by a majority vote of the electors. By my calculation, there have been just over 355 changes to the state Constitution since its original adoption in 1879. By my count, the current state Constitution contains 32 Articles and 371 sections. Note that 11 of those Articles have been added in their entirety and not changed since their adoption. Contained in those 32 Articles are 243 added sections and 113 amended sections since 1879...
Read more