Some Additional Bill Drafting Comments

As we make our way through hundreds of bill amendments each week, I often come across interesting provisions from a legislative drafting perspective. I offer these comments as observations from someone who co-teaches a law school course on this topic.

Why is this subdivision included in the uncodified legislative findings and declarations bill section?

(d) The Office of Emergency Services, pursuant to its California Emergency Services Act responsibilities to prepare the state for disasters, may do both the following:

(1) Provide guidance to local emergency management agencies to ensure that there is a process to coordinate and approve resources for access into restricted areas in order to improve coordination with utilities requiring access and law enforcement entities enforcing access controls.

(2) Encourage a review of emergency preparedness plans regarding lines of authority and existing control and management procedures regarding the establishment of access requirements and the conduct of reentry operations during emergencies to enable utility personnel to timely participate in response and recovery operations in order to minimize or eliminate the potential loss of life and property damage.

Although an uncodified statute, the Legislature should not authorize an executive branch state department to engage in specified activities. This language belongs in the Government Code with other duties and responsibilities of OES so that a reader can readily find this language.

Why is this bill section uncodified?

SEC. 4. Nothing in this measure is intended to impact the relationship, duties, or responsibilities as between the Office of Emergency Services and local emergency operations plans, emergency operations centers, and the incident command system.

Just like in the example above, this provision should be in the codified statutes so that it is easily found by someone who is reviewing the duties and responsibilities of OES.

What does this mean?

A plan adopted pursuant to this subdivision shall not have any effect other than through the enactment of subsequent, implementing legislation.

This is almost like contingent enactment language, but these plans cannot be effective until another state statute is enacted. I’m not sure why such an approach would be taken.

A variation of contingent language:

If the amendments made to subdivision (a) by Senate Bill 1082 of the 2025–26 Regular Session are in conflict with the provisions of an agreement entered into pursuant to subdivision (a) of Section 46600 before January 1, 2027, the requirements of subdivision (a), as it read on December 30, 2026, shall instead continue to apply until the expiration or renewal of that interdistrict agreement.

This is an interesting provision. It essentially “grandfathers” certain interdistrict agreements and makes existing law applicable to specified agreements. Of course, before that provision is invoked, a determination must be made that there is a conflict between the agreement and the new statutory language.

This is a new legislative statement:

 The Legislature is mindful that ….

We have legislative findings and declarations, statements of legislative intent, some statements of state policy, but this is a new one. I don’t really like it. Moreover, we should stick to the 2-3 existing phrases, rather than create a new one.

Contingent repeal:

This section shall remain in effect only until the board has promulgated regulations pursuant to subdivision (c) of Section 2620.4 and, as of the operative date of those regulations, is repealed.

While we somewhat frequently see contingent enactment language in bills, there are not many instances of contingent repeals. But that is what we have in this proposed measure. By the way, do we want a statutory provision repealed just because a regulation on the topic has been promulgated? Does that grant too much power to an executive branch entity’s rulemaking?

The same bill also has this contingent enactment language:

This section shall become operative upon the operative date of the regulations promulgated pursuant to subdivision (c) of Section 2620.4.

Elsewhere in the same bill just above, there is also contingent enactment language. The contingency, of course, is the promulgation of specified regulations and their operative date.

This language is duplicative:

This article does not preclude or preempt an ordinance or regulation that regulates the approval….

We should just use the term preempt, and not preclude. The first word is not a standard term in comparison to preempt, and it is unnecessary. It is like saying “null and void,” or “last will and testament.” These two phrases are also duplicative and do not need the second word.

Is this statement necessary?

The provisions of this section shall apply prospectively only.

According to basic rules of statutory construction in California, and across the country, all statutes are presumed to apply prospectively only, unless there are clear indicia that the Legislature intended a statute to apply retroactively. As a result, this provision in a bill is unnecessary.

Bill subject to two contingencies:

This section shall be implemented subject to an appropriation made by the Legislature.

This section shall be implemented only to the extent that any necessary federal approvals are obtained and that federal financial participation is available and is not otherwise jeopardized.

While we do see occasionally a bill with a contingent enactment clause, this particular bill had two separate bill sections with contingencies. The first one requires a future appropriation of money, while the second one requires applicable federal approvals to be received. Having two contingencies in the same bill is uncommon.

This proposed bond act has two similar provisions:

SEC. 6. This act shall be broadly construed to accomplish its purposes.

SEC. 7. This act shall be liberally construed to effectuate its purposes.

I am unclear why two statements are contained in a single bill, one right after the other, that essentially say the same thing. In both statements, it is giving direction to the courts on how to construe (or interpret) the statutory provisions. The common language is contained in Section 7 of this bill (i.e., “liberally construe” to “effectuate its purposes”). But the language contained in Section 6 of the bill essentially says the same thing with slightly different verbiage. Two of the same provisions are not needed.

Another interesting statement:

It is the intent of the Legislature to develop a holistic view of the

This is another strange one for me. I think bills should stick to simply statements of intent, and not include verbiage like “develop a holistic view” of something. Intent statements should be left for explaining the purpose of a bill.

This is aspirational:

It is a goal of the Legislature to ensure that adopted statutes and regulations continue to meet the needs of all Californians and help advance the state’s housing goals.

Here, again, we should limit legislative statements to those expressing intent, or those making findings and declarations. Why create new phrases such as expressing the “goal” of the Legislature? What should a court, in trying to interpret statutory language, do with a statement of a legislative goal?

Because the UC System has constitutional autonomy:

Consistent with Section 67400, this article shall apply to the University of California only to the extent that the Regents of the University of California make it applicable.

For those not familiar with our higher education systems in this state, the University of California system has mostly constitutional autonomy. As a result, while the Legislature can dictate education policy for the community college system and the CSU campuses, it is actually the Regents of the UC that determine education requirements, for example. So, if the Legislature wants a change in higher education laws, legislators have to ask the UC Regents to make that change.

This is duplicative:

The Legislature finds and declares all of the following:

(f) Therefore, the Legislature finds and declares that California’s 

I’m hoping this is just a typo, but we cannot have the Legislature finding and declaring twice in the same bill section.

I like the details contained in these intent statements:

(b) It is the intent of the Legislature in enacting this bill to accomplish both of the following:

(1) Create a statewide database to voluntarily track the movement of vessels, equipment, and other vectors among California waterbodies, providing waterbody managers with accurate information on the prior contamination status of these vessels.

(2) Develop a system of reciprocity that recognizes and honors certifications of decontamination for vessels and equipment moving between noninfested waterbodies, thereby facilitating safe recreational access.

(c) It is the intent of the Legislature to subsequently amend this bill to identify and implement, to the extent feasible, alternative and equitable funding sources beyond fees imposed on the recreational boating community, such as assessments on commercial activities, including on international cargo shipping operations that may impact the introduction of aquatic invasive species to California waters.

I always like to point out good examples to our bill drafting students of well written measures. Since legislative intent statements are used to express the Legislature’s views on a bill for executive branch entities engaged in rulemaking and courts engaged in interpreting statutes, it is important for them to contain detailed information to serve as better guides, rather than simple statements of intent. This example from a recent bill does just that.

Another intent statement that should be a mandatory provision

It is not the intent of the Legislature that the act adding this section diminish environmental protections, reduce public access to the coast, or limit the California Coastal Commission’s jurisdiction over development that would adversely affect coastal resources.

Here, again, I do not think statements of legislative intent should include provisions that are better contained in codified statutes. In other words, the Public Resources Code should contain a statement such as, “This section does not limit the California Coastal Commission’s jurisdiction over development that would adversely affect coastal resources.” Instead, it is contained in a legislative intent statement, which has no force or effect of law. It is simply a guide.

Found in legislative findings and declarations:

The Legislature has further found that…

It is in the interest of the state to ensure…

As noted a few times in other examples from the 2026 Session, this year bills seem to be using different words instead of keeping consistent usage of well known phrases, such as legislative intent and findings and declarations. The first phrase uses the past tense (“found” instead of finds or even finds and declaraes), while the second phrase uses a new phrase (“it is in the interest of the state”), instead of it is the policy of the state.

Interesting provision contained in the Civil Code:

This section shall operate retrospectively, as well as prospectively, to the full extent that it may constitutionally operate retrospectively.

This is older statutory language, and hopefully it will be revised at some point. All statutes apply prospectively, unless clearly intended to apply retroactively. And there are constitutional limits regarding the retroactive application of a state statute. So, I think some of this existing statutory language is unnecessary.

One more from the Civil Code:

This section shall not be construed to impair any constitutionally protected activity, including, but not limited to, speech, protest, and assembly.

This act is an exercise of the police power of the state for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate those purposes.

The first statement is an obvious one, so why include it? It is basic principle of statutory construction that a statute cannot impair any state or federal constitutional rights. So, I think this provision is unnecessary. The second statement adds an introductory phrase (“exercise of the police power for protection…”) which you do not usually find. Instead, a statute usually just contains the latter part (i.e., “shall be liberally construed to effectuate its purposes”).