Are These Extra Words Needed in California Statutes?

In reading California statutes, I have seen multiple instances in which I believe there are extraneous words in bills and, ultimately, statutes in the 29 California Codes. Being concise is a key principle in drafting legislation and so I raise a couple of examples of language consistently found in statutes and pending legislation.

The first one is the use of the word “may.” The Codes have preliminary or general provisions, including the following guiding principle: “Shall” is mandatory and “may” is permissive. When the term “may” is used, it conveys a permissive or discretionary action is to be undertaken. So, let’s look at the first item I find duplicative:

Why is the following language needed? “A court may, at its discretion, ….” We already know that the term “may” means it is discretionary. In other words, this statute allows the court to take an action if its decides to do so. Why is the phrase “at its discretion” consistently utilized in California bills and statutes? I think it is unnecessary and duplicative to include this statement. Instead, the statute should simply read: “A court may ….”

The second example is of an additional phrase we almost always come across after the word “including.” When we define a term in California law, to be specific and limiting, state statutes use the term “means.” What follows the word “means’ is the entire definition. On the other hand, when we are not limiting the language, we use the word “including.” The term “including” means that the definition includes the items that are listed, but that list could also include other items.

What do we see consistently in California law? It is the following phrase: “including, but not limited to, …” The phrase following the word including is unnecessary and duplicative because, by using the term including, we already know that the list is not all encompassing. So, the statute could simply read as follows: “…including ….”

The above two examples are the most common ones I see throughout bills and statutes. I think legislative lawyers should avoid using them in the future.