The Arizona legislative bill drafting manual

              THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
1998
ARIZONA LEGISLATIVE COUNCIL
MICHAEL E. BRAUN
DIRECTOR
THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
1998
THE ARIZONA LEGISLATIVE COUNCIL
STATE CAPITOL BUILDING
THIS MANUAL WAS PREPARED UNDER THE AUTHORITY OF:
THE ARIZONA LEGISLATIVE COUNCIL
MICHAEL E. BRAUN
DIRECTOR
ARIZONA LEGISLATIVE COUNCIL
COMPILED BY:
J. CAVENEE SMITH
COUNCIL ATTORNEY
A LIMITED NUMBER OF COPIES OF THIS MANUAL IS AVAILABLE FOR PURCHASE AT $3.00 FROM THE
ARIZONA LEGISLATIVE COUNCIL - SUITE 100, LEGISLATIVE SERVICES WING, STATE CAPITOL -
PHOENIX, ARIZONA
85007
THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
1998
GENERAL TABLE OF CONTENTS
Page
SCOPE AND USE OF MANUAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE DRAFTING PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A BILL AND ITS PARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MEASURES OTHER THAN BILLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
COMMON BILL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
GENERAL INSTRUCTIONS AS TO FORM AND STYLE . . . . . . . . . . . . . . . 63
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
APPENDIX A - SAMPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
APPENDIX B - RULES AND DEADLINES . . . . . . . . . . . . . . . . . . . . . . . . . . 133
APPENDIX C - BILL DRAFT CHECKLIST . . . . . . . . . . . . . . . . . . . . . . . . . . 135
APPENDIX D - BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
SCOPE AND USE OF
THE ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
The Arizona Legislative Bill Drafting Manual is the manual of form and style to be
used in the preparation of bills and other legislative proposals. It is based on generally
accepted drafting principles and conventions. However, the samples used in this manual
should not be copied without careful consideration of their appropriateness for a particular
legislative proposal.
ACTS
No. I AN ACT
To Locate the Capital of the Territory of Arizona Permanently
at the City of Phoenix, in the County of Maricopa.
Be it enacted by Legislative Assembly of the Territory of
of Arizona:
SECTION I. That on and after the fourth day of Februarv, in the year of our Lord, Eighteen Hundred and Eighty-Nine,
the permanent seat of Government and Capital of this Territory shall be, and the same is, hereby located and established at
the City of Phoenix, in the County of Maricopa.
SEC. 2. All Acts and parts of Acts inconsistent with
this Act are hereby repealed.
SEC. 3. This Act shall take effect and be in force fom and
after its passage..
Approved January 26, i889.
2
CHAPTER 1
THE DRAFTING PROCESS
______________________________________________________
1.1 Bill Requests
1.2 Drafting Requirements
1.3 Confidential Nature of Records
1.4 Bill Request and Bill Introduction Deadlines
3
CHAPTER 1
THE DRAFTING PROCESS
1.1 BILL REQUESTS
Proposed legislation is drafted by legislative council. All proposed legislation must
first be submitted to the Arizona legislative council staff as a bill request. The legislative
council is not allowed to create a file or draft legislation without the specific authorization of
a legislator in the form of a bill request. However, a legislator is not obligated to introduce
the legislation and may cancel the request or find another sponsor.
A legislator-elect who is not currently serving in the legislature may submit a bill
request after that person's election is certified by the secretary of state. Others, including
private citizens, must obtain authorization from a legislator to use the legislator's name before
giving instructions to the legislative council. If another person makes a request on behalf of
a sponsoring legislator, written authorization is necessary only if the sponsor has previously
indicated this requirement to the legislative council.
The legislative council staff is available on a year-round basis to assist legislators,
legislative staff and state agencies in the preparation of proposed legislation.
1.2 DRAFTING REQUIREMENTS
The bill drafting process begins with the drafter obtaining the facts, policy and
objectives for a legislative proposal from either the legislator who is sponsoring the bill or
from the legislator's authorized agent. The drafter then converts the sponsor's request into
proper form, style and legal terminology and fits the proposal into the framework of existing
statutory law. The drafter reviews pertinent provisions of the Arizona Constitution, the
United States Constitution, court decisions, existing statutes, the Arizona Revised Statutes
Internal Reference Manual, the Annual Report on Defects in the Arizona Revised Statutes
and State Constitution, Sutherland, Statutes and Statutory Construction and other relevant
sources and advises the legislator of and makes adjustments for any known problems or
conflicts.
The legislative council staff delivers a bill in draft form to the sponsor for review. The
final review and decision-making process as to the contents of a bill rest with the legislator.
The legislative council prepares the bill for introduction only when it is specifically requested
to do so by the sponsor or the sponsor's authorized agent. The final introduction set,
according to current procedure, contains a signature sheet required by House and Senate rules
and the prescribed number of copies of the bill, memorial or resolution. Note: The drafter
may make further revisions only when the sponsor returns this introduction set to the
legislative council.
4
1.3 CONFIDENTIAL NATURE OF RECORDS
Rule 20 of the rules of the Arizona legislative council requires that records and files
of the council office be maintained on a confidential basis. Employees of the council may not
discuss or disclose the existence or substance of a request of any person on file in the office
with anyone other than the council staff, the person making the request or the sponsor's
authorized agent unless the request for a bill or research stipulates that the request and results
need not be held confidential and may be disclosed to others.
1.4 BILL REQUEST AND BILL INTRODUCTION DEADLINES
Current limitations regarding bill requests and bill introduction are found in Appendix
B.
5
CHAPTER 2
A BILL AND ITS PARTS
______________________________________________________
2.1 Appropriate Use of a Bill
2.2 Statutory Law and Session Law
2.3 Sample Bill
2.4 Reference Title
2.5 Introducing Body and Legislative Session Designation
2.6 Bill Number and Sponsor
2.7 Bill Title
2.8 Enacting Clause
2.9 Bill Section Numbering and Section Headings
2.10 The Body of the Bill
2.11 Germaneness
6
CHAPTER 2
A BILL AND ITS PARTS
2.1 APPROPRIATE USE OF A BILL
A bill is the appropriate vehicle for proposing a change in statutory law and session
law and is the most numerous of legislative measures. Its proper use encompasses every
conceivable subject and is limited only by state and federal constitutional standards. Typical
bills are those that:
C Establish governmental agencies and programs.
C Prescribe the powers and duties of state agencies and of individual officers and
employees.
C Define crimes and classify punishments for actions that are prohibited as public
offenses.
C Appropriate monies for capital outlay and operating expenditures.
C Determine licensing and regulatory standards for professions and occupations.
C Prescribe qualifications, the term of office and the compensation of public officers.
C Provide for the imposition, collection and distribution of tax monies.
2.2 STATUTORY LAW AND SESSION LAW
All enactments of a legislative session are termed “session law” and are published
periodically during the session and compiled in a bound session law volume after the session
adjourns. An enactment may amend or repeal codified law, enact new codified law, enact
laws of an explanatory or temporary nature or include a combination of these actions.
Statutory law is a law that is of an indefinite duration or application. For this reason
it is sometimes referred to as “permanent” law. Statutory law is codified in the Arizona
Revised Statutes in an appropriate title, chapter and article.
Enacted provisions that have only a temporary application are not codified in Arizona
Revised Statutes. Temporary laws could be used, for example, to establish a study committee
or provide a temporary exemption from or suspension of statutory law. In the West
Publishing Company edition of the Arizona Revised Statutes, temporary laws are usually
published in small type at the beginning of the article that relates to its subject for the purpose
of making a historical record of provisions relating to the statutory law.
Note:
7
C The terms “temporary law” and “session law” are sometimes used interchangeably.
However, as explained above, session law is actually a comprehensive compilation of all
enactments, both permanent and temporary.
C Although a law may appear to be temporary by nature, there is no automatic
termination or repeal unless the termination or repeal is enacted by the legislature. Likewise,
the fact that a law is not codified in Arizona Revised Statutes does not mean that it has no
continuing effect. The termination of a law must be stated by the law’s terms or by a separate
repeal. Otherwise the law is subject to any continuing application that can be derived from
its terms.
C The fact that a law is temporary in nature and not codified in Arizona Revised
Statutes does not mean that it is subordinate to statutory law. Any law that is enacted by the
legislature has the same status as any other enacted law and may be enforced and applied
according to its terms regardless of whether it has permanent or temporary effect.
C While temporary law may contain a cross-reference to statutory law, a statutory
section may never refer to temporary law.
8
2.3 SAMPLE BILL
The following sample uses a nonexistent statutory section to illustrate the bill format
used by the legislative council to draft legislation:
(2.4) REFERENCE TITLE: charitable solicitations; limitation;
enforcement; appropriation
(2.5) State of Arizona
(Introducing House)
Forty-second Legislature
First Regular Session
1995
_. B. ____
(2.6)
Introduced by ______________________
AN ACT
(2.7) AMENDING SECTION 50-123, ARIZONA REVISED STATUTES; AMENDING TITLE
50, CHAPTER 1, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING
SECTION 50-124; REPEALING SECTION 50-129, ARIZONA REVISED STATUTES;
REPEALING LAWS 1953, CHAPTER 10, SECTION 3; MAKING AN APPROPRIATION;
RELATING TO CHARITABLE SOLICITATIONS.
(2.8) Be it enacted by the Legislature of the State of Arizona:
(2.9) Section 1. Section 50-123, Arizona Revised Statutes, is
amended to read:
(2.10) 50-123. Charitable solicitations by telephone; limitation
A charity shall not use the telephone to solicit donations on
Sunday THE WEEKEND and between 10:00 6:00 p.m. and 9:00 a.m.
Sec. 2. Title 50, chapter 1, article 1, Arizona Revised
Statutes, is amended by adding section 50-124, to read:
50-124. Hearing officers
THE DIRECTOR SHALL USE HEARING OFFICERS TO ENFORCE THIS
ARTICLE.
Sec. 3. Repeal
Section 50-129, Arizona Revised Statutes, is repealed.
Sec. 4. Repeal
Laws 1953, chapter 10, section 3 is repealed.
Sec. 5. Appropriation; purpose
The sum of $45,653 is appropriated from the state general fund
to the department of charitable solicitations in fiscal year
19__ - 19__ to hire hearing officers as required by this act.
9
2.4 REFERENCE TITLE
In the upper right-hand corner of each bill, resolution and memorial is the reference
title, commonly referred to as the short title. It is used to give a brief idea of the nature of the
bill and to aid in indexing, but it is not part of the substantive law of the bill. The reference
title is limited to five or fewer words. Words and phrases used in the reference title are
separated by a semicolon. Only proper nouns are capitalized. Do not begin a reference title
with a number.
Note: Only use identical reference titles if identical bills are drafted and add a period
to the end of one of the reference titles to distinguish that bill from the other.
C Pursuant to council rule 22, the legislative council has determined that the
reference title must be an accurate and inclusive description of the contents of the measure
and shall not reflect political, promotional or advocacy considerations. Legislative council
staff shall make the final determination of the contents of the reference title of each measure
that is introduced. (Adopted 11/7/96.)
2.5 INTRODUCING BODY AND LEGISLATIVE SESSION DESIGNATION
The words in the upper left portion designate the legislative body, session of the
legislature and year in which the bill is presented. This information is automatically formatted
by bill drafting computer formatting.
2.6 BILL NUMBER AND SPONSOR
The letters "S.B. ____" or "H.B. ____" and the phrase "Introduced by
____________" indicate the legislative body in which the bill will be introduced and the name
or names of the sponsor or cosponsors. On introduction, the blanks are filled in by House or
Senate staff who assign a number to the bill and enter the name or names of the sponsor or
cosponsors.
Note: Bills that are requested by a state agency for introduction in the House of
Representatives must include language similar to the following above the "Introduced by"
line: "Agency Sponsor: State board of pharmacy (Prefiling Required)".
2.7 BILL TITLE
Constitutional Requirements
A title is a constitutional requirement of every bill and has a significant legal effect.
The Arizona supreme court has ruled that a title need not be a complete description or index
of the substantive law in the bill, but it must not be deceptive or misleading. While the title
need not be a synopsis of the bill's contents, it must state the subject of the legislation with
sufficient clarity to enable persons reading the title to know what to expect in the body of the
10
act. See White v. Kaibab Road Improvement District, 113 Ariz. 209, 550 P.2d 80 (1976);
Hoyle v. Superior Court, 161 Ariz. 224, 778 P.2d 259 (1989).
The courts will not invalidate a bill merely because a better title might have been
devised if the title fairly states the subject of the legislation to give notice. See In re
Lewkowitz, 70 Ariz. 325, 220 P.2d 229 (1950).
Order of Title
The bill title is completely capitalized and begins with the phrase "AN ACT". This
is followed immediately by:
C A listing of all changes to the A.R.S. (i.e., amendments, repeals and additions to
statutory sections). The order of the list usually follows the order that these amendments,
repeals and additions appear in the bill itself, but the drafter may group statutory changes
according to treatment (i.e., all amended sections would be listed in the bill title together as
would all repealed sections and all added sections). Note: Delayed repeals of statutory
sections are included in the listing of statutory changes.
C A listing of amendments to or repeals of previously enacted temporary laws. This
includes delayed repeals of previously enacted temporary laws. Note: New temporary law
is not listed in the bill title unless the temporary law is the only provision in the bill.
C "BLENDING MULTIPLE ENACTMENTS", if applicable. This phrase is only
used if the bill combines a statute having multiple versions and makes no substantive changes
to the previously enacted language.
C "MAKING AN APPROPRIATION" if the bill contains an appropriation. Note:
If a bill has as its sole purpose the appropriation of monies, it should state that the bill is
making an appropriation, name the agency receiving the appropriation and briefly state the
purpose of the appropriation. For example, "MAKING AN APPROPRIATION TO THE
DEPARTMENT OF LAW FOR THE PRESERVATION OF RECORDS."
C "RELATING TO ...". This should be a single phrase containing a general statement
of the single subject of the bill (art. IV, part 2, § 13, Constitution of Arizona). Since this is
a statement of a subject, do not use a verb. (Use “RELATING TO SCHOOL BOARD
ELECTIONS” rather than “RELATING TO ELECTION OF SCHOOL BOARDS”.) There
is no limit to the length of the “relating to” clause except that it should be a single, briefly
comprehensive statement. As a last resort, the article heading where the statutory changes
are located may suggest an appropriate “relating to” clause. If the bill contains only
temporary law, the clause may begin with “RELATING TO”, “PROVIDING FOR”,
“ESTABLISHING” or any other appropriate phrase.
C “PROVIDING FOR CONDITIONAL ENACTMENT” if the bill contains any
conditional enactments. A discussion of conditional enactments is found in § 4.5.
ö ö ö
11
Each phrase in the bill title is separated by a semicolon. The bill title ends with a
period.
Title Format
If a bill amends, repeals or adds statutory text, the title must contain the following
appropriate phrases:
C AMENDING SECTION(S) ___________, ARIZONA REVISED STATUTES
C AMENDING TITLE ____, ARIZONA REVISED STATUTES, BY ADDING CHAPTER _____
C AMENDING TITLE ____, CHAPTER ____, ARIZONA REVISED STATUTES, BY ADDING ARTICLE
____
C AMENDING TITLE ____, CHAPTER ____, ARTICLE ____, ARIZONA REVISED STATUTES, BY
ADDING SECTION ________
C REPEALING SECTION(S) ________, ARIZONA REVISED STATUTES
C PROVIDING FOR THE DELAYED REPEAL OF SECTION ___________, ARIZONA REVISED
STATUTES
C REPEALING TITLE ____, CHAPTER ____, ARIZONA REVISED STATUTES
C REPEALING TITLE ____, CHAPTER ____, ARTICLE ____, ARIZONA REVISED STATUTES
If a bill amends or repeals previously enacted temporary law the title must contain the
following appropriate phrases, using the session law citation:
C AMENDING LAWS ____, CHAPTER ____, SECTION ____
C REPEALING LAWS ____, CHAPTER ____, SECTION ____
If a specific version of a statute is repealed cite that version as follows:
C AMENDING SECTION ___________, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS
1996, CHAPTER 386, SECTION 4
Note: Refer to a special session as, for example, "LAWS 1996, NINTH SPECIAL
SESSION, CHAPTER 5, SECTION 17".
2.8 ENACTING CLAUSE
The enacting clause is placed immediately after the title, and the text is prescribed by the
state constitution. Since it is the formal expression of legislative enactment a bill without an
enacting clause is invalid.
12
Article IV, part 2, § 24, Constitution of Arizona, provides:
The enacting clause of every bill enacted by the Legislature shall be as follows:
"Be it enacted by the Legislature of the State of Arizona," or when the Initiative is used:
"Be it enacted by the People of the State of Arizona".
2.9 BILL SECTION NUMBERING AND SECTION HEADINGS
All bills are divided into sections even if there is only one section. The first bill section
is numbered as "Section 1." Subsequent bill sections are numbered with the abbreviation
"Sec. __."
2.10 THE BODY OF THE BILL
The body of a bill contains the substance of the enactment. It is where statutory law
and temporary law are amended, added or repealed.
Order
The body of the bill may contain any of the following in this order:
C Changes to the A.R.S. in an order that corresponds to the numerical sequence of
the statutes. Note: The drafter may also group a numerically related series of repeals to
statutory law in one bill section.
C Treatment of temporary law.
C An intent clause, if necessary. (See § 4.17.)
C A short title. (See § 4.30.)
C An appropriation. (See § 4.2.)
C A section or sections relating to the effective date of the bill or specific sections
of the bill. (See § 4.11.)
C A conditional enactment. (See § 4.5.)
C An emergency clause (see § 4.11) or a requirements for enactment section. (See
§ 4.15.)
13
Section headings
Sections of statutory law have section headings that consist of a statutory section
number and a descriptive section heading that is underscored. Except in the Uniform
Commercial Code (title 47) section headings of the A.R.S. do not constitute part of the law
and may be changed without showing the added material in upper case or the deleted material
as stricken material. (See A.R.S. § 1-212.) However, it has been held that where an
ambiguity exists the section heading may be used to aid in the interpretation of the statute.
State v. Barnett, 142 Ariz. 592, 691 P.2d 683 (1984). It is important that the drafter revise
the section heading to reflect any changes in statutory text.
Sections of temporary law have section headings that consist of the bill section
number and descriptive section heading that is underscored.
Amending statutory or temporary law
When amending an existing statutory or temporary law, the drafter must follow the
constitutional provision relating to legislation. Article IV, part 2, § 14, Constitution of
Arizona, provides:
No act or section thereof shall be revised or amended by mere
reference to the title of such act, but the act or section as amended shall be
set forth and published at full length.
This requires that a bill contain the entire section of law if any change is made to that
law even if the change appears in only one subsection or paragraph.
Note: It is essential that the correct version of a statute be amended. When preparing
a bill the drafter must check the pocket parts of the A.R.S. and the List of Sections Affected
to see that the latest version of the statute is used. Checking the List of Sections Affected is
particularly important during a legislative session to see if the section has been amended in
an act with an emergency clause or a requirements for enactment clause. Because such an
act is effective on the signature of the governor, the drafter must use the version of the
section as amended in the emergency act in any later legislation.
Legislative Council rule 24 requires that when amending existing text new language
appears in UPPER CASE. Stricken language appears in lower case with a line through it.
If new language is replacing stricken language, it appears after the stricken language. (See
Appendix B.)
14
CThe following illustrates how amendments to statutory law are introduced into the
body of a bill:
Section 1. Section 32-1908, Arizona Revised
Statutes, is amended to read:
32-1908. Scope of chapter
A. The provisions of this chapter regarding the
sale...
C The following illustrates how amendments to temporary law are introduced
into the body of a bill:
Sec. 2. Laws 1994, chapter 213, section 3 is
amended to read:
Sec. 3. Study committee; membership; duties
A. A study committee is...
Adding new statutory law or temporary law sections
If a bill adds a new statutory section the text of the entire section is shown in
UPPER CASE. The section heading appears in lower case. If a bill adds a new temporary
law section the text of the entire section is shown in lower case.
C The following illustrates how a new statutory section is introduced into the
body of a bill:
Sec. 4. Title 32, chapter 14, article 2, Arizona
Revised Statutes, is amended by adding section 32-1430, to
read:
32-1430. Scope of practice
A. A PHYSICIAN WHO PRACTICES MEDICINE IN THIS
STATE SHALL...
C New statutory sections that are part of a new statutory article are introduced as
follows:
Sec. 9. Title 32, chapter 4, Arizona Revised
Statutes, is amended by adding article 5, to read:
ARTICLE 5. FEES
32-3601. Definitions
IN THIS ARTICLE...
ö ö ö
15
C New statutory sections that are part of a new statutory chapter are introduced
as follows:
Sec. 4. Title 32, Arizona Revised Statutes, is
amended by adding chapter 35, to read:
CHAPTER 35
HOME HEALTH CARE WORKERS
ARTICLE 1. GENERAL PROVISIONS
32-3601. Definitions
IN THIS CHAPTER...
C New temporary law is introduced as follows:
Sec. 14. Committee on care; membership; duties
A. The committee on care...
Repeals
The language of repealed statutory law or temporary law is not set out in the body of
the bill. If all of the sections in an article are repealed and are not replaced by new sections
the article itself should be repealed instead of the individual sections.
The repeal of a statute does not revive any predecessor statute. The repeal also does
not affect any right accrued at the time of the repeal. (See § 1-252, A.R.S.)
Note: With regard to the repeal of existing statutes, be aware of § 1-249, A.R.S., that
provides:
No action or proceeding commenced before a repealing act takes effect, and
no right accrued is affected by the repealing act, but proceedings therein
shall conform to the new act so far as applicable.
Internal references
When amending or repealing statutory law, the drafter must determine whether these
changes are inconsistent with existing law. This is necessary since a later valid act supersedes
all previous acts that conflict with it regardless of whether there has been an express repeal.
If the proposed measure would result in a substantive or technical conflict with statutory law,
the drafter must amend or repeal existing law. The drafter can find a statute's cross-references
in the Internal Reference Manual, which is updated each year by the Arizona
legislative council.
16
Technical changes
When the drafter is making a substantive change to a law the drafter may also make
a nonsubstantive (technical) change to that law. The drafter can find a list of the most
significant technical problems in existing statutory law in Recommended Statute
Improvements, which is a part of the Annual Report on Defects in the Arizona Revised
Statutes and State Constitution and which is updated each year by the Arizona legislative
council. The drafter is also free to make less significant technical changes that are not listed
in that document.
Note:
C Optional technical changes should not overshadow the substantive change in a
section unless the drafter includes a memo with the bill draft to explain where the technical
changes are found. Otherwise, a simple substantive change may be lost among many technical
changes.
C The drafter must amend a statute to make technical changes if they are necessary
to conform the statute to changes made in another section of the same bill.
2.11 GERMANENESS
Article IV, part 2, § 13, Constitution of Arizona, requires that the subjects in any one
bill be "germane" to a single subject and prescribes general requirements concerning the title
of a bill in these words:
Every act shall embrace but one subject and matters properly
connected therewith, which subject shall be expressed in the title; but if any
subject shall be embraced in an act which shall not be expressed in the title,
such act shall be void only as to so much thereof as shall not be embraced
in the title.
This provision is generally liberally construed, but it is important to check that the bill
does not comprise more than a single subject and any related matters. Generally courts have
found that if there is any reasonable basis for grouping the various matters and if a deception
would not be perpetrated by the combination an act will be sustained.
The drafter must be aware that liberal interpretation can be taken too far. In State v.
Sutton, 115 Ariz. 417, 565 P.2d 1278 (1977), the court said that such provisions "will not be
interpreted so foolishly liberally as to render the constitutional provision nugatory." A bill
title that states, for example, "RELATING TO ______ AND ______" is an indication that
the bill may not be germane.
ö ö ö
17
The peculiar facts of each case will be the basis for any court determination. In In
re Miller, 29 Ariz. 582, 244 P. 376 (1926), the court stated:
The term "subject"... is to be given a broad and extended
meaning, so as to allow the Legislature full scope to include in one act all
matters having a logical or natural connection.... To constitute duplicity of
subject, an act must embrace two or more dissimilar and discordant subjects,
that by no fair intendment can be considered as having a legitimate
connection with or relation to each other.
The same case supplies reasons for the one subject limitation:
Its adoption was brought about by the legislative practice of
including in the same bill wholly unrelated provisions, of enacting laws
under false and misleading titles, and of incorporating in meritorious bills
provisions not deserving of general favor and which, standing alone, could
not command necessary support to pass them.
In each house of the legislature the committee on rules is charged with considering
the constitutionality and proper form of bills and the reasonable germaneness of amendments.
The senate and the house of representatives have adopted a rule regarding the germaneness
of amendments in addition to the constitutional requirements. This rule states in part:
A bill including any amendments shall be presumed to contain
one subject if:
1. The resulting bill has one general purpose and all other
matters contained therein are related to that purpose or necessary to
effectuate the purpose.
2. The resulting bill is a major revision of a program or agency
and each of the provisions relates to the revision.
3. The bill offers only technical or conforming changes to the
statutes.
4. The bill is an omnibus taxation or appropriation measure and
each provision relates to the same general purpose of the bill.
5. The bill is a result of a strike everything after the enacting
clause amendment and substitutes material designed to accomplish only one
purpose.
18
CHAPTER 3
MEASURES OTHER THAN BILLS
______________________________________________________
3.1 Memorials and Resolutions
3.2 Initiatives and Referendums
19
CHAPTER 3
MEASURES OTHER THAN BILLS
3.1 MEMORIALS AND RESOLUTIONS
Bills are the most common legislative measures that come before the legislature.
Other common forms of legislation are memorials and resolutions. These are used to
accomplish legislative purposes, described below, where a bill would not be appropriate.
Likewise, memorials and resolutions have their own particular purposes, and they should not
be confused or combined. A memorial should not be used when a resolution is more
appropriate, and vice versa.
Memorials
A memorial allows the legislature to petition, plea, beseech or pray that a recipient (1)
acknowledge stated facts (contained in one or more clauses, introduced by the word
“whereas”) and (2) act in a manner consistent with the request. It implies that the
“memorialist”, i.e., the legislature, lacks authority to act directly on the subject. Accordingly,
memorials are used to petition Congress, the President of the United States, other federal
agencies and officers and other states to do things that the Arizona legislature has no
jurisdiction to do itself. It is merely a request and has no official standing or effect.
A memorial is always a request or proposal. Do not use a memorial to express
condolences or congratulations.
Memorials may be presented for the consideration of only one house (simple) or of
both houses (concurrent). A memorial may not be “joint”.
Resolutions
A resolution is a declaration or a legislative expression of opinion, will, intent or
“resolve” in matters within the legislature’s legal purview. Three types of resolutions are used
in this state:
C A simple resolution is processed only through the introducing body and may
express an opinion, appoint a committee, express regret on the death of a former legislator
or other prominent person, request the return of a bill from the other house of the legislature
for a stated purpose, recognize meritorious service or commemorate a special event. A
simple resolution is not signed by the governor.
20
C A joint resolution is processed through both houses and is signed by the governor.
It is used to provide for temporary measures having the effect of law (e.g., a contract or other
official action). Since the governor signs joint resolutions, they are not used for any purpose
in amending either the Arizona or United States Constitutions. Constitutional amendments
are the exclusive purview of the legislature and the people.
C A concurrent resolution is processed through both houses but is not signed by the
governor. It may provide for the following:
C Submittal of a referendum to the voters.
C Legislative action involving the process of amending the U. S. or
the Arizona Constitution.
Titles
Titles prepared for memorials and resolutions are different from the titles prepared for
regular bills. A memorial or resolution title may take the following form:
A MEMORIAL
URGING THE PRESIDENT OF THE UNITED STATES TO....
_____
A RESOLUTION
DESIGNATING OCTOBER 3, 1996 AS....
The drafter may refer to the guide on the following page to determine the proper
vehicle to use for a particular purpose.
21
Is the measure merely a petition or request that
someone else do something?
No, the measure is an official statement or
action . . . Resolution
Yes . . . Memorial
Does the sponsor want the memorial to be
passed by both houses of the legislature?
Yes . . . Concurrent memorial
No . . Simple memorial
Entire legislature or state . . . concurrent or joint resolution.
Single house . . . Simple resolution
Is it a statement or action of a single house of the legislature?
If a specific form is prescribed for the process (e.g., ARS §
37-620.01), use it.
If the governor is excluded from the process (e.g.,
constitutional amendments & referendum measures)
. . . concurrent resolution.
If the measure is in the nature of a legal document that could
be enforceable against the "state" (e.g., an agreement or
contract) . . . joint resolution, signed by the governor
If the measure is an expression of opinion, commemoration,
congratulations or sentiment . . . concurrent resolution
22
3.2 INITIATIVES AND REFERENDUMS
Constitutional requirements
The powers of initiative and referendum are set forth in article IV, part 1, § 1,
Constitution of Arizona, that states in part:
[T]he people reserve the power to propose laws and amendments to the
Constitution and to enact or reject such laws and amendments at the polls,
independently of the Legislature; and they also reserve, for use at their own
option, the power to approve or reject at the polls any Act, or item, section,
or part of any Act, of the Legislature.
Article IV, part 1, § 1 (6), Constitution of Arizona, prohibits the legislature from
amending or repealing initiated or referred measures that receive a majority vote of the
qualified electors. The phrase "majority of qualified electors" means the majority of those
eligible to vote, not those actually voting. See Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617
(1952). Of all the initiative and referendum statutes that have been voted on by the people
since 1914, none has received a majority vote of the voters eligible to vote since that
provision has been in the Arizona Constitution. Thus the legislature has the power to amend
or repeal any initiative or referendum statute presently in force.
Initiatives
Under the constitution ten percent of the qualified electors have the right to propose
any legislative measure and fifteen percent of the qualified electors have the right to propose
any amendment to the Constitution of Arizona. The number of qualified electors is equal to
the total number of votes cast for all candidates for governor at the general election preceding
the filing of the initiative petition. Article IV, part 1, §1(7), Constitution of Arizona.
A person who wants to distribute an initiative petition may obtain the required
information as to form and style of the petition and attachments from the office of the
secretary of state. Before distributing the petition, the sponsors must file notice of their
intention to distribute the petition with the secretary of state.
An initiative petition that qualifies by having sufficient signatures as prescribed by the
constitution is placed on the ballot and becomes law when approved by a majority of the votes
cast and on proclamation of the governor.
23
Referendums
There are two types of referendums. The first occurs by petition of the voters and the
second by action of the legislature.
A measure that is enacted by the legislature is not operative for a period of ninety days
after the adjournment of the session (unless it is enacted under special circumstances that
allow it to be effective immediately). During this ninety-day period five percent of the
qualified electors may file a petition with the secretary of state to have the measure referred
to the people for approval or rejection. The number of qualified electors required is
calculated by determining the total number of votes cast for all candidates for governor at the
general election preceding the filing of the referendum. The measure is approved by a
majority of those voting.
Note: The following enactments are not subject to referendum by the people because
they become effective immediately on the governor’s signature:
1. An emergency measure that is passed by a “supermajority” vote of the legislature.
2. An act for the “support and maintenance” of the agencies of state government and
state institutions.
3. An act increasing state revenues through new or increased taxes or assessments.
The legislature may order that an act be referred as a referendum to the people at the
polls before it can become effective. Under article V, § 7, Constitution of Arizona, measures
that are referred to the voters for approval are exempt from veto of the governor.
Referendum measures are included among the sample concurrent resolutions. Examples of
conditional enactment clauses for bills accompanying referendums are included in § 4.5 of this
manual.
Amendments to the constitution may be proposed in either house of the legislature.
If passed by a majority of the members of each house, they are submitted as a referendum to
a vote of the people for approval. If the amendments are approved by the voters, they
become part of the constitution. The vehicle for a proposed amendment to our state
constitution is a concurrent resolution, samples of which are included in this manual.
Note: Concurrent Resolutions containing measures to be referred by the legislature
to the voters have two titles -- one for the resolution itself and one in the body of the
resolution for the measure being referred.
24
CHAPTER 4
COMMON BILL PROVISIONS
__________________________________________________________________
4.1 Appointments by the Governor; Consent of Senate
4.2 Appropriations
4.3 Committees
4.4 Compensation for State Officers and Employees
4.5 Conditional Enactments or Repeals; Referendum as Condition of Enactment
4.6 Conforming Legislation
4.7 Definitions
4.8 Delayed Repeal Provisions
4.9 Delegation of Legislative Regulatory Power
4.10 Deputy Officers of State and County Agencies; Powers
4.11 Effective Date and Time of Statutes
4.12 “The Effective Date of This Section”; Use of
4.13 Funds and the Receipt and Disposition of Monies
4.14 Heading Change
4.15 Increases in State Revenues; Supermajority Vote Required (“Prop. 108”)
4.16 Judicial Review
4.17 Legislative Intent Sections
4.18 Liberal Interpretation Sections
4.19 Licensure, Certification and Registration
4.20 Nonseverability and Severability Clauses
4.21 “Notwithstanding” Clauses
4.22 Open Meetings
4.23 Penalties; Civil and Criminal
4.24 Population
4.25 Procurement Code; Exemption
4.26 Quorum; Joint Authority of Board or Commission Members
4.27 References to Nonstatutory Entities
4.28 Rules
4.29 Saving Clauses
4.30 Short Title
4.31 Statutory Boards, Commissions, Committees and Councils
4.32 Sunrise Legislation
4.33 Sunset Legislation
4.34 Tax Measures; Required Statement of Objectives
4.35 Transfer of Cost of Program From Political Subdivision to State
4.36 Transfer of Personnel, Equipment and Monies
4.37 Transferring and Renumbering Statutory Sections
4.38 Vacancy Savings
25
CHAPTER 4
COMMON BILL PROVISIONS
The following are only examples and must be modified to fit the requirements of the
specific legislation:
4.1 APPOINTMENTS BY THE GOVERNOR; CONSENT OF SENATE
Section 38-211, A.R.S., specifies the method of nomination by the governor and
confirmation by the senate of state officers. Language to accomplish an appointment pursuant
to this section is as follows:
THE GOVERNOR SHALL APPOINT THE DIRECTOR PURSUANT TO SECTION
38-211.
Note: Because § 38-211, A.R.S., provides the procedures for appointment as well
as details regarding vacancies in office and time of assuming authority, the drafter should
review that section to avoid including unnecessary specific provisions in the bill draft.
4.2 APPROPRIATIONS
Requirements
In general an appropriation of public monies should contain the following:
C An amount of monies.
C A source of the monies.
C A recipient.
C A fiscal year of applicability.
C A purpose.
The drafter can usually place these requirements in a single sentence.
Categories
There are four categories of appropriation bills:
C The general appropriation bill.
C Separate appropriation bills.
C Incidental appropriation bills.
C Supplemental appropriation bills.
26
The general appropriation bill contains numerous appropriations for the different
departments of the state, state institutions, public schools and interest on the public debt.
Note: The general appropriation bill is effective the day the governor signs it but, by its
terms, is applicable for the next fiscal year.
Article IV, part 2, § 20, Constitution of Arizona, provides:
The general appropriation bill shall embrace nothing but
appropriations for the different departments of the state, for state
institutions, for public schools, and for interest on the public debt. (See
also 78 Op. Att'y Gen. 78-224.)
If a bill other than the general appropriation bill combines unrelated appropriations the
whole bill is invalid. See Litchfield Park School Dist. No. 79 v. Babbitt, 125 Ariz. 215, 608
P. 2d 792 (App. 1980). See also article IV, part 2, § 20, Constitution of Arizona. This
constitutional provision is aimed at the practice of "logrolling" in which enough legislative
votes are secured to pass a bill by combining unrelated appropriations into that bill.
Separate appropriation bills contain only an appropriation and information incidental
to that appropriation. They may be for new programs that were not anticipated but
nonetheless need to be accomplished. A common example is an appropriation for a new
program to conform to the prior year's enactment. Note: Separate appropriations go into
effect on the general effective date (ninety-one days after adjournment sine die) unless the bill
contains an emergency clause or a requirements for enactment clause (“Prop. 108”). Note
also that a separate appropriation for a government entity other than the state should be made
to a state agency for distribution to the local government for purposes of accountability.
Incidental appropriation bills are those that include an appropriation section to fund
an activity that is required by the statutory or temporary law sections in the same bill. Note:
Incidental appropriations have the same effective date as the entire bill.
Supplemental appropriation bills are for the "support and maintenance" of an existing
agency for an ongoing and previously funded program. A supplemental appropriation is a
specific appropriation and may not contain statutory or session law. Supplemental
appropriations go into effect on the signature of the governor. Supplemental appropriations
are noted as such in the bill title and the section heading.
27
C The following is an example of a separate appropriation bill:
Section 1. Appropriation; purpose
The sum of $50,000 is appropriated from the state
general fund to the governor for fiscal year 19__ - 19__ to
defray the cost of controlling insects in agricultural areas
as are deemed by the governor to be a menace to the welfare of
this state.
C An example that illustrates funding supplied by a supplemental appropriation to
an existing appropriation made by the general appropriation bill in the previous year is:
Section 1. Supplemental appropriation; purpose
In addition to the appropriation made by Laws 19__,
chapter ___, section __, the sum of $150,000 is appropriated
from the state general fund to the registrar of contractors
for fiscal year 19__- 19__ for deposit in the contractors'
license fund to meet general operating expenditures.
C The following is an example of an incidental appropriation:
Sec. 3. Appropriation
The sum of $50,000 is appropriated from the state
general fund to the state parks board for fiscal year 19__ -
19__ for the purposes provided in this act.
C The following is an example of an appropriation that illustrates funding supplied
from a specific source other than the state general fund:
Section 1. Appropriation; purpose
The sum of $185,000 is appropriated from the Arizona
state highway fund to the department of transportation for
fiscal year 19__ - 19__ to purchase furnishings and equipment
for the highway engineering building.
Lapsing of appropriation; exemption from lapsing
Section 35-190, A.R.S., provides, in part, that no obligation may be incurred or
expenditure made from an appropriation after the close of the fiscal year for which the
appropriation was made. This section also provides that all appropriations lapse at the
expiration of one month after the end of the fiscal year.
28
However, appropriations for construction or other permanent improvements do not
lapse until the purpose for which the appropriation is made has been accomplished or
abandoned, unless the appropriation has been available during the entire fiscal year without
an expenditure or an encumbrance. If one fiscal year may not be sufficient time for a
construction program to commence, the drafter should include the following provision:
Sec. __. Lapsing of appropriation
Notwithstanding section 35-190, Arizona Revised
Statutes, the appropriation made in section 1 of this act does
not lapse until the purpose for which the appropriation is
made is accomplished or abandoned unless the appropriation
stands until June 30, 1999 without an expenditure or
encumbrance. In addition, all monies remaining unencumbered
or unexpended on June 30, 1999 revert to the state general
fund.
If a sponsor of a bill does not want an appropriation (that is not for construction
purposes) to lapse at the end of the fiscal year, the drafter should add the following
exemption:
Sec. __. Exemption from lapsing
The appropriation made in section 1 of this act is
exempt from the provisions of section 35-190, Arizona Revised
Statutes, relating to lapsing of appropriations.
Since this appropriation would be perpetually exempt, it should involve a program for which
the expenditures will eventually be made in order to preclude the need of an additional
enactment to authorize a reversion of unexpended monies. As an alternative the exemption
might apply for a limited period as indicated above for capital outlay appropriations.
Insert the fiscal year of applicability to remove doubt as to the time during which the
appropriated monies are available, as:
B. The appropriation made pursuant to this section is
available for use during the 1999-2000 fiscal year.
Note: It is very important to include a lapsing exemption section if an appropriation
is effective before the beginning of the next fiscal year. As an example, assume an
appropriation is passed with an emergency clause and is signed by the governor on May 2.
The monies are immediately appropriated. Without a lapsing exemption, any unexpended or
unencumbered monies will revert less than two months later on June 30, the close of the fiscal
year.
29
If an appropriation is for the following fiscal year that fact should be clearly set forth
to avoid the possibility of the appropriation being applied to the current year and a lapse of
the appropriation at the close of the current fiscal year and also for purposes of the state
expenditure limitation. (See article IX, § 17, Constitution of Arizona.)
Reversion of appropriation
An example of a section that authorizes the reversion of unexpended monies that were
exempted from lapsing is as follows:
Sec. __. Reversion
All monies remaining unexpended and unencumbered on July
1, 1999 from the appropriation made by Laws 1995, chapter __,
section ___ revert to the state general fund.
Line-item veto of appropriation
Article V, § 7, Constitution of Arizona, provides that "if any bill presented to the
governor contains several items of appropriations of money, he may object to one or more
of such items...". In the case of Rios v. Symington, 172 Ariz. 3, 833 P.2d 20 (1992), the
Arizona supreme court held that the line-item veto power extends to any new appropriation,
reduction, increase, transfer or elimination of monies.
4.3 COMMITTEES
Placement
The drafter should draft a bill to establish a committee (sometimes also referred to as
a commission) as temporary law if the committee is to disband after it completes its duties and
as statutory law if the committee is permanent (See § 4.31).
Checklist
When establishing a committee the drafter should consider the following:
C Membership and qualifications. A committee should be comprised of an odd
number of members to limit the chances that a vote will end in a tie. Note: When prescribing
qualifications, the drafter should not refer to a specific private entity from which a committee
member is to be selected. (See § 4.27.) Note also: When prescribing membership by
legislators say “not more than _________ of whom represent the same political party”.
C Appointing authority. Who appoints the members? Again, the members should
not be appointed by a specific private entity. (See § 4.27.)
30
C Officers. The language should specify who is to chair the committee or allow the
committee to select a chairperson. The drafter may also provide for cochairpersons or for the
rotation of chairpersons.
C Compensation and expenses. It is unusual for committee members to receive
compensation, but a common provision makes members "eligible to receive
reimbursement of expenses pursuant to title 38, chapter 4, article 2,
Arizona Revised Statutes". (See § 4.4.)
C Meetings. The drafter should include language that prescribes the number or
frequency of meetings. Some committees allow the chairperson and a majority of committee
members to call meetings. Some committees also prescribe the location of meetings.
C Powers and Duties. The drafter should describe, by a list if necessary, the
committee’s powers and duties. A committee usually is required to submit a report of its
findings and recommendations to the governor, the president of the senate, the speaker of the
house of representatives, the secretary of state and the director of the department of library,
archives and public records on or before a specified date.
C Staffing. The drafter may include language to require a particular agency to
provide the committee with administrative support and meeting room space.
C Duration. The drafter should include a delayed repeal section for the act or the
relevant bill sections.
C Appropriation. The drafter may include an incidental appropriation section at the
end of the bill to fund the committee's operation.
Note: If the committee is a legislative study committee the drafter should appropriate
monies to a state agency with which the committee works.
Ex officio members; advisory members
If a committee member is specified as an ex officio member, that person serves by
virtue of holding a particular office and may exercise the same powers as the other members,
including voting, unless the law provides otherwise. See Barber Puremilk v. Alabama State
Milk Cont. Bd., 156 So. 2d 351 (Ala. 1963).
Note: The drafter should avoid using the term "ex officio" because it is confused with
the term "advisory" members. If a sponsor intends that a particular committee member not
have voting privileges, the drafter should include language that states this fact and that
indicates that the advisory member is not counted for the purpose of determining the presence
of a quorum.
31
Legislators as board members; restrictions
If legislators are made members of a committee that has executive powers, (i.e., the
power to carry out legislative policy) the drafter should be certain that the appointment does
not violate the separation of powers doctrine found in article III, Constitution of Arizona, or
the prohibition of dual office holding found in article IV, part 2, § 5, Constitution of Arizona.
Note: In State ex rel. Woods v. Arizona Constitutional Defense Council, 247 Ariz.
Adv. Rep. 22 (1997), the Arizona supreme court, citing a federal court ruling, stated that
allowing members of a legislative body to serve, even as advisory members, on a board that
performs an executive function may violate separation of powers.
4.4 COMPENSATION FOR STATE OFFICERS AND EMPLOYEES
Compensation
The general rules of compensation are stated in § 38-611, A.R.S. This section covers
compensation for employees under the state personnel system as well as exempt positions and
members of boards, commissions and committees.
The following language may be used to accomplish this:
THE DIRECTOR IS ELIGIBLE TO RECEIVE COMPENSATION
PURSUANT TO SECTION 38-611.
Note: Do not use mandatory language such as "The director shall receive
compensation of ...". This language has the unintended effect of being a continuing
appropriation. McDonald v. Frohmiller, 63 Ariz. 479, 163 P.2d 671 (1945).
Reimbursement of expenses
If no compensation is authorized but reimbursement for travel and subsistence
expenses is desired, the drafter should include language similar to the following:
MEMBERS OF THE COMMISSION ARE NOT ELIGIBLE TO RECEIVE
COMPENSATION BUT ARE ELIGIBLE FOR REIMBURSEMENT OF EXPENSES
PURSUANT TO TITLE 38, CHAPTER 4, ARTICLE 2.
4.5 CONDITIONAL ENACTMENTS OR REPEALS; REFERENDUM AS
CONDITION OF ENACTMENT
Conditional enactments
A bill must contain a conditional enactment section if the bill is contingent on:
32
C Submission to the voters of a related proposed constitutional
amendment.
C The passage of another related act.
C The occurrence of some other condition such as the enactment of
similar legislation in another state or congressional authorization
of funding or jurisdiction.
A bill that requires a constitutional change must include a conditional enactment
section or otherwise the bill could be invalidated. This provision should be noted at the end
of the bill title with the words "; PROVIDING FOR CONDITIONAL ENACTMENT". (See §§ 2.7
and 2.10.)
C An example of a clause providing for conditional enactment that is contingent on
additional constitutional authority is:
Sec. __. Conditional enactment
This act (or specified statutory sections) does not
become effective unless the Constitution of Arizona is amended
by vote of the people at the next general election to. . .
Note: If additional constitutional authority is required, the preparation of a house or
senate concurrent resolution is necessary unless the needed constitutional change is being
sought by initiative.
Note also that a bill may not contain both a conditional enactment and a requirements
for enactment (“Prop. 108”) section.
C An example of a clause providing for a conditional enactment contingent on
passage of another act is:
Sec. __. Conditional enactment
This act does not become effective unless ____ Bill
_____, relating to ____________, is enacted into law.
C The following illustrate conditional enactments contingent on other conditions:
Sec. __. Conditional enactment
This act (or specified statutory sections) does not
become effective unless (the governor enters into a contract
with Nevada, California and Utah), (the United States Congress
authorizes the state assumption of jurisdiction), (the
legislature of each bordering state enacts authority) [or]
(the United States department of health and human services
grants the appropriate waivers) to (subject matter) by (insert
a cutoff period to preclude ongoing conditional status). The
33
(appropriate state agency) shall notify the director of the
Arizona legislative council of the date on which the condition
is met.
Conditional repeal
C An example of a clause providing for a conditional repeal is:
Sec. __. Conditional repeal
Section 36-4501, Arizona Revised Statutes, as added by
this act, is repealed as of the date the secretary of the
United States department of health and human services notifies
the Arizona health care cost containment system administration
of the acceptance of its application of a waiver submitted
pursuant to this act. The administrator shall notify in
writing the director of the Arizona legislative council of
this date.
Note: As in the above example, a conditional repeal section must specify the
statutory section to which it applies rather than the bill section.
4.6 CONFORMING LEGISLATION
Sometimes due to time constraints or other factors it is too difficult to do all of the
conforming and amending changes in a bill draft and still meet legislative deadlines. In such
case the drafter may add the following session law section:
Sec. __. Conforming legislation
The legislative council staff shall prepare proposed
legislation conforming the Arizona Revised Statutes to the
provisions of this act for consideration in the forty-second
legislature, second regular session.
4.7 DEFINITIONS
The role of definitions
By rule of statutory construction words and terms that are not specifically defined are
defined by their common accepted usage. See Mid Kansas Fed. Sav. and Loan Ass’n of
Wichita v. Dynamic Development Corp., 167 Ariz. 122, 804 P.2d 1310 (1991). See also
Sutherland Stat. Const. § 46.01 (5th Ed). However, the drafter should define a word or term
that might be unclear or unfamiliar to the reader or that has more than one meaning and the
reader cannot determine that meaning from the context. Generally, do not define a term that
does not appear in the statutory text.
Note: § 1-215, A.R.S., contains definitions that apply to all statutes. If the drafter
intends a definition other than one that appears in that section the drafter should write a
definition that applies to the specific unit of the statutes.
34
Format
Place definitions sections that apply to an entire title, chapter or article in a separate
statutory section at the beginning of that title, chapter or article.
Arrange definitions alphabetically with an introduction that indicates whether the
definitions apply to the title, chapter or article and that states that the definitions apply "unless
the context otherwise requires". Each word defined is initially enclosed in quotation marks,
but on subsequent uses within the definition section the word does not appear in quotation
marks. The following is an example of a statutory law definition section:
32-3801. Definitions
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "BOARD" MEANS....
2. "CLINICAL LABORATORY" MEANS....
3. "LABORATORY TECHNICIAN" MEANS....
4. "LIFE THREATENING ILLNESSES" INCLUDES....
Note that in the example above a defined term that appears in the plural form is still
followed by either the singular "includes" or "means". A definition that is restrictive is
followed by the word "means". A definition that is extensive is followed by the word
"includes". See Sutherland Stat. Const. § 47.07 (5th Ed). Do not use the phrase "means and
includes".
If a word or term appears only in one statutory section, it should be defined in that
section rather than in a general definition section. A statutory section may have its own
statutory definition subsection for words and terms that are used in that section. This
subsection should appear at the end of the section. If a word or phrase is used only in a
specific subsection, paragraph or subdivision, the word or phrase should be defined in that
statutory unit unless there is an existing definition subsection. The definition is the last thing
that appears in a particular statutory unit and is introduced by the words "FOR THE PURPOSES
OF THIS (SECTION) (SUBSECTION) (PARAGRAPH)...."
Citations to definitions
If a word is already defined in another statute, the drafter may cite that statute by
cross-reference instead of repeating the definition. This has the advantage of promoting
statutory uniformity, but it can also be inconvenient to the reader, especially if the definition
is located in a different title of the statutes. Refer to a definition that is in another section by
the words "_____ HAS THE SAME MEANING PRESCRIBED IN SECTION 00-0000" or by "A
PERSON MAY USE A PROVIDER AS DEFINED IN SECTION 00-0000".
Note: A reference to a definition in another section should be to the section and not
to a specific paragraph. Because definition sections are often renumbered as specific
definitions are added and deleted, a reference to a specific paragraph could soon become
inaccurate.
“Stuffed” definitions
35
A definition should not contain substantive law in addition to the definition since the
substantive law would be "hidden" in a place the reader would not expect to find it. A
definition that contains substantive law is known as a "stuffed" definition. See Dickerson, The
Fundamentals of Complete Legal Drafting. The following example illustrates a stuffed
definition:
5. "ANNUAL INSPECTION" MEANS AN INSPECTION CONDUCTED BY
THE DEPARTMENT AT LEAST SIXTY DAYS BEFORE A FACILITY'S LICENSE
EXPIRES AND AT WHICH TIME THE FACILITY SHALL BE IN FULL
COMPLIANCE WITH THIS ARTICLE AND RULES ADOPTED UNDER THIS
ARTICLE.
In the above example the language that refers to the facility's compliance requirements
does not define the term "annual inspection". It is substantive law that should be placed in
its own section or in a section that otherwise prescribes compliance requirements.
Section Headings
The inclusion of a definition subsection should be noted in the section heading. Since
the definition subsection is the last subsection of a section, definitions are noted last in the
section heading. If only one term is defined the section heading should read “; definition”.
Note: Do not note a definition that is introduced by the words “For the purposes of
this (subsection) (paragraph) (subdivision) (item)”.
Note also: Indicating that a word or phrase “does not mean” or “does not include”
is not a definition and is not enclosed in quotation marks or noted in the section heading.
4.8 DELAYED REPEAL PROVISIONS
The following are examples of common delayed repeal provisions:
Delayed repeal of statutes
Sec. __. Delayed repeal
Section 42-101, Arizona Revised Statutes, is repealed
from and after December 31, 2000.
36
Note: Delayed repeals of statutory laws and previously enacted temporary laws are included
in the bill title.
Delayed repeal of temporary law
Sec. __. Delayed repeal
This act is repealed from and after December 31, 2000.
Delayed repeal; reversion
Sec. __. Delayed repeal; reversion
This act is repealed and the commission established by
it terminates on June 30, 1998, at which time any unexpended
or unencumbered monies standing to the credit of the
commission revert to the state general fund.
Note: A delayed repeal section must specify the statutory section to which it applies
rather than the bill section.
4.9 DELEGATION OF LEGISLATIVE REGULATORY POWER
When drafting a bill giving regulatory powers to an agency, consider the words of the
court in the case of State v. Marana Plantations, 75 Ariz. 111, 252 P.2d 87 (1953):
The line of demarcation between what is legitimate granting of power
for administrative regulation and an illegitimate delegation of legislative
power is often quite dim.... It may safely be said that a statute with no
prescribed restraints nor criterion nor guide to its action offends the
Constitution as a delegation of legislative power. The board must be
corralled in some reasonable degree and must not be permitted to range at
large and determine for itself the conditions under which a law should exist
and pass the law it thinks appropriate.
4.10 DEPUTY OFFICERS OF STATE AND COUNTY AGENCIES; POWERS
Section 38-462, A.R.S., automatically confers powers to deputy officials that are
given to their principals:
A. Unless otherwise provided, each deputy of a state or county
officer possesses the powers and may perform the duties prescribed by law
for the office of the principal.
B. When the official name of any principal officer is used in law
conferring power, or imposing duties, liabilities or prohibitions, it includes
the officer's deputies.
37
4.11 EFFECTIVE DATE AND TIME OF STATUTES
General effective date
As stated in article IV, part 1, § 1 (3), Constitution of Arizona, the general effective
date of enactments is the ninety-first day after the date on which the session of the legislature
enacting them is adjourned sine die. For example, if the legislature adjourned sine die on
May 15, the general effective date would be August 14 at 12:00 noon. Exceptions to the
general effective date are as follows:
C A bill that has a specific delayed effective date.
C A bill that is conditionally enacted. (See § 4.5.)
C An emergency measure that is passed by a “supermajority” vote of the legislature.
(Article IV, part 1, section 1(3), Constitution of Arizona.)
C An act for the “support and maintenance” of the agencies of state government and
state institutions. (Article IV, part 1, section 1(3), Constitution of Arizona.)
C An act increasing state revenues through new or increased taxes or assessments.
(Article IX, §22, Constitution of Arizona.) (See § 4.15.)
Conflicting provisions; effect
C An act that purports to take effect on a specified date before the general effective
date but is not a duly enacted emergency measure takes effect on the general effective date
notwithstanding the specified date. Industrial Commission v. Frohmiller, 60 Ariz. 464, 140
P.2d 219 (1943).
C A duly enacted emergency measure, a requirements for enactment bill or a support
and maintenance bill is immediately effective on approval by the governor, even though it
contains a provision stating that it is to become effective on another date.
Vetoed or unsigned bills; effect
C If the governor does not sign or veto a measure within five days (Sunday excepted)
after receipt, the legislature being in session, the measure takes effect on the general effective
date.
C An act that is vetoed by the governor and that thereafter is passed by each house
by a two-thirds vote takes effect on the general effective date.
C A duly enacted emergency measure or a requirements for enactment measure that
is vetoed by the governor within five days (Sunday excepted) after it was presented to the
38
governor and that, after reconsideration, is passed by each house by a three-fourths vote takes
effect on the date it is filed with the secretary of state.
C A measure that is not approved or vetoed by the governor or filed with the
secretary of state within ten days (Sundays excepted) after the legislature's final adjournment,
takes effect on the general effective date.
C If the governor does not sign or veto a duly enacted emergency measure or
requirements for enactment measure within five days (Sunday excepted), the legislature being
in session, or does not file the measure with the secretary of state within ten days (Sundays
excepted) after the final adjournment of the legislature, the measure takes effect on the
eleventh day.
Time of day statutes take effect
Section 1-241, A.R.S., provides:
A. An act or statute which by its terms is to take effect on a specified
day shall, unless otherwise provided in the act or statute, take effect at twelve
o'clock noon on the day specified.
B. An act or statute, which by its terms is to take effect from and
after a specified day, shall take effect at midnight of the day specified.
(Emphasis added.)
Emergency clauses
If the sponsor of a bill wants it to become immediately operative on the signature of
the governor, the drafter should add an emergency clause, the wording of which is:
Sec. __. Emergency
This act is an emergency measure that is necessary to
preserve the public peace, health or safety and is operative
immediately as provided by law.
A bill containing an emergency clause must receive a two-thirds vote in each house
of the legislature in order for the emergency clause to be effective. If the bill is adopted by
less than a two-thirds vote, it is considered as enacted without the emergency clause and,
therefore, becomes effective on the general effective date.
Note: An emergency measure cannot be given an effective date, applicable to the
entire bill or sections of the bill, other than the date on which the governor signs the bill. An
attempt to make an emergency bill effective at a date after the date of enactment, and
particularly after the general effective date, will fail, and the act will become "operative"
immediately on signature of the governor. Article IV, part 1, § 1 (3), Constitution of
Arizona. Industrial Commission v. Frohmiller, 60 Ariz. 464, 140 P.2d 219 (1943).
39
Nevertheless, specific provisions of the bill may be so worded as to become operative at
subsequent times. (See Op. Att'y Gen. I82-026.) A typical way to accomplish this is by
inserting a date in the statutory or temporary law text. For example, a section could state
"BEGINNING ON OCTOBER 1, 1998, THE DEPARTMENT SHALL...."
Retroactivity of statutes
Statutory changes in procedure or remedies may be applied retroactively if the statute
does not affect or impair vested rights. Bouldin v. Turek, 125 Ariz. 77, 607 P.2d 954 (1979).
However, § 1-244, A.R.S., requires that the retroactivity of a statute be "expressly declared".
To do this the drafter should add a section toward the end of the bill similar to the following:
Sec. __. Retroactivity
This act is effective retroactively to from and after
June 30, 1993.
Note: If the retroactivity applies to amended A.R.S. sections, instead of new sections,
the language should be “applies retroactively”.
Effective date for tax measures
In drafting bills that levy a tax or change the way a tax is computed, applied or
administered the effective date should reflect accounting and administrative requirements and
should be either January 1 (or from and after December 31) or the beginning of another
appropriate taxing period. Frequently income tax acts are given the general effective date but
specifically apply retroactively to the entire tax year:
Sec. __. Retroactivity
This act applies retroactively to taxable years
beginning from and after December 31, 1990.
Delayed effective date
The following is an example of a delayed effective date:
Sec. __. Delayed effective date
Sections 23-527 and 23-528, Arizona Revised Statutes, as
amended by this act, are effective from and after December 31,
1996.
Bill title
Effective dates, including delayed effective dates, emergency clauses and requirements
for enactment are not noted in the bill title.
40
4.12 USE OF "THE EFFECTIVE DATE OF THIS SECTION"
If, when drafting a new statute, it is necessary to refer to the effective date of the new
section, use the phrase “THE EFFECTIVE DATE OF THIS SECTION”.
If, when amending existing statutory text, it is necessary to refer to the effective date
of the new amendment, use the phrase “THE EFFECTIVE DATE OF THIS AMENDMENT TO
THIS SECTION” rather than “THE EFFECTIVE DATE OF THIS SECTION” which, of course,
is the date the statute was originally enacted.
4.13 FUNDS AND THE RECEIPT AND DISPOSITION OF MONIES
Examples of common clauses used for the receipt and disposition of monies and the
establishment of funds, or funds for special purposes, are as follows:
Establishing a state fund
THE (NAME) FUND IS ESTABLISHED CONSISTING OF
(SOURCE OF FUNDING). THE (NAME OF AGENCY) SHALL ADMINISTER
THE FUND. MONIES IN THE FUND ARE [SUBJECT TO LEGISLATIVE
APPROPRIATION] [CONTINUOUSLY APPROPRIATED].
Note: The language establishing a fund must contain a statement regarding the
availability of the fund monies to the administering agency. The language should either state
that the monies in the fund are “subject to legislative appropriation” or that they
are “continuously appropriated”.
Common sources of funding are fees collected pursuant to a specific statutory citation,
legislative appropriations, civil penalties imposed pursuant to a specific statutory citation,
federal monies, and private grants, gifts, contributions and devises.
Also, on specific request of the sponsor, the following clause may be added:
ON NOTICE FROM THE (NAME OF AGENCY) , THE STATE
TREASURER SHALL INVEST AND DIVEST MONIES IN THE FUND AS
PROVIDED BY SECTION 35-313, AND MONIES EARNED FROM INVESTMENT
SHALL BE CREDITED TO THE FUND.
Acceptance of federal monies and private gifts
THE DIRECTOR MAY ACCEPT AND SPEND FEDERAL MONIES AND
PRIVATE GRANTS, GIFTS, CONTRIBUTIONS AND DEVISES TO ASSIST IN
CARRYING OUT THE PURPOSES OF THIS (TITLE, CHAPTER, ARTICLE,
SECTION). THESE MONIES DO NOT REVERT TO THE STATE GENERAL
FUND AT THE CLOSE OF A FISCAL YEAR.
41
Disposition of fees; “90/10 boards”
A. THE ALLOPATHIC BOARD OF MEDICAL EXAMINERS FUND IS
ESTABLISHED CONSISTING OF [FEES COLLECTED PURSUANT TO SECTION
00-0000]. THE BOARD SHALL ADMINISTER THE FUND. THE BOARD
SHALL TRANSMIT ALL MONIES COLLECTED UNDER THIS CHAPTER TO THE
STATE TREASURER WHO SHALL DEPOSIT NINETY PER CENT OF THE
MONIES IN THE BOARD OF MEDICAL EXAMINERS FUND AND TEN PER CENT
OF THE MONIES IN THE STATE GENERAL FUND.
B. MONIES DEPOSITED IN THE BOARD OF MEDICAL EXAMINERS
FUND ARE SUBJECT TO SECTION 35-143.01.
Note: These special funds are subject to annual legislative appropriation
pursuant to § 35-143.01, A.R.S. Even though these monies are administered by the board,
expenditures from the fund cannot exceed the authorized appropriation. Note also: Pursuant
to § 35-143.01, A.R.S., monies in special funds are automatically exempt from lapsing to the
state general fund. Therefore, a nonlapsing clause is unnecessary.
Nonlapsing clauses for non-90/10 board funds
Funds that are subject to legislative appropriation or continuously appropriated can
be made nonlapsing by stating:
MONIES IN THE FUND ARE EXEMPT FROM THE PROVISIONS OF
SECTION 35-190 RELATING TO LAPSING OF APPROPRIATIONS[, EXCEPT
THAT ALL MONIES IN THE FUND EXCEEDING ________________ DOLLARS
REVERT TO THE STATE GENERAL FUND].
Revolving funds
Revolving funds are established for specific administrative purposes. They are
rarely used. Procedures for establishing an administrative revolving fund are contained in §
35-193, A.R.S. Note: The term "revolving" does not make a fund continuously appropriated
and does not exempt the fund balance from lapsing.
Transfer of fund monies
The following illustrates the transfer of fund monies:
Sec. __. Transfer of fund monies
On the effective date of this act, all monies in the
data processing fund are transferred to the automation fund.
42
Proper citation of a fund
To cite a fund that is in another statutory section the drafter should refer to the
"(exact name of fund) ESTABLISHED BY (not “in”) SECTION 00-0000".
4.14 HEADING CHANGE
A bill may redesignate or repeal a statutory title, chapter or article heading as in the
following examples:
Sec. __. Heading change
The article heading of title 42, chapter 1, article 2.1,
Arizona Revised Statutes, is changed from "DIVISION OF
APPRAISAL AND ASSESSMENT STANDARDS" to "CLASSIFICATIONS OF
PROPERTY".
Sec. __. Heading repeal
The article heading of former title 36, chapter 15,
article 1, Arizona Revised Statutes, is repealed.
A heading repeal is included in the bill title. A change in a title, chapter or article
heading is included in the bill title as follows:
. . . CHANGING THE DESIGNATION OF TITLE 24, CHAPTER 2,
ARTICLE 10, ARIZONA REVISED STATUTES, TO "GUIDE DOGS";
4.15 INCREASES IN STATE REVENUES; SUPERMAJORITY VOTE REQUIRED
(PROP. 108)
Article IX, § 22, Constitution of Arizona, requires that if an act provides for a net
increase in state revenues through a new tax, tax increase, change in a tax exemption, new or
increased fee or assessment, elimination of an exemption to a fee or assessment or a change
in state tax revenue allocations among state and local governments, it must receive a two-thirds
vote of the members of each house of the legislature and is effective immediately on the
governor's signature. These bills are often called "prop. 108" bills in reference to the 1992
ballot proposition that enacted this constitutional provision.
Bill drafters must make the initial determination whether the legislation is or might be
subject to article IX, § 22. If so, the drafter must add the following section at the end of the
bill:
Sec. ___. Requirements for enactment
Pursuant to article IX, section 22, Constitution of
Arizona, this act is effective only on the affirmative vote of
at least two-thirds of the members of each house of the
legislature and is effective immediately on the signature of
the governor or, if the governor vetoes this act, on the
43
subsequent affirmative vote of at least three-fourths of the
members of each house of the legislature.
Note: Bills that require a two-thirds vote go into effect on the day the governor signs
the bill into law. Therefore, if the bill also contains effective date sections or a conditional
enactment, these sections have no effect.
Note also: The inclusion of a requirements for enactment section is not noted in the
bill title.
4.16 JUDICIAL REVIEW
The following language provides for judicial review of administrative proceedings:
A DECISION OF THE COMMISSION IS SUBJECT TO JUDICIAL
REVIEW PURSUANT TO TITLE 12, CHAPTER 7, ARTICLE 6.
4.17 LEGISLATIVE INTENT SECTIONS
General rule
Intent sections (also called "purpose" or "legislative findings" sections) should not be
used in a bill. There are several reasons for this general rule:
C Redundancy. Because each draft should include all provisions that are necessary
to carry out legislative intent in the substantive text of the draft, a statement of intent, purpose
or findings that mirrors the substantive text is redundant and thus unnecessary.
C Conflict. A statement of intent, purpose or findings that is initially drafted to be
in harmony with substantive provisions of a bill may become irrelevant to or in direct conflict
with the provisions as subsequently amended. If the statement is not, at the time of the
amendment, also amended or repealed, the existence of the statement may confuse the status
of the law.
C Misuse of undefined terms. A statement of intent, purpose or findings that
purports to state the goal of the proposed legislation may do so by using undefined terms that
differ from the terms used in substantive provisions of the bill. The undefined terms may be
used later by a court to interpret the act's substantive language either more broadly or more
narrowly than was intended. See Friends of Mammoth v. Board of Super. of Mono City, 104
Cal. Rptr. 761, 502 P.2d 1049 (1979), in which the court construed the undefined term
"project" by using a broad legislative intent statement, achieving a result that appears to be
significantly at odds with the act's substantive language.
44
C Unforeseen effects. A statement of intent, purpose or findings may include provisions
that directly or indirectly grant rights, prohibit actions or are otherwise substantive in nature,
having unforeseen effects on other, seemingly unrelated laws.
C Judicial and administrative misuse of argumentative language. A statement of
intent, purpose or findings may contain language intended to promote the merits of a bill. If
the language is construed by a court in the context of rights or privileges accorded in the
substantive provisions of the act, the court's interpretation may yield a result that may not
have been intended. See Protective Placement of D.E.R., 155 Wis. 2d 240 (1990), in which
the court interpreted a phrase within a legislative intent statement that included sweeping
language about protecting individuals to mean that a developmentally disabled individual is
entitled to be protectively placed in an environment that requires funding by the county over
and above federal, state and county matching monies.
Exceptions
An intent clause may be useful only under the following circumstances:
C Recodification. If a bill only recodifies existing law without making any substantive
changes, a statement of legislative intent may clarify this fact.
C Constitutionality. If there is reasonable probability that a provision of a bill may
be declared unconstitutional and that it may help to sustain the provision if the courts are
aware of the asserted constitutional basis for the provision or if the courts are aware of certain
facts or policy, a statement of legislative intent may indicate compliance with constitutional
requirements that is not otherwise apparent. Also, a statement of legislative purpose or intent
may counter an allegation of unreasonableness or arbitrariness by indicating a rational basis
for action by the legislature. See Sutherland Stat. Const. § 20.03 to 20.05 (5th Ed).
Required use
C § 41-2955, A.R.S., requires that the enabling legislation for each new agency
contain a purpose section stating the objectives of the programs. A purpose clause is also
required for the rescheduling of each agency for a new ten year cycle. The purpose clause
is meant to assist the auditor general to determine if an agency is meeting its legislative
mandate.
The following is an example of a purpose clause used in the continuation of an agency:
Sec. 8. Purpose
The purpose of the board of cosmetology is to ensure
that the public is protected from the incompetent practice of
cosmetology.
45
C § 41-1107, A.R.S., requires that all legislation that "diminishes a previous grant
of authority to a political subdivision of this state shall contain an intent clause that explains
the reason for the diminution of authority."
Note: If an intent section is used, it should not include argumentative material or
provisions granting rights, prohibiting actions or otherwise creating substantive law and
should pertain only to the particular law in question. This section should also appear at or
near the end of a bill. (See § 2.10.)
4.18 LIBERAL INTERPRETATION SECTIONS
A basic rule of statutory construction is that statutes are liberally construed to
accomplish legislative intent and to avoid making the statute constitutionally invalid. Thus,
the drafter need not include a "liberal interpretation section" in preparing a bill. A statement
of this rule is included in § 1-211, A.R.S.
4.19 LICENSURE, CERTIFICATION AND REGISTRATION
Consistent and limited meanings apply to the three separate categories of
authorization that distinguish the regulation of occupations.
Licensing is a process by which an agency of government grants permission to a
person to engage in a given occupation on finding that the applicant has attained the minimal
degree of competency required to ensure that the public health, safety and welfare will be
reasonably protected. Licensing makes it illegal for anyone who does not hold a valid license
to engage in the occupation covered by the statute.
Certification is a form of regulation that grants recognition to persons who have met
predetermined qualifications. Only those who meet the qualifications may legally use the
designated title. However, noncertified persons may offer similar services to the public if they
do not describe themselves as being "certified". Certification is especially appropriate if the
public needs assistance in identifying competent practitioners, but the public risks are not
severe enough to warrant licensure.
Registration is the least restrictive alternative form of regulation. Registration
requires that a person file that person's name and address with a designated agency. There
may also be a registration requirement in combination with minimum practice standards
determined by the regulatory agency. The former type of regulation would simply provide
a list of registrants while the latter would subject registrants to minimum standards.
4.20 NONSEVERABILITY AND SEVERABILITY CLAUSES
Nonseverability
On occasion the legislature wants an act either to stand or fall as one unit. To avoid
a court interpretation that might allow an act to continue in force after a portion is invalidated
the drafter should insert a nonseverability clause at or near the end of the bill similar to the
following:
46
Sec. __. Nonseverability
If any portion of this act is finally adjudicated
invalid, the entire act is void.
Note: § 1-252, A.R.S., does not apply if an act becomes invalid under a
nonseverability clause. All former laws repealed by the invalid act are revived. An invalid
statute that purports to repeal a prior statute is ineffective to do so. See Selective Life Ins.
Co. v. Equitable Life Assur. Soc. of U.S., 101 Ariz. 594, 422 P.2d 710 (1967).
Severability
A severability clause is unnecessary for legal purposes because the courts have
repeatedly ruled that regardless of the presence or absence of a severability clause they will
sever invalid portions from an otherwise valid act whenever possible. See Cohen v. State,
121 Ariz. 6, 588 P.2d 299 (1978). However, severability provisions are occasionally used
even though they add no legal effect to the bill. If requested, the drafter should use the
following:
Sec. __. Severability
If a provision of this act or its application to any
person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the act that
can be given effect without the invalid provision or
application, and to this end the provisions of this act are
severable.
4.21 "NOTWITHSTANDING" CLAUSES
To state an exception to existing law, the drafter may introduce language with
"NOTWITHSTANDING ANY LAW TO THE CONTRARY", “NOTWITHSTANDING ANY STATUTE TO
THE CONTRARY” or “NOTWITHSTANDING ANY OTHER STATUTE”.
Note: Whenever possible the drafter should find those statutes that conflict with the
new provision and refer to them specifically or conform them with the new provision. An
accumulation of "notwithstanding" clauses can result in a series of overlapping laws
superseding each other.
47
4.22 OPEN MEETINGS
§ 38-431.01, A.R.S., provides that meetings of a public body must be open to the
public. "Public body" is defined in § 38-431, A.R.S. If any doubt exists whether an agency
is a public body, the bill should specify whether the agency is subject to the open meetings
law.
4.23 PENALTIES; CIVIL AND CRIMINAL
The need for a penalty provision depends on the nature of the bill. Existing statutes
should be checked carefully to determine whether a penalty already exists for the particular
offense.
Penalties may be civil or criminal, or both. A civil penalty may be imposed by a public
officer or agency, it may give an injured person a cause of action against the offender or it
may suspend or revoke a license or permit to do business. If the criminal provision of a bill
relates to a single section, it is customary to insert the criminal code penalty classification
within that section as the last subsection.
Except in the case of strict liability crimes (regulatory offenses not requiring a
particular mental state for guilt), all criminal offenses should require one of the four mental
states defined in § 13-105, A.R.S.
Note: In the section heading of a criminal provision, use the singular "classification"
even if there is more than one criminal offense classification.
Fines versus penalties
For drafting purposes it is important to note the distinction between penalties and fines
if the legislative intent is to impose monetary sanctions as a result of prohibited activity. The
Arizona supreme court has held that "penalty" and "fine" are not the same in law. Frazier v.
Terrill, 65 Ariz. 131, 175 P.2d 438 (1946). The term "fine" must always be used in the
context of criminal activity.
C The following are two examples of civil penalty provisions:
AFTER A HEARING PURSUANT TO TITLE 41, CHAPTER 6, THE
BOARD MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN ________
DOLLARS AGAINST A LICENSEE WHO KNOWINGLY VIOLATES THIS
CHAPTER.
* * *
48
THE BOARD MAY REVOKE OR SUSPEND THE LICENSE OF A DENTIST
WHO PERMITS A DENTAL HYGIENIST WHO IS OPERATING UNDER THE
DENTIST'S SUPERVISION TO PERFORM AN OPERATION OTHER THAN AS
PERMITTED UNDER THIS ARTICLE.
C The following are two examples of criminal penalty provisions:
A. A PERSON COMMITS TRESPASS ON PUBLIC LAND BY INJURING
ANY WOOD OR TIMBER GROWING ON STATE LAND OR BY CARRYING AWAY
ANY SOIL ON OR UNDER THE SURFACE OF THAT LAND.
B. TRESPASSING ON PUBLIC LAND IS A CLASS 3 MISDEMEANOR.
* * *
A PERSON WHO VIOLATES THIS ARTICLE IS GUILTY OF A CLASS
2 MISDEMEANOR.
Criminal offenses; penalties
Criminal offenses are divided into seven felony classifications, three misdemeanor
classifications and petty offenses. Except for class 1 felonies, there is a presumptive term of
imprisonment for each felony. This term may be increased or decreased depending on the
nature of the offense, the defendant's criminal history and the existence of any mitigating or
aggravating circumstances. Fines may also be imposed. Fines for enterprises are set out in
§ 13-804, A.R.S. Prison terms and maximum fines for individuals are prescribed in §§ 13-
701 and 13-801, A.R.S.
All lesser offenses are termed "petty offenses", with no imprisonment authorized and
a maximum fine of $300. Any offense defined outside the criminal code that lacks either
designation as a felony or misdemeanor or specification of the classification or the penalty is
a petty offense. (See § 13-602, A.R.S.)
4.24 POPULATION
If a bill applies different standards to different categories of locations measured by
population, the drafter should use language that refers to "a (county) (city) with a
population of (less than) (more than) _____ (million) (thousand) persons
according to the most recent United States decennial census".
Note: At times a bill should use language that refers to both the most recent United
States decennial census and the most recent special census. This is usually necessary when
a bill distributes tax revenues or apportions monies. (See §§ 28-1501.02 and 42-1341.01,
A.R.S.)
49
4.25 PROCUREMENT CODE; EXEMPTION
Spending public money for goods and services is governed by the procurement code.
The applicability of the code and certain exemptions to it are found in title 41, chapter 23,
A.R.S.
An exemption from the procurement code is usually for a limited duration and is thus
typically in temporary law. The following language illustrates this exemption:
Sec. __. Exemption from the procurement code
The department of economic security is exempt from the
procurement code requirements of title 41, chapter 23, Arizona
Revised Statutes, for one year after the effective date of
this act.
Note: § 35-729, A.R.S., is an example of a permanent exemption in statutory law.
4.26 QUORUM; JOINT AUTHORITY OF BOARD OR COMMISSION MEMBERS
Section 1-216, A.R.S., provides:
A. Words purporting to give a joint authority to three or more public
officers or other persons shall be construed as giving the authority to a
majority of the officers or persons unless it is otherwise expressly declared
in the law giving the authority.
B. A majority of a board or commission shall constitute a quorum.
This statute incorporates the general law that both a majority of the persons given
authority to act and a quorum of those persons (not a majority of a quorum of those persons)
are essential for valid administrative, legislative or other action. It is not necessary to restate
this rule when establishing a new public body. However, the number necessary to act or the
number necessary to comprise a quorum, or both, may be set by the legislature at something
other than a majority.
4.27 REFERENCES TO NONSTATUTORY ENTITIES
The drafter should not make statutory reference to specific entities that are not
established by this state's laws. As an alternative the drafter should make general references
such as "a national association of retired persons" instead of "the national association of
retired persons". This not only limits the possibility of an unconstitutional delegation of
legislative authority but avoids inaccurate citations to entities that may change over time
without the legislature's knowledge or approval.
50
4.28 RULES
Authority to issue rules
The following language authorizes a state agency to issue rules pursuant to the
administrative procedure act:
THE (NAME OF AGENCY) MAY ADOPT RULES PURSUANT TO TITLE
41, CHAPTER 6 TO CARRY OUT THIS (CHAPTER) (ARTICLE) (SECTION).
Exemption from rules
An exemption from the rule making requirements of title 41 is drafted as temporary
law since it is for a limited duration. The following language illustrates this exemption:
Sec. __. Exemption from rule making
The department of health services is exempt from the
rule making requirements of title 41, chapter 6, Arizona
Revised Statutes, for one year from the effective date of this
act.
Note: The above language extends a blanket exemption. The drafter may modify the
exemption by adding language to require the agency to publish otherwise exempted rules or
to provide the public with an opportunity to comment on the proposed rules.
Note also that the drafter should amend § 41-1005, A.R.S., to enact permanent
exemptions from the administrative procedure act.
4.29 SAVING CLAUSES
A saving clause preserves rights and duties that have already matured and proceedings
that have already begun. Since a repeal could otherwise destroy rights or obligations, the
saving clause must be tailored to the needs of the particular case.
It is usually unnecessary to include a saving clause because of the general applicability
of §§ 1-249 and 1-252, A.R.S.:
1-249. Repealing act; effect on pending action or accrued right
No action or proceeding commenced before a repealing act takes
effect, and no right accrued is affected by the repealing act, but proceedings
therein shall conform to the new act so far as applicable.
51
1-252. Repeal of repealing statute; effect
The repeal or abrogation of a statute, law or rule does not revive the
former statute, law or rule theretofore repealed or abrogated, nor does it
affect any right then already existing or accrued at the time of such repeal,
nor any action or proceeding theretofore taken, except such as may be
provided in the subsequent repealing statute, nor shall it affect any private
statute not expressly repealed thereby.
Nevertheless, the absence of a saving clause in at least one instance has required
remedial action by a special session of the legislature (Laws 1922, first special session,
chapters 26 and 26-A). In every instance it is important to consider whose direct and
collateral rights and duties, including the state's rights, may be affected by the bill.
The following are examples of saving clauses affecting civil and criminal legislation:
Sec. __. Saving clause
This act does not affect rights and duties that matured,
penalties that were incurred and proceedings that were begun
before the effective date of this act.
Sec. __. Saving clause
This act has no effect on any devise made by a will
executed before the effective date of this act.
Sec. __. Saving clause
This act does not apply to any offense committed before
the effective date of this act. Any such offense is
punishable as provided by the statute in force at the time the
offense was committed.
“Grandfather” clauses
Another type of saving clause is frequently referred to as a "grandfather" clause
because it permits those persons already practicing in a profession or business to continue in
that capacity even though they may not be able to meet the new law's specifications or
qualifications. An example of the "grandfather" clause is:
Sec. __. Current licensees
The board of barber examiners shall issue a license to
practice as a barber to any person who holds a valid license
to practice barbering in this state on the effective date of
this act and who on the expiration of this license pays the
required fee and files a medical certificate.
52
4.30 SHORT TITLE
The use of a designated short title in Arizona bill drafting is rare. It is occasionally
used in bills based on uniform or model acts or in reference to federal law. The short title is
usually placed near the end of a bill and is not assigned a section number in the A.R.S. since
it is not substantive law. The initial letter of the first word and initial letters of all important
words of a short title should be capitalized. An example of a short title is:
Sec. __. Short title
Title 12, chapter 16, article 1, Arizona Revised
Statutes, as added by this act, may be cited as the "Uniform
Contribution Among Tortfeasors Act".
Note: The drafter should modify a model act to conform it with this state's bill
drafting conventions and cite it, for example, as the "Revised Arizona Probate Code"
instead of the “Uniform Probate Code”.
4.31 STATUTORY BOARDS, COMMISSIONS, COMMITTEES AND COUNCILS
Placement
If a public body is to fulfill an ongoing duty of an unlimited duration, the drafter
should place the language that creates it in statutory law. Typical of these kind of entities are
the boards that regulate professions and occupations in title 32, A.R.S.
Sunset
The drafter must include a “sunset” provision in the bill unless the board, commission
or committee is part of an agency that is already on a sunset schedule.
Checklist
When creating a board the drafter should consult relevant provisions of the checklist
found in § 4.3. Note: Unlike temporary committee members, board members typically do
receive compensation “in the amount of _______ dollars per day for each day
of actual service in the business of the board and all expenses
necessarily incurred in attending board meetings” or “as prescribed by
section 38-611”.
53
Initial terms of members; terms of additional members
Initial terms of appointed members or of additional members are always staggered.
The provision prescribing their term of office appears near the end of a bill in temporary law
in the following style:
Sec. __. Initial terms of members of
A. Notwithstanding section ___ (insert number of
section establishing terms of members), Arizona Revised
Statutes, as added by this act, the (initial) terms of
(additional) members are:
1. One term ending January ____, 1999.
2. Two terms ending January ____, 2000.
B. The _____________ (insert governor or appropriate
official) shall make all subsequent appointments as prescribed
by statute.
If it is uncertain when a committee will form, or if there are multiple appointing
authorities, the law itself may allow the initial members to draw lots to determine among
themselves the initial staggered terms:
THE INITIAL MEMBERS SHALL ASSIGN THEMSELVES BY LOT TO
TERMS OF TWO, FOUR AND SIX YEARS IN OFFICE. ALL SUBSEQUENT
MEMBERS SERVE SIX YEAR TERMS OF OFFICE. THE CHAIR SHALL
NOTIFY THE GOVERNOR'S OFFICE ON APPOINTMENTS OF THESE TERMS.
New terms for previously appointed committee members
If prescribing new terms for appointive members, provide for the transition in session
law, taking into account the expiration dates of terms of present members, the number of
members and whether the new terms are longer or shorter or an odd or even number of years.
The following is an example in which an eight member board is retained, but the term of office
is changed from eight years to four years:
Sec. __. Terms of board members
A. Notwithstanding section 15-1621, Arizona Revised
Statutes, as amended by this act, a person who is serving as
a member of the Arizona board of regents on the effective date
of this act is eligible to continue to serve until expiration
of the current term of office.
B. On the expiration of the term in January, 1998 of
two members of the Arizona board of regents, the governor
shall appoint two members pursuant to section 38-211, Arizona
Revised Statutes, for a term beginning January 19, 1998 and
ending January 15, 2001.
C. On the expiration of the term in January, 2000 of
two members of the Arizona board of regents, the governor
54
shall appoint two members pursuant to section 38-211, Arizona
Revised Statutes, for a term beginning January 17, 2000 and
ending January 20, 2003. Thereafter the governor shall
appoint two members pursuant to section 38-211, Arizona
Revised Statutes, for terms beginning on the third Monday of
January of the year of the expiration of term and ending on
the third Monday of January four years thereafter.
Election of officers previously appointed
If prescribing the election of officers previously serving by appointment, take into
account the effective date of the act (or constitutional amendment), general election dates,
the beginning and expiration dates of terms of present members, the number of members and
whether the new terms are longer or shorter or for an odd or even number of years.
Vacancies
If specific terms of office are not set forth, § 38-295, A.R.S., provides that:
A. Every officer whose term is not fixed by law shall hold office at
the pleasure of the appointing power.
B. Every officer shall continue to discharge the duties of the office,
although the term has expired, until a successor has qualified. The discharge
of the duties of office for appointments requiring senate confirmation shall
be governed by section 38-211.
C. Vacancies occurring in an office, or in the membership of a board
or commission, shall be filled only for the unexpired term of the officer or
member.
Article V, § 8, Constitution of Arizona, provides that when any office becomes vacant
and no method is provided by the constitution or by statute for filling the vacancy the
governor may appoint someone to fill the vacancy.
Procedures to be used when a vacancy occurs in the legislature are set out in title 41,
chapter 7, article 7, A.R.S.
Retention of members
Often in bills providing for the reorganization of state functions it is appropriate to
clarify the effect on appointed officials. The following examples illustrate how to continue
certain terms:
55
Sec. __. Retention of members
All persons serving as members of a board, council or
commission on the effective date of this act whose board,
council or commission is retained as a part of the department
of economic security may continue to serve until expiration of
their normal terms.
Sec. __. Terms of state officers
Notwithstanding any other statute, all terms of state
officers appointed pursuant to section 38-211, Arizona Revised
Statutes, that are in effect on the effective date of this act
expire on the third Monday in January next following the year
in which the term would otherwise expire.
Sec. __. Retention of members
Notwithstanding section 32-1502, Arizona Revised
Statutes, as added by this act, all persons serving as members
of the naturopathic physicians board of medical examiners on
the effective date of this act may continue to serve until the
expiration of their normal terms. The governor shall make all
subsequent appointments as prescribed by statute.
Abolishing an office; restrictions
If a bill has the effect of abolishing an office, the drafter should be aware of § 1-251,
A.R.S., that provides:
A person who at the time an act takes effect holds office under a law
repealed by such act continues to hold the office according to the tenure of
the law repealed, unless the duties of the office are expressly transferred to
some other office.
This provision cannot be avoided by abolishing an office and then creating a new
office with similar duties. An existing officeholder's term will not be terminated unless the
new office to which the officer's duties are transferred has substantially new, different or
additional functions or powers. Ahearn v. Bailey, 104 Ariz. 250, 451 P.2d 30 (1969).
Moreover, the legislature cannot abolish, prescribe additional qualifications for or otherwise
circumvent constitutionally prescribed powers and duties of offices created by the state
constitution.
4.32 SUNRISE LEGISLATION
If a bill would regulate a health profession that is now unregulated by this state or
would increase the scope of practice of a board-regulated health profession, the drafter
should be aware of title 32, chapter 31, A.R.S. That chapter prescribes the requirements that
applicants for either initial regulation or an increased scope of practice must meet.
56
4.33 SUNSET LEGISLATION
Under state law each new and existing agency has no more than a ten year life span,
at the end of which the agency is subject to a sunset review. Title 41, chapter 27, A.R.S., sets
out the sunset conditions and procedures, and article 2 of that chapter establishes the sunset
schedule for the various agencies.
Each agency is assigned a sunset statute, for example:
41-3002.14. Osteopathic board; termination July 1, 2002
A. The Arizona board of osteopathic examiners in medicine and
surgery terminates on July 1, 2002.
B. Title 32, chapter 17 is repealed on January 1, 2003.
This sample sunset statute illustrates several unique features that should be addressed
in each bill that establishes a new agency or changes an agency's sunset termination date:
C The section number corresponds to the year of the sunset termination. In the
sample statute, § 41-3002.14 corresponds with the year 2002. All agencies that terminate
in 2002 are assigned a statute section in the 41-3002.__ series.
C The agency terminates "on July 1" of the appropriate year.
C The enabling statutes for the agency are repealed six months later "on January 1"
of the following year under the assumption that even though the agency is officially
terminated, it may still require continuing statutory existence while it concludes its affairs.
To change an agency's sunset date the drafter must repeal the existing sunset statute
and enact a new statute with a section number corresponding to the new termination year.
The following illustrates how to extend an agency for ten years:
Section 1. Repeal
Section 41-2998.01, Arizona Revised Statutes, is
repealed.
Sec. 2. Title 41, chapter 27, article 2, Arizona Revised
Statutes, is amended by adding section 41-3008.01, to read:
41-3008.01. Arizona state lottery commission;
termination July 1, 2008
A. THE ARIZONA STATE LOTTERY COMMISSION TERMINATES
ON JULY 1, 2008.
B. TITLE 5, CHAPTER 5 IS REPEALED ON JANUARY 1, 2009.
Sec. 3. Purpose
The purpose of the Arizona state lottery commission is
to promote the state lottery’s maximum administrative
efficiency and financial viability.
ö ö ö
57
Sec. 4. Retroactivity
Sections 1 and 2 of this act are effective retroactively
to July 1, 1998.
Note: For purposes of drafting legislation, always number the new sunset section
as the next available number regardless of other bills that may also add that same section
number. The drafter should not assume that the other bill or bills will actually be enacted.
After the legislative session is over the legislative council will renumber all of the newly
enacted sunset sections in a consecutive series corresponding to the sunset year.
Since sunset legislation usually becomes effective on the general effective date, it is
usually necessary to include a retroactivity provision relating back to July 1, the date the
agency terminates. Without it there would be a hiatus between July 1 and the general
effective date during which the existence and authority of the agency could be called into
question.
Section 41-2955, A.R.S., requires legislation that establishes a new agency or
continues an existing agency to contain a statement of policy, purpose or objectives of the
agency. (See § 4.17.)
4.34 TAX MEASURES; REQUIRED STATEMENT OF OBJECTIVES
Article IX, §§ 3 and 9, Constitution of Arizona, require that laws that impose,
continue or revive a tax must distinctly state the tax and the objects for which it shall be
applied.
The Arizona supreme court has held that this requirement relates only to measures
imposing a property tax and not to measures imposing an excise tax. See Hunt v. Callaghan,
32 Ariz. 235, 257 P. 648 (1927).
4.35 TRANSFER OF COST OF PROGRAM FROM POLITICAL SUBDIVISION
TO STATE; REDUCTION OF EXPENDITURES AND ADJUSTMENT OF
TAX REVENUES
If a bill provides for the transfer of the cost of a program to the state and fails to
require that tax revenues of the political subdivision be commensurately reduced, the new
state obligation would be subject to the seven percent spending limitation imposed by article
IX, § 17, Constitution of Arizona. In addition, article IX, § 17, Constitution of Arizona,
allows the state to adjust the seven percent limit during the first fiscal year of the transfer.
58
To enable the economic estimates commission to make the adjustment, in the case of a
legislative transfer the effective date prescribed by the bill should be July 1, the beginning date
of the fiscal year following the fiscal year beginning July 1 in which the bill is proposed for
enactment.
The drafter should include provisions similar to the following temporary law sections
in an act transferring program costs from a political subdivision to the state. Please note that
the following is only an example. Each situation involving a transfer will be unique:
Sec. __. Reduction of expenditures and adjustment of
tax revenues
A. To adjust for the transfer of the cost of the
( ) program to the state, the (political subdivision)
shall commensurately decrease tax revenues under article IX,
section 17, Constitution of Arizona.
B. Not later than October 1, 199_, the economic
estimates commission shall adjust the state appropriation
percentage limitation in the manner prescribed by article IX,
section 17, Constitution of Arizona, and report this
adjustment to the legislature.
Sec. __. Delayed effective date
Sections ____, ____ and ____ of this act are effective
on July 1, 199_.
4.36 TRANSFER OF PERSONNEL, EQUIPMENT AND MONIES; TRANSFER
AND SUCCESSION OF POWERS
Transfer of personnel, equipment and monies
The following are examples of provisions for the transfer of personnel, equipment and
monies between agencies or from an old agency to a new or successor agency:
Sec. __. Succession
A. As provided by this act, the (new department)
succeeds to the authority, powers, duties and responsibilities
of (old agency #1) and (old agency #2).
B. This act does not alter the effect of any actions
that were taken or impair the valid obligations of the (old
agencies) in existence before January 1, 199__.
C. Administrative rules and orders that were adopted by
the (old agencies) continue in effect until superseded by
administrative action by the (new department).
59
D. All administrative matters, contracts and judicial
and quasi-judicial actions, whether completed, pending or in
process, of the (old agencies) on January 1, 199__ are
transferred to and retain the same status with the (new
department).
E. All certificates, licenses, registrations, permits
and other indicia of qualification and authority that were
issued by the (old agencies) retain their validity for the
duration of their terms of validity as provided by law.
F. All equipment, records, furnishings and other
property, all data and investigative findings and all
appropriated monies that remain unexpended and unencumbered on
January 1, 199__ of the (old agencies) are transferred to the
(new department).
G. All personnel who are under the state personnel
system and employed by the (old agencies) are transferred to
comparable positions and pay classifications in the respective
administrative units of the (new department) on January 1,
199__.
Transfer and succession of powers
If a new agency is to replace an existing agency, the drafter should include session law
to cover the succession and transfer of functions:
Sec. __. Transfer of powers
The department of economic security succeeds to the
powers and duties of the following:
1. The employment security commission of Arizona and
its Arizona state employment service, unemployment
compensation and administrative service divisions.
2. The state department of public welfare.
3. The division of vocational rehabilitation.
4. The veterans service commission.
5. The state office of economic opportunity.
6. The apprenticeship council.
7. The state office of manpower planning.
8. The state department of mental retardation.
In transferring functions from one agency to another, the drafter should consider
including language to ratify or confirm prior actions, obligations and rules of the old agency
such as:
60
Sec. __. Transfer of powers; effect
A. All matters, including contracts, orders and
judicial or quasi-judicial actions, whether completed or
pending, of the (old agency) are transferred, on the effective
date of this act, and maintain the same status with the (new
agency).
B. Rules adopted by the (old agency) are effective
until superseded by rules adopted by the (new agency).
C. All personnel, property and records, all data and
investigative findings and all appropriated monies remaining
unspent and unencumbered for the ______ fiscal year of the
(old agency) are transferred to the (new agency) and may be
used for the purposes of this act.
4.37 TRANSFERRING AND RENUMBERING STATUTORY SECTIONS
A section of codified law is renumbered if it is moved to a different placement in the
same statutory article (or in title 13, in the same chapter). A section of codified law is
transferred and renumbered if it is moved to a different chapter or article. A section of a bill
may renumber or transfer and renumber a statutory section, article or chapter as in these
examples:
Sec. __. Renumber
Section 41-1846, Arizona Revised Statutes, is renumbered
as section 41-1842.
Sec. __. Transfer and renumber
Section 13-292, Arizona Revised Statutes, is transferred
and renumbered for placement in title 13, chapter 23, Arizona
Revised Statutes, as section 13-2309.
Sec. __. Transfer and renumber
Title 36, chapter 28, Arizona Revised Statutes, is
transferred and renumbered for placement in title 49, Arizona
Revised Statutes, as chapter 5, entitled "HAZARDOUS WASTE
DISPOSAL". The transferred articles are renumbered, with
title 36, chapter 28, articles 1, 2 and 3 becoming,
respectively, title 49, chapter 5, articles 1, 2 and 3. The
transferred sections, previously included in title 36, chapter
28, articles 1, 2 and 3, are renumbered for placement in title
49, chapter 5, articles 1, 2 and 3, respectively, the first
number being replaced by the second number as follows:
36-2801 as 49-901, 36-2802 as 49-902, ... and 36-2844
as 49-944.
61
If multiple statutory sections are transferred and renumbered in one of the initial
sections of a bill but are amended later in the same act, the disposition text should read as
follows:
Sec. __. Section 13-2309, Arizona Revised Statutes, as
transferred and renumbered by this act, is amended to read:
Also an amendment of a section may be combined with the transfer and renumbering
of a section as follows:
Sec. __. Section 13-541.01, Arizona Revised Statutes,
is transferred and renumbered for placement in title 13,
chapter 24, Arizona Revised Statutes, as section 13-2409 and,
as so renumbered, is amended to read:
The following bill title is an example of language suggested for use when transferring
divisions of the A.R.S. (e.g., articles and chapters), renumbering the sections within the
division and amending a renumbered section:
TRANSFERRING AND RENUMBERING TITLE 15, CHAPTER 9, ARTICLE 4,
ARIZONA REVISED STATUTES, FOR PLACEMENT IN TITLE 32, ARIZONA
REVISED STATUTES, AS CHAPTER 30; TRANSFERRING AND RENUMBERING
TITLE 15, CHAPTER 9, ARTICLE 4, ARIZONA REVISED STATUTES, AS
TITLE 32, CHAPTER 30, ARTICLE 1, ARIZONA REVISED STATUTES;
TRANSFERRING AND RENUMBERING SECTIONS 15-931, 15-932,
15-932.01 AND 15-933 THROUGH 15-946, ARIZONA REVISED STATUTES,
RESPECTIVELY, AS SECTIONS 32-3001 THROUGH 32-3017; AMENDING
SECTION 32-3007, ARIZONA REVISED STATUTES, AS TRANSFERRED AND
RENUMBERED BY THIS ACT. . . .
Note: The drafter should not renumber statutory sections unless there is a compelling
reason to do so. Renumbering may obscure a measure, make subsequent changes or
amendments more difficult or impair the tracing of legislative history. Renumbering also may
result in ambiguity and increases the likelihood of drafting errors. It is also expensive because
internal references, index entries, annotations, administrative rules and explanatory materials,
such as bulletins published by state agencies, must all be changed to conform to the
renumbering.
4.38 VACANCY SAVINGS
Section 35-174, A.R.S., provides that vacancy savings must revert to the state general
fund at the end of each fiscal year. Vacancy savings are monies saved or generated in
personal services and employee related expenditures by not filling vacant or newly authorized
positions, filling a position at a step or grade lower than authorized or a downward
reclassification of an authorized position. An example of creating an exemption to the
vacancy savings law as well as authorizing additional positions is as follows:
62
Sec. __. Authorization for additional positions;
vacancy savings exemption
Notwithstanding section 35-174, Arizona Revised
Statutes, relating to vacancy savings, the department of
administration is authorized to fill two additional positions
in order to comply with the requirements of section
41-1304.05, Arizona Revised Statutes.
63
CHAPTER 5
GENERAL INSTRUCTIONS AS TO FORM AND STYLE
______________________________________________________
5.1 General Drafting Rules
5.2 Classification, Arrangement and Numbering of the A.R.S.
5.3 Capitalization
5.4 Age
5.5 Federal Statutes and Regulations
5.6 Citing the Arizona Constitution
5.7 Citing Internal References to the A.R.S.
5.8 Numbers, Dates and Times
5.9 Officer and Agency Names
5.10 Punctuation
5.11 Spelling
5.12 Use of Synonyms
5.13 Words and Phrases to Avoid
5.14 Use of the Present Tense
5.15 Use of the Active Voice
5.16 Use of the Masculine Pronoun
5.17 Lists; Format
5.18 Use of Modifiers
5.19 Use of “Amount” and “Number”
5.20 Use of “Fewer” and “Less”
5.21 Use of “Biennially” and “Biannually”
5.22 Use of “Bimonthly” and “Semimonthly”
5.23 Use of “Consecutive” and “Successive”
5.24 Use of “Continual” and “Continuous”
5.25 Use of “Assure”, “Ensure” and “Insure”
5.26 Use of “Except” and “Provided”
5.27 Use of “Farther” and “Further”
5.28 Use of “Funds” and “Monies”
5.29 Use of “If”, “Where” and “When”
5.30 Use of “Includes”
5.31 Use of “Shall” and “May”
5.32 Use of “Such”
5.33 Use of “That” or “Which”
5.34 Use of “Therefore” and “Therefor”
5.35 Use of “Through”
64
CHAPTER 5
GENERAL INSTRUCTIONS AS TO FORM AND STYLE
5.1 GENERAL DRAFTING RULES
The goal of good bill drafting is to make legislation as short, simple and readable as
possible while not sacrificing clarity or precision. The instructions enumerated in this chapter
are designed to achieve this goal. The following are some of the most basic drafting rules that
are discussed in this chapter:
C Use only necessary and understandable words. (See §§ 5.12 and 5.13.)
C Do not use unnecessary legalese or redundant legal phrases. (See §§ 5.12 and
5.30.)
C Keep sentences as brief as possible by limiting them to a single thought.
C Use section divisions to break down lengthy statutes into understandable units.
(See § 5.2.)
C Use a list to describe multiple duties or actions. (See § 5.17.)
C Use "shall" only to impose a duty to act. (See § 5.31.)
C Use "may" to grant discretion or authority to act. (See § 5.31.)
C Use the present tense. (See § 5.14.)
C Use the active voice. (See § 5.15.)
C Avoid using pronouns. (See § 5.16.)
5.2 CLASSIFICATION, ARRANGEMENT AND NUMBERING OF THE
STATUTES
The Arizona Revised Statutes are comprised of the compiled laws of the state of
Arizona and are divided, according to subject matter, into forty-nine titles. The designations
given the titles were selected to indicate the broad principal subject matter allocated to each
title so that an examination of the list of titles will show the approximate location of a
particular law.
ö ö ö
65
Title and chapter headings take the following form:
TITLE 16
ELECTIONS AND ELECTORS
CHAPTER 1
REGISTRATION OF ELECTORS
Article headings take the following form:
ARTICLE 1. REGISTRATION REQUIREMENTS
A compound or hyphenated section numbering system is used. The digits to the left
of the hyphen represent the number of the title in which the section appears. The digits to the
right of the hyphen indicate the section number. The first section in each title is appropriately
numbered 101: e.g., the first section in title 1 is 1-101; the first section in title 46 is numbered
§ 46-101. If additional section numbers must be added between existing sections, decimal
hundredth sections may be used such as 46-101.01, 46-101.02, etc.
Section divisions have the following designations:
A. Subsection (capital letter followed by a period)
1. Paragraph (Arabic numeral followed by a period)
(a) Subdivision (lower case letter in parentheses)
(i) Item (lower case Roman numeral in parentheses)
Divisions beyond items are not used in the A.R.S.
An outline consisting of the heading of each chapter and article within the title is
printed at the beginning of each title in the published A.R.S. At the beginning of each chapter
a chapter analysis is printed consisting of each article heading, section heading and section
number appearing in the chapter.
When adding a new chapter in the A.R.S. it is preferable to have the first section end
with the number "01" or "51", such as 32-301 and 41-2351. The first section in a new article
should end with the number "1", such as 32-331 or 36-851.
When determining what number should be used to begin a new chapter or article, the
drafter must remember that the legislative process is not static. If possible, the drafter should
leave sufficient free numbers to allow expansion of the current law. Title 41, chapter 19,
A.R.S., contains only five sections, therefore, chapter 20 of that title begins with § 41-2351.
66
If title 41, chapter 19 had contained forty sections, chapter 20 would have begun with
§ 41-2401 to leave room for expansion of chapter 19.
Note: Do not divide a statutory section unit unless there are at least two smaller units
involved.
5.3 CAPITALIZATION
In bill drafting only the following terms are capitalized:
C Proper nouns (proper names).
C Arizona Revised Statutes.
C Congress (when referring to the Congress of the United States).
C Constitution (when preceded by "Arizona" or "United States", or followed
by "of Arizona" or "of the United States").
In memorials and resolutions all titles of officers and entities, as well as names of
agencies, are capitalized.
Note: If the drafter is adding a word or words to the beginning of an existing sentence
do not strike the word that had appeared first in the original sentence to show the word in
lower case. And if a draft strikes a word or words from the beginning of a sentence do not
strike the word that is now first word in the sentence to capitalize that word. In both
instances the drafter only has to show the proper capitalization.
5.4 AGE
The drafter should use the following language to prescribe age categories:
"A person who is under eighteen years of age...."
"A person who is at least eighteen years of age...."
5.5 FEDERAL STATUTES AND REGULATIONS
Delegation issues
The legislature may not delegate its power to make laws. See Lake Havasu City v.
Mohave County, 138 Ariz. 552, 675 P. 2d 1371 (1984). Therefore, the drafter should not
use language that makes a statute appear dependent on federal law for its administration or
enforcement. The drafter may use the following techniques to avoid an unlawful delegation:
C If the intent of the bill is to conform state law to current federal law, the drafter
should simply incorporate the pertinent federal language into the bill.
67
C If it is impracticable to restate or repeat the federal law, the drafter should require
the appropriate state agency to adopt rules based on the federal law and to revise them as
necessary to keep them current.
Use of "as amended"
The use of the phrase "as amended" can cause problems in drafting statutes. The
general rule is that a legislature may not confer on the United States or other government
authorities the power to determine what rule is in force in this state or condition changes in
its rule based on changes in rules enacted by the United States or elsewhere.
If at the time the legislature adopts by reference a measure to which amendments have
previously been made, the use of "as amended" indicates that the legislature intended to
include the amendments previously made. However, the legislature may not constitutionally
delegate its authority by using "as amended" to include future amendments by the authorities
of another state or the United States to the measure that the other state or the United States
adopts. See Scappaticci v. Southwest Savings and Loan Ass'n, 135 Ariz. 456, 662 P.2d 131
(1983); Sutherland, Stat. Const. § 51.08 (5th Ed).
Citation of a federal act
The following is an example of a complete citation to a federal act:
"BOARD" MEANS THE UNITED STATES METRIC BOARD EXISTING
UNDER THE METRIC CONVERSION ACT OF 1975 (P.L. 94-168; 89 STAT.
1007; 15 UNITED STATES CODE SECTION 250a).
Note the following:
C If citing consecutive sections or subsections, give inclusive numbers. Do not use
"et seq.".
C If a federal act has no popular name, it should be cited by date of enactment: "Act
of __________________ _______, 19 _______" followed by the statutory references.
C If the date is not part of the popular name of the act, state the date following the
Statutes at Large citation.
C Cite to the