Using model or uniform acts for bill drafting

When drafting new laws in California or in other jurisdictions, sometimes interest groups and those drafting legislation may turn to model laws or uniform acts. They may also review similar laws adopted by the federal government or other states, or even other jurisdictions around the globe. As readers might imagine, there are positive and negative aspects of using these other laws when drafting legislation.

Although bill drafting requires creativity in many instances, if a statute is working well in another jurisdiction, it may not be necessary to “re-create the wheel.” Similar laws in California, as well as those in other states or countries, might be useful when a drafting a new law. These uniform laws and model acts come from a variety of sources.

The Uniform Law Commission (ULC, also known formally as the National Conference of Commissioners on Uniform State Laws), which was established in 1892, “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” The ULC has drafted more than 300 uniform and model acts on numerous subjects ranging from commerce to family and domestic relations, from real estate transactions, and trusts and estates, to alternate dispute resolution.

According to the ULC, “a uniform act is one that seeks to establish the same law on a subject among the various jurisdictions. An act is designated as a ‘Uniform’ Act if there is substantial reason to anticipate enactment in a large number of jurisdictions, and uniformity of the provisions of the act among the various jurisdictions is a principal objective.” The UCL is the primary drafter of uniform laws to promote uniformity among the state laws in particular areas.

In addition, as the ULC explains, “an act is designated as a ‘Model’ Act if uniformity may be a desirable objective, though not a principal objective, and the act may promote uniformity and minimize diversity even though a significant number of jurisdictions may not adopt the act in its entirety, or the purposes of the act can be substantially achieved even though it is not adopted in its entirety by every state.” Model acts are proposed by a number of organizations, including the American Bar Association (ABA) and American Law Institute (ALI).

While uniform and model acts have differences, they share the commonality of carefully drafted model laws that may be enacted by state legislatures across the country. As a result, state legislatures can enact them without change, not enact them, or enact them with changes appropriate for their jurisdiction. While uniform laws are intended to be adopted in their entirety, model acts are often used as the starting point for state laws and are usually not adopted in their entirety by state legislatures despite their intended purpose.

Regardless of whether the bill drafter reviews a model act or a uniform law, using these legislative precedents from other jurisdictions will likely require modification to meet their jurisdiction’s drafting guidance. In other words, the drafter will not want to simply “cut and paste” from a model act or uniform law without taking into account several factors, including:

Is the act consistent with California’s method of drafting statutes or are modifications required?

Does the act have any provisions that would be inconsistent with existing California law?

Does the act contain any ambiguous provisions?

In jurisdictions that have adopted the act, how have their courts interpreted the act’s provisions?

How does the act fit within the existing statutory scheme in the state?

Are terms in the act consistent with how those terms may be defined elsewhere in California law?

Are the rules for interpreting the act consistent with interpretation guidelines in this state?

Guidelines for Drafting Uniform Acts

The ULC intends that the uniform acts be followed exactly, and they urge state legislatures to adopt the uniform acts exactly as written in order to promote uniformity in laws among the states.

Nonetheless, the uniform acts may not be written in ways that are consistent with the way that California statutes are written. However, is it appropriate to change something in a uniform act? Language in a uniform act should generally not be changed. If changes are required, keep those changes to a minimum and to conform to California law or unique circumstances.

The uniform act should be modified to reflect the proper use of subdivisions, paragraphs, and clauses to be the same as other California statutes use. This is because uniform acts are usually numbered and lettered in a different manner. In addition, the ULC’s punctuation system may not conform to California’s system. Of course, the bill drafter must be careful in making punctuation changes so as not to change any meanings in the uniform act.

Headings should also be reviewed so that they conform to California’s system. Finally, definitions in the uniform act should be reviewed to ensure they are compatible with definitions found in other California statutes.