What is the difference between an express repeal and an implied repeal of a statute? An express repeal is relatively obvious because the Legislature has definitely “expressed” its intent to repeal a particular statute. A reader may see language such as the following: ‘Section 1 is repealed as of January 1, 2024.” This language is simple and straightforward.
An implied repeal is a little harder to determine. An “implied repeal” is generally defined as a later enacted law that cannot be reconciled with a prior law and does not expressly repeal the prior law. Legal commentators and the judiciary generally disfavor a repeal by implication because they are implying that the Legislature intended something that was not clearly expressed.
As a result, in most instances, courts generally only find an implied repeal when there is an irreconcilable conflict between two related statutes and when the judiciary cannot give both statutes effect. Under guidelines for statutory interpretation generally followed by courts, the legislature is presumed to intend to achieve a consistent body of law and to have passed a law with deliberation and with full knowledge of all existing laws on the same subject.
Based upon this statutory interpretation principle, courts will usually only find a repeal by implication in limited circumstances. If the Legislature intends for there to be a repeal, it should do so expressly, rather than leave it ambiguous and require a court to make a finding by implication.
- Categories of Bills per Legislative Session - September 20, 2023
- AB 316 Contains Interesting ‘Legislative Geek’ Provisions - September 19, 2023
- California Bills: Introduced Versus Enacted - September 19, 2023