Some drafting observations on 2024 California bills

In looking over the 1,200 bills that reached Governor Newsom’s Desk during the 2024 Session, I found several with interesting provisions. They are in random order as I came across them in my review of the bill language.

AB 2736
This bill simply repealed one, short code section in the Military & Veterans Code. This bill and AB 2292 look like the shortest bills of the Session.

AB 2581
This bill contains, among many other provisions, 6 bill sections that contain 10 double-jointing amendments. This bill may have the most double-jointing amendments I’ve seen in a single bill all year.

AB 2292
This bill does just one thing:

SECTION 1. Section 1002.3 of the Public Utilities Code is repealed.

SB 366
This bill had 23 legislative findings and declarations, which may be the most I’ve seen this year. The next closet I think was AB 2458, which had 15 legislative findings and declarations.

AB 2368
This bill had 9 legislative findings and declarations, 3 statements of legislative intent, and 3 statements of “it is not the intent of the Legislature…”

Long sunset date
One bill this year had the following “sunset” or repeal clause:

This section shall remain in effect only until January 1, 2044, and as of that date is repealed.

I don’t recall seeing a 20-year sunset clause before, as most bills are in the 3-5 year range.

Two interesting provisions giving direction to enforcement agencies and courts
(a) The provisions of this act are intended to complement and augment, not replace or diminish, federal or state protections in the field of social media safety, including Chapter 22.2.9 (commencing with Section 22589) of Division 8.

(b) The duties and obligations imposed by this act are cumulative with any other duties or obligations imposed under other law and shall not be construed to relieve any party from any duties or obligations imposed under other law.

The first subdivision is more of a specific statement of legislative intent, while the second subdivision makes clear its provision are in addition to existing laws currently in statute.

Understanding effective v operative dates is key here
One of the most common contingent operative provisions in bills is tying the bill’s operative date to budget funding, such as the following example:

This section shall become operative only upon an appropriation of funds by the Legislature for the purposes of this section.

So, this bill requires the statute, which is already in effect (i.e., it has a January 1, 2025 effective date), to only be operative if, and when, it gets funding in the state budget. As a result, the operative date will be much later than the effective date because the statute awaits budget funding. As a result, even though this new statute will be “on the books” on January 1, it will not be operative until money is appropriate.

Several unique provisions in a single bill
(2) A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.

(f) The University of California is requested to comply with this section.

(g) This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.

The first provision is the standard reporting language consistent with the requirements of Government Code Section 9795.

The second provision is due to the fact that the Legislature cannot mandate the UC system to do something, so the Legislature can only make a request of the Regents.

The following language is taken from another bill this year as an example of a mandate on the CSU system, but a request for the UC system:

Each campus of the California State University shall, and each campus of the University of California is requested to, do all of the following:

In terms of the third subdivision set forth above, I think it is obvious that a statute cannot contravene either federal or state constitutional provision cited in that subdivision, so I am not sure why it is needed in state statute.

I don’t think it should be done this way
Yes, I have my own opinions about how state statutes should or should not be drafted. Here is one of those examples.

When there is an ambiguous state statute, only then do our state courts try to ascertain what the intent of the Legislature was in enacting the ambiguous statute (meaning, it is “subject to more than one reasonable interpretation”).

As such, I believe state courts should give greater credit to statements of legislative intent. However, this is also why I don’t like the approach set forth in the following example where I see the language as making the intent statement second to legislative findings and declarations.

Instead, the intent statement should be made Section 3 in this particular bill. While the intent statement can remain uncodified like the F&D statements in Section 2 of the bill, it should be highlighted for its importance, rather than be made an afterthought. This can be accomplished by making the legislative intent statement a standalone bill section.

From my drafting perspective, legislative findings and declarations should set the basis for the legislative intent statements that follow.

(a) The Legislature finds and declares as follows:

(1) The State Department of Developmental Services is responsible for overseeing the coordination and delivery of services and care of individuals with intellectual and developmental disabilities through the Lanterman Developmental Disabilities Services Act.

(2) More than 450,000 Californians with developmental disabilities currently receive services and support funded by the department.

(3) The department contracts with 21 regional centers throughout California to coordinate service provisions to these individuals. These regional centers are private, nonprofit corporations that receive funding allocated by the Legislature and are overseen by the department. For the 2024–25 fiscal year, the state budget allocated fifteen billion three hundred million dollars ($15,300,000,000) to fund regional center services and operations statewide out of fifteen billion eight hundred million dollars ($15,800,000,000) appropriated for the entire program.

(4) California regional centers assert that they are not subject to the California Public Records Act because they are not state entities.

(5) The Legislature has included in the California Public Records Act nongovernmental entities, such as charter schools, that receive public funds and provide core governmental services.

(6) Without formal access to regional center information, there is a significant gap into the transparency of regional center operations and their budgets that makes it difficult to identify and change operational policies and practices generally, and in particular, those that disproportionally restrict services to communities of color.

(7) Regional centers carry out core governmental functions, and the limited statutory disclosure provisions that exist in the Lanterman Developmental Disabilities Services Act do not provide significant detail into the overall operation and spending of regional centers and their service authorization decisions.

(8) California has a strong policy preference in favor of providing public access to government records. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code, Sec. 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59, which amended the California Constitution to specifically protect the right of the public to access and obtain government records, stating that “[t]he people have the right of access to information concerning the conduct of the people’s business, and . . . the writings of public officials and agencies shall be open to public scrutiny.” Ten years later, voters approved Proposition 42 to further increase public access to government records by requiring local agencies to comply with the California Public Records Act, and with any future amendments to the act, as provided. (Cal. Const., Art. I, Sec. 3(b)(7).)

(9) Regional centers receive the totality of their funding from the state and federal governments, which exceeds fifteen billion dollars ($15,000,000,000) in the 2024–25 fiscal year, for the purpose of providing services for Californians with developmental disabilities, and these services are a core governmental function and should be conducted in the open.

(b) It is the intent of the Legislature in enacting this act to ensure that all California regional centers are fully subject to the California Public Records Act in providing services to nearly 500,000 Californians with disabilities and their families, particularly since recent California State Auditor and Little Hoover Commission reports have found that stronger state oversight and transparency are needed to improve the quality and effectiveness of developmental services in California.

Overruling a published appellate court decision
The following bill example is one method by which the Legislature overturns a state court decision in statutory language.

Notwithstanding City of Oxnard v. County of Ventura (2021) 71 Cal.App.5th 1010, a city shall be treated as if it had retained its authorities regarding, and administration of, prehospital emergency medical services (EMS) ambulance services within the city’s territorial jurisdiction pursuant to Section 1797.201, only if all of the following requirements are satisfied:

Bill not modifying existing statutes or regulations
The changes made to this section during the 2023–24 Regular Session of the Legislature do not change or otherwise modify the application of Sections 6310, 6311, and 6311.5 of this code or of Sections 3342 and 5199 of Title 8 of the California Code of Regulations.

I found this provision interesting because not only does it say it isn’t trying to change other specified statutory provisions, but also it does not change specified regulations. Then, what does it do exactly? Statutes trump regulations in our hierarchy of laws, for example. So, why wouldn’t these statutory changes affect regulatory language that may be in conflict.

Bill with two operative dates

(c) This subdivision shall become operative on January 1, 2004.

(d) (1) The changes made to this section during the 2023–24 Regular Session of the Legislature shall become operative on July 1, 2025.

The reader of this bill needs to know the distinction between a section and a subdivision, and be clear to which each of these operative dates refer.

Contingent operative language based on regulatory activity
This act shall become operative only if the Department of Cannabis Control unifies its licensing system for commercial cannabis activity under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (Division 10 (commencing with Section 26000) of the Business and Professions Code).

Remember the distinction between effective and operative dates. Not only does this bill have a contingent operative date, but also the contingency is based upon forthcoming regulatory action. A more common contingent operative provision is based on an appropriation, a statewide vote, etc.

Contingent repeal based on regulatory action
This section shall remain in effect only until Section 2701.5.5 is incorporated in the Employment Development Department’s integrated claims management system as part of the EDDNext project, and as of that date is repealed.

Similar to the bill provision above, the contingent repeal language is based upon future regulatory action.

This is the way F&D for amending an initiative should look
Another legislative drafting “pet peeve” of mine is the lack of explanation when there is a finding and declaration that a bill amending a voter-approved initiative “furthers the purposes” of that initiative. I think the uncodified section of law that makes that finding and declaration should tie back to the initiative’s findings and/or intent statements and the legislative declaration should identify those stated purposes of the initiative and why the particular bill furthers the purposes of the voter-approved initiative. And, to make it even better for potential judicial review, some general F&D should be included in the bill.

Well, the following example from a bill this year does it the best way, in my personal opinion. Section 1 of the bill provides a number of legislative findings and declarations about the need for the bill, and then at the end of the bill (in what is called a “plus section”), in its Section 9, there are four stated reasons why the Legislature believes this bill furthers the purposes of the voter-approved initiative.

SECTION 1.

The Legislature finds and declares as follows:

(a) In November 1996, voters approved Proposition 215, which decriminalized the use of medicinal cannabis in California.

(b) In 2015, California enacted three bills—Assembly Bill 243 (Chapter 688 of the Statutes of 2015); Assembly Bill 266 (Chapter 689 of the Statutes of 2015); and Senate Bill 643 (Chapter 719 of the Statutes of 2015)—that collectively established a comprehensive state regulatory framework for the licensing and enforcement of cultivation, manufacturing, retail sale, transportation, storage, delivery, and testing of medicinal cannabis in California. This regulatory scheme is known as the Medical Cannabis Regulation and Safety Act (MCRSA).

(c) In November 2016, voters approved Proposition 64, the Adult Use of Marijuana Act (AUMA). AUMA makes it legal to sell and distribute cannabis for adult use through a regulated business.

(d) In 2017, the Legislature enacted Senate Bill 94 (Chapter 27 of the Statutes of 2017) to merge the regulatory provisions of MCRSA and AUMA and provide for a single regulatory structure for both medicinal and adult-use cannabis. This consolidated regulatory structure is known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA).

(e) The intent of MCRSA, AUMA, and MAUCRSA was to ensure a comprehensive regulatory system that takes production and sales of cannabis away from an illegal market and curtails the illegal diversion of cannabis from California into other states or countries, while avoiding duplicative costs and inevitable confusion among licensees, regulatory agencies, and the public and ensuring a regulatory structure that prevents access to minors, protects public safety, public health, and the environment, as well as maintaining local control.

(f) The purpose of this act is to revise the procedures for issuance of state licenses for certain commercial cannabis activities to promote efficiency, avoid overlap with local land use processes while protecting local control, and reduce barriers to entry into the legal, regulated market, in furtherance of the purposes and intent of MCRSA, AUMA, and MAUCRSA.

SEC. 9.

The Legislature finds and declares that this act furthers the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act by accomplishing all of the following:

(a) Reducing barriers to entry into the legal, regulated market by making state licensing processes more efficient and avoiding unnecessary overlap with local land use permitting, while protecting local control.

(b) Improving and strengthening California’s comprehensive system to legalize, control, and regulate commercial cannabis activities.

(c) Allowing local governments to enact additional local requirements for adult-use cannabis businesses, and to adopt and enforce other local police power, land use, and business regulations with respect to commercial cannabis activities, but not requiring that they enact cannabis-specific regulations for adult-use cannabis businesses to be issued local permits and state licenses and be legal under state law.

(d) Promoting the strict control of commercial cannabis activities and the prevention of the illegal production or distribution of cannabis and the illegal diversion of cannabis from California to other states or countries or to the illegal market.

Not just codifying, but “expanding” a court case

The Legislature finds and declares all of the following:

(a) It is the intent of the Legislature to codify and expand upon the Court’s holding in Centeno v. Superior Court (2004) 117 Cal.App.4th 30.

Sometimes the Legislature wants to overturn a court decision, and does so by enacting statutory changes that have that effect. On the other hand, sometimes the Legislature wants to codify a court decision, and this is one way of doing so, along with appropriate statutory language.

SB 966 had two severability clauses
17086.

The provisions of this division are severable. If any provision of this division 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.

SEC. 9.

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.

I don’t think readers see this too often: Not only are the provisions of an entire division of a code severable, but also the provisions of this particular bill are severable. Usually, a severability clause applies to the “provisions of this act.” Also, some legal observers do not believe such clauses are even necessary because California courts follow the judicial doctrine to sever invalid provisions of a statute and retain the valid provisions as a general rule.

We haven’t seen a signing message like this before
https://acrobat.adobe.com/id/urn:aaid:sc:VA6C2:a1bd7b1c-baf7-4e02-964b-52bb0e2f80b4

This bill signing message simply has a QR code to read.

Signing a bill that won’t take effect
“I am signing Assembly Bill 3190, which applies public works law to certain affordable housing projects by expanding the definition of “paid for in whole or in part out of public funds” to include low-income housing tax credits. Additionally, it requires private residential projects built on private property to abide by public works law if the project receives low-income housing tax credits. This bill is contingent upon enactment of Assembly Bill 3160. While the provisions of this bill will not be going into effect given the veto of Assembly Bill 3160, I wont to be clear that I generally share in the goals of this measure, and I am committed to building on the progress we have made as a state to address our housing shortage while also supporting good jobs and who make this progress possible.”

In this instance, Governor Newsom noted his signature on this bill is ineffective because it is contingent upon the enactment of another bill. However, that bill was vetoed, so this one doesn’t go into effect either. This happens on occasion but is still unique.

A new way of expressing legislative intent?
It is hereby declared, as a matter of legislative determination, that persons appointed to the committee are intended to represent and further the interests of the industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.

I came across this bill language. Sometimes we see a bill specifying that something is a matter of “state policy,” but usually we see either legislative findings and declarations, or legislative intent. So, what is a “matter of legislative determination”? Consistency is a critical component of legislative drafting, so not sure why a new term is being used here.

These are all correct designations

AB 1 2x

AB2x – 1

AB 1xx

AB 1 of the Second Extraordinary Session

The last one is the formal title of a bill, but they are all interchangeable options to use.

Here is another example of the proper method of amending a voter-approved initiative
The Legislature finds and declares that this act furthers the purposes and intent of the Right to Vote on Taxes Act, approved by the voters as Proposition 218 at the November 5, 1996, statewide general election, and the Proposition 218 Omnibus Implementation Act (Chapter 38 of the Statutes of 1997) by accomplishing all of the following:

(a) Finding that Proposition 218 does not contain any affirmative intent to authorize a refund remedy.

(b) Recognizing that water and sewer agencies, and local governments providing property-related services, set charges to merely recover costs annually and receive no profit.

(c) Further recognizing that lawsuits seeking refunds for property-related service rate determinations threaten to compromise the financial stability of water and sewer agencies and local governments providing property-related services and the critical public services they provide.

(d) Further recognizing that any refund would need to be funded by raising rates on future ratepayers, further reducing the affordability of essential public services.

(e) Protecting ratepayers by requiring that the entity charging the property-related service fee or charge credit against future revenues the amount of any fee or charge in violation of Proposition 218.

Why? Because, in my opinion, it doesn’t simply make a legislative finding and declaration, which is what we find in most bills that amend a voter-approved initiative. Instead, in this bill, there are five specified reasons why this legislative enactment furthers the purposes and intent of this particular initiative. It has a much better change of surviving judicial scrutiny than one that does not specify reasons for the legislative declaration. This example should be followed consistently in all bills that amend voter-approved measures.

Interesting legislative finding
The Legislature finds and declares that this article does not prevent or significantly interfere with a financial institution’s exercise of its powers under federal law.

I find it interesting because this is not a determination for the Legislature to make. This is a matter for a federal court to decide.

This uncodified language has it all
The Legislature finds and declares that unemployment benefits are a fundamental protection for California workers who are unemployed through no fault of their own. This protection is all the more important for workers in industries like the entertainment industry, in which work is often sporadic and unpredictable. With this act, the Legislature intends to eliminate ambiguities and clarify, in particular situations, the party bearing responsibility for the employer share of payroll taxes that support the unemployment and disability insurance systems and other worker-protective benefits. It is the intent of the Legislature to recognize the role of loan-out companies and clarify their obligations to remit employment taxes under the Unemployment Insurance Code. This act is not intended to alter or modify any other laws with regard to loan-out companies or their employees. It is not the intent of the Legislature to limit, in any way, eligibility for unemployment benefits or to abrogate the analysis of California court decisions, including in Cooperman v. Unemployment Ins. Appeals Bd. (1975) 49 Cal.App.3d 1, affirming the importance of those benefits to workers. The Legislature finds and declares that the amendments to Section 679 of the Unemployment Insurance Code made by this act are declaratory of, and not a change in, existing law.

This particular bill contains findings and declarations, legislative intent, what is not intended by the Legislature, and declaratory of existing law provisions. This rarely happens in a bill.

Other observations
Finally, it may just be me, but this year I noticed two additional things with bills:

First, there were a larger number of bills that were named acts (i.e., This title shall be known, and may be cited, as the __ Act. I am not sure why, but it seemed more common this year than prior years.

Second, there were a lot more bills that contained legislative findings and declarations than normal. I think this is actually a good idea. To be fair, there are some legislative drafters that believe a well written and clear statute (i.e., one that is not ambiguous) does not need an explanation (such as findings and declarations). However, I am of the school of thought to include whatever information could assist a court in determining legislative intent.