Inoperability Clause Versus Repealer Clause

Recently-proposed amendments to the retail theft legislative package will include the following provision:

“If the proposed initiative measure titled ‘The Homelessness, Drug Addiction, and Theft Reduction Act’ (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024, this section shall become inoperative on the date that the Secretary of State certifies that the initiative was approved by the voters, and shall be repealed on January 1, 2025.”

Many have described this language as an inoperability clause, such as the following news report:

“Democrats said the inoperability clauses they added to some of those proposals are necessary to prevent conflicting provisions with the ballot measure to change Prop 47, but the move has been heavily criticized by Republicans and other supporters of the measure.”

We actually do not call these provisions inoperability clauses, nor do we call them repealer clauses. These are actually called either contingent inoperability clauses or contingent repealer clauses.

While these proposed amendments do contain a contingent inoperability clause, the main effect of the amendatory language is to actually repeal these statutes if the contingency takes place. As a result, the better term to use to describe these amendments is “a contingent repealer clause.”