More insights on drafting legislation in California, Part II

During his recent review of the more than 900 bills sent to the desk of Gov. Gavin Newsom, intrepid McGeorge law professor, Capitol lobbyist and regular Capitol Weekly contributor Chris Micheli compiled a number of legislative drafting notes and decided to share them with our readers. This is the second of three parts. Part I can be found here.

This is a new inoperability clause:
“Unless subsequent legislation supersedes or modifies this division to extend the program, this division shall become inoperative if the fund balance has not been met by December 31, 2030.”

While we regularly have contingent enactment language in bills, making a law inoperative is less frequent.

This is an improved approach for amending the CPRA:
“The Legislature finds and declares that this act advances the purposes and intent of the California Privacy Rights Act of 2020 by strengthening the constitutional right to privacy and safeguarding consumers’ rights. To achieve this, the act expands disclosure requirements for data brokers, thereby enhancing transparency for consumers.”

I was pleased to see this provision in a bill’s plus section because it is one of the few bills that actually explains why a bill make be furthering the purpose and intent of the CPRA.

Why does this bill contain this finding, rather than by the Legislature?
“SECTION 1.  The People of California find and declare the following…”

The reason for this is a bond act goes to the voters. It is placed on the ballot by a statute enacted by the Legislature and signed into law by the Governor. As a result, the statement is appropriate because the voters are making the declaration, rather than the Legislature.

This is the general order of plus sections found at the end of bills:
Applies to charter cities

Public right of access disclaimer

Severability

Double-jointing

Special statute designation

Reimbursement mandate

Contingent enactment

Furthers the purpose of an initiative

Tax levy

Urgency clause

This bill needs to be redrafted:
“(iB) Sub-sub-sub-subclause (iA) shall not apply if all contractors and subcontractors at every tier performing work on the project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure.”

But wait, it gets worse:

“(iC) (IA) Except as provided in sub-sub-sub-sub-subclause (IC)…”

Sorry, but this will be near impossible for the average reader to digest. Even for those called upon to implement or interpret it, I wish them luck. Instead, these subdivisions need to be redrafted into a more understandable format.

A thorough urgency clause plus section:
“SEC. 4.

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:

California is now experiencing a severe property insurance availability crisis resulting in needed coverage, typically provided by admitted insurers and licensed surplus line brokers, often being unavailable in the normal insurance market. Consumers who cannot obtain property insurance through admitted or surplus lines insurers are also having to purchase more insurance through the California FAIR Plan Association, and the number of policies in the association has continued to grow. Because of this increase and the growing wildfire risk in the state, the FAIR Plan must be ready for catastrophic events, for which the FAIR Plan needs access to as many financial tools as possible at all times.

The Legislature finds that access to basic property insurance suitable for protection of all types of habitational risk, including personal and commercial lines of insurance, has become increasingly unavailable and that, as a result, all Californians may suffer because of this unavailability. In order for insurance consumers to obtain adequate policy coverage from the California FAIR Plan, which is subject to regulation by the commissioner, as soon as possible, it is necessary that this act take effect immediately.”

Since I more often am critical of statements made in bills, I wanted to highlight this plus section as a great example of what we should see in plus sections, such as this urgency clause. This provides a solid justification for why this bill contains an urgency clause and should go into effect immediately.

An example of a CBA carveout:
“The provisions of this part shall not apply to parties covered by a collective bargaining agreement if the agreement explicitly waives this part in clear and unambiguous terms, expressly provides for the wages or earning, working conditions, and other terms and conditions of work, and provides protection from algorithmic management.”

Collective bargaining agreements (CBA) are sometimes included in Labor Code provisions and this is an example of an instance where the particular law’s provisions are not applicable when the CBA provides a waiver of its application.

We try to draft in the active voice, rather than the passive voice:
Nothing in this section prohibits This section does not prohibit

I am happy to see statutory provisions being cleaned up by Legislative Counsel attorneys to reflect modern drafting principles.

An example of an article being repealed:

“SEC. 5.

Section 352 of the Public Utilities Code is repealed.

352.

 (a) The Independent System Operator may not enter into a multistate entity or a regional organization as authorized in Section 359 unless that entry is approved by the Oversight Board.

(b) This section becomes inoperative on the date on which the governance modifications set forth in Section 359.5 become effective and is repealed on January 1 of the following year.

SEC. 6.

Article 4 (commencing with Section 355) of Chapter 2.3 of Part 1 of Division 1 of the Public Utilities Code is repealed.”

When we repeal a code section, it is shown in strikeout. However, when we repeal an article or larger number of code sections, we specify what is being repealed, but do not show all the sections being repealed by the bill.

SB 254 and SB 338 have 18 legislative findings and declarations.
Those are the most I have seen in bills this year.

Two more common recent trends in bills:
Based upon my review of bills over the past few years, I think the following are two common provisions that are growing in usage:

1. Including legislative findings and declarations, often followed by statements of legislative intent
2. Including a severability clause in constitutionally suspect bills

Both positive and negative intent statements:
“It is the intent of the Legislature to maximize the amount of funds distributed as equal shares grants each year and for such grants to exceed $600,000 when there is sufficient available moneys in the fund. It is not the intent of the Legislature to authorize the California Gambling Control Commission to intentionally limit equal shares grants to $600,000 or less, or another static amount, by purposefully limiting the money deposited into the fund.”

I thought this uncodified language was interesting because it provides legislative intent statements in both the affirmative and the negative.

AB 86 may be the shortest bill of added text this Session:
“SECTION 1.

Section 60209 is added to the Education Code, to read:

60209.

On or before July 1, 2028, the state board shall adopt instructional materials for health education for kindergarten and grades 1 to 8, inclusive, pursuant to the requirements of this article and in alignment with the health curriculum framework adopted by the state board in 2019.”

There are several bills this year that a very short new section of law.

This bill affects quite a few code sections:
“An act to amend Sections 26001, 26002, 26015, 26031.6, 26036, 26038, 26039.4, 26039.6, 26051.5, 26060, 26067, 26068, 26069, 26070, 26070.2, 26080, 26100, 26110, 26152, and 26200 of, and to add Sections 22980.6 and 26000.5 to, the Business and Professions Code, to amend Sections 11006.5, 11018, 11018.1, 11018.5, 11357.5, 11361, 110611, 111691, 111920, 111921, 111921.5, 111921.6, 111922.3, 111923.3, 111925, 111925.2, 111926, 111926.2, 111926.3, 111927.2, and 113091 of, to amend and repeal Section 111923.9 of, to add Sections 111921.1 and 111921.8 to, to add and repeal Section 111929.5 of, and to repeal Article 10 (commencing with Section 111929) of Chapter 9 of Part 5 of Division 104 of, the Health and Safety Code, and to amend Sections 34010, 34013, 34014, and 34016 of, and to add Section 34015.3 to, the Revenue and Taxation Code, relating to cannabinoids, and making an appropriation therefor.”

I did not see too many bills this year with these many code sections, including sections that are in three separate Codes.

Possible new way of drafting this more common language:
“This chapter shall become operative, and its implementation is contingent, upon an appropriation for its purposes in the annual Budget Act or another act.”

Making a bill being operative on future budget funding has become more prevalent in recent years. This particular provision adds the clause, “and its implementation is contingent upon,” which may not actually be necessary.

All reports have to comply with this Government Code section:
“A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.”

Bills now contain reference to this Gov’t Code section and compliance with its provisions is required.

These bills did not get amended in either house:
SB 246, Grove. Medi-Cal: graduate medical education payments.

AB 94, Bennett. Recall elections: successors.

AB 287, Lackey. Elections: polling places and vote centers.

AB 323, Fong. Strong Workforce Program: work-based learning opportunities.

SB 76, Seyarto. Vehicles: registration fees and penalties.

I think I caught all the bills that made their way to the Governor’s Desk without any amendments in either house.

These terms are defined by cross-references:
“For purposes of this section, the following definitions apply:

(1) “Medi-Cal managed care plan” has the same meaning as set forth in Section 14184.101.

(2) “Skilled nursing facility” has the same meaning as set forth in Section 1250 of the Health and Safety Code.”

There are two ways to define a term used in statute: Either include the definition in the code section, or cross-reference to an existing definition in another statute.

In most instances, we use “on or after,” but not always:
“On or before January 1, 2027, the commission shall…”

In most instances, we make a requirement in statute to be met on or after a specified date. In this bill, the requirement is to occur on or before the specified date.

We should be moving away from this type of language:
“Unless subsequent legislation supersedes or modifies this division to extend the program, this division shall become inoperative if the fund balance has not been met by December 31, 2030.”

All this provision needs to say is “This division shall become inoperative if the fund balance has not been met by December 31, 2030.” The introductory phrase is not needed because it is obvious that this is the only way to extend the sunset date.

A simple repeal can still result in a reimbursement mandate:
“SECTION 1.

Section 443.215 of the Health and Safety Code is repealed.

443.215.

This part shall remain in effect only until January 1, 2031, and as of that date is repealed.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.”
Usually there is a state reimbursement mandate when a local agency or school district is required to do something. However, in this instance, a repeal of an existing sunset date creates a reimbursable mandate because, with the removal of the sunset date, the local agencies will have to continue to perform the required actions. As a result, a simple repeal will result in a reimbursement mandate.