More insights on drafting legislation in California, Part III

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 third of three parts. Part I can be found here and Part II can be found here.

This bill amends two separate statutory initiatives adopted by the voters, but does not explain why in either instance:
“SEC. 5.

The Legislature finds and declares that Section 1 of this bill furthers the purposes of the Voters FIRST Act within the meaning of paragraph (4) of subdivision (c) of Section 8251 of the Government Code.

SEC. 6.

The Legislature finds and declares that Sections 2, 3, and 4 of this bill further the purposes of the Political Reform Act of 1974 within the meaning of subdivision (a) of Section 81012 of the Government Code.”

My concern with these simplistic statements is that they do not provide any explanation why the bill’s law changes actually further the purposes of these two voter-approved ballot measures. Instead of these types of statements, there should be at least a nominal explanation. An even better statement will reference one or more purposes of the ballot measures to demonstrate how the bill does further one or more purposes.

This is one of the best and most thorough special statute statements I have seen:
“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 the service area of the Metropolitan Water District of Southern California covers six counties, providing water to 26 member agencies that serve approximately 19,000,000 people across the Counties of Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura; the district’s Colorado River Aqueduct and other critical drinking water infrastructure are unique in that the district crosses multiple counties and it is essential to the district’s mission to provide its service area with adequate and reliable supplies of high-quality water to meet present and future needs in an environmentally and economically responsible way; it is necessary for the district to use stone, gravel, and sand to operate and maintain its critical infrastructure, including the use of materials to repair storm and flood damage, and repairs to the rights-of-way and appurtenant facilities necessary to ensure the safe operation of its critical drinking water infrastructure and, thus, ensure delivery of water to approximately 19,000,000 people in southern California; the implementation of the Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with Section 2710) of Division 2 of the Public Resources Code) by multiple counties as to the district may lead to the conflicting application of the law to a single special district; and the implementation of the Surface Mining and Reclamation Act of 1975 by the district with the oversight of the Department of Conservation will ensure more uniform and efficient application of the law.”
Again, because I am critical of the lack of thorough explanations in special statute statements, urgency clause statements, and other related bill statements, I wanted to highlight this one because of its detailed explanation that clearly justifies why a special (or local) statute is required and why a general statute cannot be used in this bill.

Who gets to determine “the context”?
“For purposes of this article, the following definitions apply unless the context clearly indicates otherwise…”

I thought this was a curious, and rather outdated, approach to a definitions section contained in a bill. How does the reader determine when the “context clearly indicates otherwise”?

What happens when an MOU conflicts with state law?
“If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section 3517.5, the memorandum of understanding shall be controlling without further legislative action, except that if the provisions of a memorandum of understanding require the expenditure of funds, the provision shall not become effective unless approved by the Legislature and the annual Budget Act.”

This provision clearly established what will happen when an MOU and a statute conflict – the MOU prevails, with an exception for required budget funding. This provision raises the question whether an MOU should actually be allowed to contravene a statute.

Unique statutory exemption from all liability:
“This section does not apply in an action against a governmental entity or an agent or employee of the governmental entity who has been sued in an official or individual capacity.”

This type of provision is not often seen in a bill.

A clearly prospective application:
“This section shall apply only to a rental agreement initially entered into on or after January 1, 2026.”

This statutory language is clear that it only applies prospectively.

This is interesting:
“shall partner with California’s…”

The reason I think it is interesting is that I have not seen the word “partner” in statute before. It must be presumed to be a commonly enough understood term that it can be used and does not need a definition.

Another unfortunate exemption by the Legislature from the APA rulemaking requirements:
“Actions taken to implement, interpret, or make specific this chapter are not subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).”

I have written before what terrible policy it is for the Legislature to exempt executive branch rulemaking activities from the APA, which ensure adequate public notice of the rulemaking and opportunities for the public, particularly the regulated community, to participate.

I don’t think I have seen “for example” in a California bill before:
“A county may serve additional individuals not described in clause (i) with departmental approval (For example, parents or caretaker relatives of children younger than 36 months of age at the time of enrollment).”

The parenthetical “for example” is definitely unique. There is nothing wrong with it, just that I do not recall seeing it before in California law. So I researched it and found about 330 instances of the use of “for example” in statute.

Interesting regulatory review process set forth in statute:
“CHAPTER  4.6. Regulatory Review

131359.

To further drowning prevention and as a component of California’s drowning prevention strategic plans, the State Department of Public Health may review and evaluate existing statutes and regulations under its jurisdiction recommended by the California Unintentional Injury Prevention Strategic Plan Project to ensure clarity, consistency, and alignment with current public health practices. The review may include provisions adopted between 2010 and 2025, including those within Title 22 of the California Code of Regulations, to determine whether updates are warranted for effective implementation and compliance. The department may recommend to the Legislature, in compliance with Section 9795 of the Government Code, updates or nonsubstantive technical corrections to support effective implementation and regulatory compliance.”

What I find interesting in this bill is the discretion given to DPH to “review and evaluate existing statutes and regulations under its jurisdiction.” I think state departments have this authority inherently, but probably rarely use it. If such a provision is included in the future, I think it should actually say “shall,” rather than “may,” and therefore require the review and evalution.

I have not seen this in years:
“The Legislature finds and declares that out of California’s 58 counties, 48 counties have consolidated their offices of the sheriff and coroner. This means that most counties in California have a potential for a conflict of interest when investigating in-custody deaths. The Legislature finds and declares that the need to preserve the integrity and independence of medical examinations for in-custody deaths is a matter of statewide concern. Therefore, this act shall apply to all counties, including charter counties.”

The reason I note this particular provision is because these statements are usually imited to charter cities, rather than charter counties.

An interesting declaration of intent:
“The Legislature declares its intent in adding Section 66300.6.5 of the Government Code to not preempt, preclude, or invalidate local laws, settlement agreements or judgments that provide greater protections for single-room occupancy tenants or require more replacement housing. Specifically, nothing in Section 66300.6.5 of the Government Code shall invalidate the validated judgment that incorporates the settlement in Wiggins, et al. v. Community Redevelopment Agency of Los Angeles, et al., Los Angeles Superior Court, Case No. BC 276472.”

I thought this was interesting because it provides an exemption from preemption for a specified purpose. Moreover, it even cities a court case that is not invalidated either, thereby keeping power to local governments.

Why this clause is not needed:
“The court may, in its discretion, call additional progress hearings …”

California’s Codes include preliminary provisions in which they define the term “may” to mean something is discretionary. As a result, the clause in this bill, “in its discretion,” is duplicative and unnecessary.

This is becoming a more popular approach to special statute explanations:
“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 findings and declarations set forth in Section 1 of this act.”

While I would like to see a detailed explanation in the plus section to justify the special (or local) basis for the statute, I think this is a good approach as well, which refers the reader (or court) to the previously-stated findings and declarations as the justification for the special statute designation.

A detailed severability clause:
“If any clause, sentence, paragraph, provision, part, or section of this chapter, or the application thereof, for any reason, is adjudged by a court of competent jurisdiction to be invalid, that judgment shall not affect, impair, or invalidate the remainder of this chapter and the application thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which the judgment shall have been rendered and to the circumstances involved.”

I think the standard severability clause is all that is needed for California courts (and most believe any clause is unnecessary because our state’s courts use a presumption of severability), and so this detailed clause is probably more than is unnecessary.

Why is this an intent statement, rather than an affirmative statutory statement?
“It is the intent of the Legislature that amendments to the threshold dollar amount set forth in this section are to be applied prospectively only and shall not be interpreted to benefit any defendant who committed any crime or received any sentence before the effective date of the threshold.”

As I have described before, I am always surprised by the number of legislative intent statements that are just statements of intent (and, therefore, have no force or effect of law), rather than affirmative obligations. In other words, the above section should be written into law without the preceding clause about it being the intent of the Legislature.

After findings and declarations, is this a good statement?
“The Legislature encourages school districts, county offices of education, and charter schools to provide information on existing schoolsite and community resources to educate teachers, administrators, and other school staff on how to …”

While California statutes do have legislative statements of encouragement and policy, I think this type of language should be standardized into just intent statements. An intent statement, at least to me, is stronger than mere encouragement. Despite my personal feelings, there are many California statutes that contain a legislative “encouragement.”

This seems to be an obvious statement:
“Every finding, decision, determination, or other official act of the department is subject to judicial review in accordance with law.”

I simply do not understand why California statutes need to make these types of statements. Of course these actions are subject to judicial review. Simiarly, why do California statutes provide they cannot be unconstitutional or federally preempted. These statements are obvious and so why do they need to appear in the Codes?

This bill had 9 double-jointing amendments:
AB-650 Planning and zoning: housing element: regional housing needs allocation

I think that is the most this year in a single bill. However, in a prior year, I saw a bill with 14 such amendments.

This bill has two contingent operative provisions and a sunset clause:

“(b) This section shall become operative on the date that the certification process for the descendants of American Slaves is implemented by the Bureau for Descendants of American Slavery pursuant to Chapter 4 (commencing with Section 15210) of Part 6 of Division 3 of Title 2 of the Government Code.

(c) This section shall remain in effect only for four years from the date on which this section became operative, or until January 1, 2032, whichever is earlier, and as of that date is repealed.

(d) This section shall become operative only if Senate Bill 518 of the 2025–26 Regular Session is enacted establishing the Bureau for Descendants of American Slavery.”
I found this bill unique simply because of the three unique provisions it has: two contingent operative provisions and a sunset clause. A reader will not come across this type of bill very often.

A unique finding and declaration required:
“The Legislature finds and declares that this section is more restrictive on the use and possession of gill nets and trammel nets than the version of this section in effect on January 1, 1989, and therefore complies with Section 8610.4, and Section 4 of Article X B of the California Constitution.”

The bill’s provision is authorized under Article 10B, Section 4, which provides, in part: “Notwithstanding the provisions of this section, the Legislature shall not be precluded from imposing more restrictions on the use and/or possession of gill nets or trammel nets.”

Inoperative and repealed:
“This chapter shall become inoperative on July 1, 2029, and, as of January 1, 2030, is repealed.”

More often found in the Revenue and Taxation Code, this type of provision is not usually found in other Code sections. This provision makes a law inoperative (and therefore not “alive”), and then repeals it six months later.

Everything is cumulative under this bill:
“(a) The duties and obligations imposed by this chapter 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.

(b) The remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of the state.”

This bill adds new duties, remedies, and penalties and states that they are in addition to other provisions of California law.

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