Is ‘Encouragement’ Sufficient in Legislation?
Would a stronger approach utilize ‘intends’ or the word ‘intent’?
By Chris Micheli, March 29, 2023 7:37 am
In reviewing legislation in the California Legislature over the years, we are well aware of statements of legislative intent. Sometimes there are single statements of intent and, in other instances, there are multiple intent statements. Recently, I came across a bill in which, rather than an intent statement, there was a different word used. In this particular instance, the statement was one of “encouragement.”
Specifically, this bill during the 2023 Legislative Session contains the following statement: “The Legislature encourages county offices of education to establish their own respective County Working Group on Fentanyl Education in Schools.” In most instances, we would expect to find a statement such as: “the Legislature intends the county offices of education to establish…”
Although I had not recalled seeing this type of encouragement statement in legislation, there are actually 66 existing California statutes that begin with: “The Legislature encourages…” These 66 statutes are found in the following:
Business and Professions Code
Corporations Code
Education Code
Government Code
Health and Safety Code
Penal Code
Public Resources Code
Public Utilities Code
Unemployment Insurance Code
Vehicle Code
Water Code
Welfare and Institutions Code
Nonetheless, I would think that a stronger approach than “encourage” would be to utilize the either the word “intends” or the word “intent.” Those words certainly are more common in statutory language and would seem to be a more affirmative statement. While those words are not as strong as the word “shall,” which is used to mandate an action in California statutes, I think they are better than the nominal encouragement statement.
By the way, in reviewing existing California statutes, I found 132 statutes that use the phrase: “The Legislature intends…” However, the most widely used statement, “It is the intent of the Legislature that…,” is found in 3,263 statutes.
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The use of the term “encourage” would seem to indicate that the legislation is not binding?