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Key Reminders in Drafting Legislation

There are several shortfalls that often occur with bill and amendment drafting

By Chris Micheli, July 5, 2020 5:13 am

When drafting bills and amendments in California, a number of key reminders are worth reviewing. At a most basic level, every bill draft should clearly describe who is required or allowed to do what; what is required or allowed to be done; any necessary definitions; exemptions; penalties; and, administrative items, such as record keeping.

Bills and their amendments should use clear and precise language. Why? It is done so that those affected by a statute or those who try to comply with a statute can readily determine what they can or cannot do and what requirements must be met to satisfy the statute. Here, the goal is to ensure that the bill written is in a clear style and can be easily understood by those who are affected by it.

There are several shortfalls that often occur with bill and amendment drafting, such as an unsuccessful effort to use too much legalese or failure to use terms consistently throughout the bill. Other problems include instances where the proponents of a measure know what they envision in the law, but the language they use may be “clear” to them, but is not so clear when others who were not involved in the drafting have to abide by the language.

Yet another problem arises when a statute is the product of substantial negotiations. Here the issue can be that, in order to achieve a consensus, the language is not as clear as it should be, including broad language that lacks specificity or clear guidance to those who are regulated by the statute.

It is helpful to keep these issues in mind when you begin your bill drafting. One of the most important parts of drafting bills and amendments well is to spend time thinking through the issues presented by the proposed legislation and how these issues will be addressed in the language.  In other words, “think through the bill” before putting pen to paper.

For example, you should ask yourself whether the language is clear enough to be understood by someone who is not familiar with the topic of this proposed statute. And what are the potential ramifications of the bill language? In light of these general guidelines, the following are some key reminders to keep in mind while drafting:

Be Consistent Throughout – Consistency is critical when drafting. The language of the proposed statute needs to remain consistent throughout, not just consistent with the code section(s) that you are adding or amending, but also with whole area of law. If there are defined terms already in statute, then be sure to continue to use them. While variety in language when engaged in creative writing may be appropriate, it is not when writing a statute. And, that consistency is not just in verbiage, but also in organization of the statutory scheme. Why is consistency key? It is important to reduce the opportunity for misinterpretation or ambiguity in a statute.

Use the Active Voice – As with consistency, varying between active and passive voices may be appropriate in creative writing, but it will only lead to confusion and likely misinterpretation when the passive voice is interspersed in a statute. As a result, when drafting bills and amendments, you should try and write in the active voice as much as possible. Why is the active voice key? It is important to identify the who and the what in the statute, such as the person required to do something and the mandate that is being imposed.

Use Singular Terms – There is less likelihood of confusion or ambiguity when using a singular subject rather than the plural version. For example, using the plural may be interpreted to require more than one person to engage in certain conduct in order for there to be a violation of the law. As such, use of the singular subject provides greater clarity to the reader.

Refrain from Using Gender Terms — If a proposed law applies to all persons, then there is no reason to specify “he” or “she”. And, using the plural term, “they,” will probably cause confusion to readers who are trying to comply with the law. As a result, it is better to use gender neutral terms, such as “person” or “licensee.” And, in many instances, it is best to repeat the term, rather than use a pronoun, so that it avoids any potential confusion. In other words, repeat the noun rather than use a pronoun.

Keep in Mind Some Other Drafting Guidelines – In terms of time, it is best to use the present tense of any verbs, or else there may be confusion whether a statute applies retroactively, for example, if the past tense is used.  Abbreviations generally are not used when drafting bills and amendments.

Use Short, Simple Sentences – Whenever possible, it is best to be simplistic in your bill writing. Use familiar words that easily express what the bill author intends. These words should be used based upon their common understanding and usage. You should generally avoid legal terminology, unless required, such as some provisions founds in the Code of Civil Procedure or the Civil Code.

Be Concise in Your Writing – Along the same lines as the prior suggestion, when drafting legislation, try to avoid unnecessary language. Keep your sentences concise, so long as you properly convey the intent of the proposed statutory language. Being concise also requires consistency. And, be direct in your writing. Generally, express something in a positive manner. While concise, we also want to ensure that the language clearly conveys the intent of the author.

Deal Properly with Statutory References – You want to ensure that the new statute or amended statute is properly integrated with existing laws. This will help avoid any potential conflicts in the interpretation or implementation of the statute. Make sure that your statutory references are correct. And address, perhaps through repeal or amendment, any conflicting statutes with the new bill language. If a different effective date than January 1 is required, be sure to specify that new date.

In closing, bill drafting is intended to ensure proposed statutes, once enacted, can be easily understood by those who are regulated or affected by the statute. This means that the words used are clear and unambiguous and the statute is arranged in a logical fashion. In the end, we want to accomplish the intent of the bill’s author. And the best way to do so is to ensure the statute is written plainly.

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