Additional California drafting notes

As I make my way through bills in the second house policy committee, I continue to run across interesting provisions contained in these bills. Here is a short explanation of some recent examples from 2025 bills that the “legislative geek” in me finds interesting:

This is an expansive statement
The Legislature finds and declares that neither the original provisions of this section, nor any subsequent amendments to it, were intended to create a private right of action. However, nothing in this subdivision shall restrict or expand the existing right of any party to seek relief from noncompliance with this section pursuant to a writ of mandate.

This provision reminds me of the saying, “giveth with one hand and taketh with the other.” When we are talking about the rights of a party, I do not think we should rely upon findings and declarations to specify them, but rather it should be contained in statutory language. With the first sentence, should the same provision be required in the future? How does the current Legislature think it can speak on all “subsequent amendments” for any future Legislature?

This provision has broad application
For purposes of any code or statute, a national or regional accrediting agency recognized by the United States Department of Education as of January 1, 2025, shall retain that recognition until January 20, 2029, provided that the accrediting agency continues to operate in substantially the same manner as it did on January 1, 2025.

I have seen this type of language for a specific “provision of law,” for example. But this bill’s language is much broader: “for purposes of any code or statute.” Statute is a broader term as it refers to both codified and uncodified language, whereas code only contains codified statutes.

We have seen variations of this language:
The remedies provided by this section are cumulative to each other and the remedies or penalties available under all other laws of this state.

Depending on one’s point of view, this statement could be problematic because it specifies that whatever remedies (such as civil penalties) are contained in the current bill, they are in addition to, rather than in place of, existing remedies.

And variations of this:
This bill is not intended to modify or weaken existing protections. In the event of a conflict between the provisions of this bill and any existing state law or regulation, the more stringent provision shall prevail.

This is also a provision we see on occasion, although such conflicts should be addressed in the new bill. As a general rule, a more recent statute will take the place of an earlier enacted statute that is in conflict. However, this clause will require an enforcement agency or a court to first determine that there is a conflict, then determine which provision is “more stringent,” and then apply the more stringent provision to the particular circumstances.

This is an interesting grant of rulemaking authority:
Any rules or regulations related to the panel shall be formulated by the Attorney General in collaboration with the chairperson of the panel.

While statutes often provide narrow or broad rulemaking authority, in the above bill, the authority is granted to the state’s AG, but the AG is required to collaborate with a panel chair elsewhere in state government.

This is a good “plus section” on applying a bill’s provisions to all cities:
The Legislature finds and declares all of the following:

(a) The state faces a housing crisis of availability and affordability, in large part due to a severe shortage of housing.

(b) Solving the housing crisis therefore requires a multifaceted, statewide approach which will include, but is not limited to, any or some of the following:

(1) Encouraging an increase in the overall supply of housing.

(2) Encouraging the development of housing that is affordable to households at all income levels.

(3) Removing barriers to housing production.

(4) Expanding the availability of rental housing.

Therefore, addressing the housing crisis and the severe shortage of housing is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 1 Sections 1 and 2 of this act amending Sections 66328 and 66329 of the Government Code apply to all cities, including charter cities.

In most instances, the final two sentences are only included in a bill – meaning it is just a statement that the bill applies to all cities, including charter cities. While that may be sufficient, I believe the better approach to drafting is to include a brief explanation. That is what has occurred in the bill above. In this bill, there are multiple reasons cited for the bill’s applicability to not just general law cities, but also charter cities.

I am seeing a lot more severability clauses this year
If a bill contains a severability clause, it is found in two places: First, a simple statement is contained in the Legislative Counsel’s Digest as set forth below:

This bill would declare its provisions to be severable.

Second, in the text of the bill, either in codified or uncodified bill language, there will be the following statement:

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.

There is a question whether severability clauses are necessary. As a general rule, the courts will sever a provision that is unlawful regardless of whether there is a severability clause. Nonetheless, the courts will look to see whether there is a severability clause and then rely upon it.

There appears to me to be a growing number of bills in the California Legislature that contain severability clauses. My count so far is 116 bills in the 2025 Session.

This bill had both corrections and revisions:

CORRECTIONS:
Heading—Line 2.
REVISIONS:
Heading—Line 2.

Under the Joint Rules of the Assembly and Senate, the Office of Legislative Counsel is authorized to make technical changes to a bill, which means the formality of adopting amendments is not necessary to revise or correct provisions in a bill.

One example is contained in Joint Rule 8.7, which is titled Errors in Digest. It reads as follows:

8.7. If a material error in a printed digest referred to in Rule 8.5 or 8.6 is brought to the attention of the Legislative Counsel, the Legislative Counsel shall prepare a corrected digest that shows the changes made in the digest as provided in Rule 10 for amendments to bills. The Legislative Counsel shall deliver the corrected digest to the Secretary of the Senate or the Chief Clerk of the Assembly, as the case may be. If the correction so warrants in the opinion of the President pro Tempore of the Senate or the Speaker of the Assembly, a corrected print of the bill as introduced shall be ordered with the corrected digest printed thereon.

The bill referenced above contains both corrections and revisions to the Heading. Headings of Bills are addressed in Joint Rule 10.7 and deals with authorship. As a result, in this bill, there was both a correction and a revision.

This bill has another legislatively created exception to following the APA:
Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Social Services shall implement this act through an all-county letter or similar instruction no later than July 1, 2026.

From my perspective, any exceptions from the Administrative Procedure Act are not justified. All state agencies, department, boards, commissions, and bureaus should all be required to follow the APA – which sets forth the procedural requirements for acting on executive branch rulemaking.

The above example is just another in a long-line of unfortunate precedents that the Legislature continually gives to the executive branch. Creating exemptions from the APA simply cuts out public participation in the rulemaking process, which is contrary to the public interest and contravenes effortds to expand transparenc in lawmaking.

Here is a different way of doing a special statute designation:
The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique circumstances described in Section 1.

Section 1 of this bill contains 13 legislative findings and declarations. As a result, the approach taken in this bill is to cross-reference all of those findings and declarations to explain when a special stature is required with this bill. I think this is a good approach that works. It is definitely better than a simply statement that usually forms the basis for the special statute.

My view is based upon several trial court cases in which judges have reviewed the special statute designation and have not been enamored by the short statement that accompanies most special statute designation. So, while the bill’s plus section should contain a detailed explanation of why a general statute cannot be made applicable to this particular bill, I think cross-referencing a number of legislative findings and declarations should be sufficient.