The use of notwithstanding clauses in California legislation

On occasion, a reader may find in a bill in the California Legislature that contains in the text of the measure a phrase similar to the following: “notwithstanding any other provision of law…”. What does this phrase mean? Why is it used? What is its purpose in a California bill?

For those attorneys out there, we know that a “notwithstanding” phrase is also used in contracts and other legal documents, but our purpose here is to discuss its use in the context of California legislation.

First, what form can this phrase take? Readers of California bills are likely to see language such as the following:

Notwithstanding any other law…

Notwithstanding any other provision of law…

Notwithstanding any provision of this section…

Notwithstanding any contrary provision…

Notwithstanding any other state law…

Notwithstanding section ___ …

Second, what is the purpose of this phrase? As an initial matter, the general definition of “notwithstanding” is usually “in spite of the fact that….” As a result, basically the phrase is used to say, “in spite of any other laws that may be contrary to what follows or which may be found in another California statute, this new section of state law takes precedence over those other, potentially conflicting, laws.”

In other words, the phrase “notwithstanding any other law, etc.” is legal language that states what follows this introductory clause supersedes any other law(s) that might contradict it or potentially be in conflict with it. This “notwithstanding” phrase is commonly used in both federal and state legislation. So, its use is not unique to California. In fact, hundreds of bills in the U.S. Congress and the California Legislature in each two-year sessions utilize this phrase.

How do the courts in this state interpret a “notwithstanding any other law” provision? To be fair, federal and state courts sometimes accept such a provision and sometimes they do not. As readers might expect, it really depends on the context in which the phrase is used by the federal and state legislative branches of government in order to determine how much weight the courts will give these types of legislative statements.

For example, some courts have interpreted the phrase narrowly to only exclude any conflicting laws, while other courts have interpreted the phrase broadly to supersede all other laws that may be applicable. Like other matters of statutory interpretation, the courts may look to the surrounding statutes and the intent of the legislative body when determining how much weight to give to a notwithstanding clause.

So, how have these clauses been viewed by our nation’s highest court? The United States Supreme Court clearly described their use in its decision in Cisneros v. Alpine Ridge Group (1993) 508 U.S. 10, at 18, where the high court stated, “The use of …. a ‘notwithstanding’ clause … signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”

How is this phrase generally used? Bill drafters can either use the broad phrase (see the first five examples from California bills that are listed above) or reference a specific code section (see the last example from a California bill that is listed above) in the phrase. The specific section reference will have the effect of only superseding that specific code section.

With the broader use of the phrase, the Legislature could be using it for several reasons. For example, if the bill drafter believes there are just too many other code section references to specify. Or, it may be too difficult or time consuming to list every reference, so the broad, all-encompassing language is used.

In addition, a bill drafter may not want to miss any potential conflicting provisions of existing law and so this broad phrase (rather than listing one or more specific code references) is used to ensure that the drafter has captured all other potential provisions of law that might be applicable to the provision of law that follows the notwithstanding clause.

At the same time, bill drafters need to be careful that use of the broad phrase does not inadvertently exclude application of another statute(s) that should, in fact, apply in particular circumstances to the statutory language. As such, when drafting statutes that contain a “notwithstanding any other provision of law” clause or similar language, be careful that such a broad outcome is desired.