Bill drafting guide

1. OVERVIEW

Some legislation unintentionally creates new liability for the state. This happens especially when the law establishes new programs or imposes new duties on state agencies but is unclear about who is to do what or which members of the public will benefit. In drafting, it is helpful to consider whether or not you intend to allow the state to be sued for damages for failing to perform some obligation. By following a few guidelines you can make it less likely that liability issues will be left to the courts to sort out.

The best way to avoid creating new liability is to expressly deny it.

Example: "This act does not create a private right of action."

Example: "The department and its employees and agents are not liable for X."

The best way to create new liability is to state so expressly. If you do this, you should be clear about its limits. State exactly: Who bears which new duty; what standard of care applies (negligence, gross negligence, recklessness, or intent); and what kind of relief is available to the aggrieved person (compensatory or other damages, injunctive relief, declaratory relief, some administrative remedy, or a combination of these) and in what forum.

Circumstances may compel you to be less direct. Even then, following the guidelines below will help you avoid creating unintended liability.

2. GUIDELINES

(a) DO

(i) Be clear.

(ii) State precisely who is covered by a program, whether the program is an entitlement, who is excluded, and how the program is to operate.

(iii) Identify which state agency or official is responsible for carrying out which duties.

(iv) Explain what process, if any, is available to an aggrieved applicant or beneficiary. Do not make residents turn to the courts to find out what their rights are. If legislation provides instruction to an agency, state clearly (A) whether it mandates a particular action or merely authorizes it and (B) who is to exercise any new authority.

(v) When mandates are imposed on public agencies, identify the consequences if the agency does not fulfill those mandates.

Bad: "The department shall record the deed within three days" (with no reference to what happens if it does not).

Good: "The department shall record the deed within three days. However, its failure to do so within this period does not invalidate the transfer."

(b) DO NOT

(i) Do not refer to "rights" unless you intend the courts to provide a remedy. By discussing "rights" while creating a social welfare or licensing program, you might unintentionally make the state legally obligated to an individual who believes he or she should benefit, rather than simply creating the program to improve the lot of state residents generally. If you do list some rights, but do not intend to create a cause of action, state that no cause of action is created.

(ii) Do not state "ensure" unless you mean "guarantee." If you intend to guarantee something, state what will happen if the guarantee fails. If you do not, the courts may fill that vacuum by ruling that a cause of action for damages was implied.

(iii) Do not state "subject to available funds..." or "within available funds...". These phrases leave it unclear whether the legislature intends to: (A) Limit a function to amounts that are explicitly appropriated for that purpose, (B) require that a function be performed within the agency's overall appropriation whether or not funds are explicitly appropriated for that purpose, or (C) provide the agency with discretion to determine whether it has sufficient funding to perform the function.

To limit a program to funds appropriated for it, state "Subject to the availability of amounts appropriated for this specific purpose." See RCW 28A.235.180. Another approach is to direct that "The department shall operate the program within the appropriations provided for the program." See RCW 13.36.090(2).

To require an agency to perform a function whether or not appropriations are explicitly provided for that purpose, use mandatory language to direct the agency to perform the function without placing further conditions on the duty. Adding a reference to "available" appropriations may appear to make the duty conditional or otherwise subject to discretion. If a reference to funding is necessary, state "The department shall operate the program within the department's appropriations."

(iv) Do not use ambiguous or "springing" null and void clauses. A null and void clause allows a bill to continue through the legislative process even when it is unclear whether that year's budget bill will provide funding. The clause makes the bill "null and void" unless it is specifically funded or otherwise referenced in the budget bill by a certain date. "Springing" null and void clauses purport to render the bill null and void at some future date if funding is not provided in later biennia, thus creating a troublesome scenario in which some laws would "spring" in and out of effect. If you want the bill to take effect, but you want to limit the required or authorized actions to fiscal periods in which the program is funded, then use the "subject to the availability of amounts appropriated" language in subsection (2)(b)(iii) of this part.

Bad: "Section 7 of this act is null and void into the future if no funds are appropriated."

Good: "If specific funding for the purposes of this act [or section ... of this act], referencing this act [or section ... of this act] by bill or chapter number [or section number], is not provided by June 30, year, in the omnibus appropriations act, this act [or section ... of this act] is null and void."

(v) Do not use definitions that include the term you are defining. These circular definitions create uncertainty about who is covered or exempted, or what obligations are owed by the state.

Bad: "'Manager' means any manager regardless of status."

Good: "'Manager' means a state employee who directly supervises at least one other state employee."

(vi) Do not codify unnecessarily. In describing agency actions:

(A) Ask whether the activity needs to be codified at all. Codifying agency activities carries a risk: Someone aggrieved by a failure to follow procedures may claim a cause of action against the agency.

Bad: "The deputy director's duties include answering mail from constituents."

Better: "The deputy director should answer mail from constituents but no remedy is available if he or she fails to do so."

Best: Do not put this into statute at all.

(B) If the activity does need to be codified, avoid describing existing practice in a way that sounds prescriptive: "The department will respond to petitions within five days." It is better to simply authorize actions that are likely to be needed: "The department may respond to petitions." If a time limit must be imposed, state what consequences, if any, will occur if the agency does not meet the statutory deadline.

(vii) Do not use passive voice. Do not omit the actor. Say directly who does what. See Part IV (1)(a) of this guide for more on voice.

Bad: "Penalties shall be imposed by the director."

Worse: "Penalties shall be imposed."

Good: "The director shall impose penalties."

(viii) Do not tie an agency's exercise of discretion to long lists of criteria the agency must apply. These can be read as providing opportunities for challenging the exercise of discretion. Instead, list factors to consider, or, better yet, grant the agency discretion.

3. INTENT SECTIONS

Intent sections are important. They influence how an act will be interpreted. If you are considering an intent section, follow these guidelines.

(a) Ask whether you really need an intent section. An intent section may be used, for example, to direct the courts to "construe this act liberally so as to effectuate its broad remedial purposes" or, just the opposite, to tell them that "this act should be construed narrowly to protect the civil liberties of those affected by it." It may guide courts or administrative agencies by explaining the bill's core purposes. But when an intent section is used to clarify an ambiguity that could be solved by editing, or worse, just to explain why the bill is good, you run the risk of creating ambiguities that in turn may be interpreted as granting causes of action that the drafter never intended.

(b) Do not describe the law's goal in terms that make it sound like a guarantee. Stating that "the legislature intends that members of the public have a right to prompt police response in an emergency" is appropriate only if you intend that people can sue the police if they do not respond on time.

(c) Do not use terms of art that carry legal baggage ("unfunded mandate," "basic education") unless the baggage is intended.

(d)(i) In a regulatory or social welfare bill, use "public duty" language:

"The legislature declares that this act to [insert statement describing legislation, e.g., improve training for home health care workers] constitutes an exercise of the state's police power to protect and promote the health, safety, and welfare of the residents of the state in general. Accordingly, while this act is intended to protect the public generally, it does not create a duty owed to any individual or entity on the part of the state [or its instrumentalities]."

(ii) This indicates the intent is to authorize the state to exercise its police power, not to create a private right of action.

(iii) If circumstances permit, you may strengthen this by adding an express disclaimer. Examples include:

(A) "This act does not create an entitlement to services."

(B) "This act does not create a private right of action."

(C) "Nothing in this act may be construed to create:

(1) An entitlement to services; or

(2) A private right of action or claim on the part of any individual, entity, or agency against the [department of social and health services] or any contractor of the [department]." (Based on section 2, chapter 266, Laws of 2006.)

(e) If the act is intended to override a judicial interpretation of a statute, say so clearly. Identify the case, the ruling, and exactly what result the act is intended to achieve in relation to that ruling.

Bad: "This act is intended to reaffirm and protect the rights of sea urchin farmers and their families."

Good: "This act is intended to reverse the result of Snerd v. Department by mandating that the department has 60 days to respond to a request to transfer a sea urchin harvesting license to a family member."

4. CREATING IMMUNITY OR IMPOSING A HIGHER STANDARD OF CULPABILITY

(a) The following is suggested language for creating immunity and eliminating liability for the state and its officers and employees:

"This [act or section] does not create any civil liability on the part of the state or any state agency, officer, employee, or agent."

(b) Liability is typically established by proving negligence. To require a higher standard of culpability before liability may be imposed upon the state, the following is suggested language:

"No civil liability may be imposed by any court on the state or its officers and employees [or instrumentalities] under this [section or act or chapter] except upon proof of [bad faith or willful misconduct or wanton misconduct or willful or wanton misconduct or gross negligence]."

5. PRESERVING THE LEGISLATURE’S ABILITY TO RESERVE THE RIGHT TO CANCEL OR CHANGE CERTAIN BENEFIT ENHANCEMENTS

In some instances, a drafter may seek to preserve the legislature’s ability to reserve the right to cancel or change certain benefit enhancements at the time of enactment. In Washington Education Association v. Washington Department of Retirement Systems, 181 Wn.2d 212, 227-28 (2014), the Washington state supreme court upheld the legislature's repeal of a pension benefit known as "gain sharing." In this case, the legislature expressly reserved its right to amend or repeal gain sharing with the following language:

"The legislature reserves the right to amend or repeal this chapter in the future and no member or beneficiary has a contractual right to receive this postretirement adjustment not granted prior to that amendment or repeal." Former RCW 41.31.030(2006).

Similarly, in Washington Education Association v. Washington Department of Retirement Systems, 181 Wn.2d 233, 251 (2014), the court followed the same reasoning when the legislature repealed legislation granting future uniform cost of living adjustments (UCOLA) for certain members of a pension plan based on the legislature’s reservation of its right to modify or repeal the UCOLA scheme in the future and specified that it was not creating any contract rights:

"The legislature reserves the right to amend or repeal this section in the future and no member or beneficiary has a contractual right to receive this postretirement adjustment not granted prior to that time." RCW 41.32.489(6).

Presumably, other nonpension benefits are subject to modification or repeal as long as the legislature expressly reserves the right to do so at the time of enactment.