This is the second of two articles discussing some of the fine points of drafting legislation. In last month’s article, I discussed general concepts regarding drafting legislation; in this month’s article, I will examine the art of drafting legislation that either amends or repeals an existing statute.
It is rare for a legislative proposal to be entirely new; rather, the proposal is more likely to amend, replace, or supplement existing statutes that govern the subject matter. Therefore, it is critical for the drafter to locate and examine all statutes relating to the subject matter as well as all appropriate cross-references before beginning to draft a proposal. For instance, a similar law may already be enacted, or other statutes may already refer to the statute subject to amendment, or the proposal requires amendment of other related statutes so that they are consistent and not in conflict.
It is of the utmost importance that unintended conflicts be avoided. A good reference source for locating related or conflicting statutes is the electronic statutory database that most individual states maintain; these databases are designed to assist the drafter in identifying potential conflicts with existing statutes or the state Constitution. Since the database is limited to providing historical information, it is equally important that the drafter ascertain whether the legislature is in session and, if so, whether the affected statutes will be amended at the current session.
When a statute is amended to include, change, or delete an in-text reference to another statute, the drafter must check and see that similar references do not exist in other statutes; if so, the drafter must examine the other statute to remove any conflicts with the new amendment. It is preferable to avoid making any statute depend upon another statute. This will avoid the complications (i.e., lawsuits) that arise when a statute cited by reference is subsequently amended or repealed. For example, if the definition of “fireworks” has the same meaning as provided in Kansas Revised Statute (“KRS”) 100B.10, what is its status when KRS100B.10 is subsequently repealed and replaced by KRS100C?
Stylistically, when amending an existing statute the new wording is underlined while the wording to be de-
leted is placed within brackets and/or struck through with a single line. Understandably, if the proposed legislation involves creating an entirely new statute to be added to a existing chapter (e.g., KRS 100B), then the entire text of the new section must be underlined in bold italics in the bill. Depending upon the size and scope of the proposed legislation it may be preferable to establish a new chapter, e.g., KRS110.
Repealing or reenacting legislation may be accomplished with or without changing its text. Therefore, when the statute is to be repealed or reenacted (as part of a new section to another Chapter), without changes, the text can be used verbatim; when the bill reenacts and amends a section with changes in its text, the new language should be underlined and the language to be deleted must be bracketed and struck though; and, when the section is to be repealed or reenacted with entirely new text, all of the new text should be underlined.
It is important for the drafter to review materials relating to each state’s general rules of statutory construction. It is also recommended that the drafter determine whether a same or similar bill from a previous session exists and, if so, what is needed to conform it to the current environment. Similarly, a drafter can often find laws from other states that contain provisions or language that the drafter wants to use in the proposed legislation. In that situation, the drafter must use caution in making the necessary changes in the other state’s laws to make them conform to the home state. It is suggested that the drafter examine legal case law that interprets the other state’s law; if a constitutional challenge is involved in the other state’s courts, the drafter should determine what constitutional challenges will likely arise in the home state. ©
