More insights on drafting legislation in California, Part I

As I finished my review of the over 900 bills sent to Governor Newsom’s Desk, I compiled a number of legislative drafting notes and thought I would share them (the first of three parts):

A unique approach to addressing chaptering-out problems:
“Any section of Senate Bill 72 enacted by the Legislature during the 2025 calendar year, that takes effect on or before January 1, 2026, and that amends, amends and renumbers, amends and repeals, adds, repeals and adds, or repeals Section 10004 of the Water Code that is amended by this act, shall prevail over this act, whether that act is chaptered before or after this act.”

Under the Government Code, “chaptering out” is described as a later enacted statute “chapters out” an earlier that year enacted statute where the same code section is impacted by both bills. However, this bill’s provision takes a different approach, which is allowed under the Gov’t Code.

Should reflect modern drafting:
“(a) Nothing in this chapter prohibits a party from seeking relief under Section 2556.

(b) Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment.

(c) Nothing in this chapter is intended to restrict a family law court from acting as a court of equity.

(d) Nothing in this chapter is intended to limit existing law with respect to the modification or enforcement of support orders.

(e) Nothing in this chapter affects the rights of a bona fide lessee, purchaser, or encumbrancer for value of real property.”

Instead of this statement: Nothing in this chapter… Modern drafting would provide: This chapter does not ….

Contingency language:
“This section shall remain in effect on and after December 1, 1990, for as long as Section 42 of the Internal Revenue Code, relating to low-income housing credit, remains in effect.”

This provision of the Revenue and Taxation Code lives or dies based upon a federal tax law remaining on the books.

Should this be a statement in law?
(d) Nothing in this chapter shall be interpreted to serve as the basis for a private right of action under this chapter or any other law.”

I have raised this point with many other bills that make these types of statements. This provision would be better as an affirmative statement. For example, it could state: This act shall not create a private right of action under this chapter or any other law.

Lots of caveats in this subdivision:
“(e) (1) Nothing in this section shall be construed to exempt contracts from the notice, meet and confer, or other procedural requirements of applicable to contracting for services under existing collective bargaining laws, including this chapter.

(2) This section shall not be interpreted to affect other bargaining rights and obligations under this chapter that were not created by this section.

(3) This section shall not diminish any rights of an employee or recognized employee organization provided by a memorandum of understanding.

(4) This section shall not invalidate any provision of a memorandum of understanding in effect on the operative date of this section.”

A reader of this proposed law needs to study these additional provision to ensure that they are not misapplying its provisions.

One of the shortest bills of the Session:
“SECTION 1.

Section 3040.5 is added to the Family Code, to read:

3040.5.

When making a determination of the best interests of a child pursuant to Section 3011, the court shall consider any relevant, admissible evidence that a parent has caused human trafficking of the child or other parent.”

There actually were several bills this year that proposed to simply add one, short statute to the Codes.

This bill contains just one provision – a repeal:
“SECTION 1.

Section 443.215 of the Health and Safety Code is repealed.”

This is about as short a bill as possible. It simply repeals one existing code section and that is it.

A number of bills contain this provision:
“This chapter shall become operative only upon an appropriation by the Legislature for its purposes in the annual Budget Act or another statute.”

In the years since the pandemic, this has become a popular provision in many bills. Whether it allows the bill to survive the Suspense File or get signed signed is a matter of debate.

Preemption:
“This part does not preempt any city, county, or city and county ordinance that provides equal or greater protection to employees who are covered by this part.”

This is an example of a state law that does not preempt local ordinances on the same or similar topic.

This bill has four plus sections:
“SEC. 5.

The Legislature hereby finds and declares that the reassessment of properties near the Chiquita Canyon Landfill in the County of Los Angeles required by Section 170.1 of the Revenue and Taxation Code, as added by this act, serves the public purpose of remedying the burden the Chiquita Canyon elevated temperature landfill event has placed on the residents of the area and does not constitute a gift of public funds within the meaning of Section 6 of Article XVI of the California Constitution.

SEC. 6.

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 of the elevated temperature landfill event that occurred beneath the Chiquita Canyon Landfill in the County of Los Angeles, California.

SEC. 7.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SEC. 8.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to remedy the financial burden the Chiquita Canyon elevated temperature landfill event has placed on the residents of the area as soon as possible, it is necessary that this act go into effect immediately.”

While some bills have equal or larger numbers of plus sections, most have just one or two, most often the reimbursement mandate disclaimer language.

Interesting provision of law:
“The requirements in this section supplement, and shall not supplant, any other provisions of law.”

This provision is unique to me because it is talking about supplementing rather than supplanting other statutory provisions.

This bill has a series of provisions in a single plus section:
“SEC. 5.

(a) 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.

(b) This act shall be liberally construed to effectuate its purposes.

(c) 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 and do not limit any rights or remedies under existing law.

(d) This act shall not apply to the extent that it strictly conflicts with the terms of a contract between a federal government entity and a frontier developer.

(e) This act shall not apply to the extent that it is preempted by federal law.

(f) This act preempts any rule, regulation, code, ordinance, or other law adopted by a city, county, city and county, municipality, or local agency on or after January 1, 2025, specifically related to the regulation of frontier developers with respect to their management of catastrophic risk.”

Like one of the examples above, this single bill section contains six provisions that impact the bill’s implementation and interpretation.

I think this is the most amended bill in 2025 Session:
SB 79 (Wiener) was amended 13 times.

So, the bill reaching the Governor’s Desk was the 86^th version of the bill (counting down from version 99, which is the introduced version).

Interesting notification provision:
“Section 11107.6 is added to the Penal Code, to read:

The Department of Justice shall inform the Joint Legislative Budget Committee, the Senate Standing Committee on Public Safety, and the Assembly Committee on Public Safety within 30 days of determining that a legislative enactment is likely to be needed for an entity that is authorized to receive criminal history information pursuant to state or federal law to reestablish or retain proper authorization for an applicant population.”

I am not sure any such notification is needed to be placed in statute. But, if one is, this one is based on whether a state law “is likely to be needed,” not even a definitive need.

Using a minor appropriation to become a budget trailer bill:
“SEC. 3.

The sum of ten thousand dollars ($10,000) is hereby appropriated from the General Fund to the Franchise Tax Board to administer qualified wildfire disaster settlements pursuant to Sections 17138.7 and 24309.2 of the Revenue and Taxation Code.

SEC. 4.

This act is a bill providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution, has been identified as related to the budget in the Budget Bill, and shall take effect immediately.”

That is all it takes to be a budget trailer bill and be subject to a majority vote and take effect immediately: any amount of appropriation and that the trailer bill number is listed in the budget bill.

New way of declaring existing law?
“31566(a) The Legislature finds and declares that this section is declaratory of existing law.”

I came across the statement above. Usually the statement is: “This section is declaratory of existing law.” I think the better approach is to just make the statement, rather than subject it to a finding and declaration.

legislative Counsel gets an additional assignment:
“SECTION 1.

(a) It is the intent of the Legislature to enact legislation in the 2025–2026 Regular Session establishing a unit within the Legislative Counsel Bureau to provide advice and investigation services to the Legislature related to matters within the jurisdiction of the Joint Legislative Committee on Climate Change Policies, and of other committees of the Legislature covering energy, environmental quality and safety, natural resources, and water.

(b) Moneys appropriated pursuant to paragraph (3) of subdivision (a) of Section 39719.4 of the Health and Safety Code shall not be expended until the roles and responsibilities of the unit are established in the legislation specified in subdivision (a).

The sum of three million dollars ($3,000,000) for the establishment of the Legislative Counsel Climate Bureau.”

This bill is creating a new unit within the Legislature’s attorneys office. While Legislative Counsel includes the Legislative Data Center, this would require a separate unit on environmental issues. Of course, there are already attorneys specializing in this areas of the law.

I don’t think this is the right way:
“SECTION 1.

The Legislature finds and declares all of the following:

It is the intent of the Legislature to model this pilot program after the successful Farmworker Health Equity Express Bus program, which launched in 2022, visiting farms in and around the Half Moon Bay community to expand access to health services for farm workers.”

I believe that legislative findings and declarations are different than legislative intent statements and should, therefore, remain separate. I just do not think that the Legislature finds and declares that it is their intent. I hope this is not a change in drafting procedure.

Support for The Micheli Files is provided by The McGeorge School of Law Capital Center for Law & Policy