The Arizona legislative bill drafting manual

              THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
2013 - 2014
THE ARIZONA LEGISLATIVE COUNCIL
CHANGES IN THE 2013-2014 ARIZONA
LEGISLATIVE BILL DRAFTING MANUAL
This edition of the Arizona Legislative Bill Drafting Manual
includes the following changes:
• A clarification regarding authorization to process a bill
request. (§1.1)
• A clarification regarding the effective date of bills that
include a Proposition 105 provision. (§3.2, page 25)
• A note regarding mandatory surcharges and assessments that
are added to every fine, penalty and forfeiture. (§4.25, page
54)
• An update of each county's population according to the 2010
United States Census. (§4.26)
• A clarification regarding the effect of abolishing an office.
(§4.34, page 62)
• A clarification relating to the citation of division units and
the use of "OF THIS SECTION". (§5.7)
• A clarification on the use of the present tense. (§5.14)
• A clarification on the use of "THROUGH". (§5.35)
• A clarification on the use of "THIS ACT". (§5.43)
• Updated amendment samples to reflect House and Senate
formatting conventions.
THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
2013 - 2014
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
This manual is available online at www.azleg.gov
The 2013-2014 edition of the Arizona Bill Drafting Manual is
dedicated to our friend and colleague David Thomas, who has
displayed extraordinary professionalism and a commitment to
excellence throughout his nearly 40 year career at the Arizona
Legislative Council.
THE
ARIZONA LEGISLATIVE
BILL DRAFTING MANUAL
2013 - 2014
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............................................................................. 26
GENERAL INSTRUCTIONS AS TO FORM AND STYLE ................................. 71
AMENDMENTS ..................................................................................................... 99
APPENDIX A - SAMPLES..................................................................................... 108
APPENDIX B - RULES AND DEADLINES......................................................... 146
APPENDIX C - BILL DRAFT CHECKLIST......................................................... 148
APPENDIX D - BIBLIOGRAPHY......................................................................... 149
INDEX ..................................................................................................................... 150
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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.
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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
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CHAPTER 1
THE DRAFTING PROCESS
1.1 BILL REQUESTS
Proposed legislation is drafted by the professional staff of the Arizona legislative
council. All proposed legislation must first be submitted to the 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.
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 objectives for a
legislative proposal either from 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, the Arizona Legislative Council Proposition 105 Requirements, the
Table of Sections Affected, Sutherland, Statutes and Statutory Construction and other
relevant sources and advises the legislator of 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 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.
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1.3 CONFIDENTIAL NATURE OF RECORDS
Rule 20 of the rules of the 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.
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CHAPTER 2
A BILL AND ITS PARTS
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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
2.10 The Body of the Bill
2.11 Germaneness
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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 merely
every conceivable subject and is limited only by state and federal constitutional standards.
Some typical bills include those that:
• Establish governmental agencies and programs.
• Prescribe the powers and duties of state agencies and of individual officers and
employees.
• Define crimes and classify punishments for actions that are prohibited as public
offenses.
• Appropriate monies for capital outlay and operating expenditures.
• Determine licensing and regulatory standards for professions and occupations.
• Prescribe qualifications, terms of office and compensation of public officers.
• 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
annotated Thomson Reuters/West edition of the Arizona Revised Statutes, a temporary law
may appear 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.
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Note:
• 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.
• 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.
• 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.
• While temporary law may contain a reference to statutory law, a statutory section
may never refer to temporary law.
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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)
Fifty-first Legislature
First Regular Session
2013
_. 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; department of charitable
solicitations; hearing officers
The sum of $45,653 is appropriated from the state general fund
in fiscal year 20__ - 20__ to the department of charitable
solicitations to hire hearing officers as required by this act.
Note: The text of a bill appears beginning on the first page that follows the bill title.
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2.4 REFERENCE TITLE
The reference title, commonly referred to as the short title, appears in the upper
right-hand corner of each bill, resolution and memorial (not to be confused with the short
title discussed in § 4.33). 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: Use identical reference titles only 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.
• 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 must not reflect political, promotional or advocacy considerations. Legislative council
staff must make the final determination of the contents of the reference title of each measure
that is introduced. (Adopted 11/7/1996.)
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.
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
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 (App. 1989).
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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:
• A listing of all changes to the Arizona Revised Statutes (e.g., 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.
• 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.
• "BLENDING MULTIPLE ENACTMENTS", if the bill combines a statute having
multiple versions and makes no substantive changes to the previously enacted language.
• "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." Note also: If a
bill contains multiple appropriations, the bill title must reflect this fact by stating "MAKING
APPROPRIATIONS".
• "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 ELECTING OF SCHOOL
BOARDS".) There is no limit to the length of the "relating to" clause, except that it should
be a single, brief comprehensive statement. As a last resort, the article or chapter 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.
• "PROVIDING FOR CONDITIONAL ENACTMENT" if the bill contains any
conditional enactments. A discussion of conditional enactments is found in § 4.5.
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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:
• AMENDING SECTION(S) ___________, ARIZONA REVISED STATUTES
• AMENDING TITLE ____, ARIZONA REVISED STATUTES, BY ADDING CHAPTER _____
• AMENDING TITLE ____, CHAPTER ____, ARIZONA REVISED STATUTES, BY ADDING
ARTICLE ____
• AMENDING TITLE ____, CHAPTER ____, ARTICLE ____, ARIZONA REVISED STATUTES,
BY ADDING SECTION ________
• REPEALING SECTION(S) ________, ARIZONA REVISED STATUTES
• PROVIDING FOR THE DELAYED REPEAL OF SECTION(S) ___________, ARIZONA
REVISED STATUTES (See § 4.8.)
• REPEALING TITLE ____, CHAPTER ____, ARIZONA REVISED STATUTES
• 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:
• AMENDING LAWS ____, CHAPTER ____, SECTION ____
• REPEALING LAWS ____, CHAPTER ____, SECTION ____
If a specific version of a statute is amended or repealed, cite that version as follows:
• 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".
Individually list all sections amended or repealed in a bill. Do not use "through" in a
bill title.
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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.
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
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 of Bill
The body of the bill may contain any of the following in this order:
• Changes to the Arizona Revised Statutes 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.
• Delayed repeal of statutes and previously enacted temporary law. (See § 4.8.)
• Treatment of temporary law.
• An intent clause, if necessary. (See § 4.19.)
• A short title. (See § 4.33.)
• An appropriation or appropriations. (See § 4.2.)
• A section or sections relating to the effective date of the bill or specific sections of
the bill. (See § 4.11.)
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• A conditional enactment or repeal. (See § 4.5.)
• A requirements for enactment; three-fourths vote section (Prop. 105). (See § 3.2.)
• An emergency clause or a requirements for enactment; two-thirds vote section
(Prop. 108). (See §§ 4.11 and 4.16.)
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 uppercase or the deleted material
as stricken material. (See § 1-212, A.R.S.) However, it has been held that if 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 a descriptive section heading that is underscored.
Sections of appropriations have section headings that describe the purpose of the
appropriation.
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 during a legislative session the drafter must check the Table of Sections Affected to
ensure that the latest version of the statute is used. Checking the Table of Sections Affected
is important to see if the section has been amended in an act with an emergency clause or a
"prop. 108" 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.
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Legislative council rule 24 requires that, when amending existing text, new language
appear in UPPERCASE. Stricken language appears in lowercase with a line through it. If
new language is replacing stricken language, it appears after the stricken language. (See
Appendix B.)
• The 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...
• 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
UPPERCASE. The section heading appears in lowercase. If a bill adds a new temporary
law section, the text of the entire section is shown in lowercase.
• 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...
• 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...
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• 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...
• New temporary law is introduced as follows:
Sec. 14. Committee on care; membership; duties
A. The committee on care...
Repeals
The language of a repealed statute 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., which
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 by using ISYS or
Westlaw. References to titles, chapters and articles, as well as sections signified by "through" (e.g.,
sections 6-324 through 6-328), can be found in the Internal Reference Manual, which is updated
each year by legislative council staff.
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Technical changes
When the drafter is making a substantive change to a law the drafter may also make
nonsubstantive (technical) changes to that law. The drafter can find a list of the most
significant technical problems in existing statutory law in the Annual Report on Defects in
the Arizona Revised Statutes and State Constitution that is updated each year by legislative
council staff. The drafter may also make less significant technical changes that are not listed
in that document.
Note:
• 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.
• 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 construed liberally, but it is important to check that the
bill does not comprise more than a single subject and any related matters. Generally, a court
will sustain an act if there is any reasonable basis for grouping the various matters and if a
deception would not be perpetrated by the combination.
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 embrace one subject.
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The particular 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 rules regarding the
germaneness of amendments in addition to the constitutional requirements. These rules state
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.
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CHAPTER 3
MEASURES OTHER THAN BILLS
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3.1 Memorials and Resolutions
3.2 Initiatives and Referendums
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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, for which a bill would not be appropriate.
Likewise, memorials and resolutions have their own particular purposes, and they should not
be confused or used interchangeably.
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, a memorial is used to petition Congress, the President of the United States,
other state or 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 not signed by the governor.
A memorial is always a request or proposal. Do not use a memorial to express
condolences or congratulations.
A memorial may be presented for the consideration of only one house (simple) or of
both houses (concurrent) but may not be "joint."
Resolutions
A resolution is a declaration or expression of legislative opinion, will, intent or
resolve in matters within the legislature's legal purview. Three types of resolutions are used
in this state:
• 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.
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• A concurrent resolution is processed through both houses but is not signed by the
governor. It may provide for the following:
• An expression of opinion, commemoration, congratulations or sentiment of
both houses.
• Submittal of a referendum to the voters.
• Legislative action involving the process of amending the Arizona or United
States Constitution.
• 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.
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, 2013 AS....
The drafter may refer to the guide on the following page to determine the proper
vehicle to use for a particular purpose.
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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., A.R.S.
§ 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.
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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, which 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.
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 with the
secretary of state of their intention to distribute the petition.
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.
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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.
(See § 4.16)
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. See § 4.5
for examples of conditional enactment clauses for bills accompanying referendums.
Amendments to the state 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.
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. (See Appendix A, samples 14 through 20, for examples of
proposed amendments to the state constitution and referendum measures.)
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Proposition 105; Requirements for enactment
In the 1998 general election the voters passed Proposition 105, which amended
article IV, part 1, § 1, Constitution of Arizona, to prohibit the legislature from
repealing "an initiative measure approved by a majority of the votes cast thereon . . ." and to
allow the legislature to amend laws enacted or amended through an initiative or referendum
only if "the amending legislation furthers the purposes of such measure and at least three-fourths
of the members of each house of the legislature, by a roll call of ayes and nays, vote
to amend such measure." Proposition 105 applies to all legislation enacted by initiative or
referendum beginning with the 1998 general election.
The drafter must refer to the Proposition 105 Table of Sections Affected documents
prepared and updated by the legislative council to determine if a statutory section is subject
to the Proposition 105 requirements for enactment. To amend a statutory section that is
subject to those requirements for enactment, the drafter must use the following lead-in
language:
Sec. __. Subject to the requirements of article IV,
part 1, section 1, Constitution of Arizona, section X-XXX,
Arizona Revised Statutes, is amended to read:
The bill must also include the following session law section placed at the end of the
bill:
Sec. __. Requirements for enactment; three-fourths vote
Pursuant to article IV, part 1, section 1, Constitution
of Arizona, section X-XXX, Arizona Revised Statutes, as
amended by this act, is effective only on the affirmative vote
of at least three-fourths of the members of each house of the
legislature.
If the legislature is adding a new statutory section or renumbering a statutory section
that is subject to the Proposition 105 requirements for enactment, the drafter must use similar
lead-in language and include a similar requirements for enactment section.
Note:
• If the bill or amendment contains multiple statutory sections that are subject to
Proposition 105, each of these sections should be included in the same requirements for
enactment section.
• Proposition 105 requirements are not noted in the bill title.
• Unlike bills that must comply with the requirements of Proposition 108 (see
§ 4.16), if a bill that includes a section that must comply with the requirements of
Proposition 105 also includes a section that is not affected by Proposition 105 requirements,
those specific sections may be enacted into law if the bill receives only a simple majority in
each house.
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• It is possible for a bill or amendment that is affected by Proposition 105
requirements to also be affected by Proposition 108 requirements.
• If necessary, the drafter of an initiative (or referendum) measure should include a
temporary law section that directs the legislative council staff to prepare legislation for the
next session to conform the statutes to the act, that authorizes the executive director of
legislative council to blend nonconflicting changes made by the legislature with the changes
in the act and that allows the legislature to make technical and conforming changes to any
section of the act, subject to article IV, part 1, § 1, Constitution of Arizona.
Note: Unless the bill contains an emergency provision or triggers the requirements of
Proposition 108, a Proposition 105 bill has a general effective date.
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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 Enactments
4.12 "The Effective Date of This Section"; Use of
4.13 Fingerprinting Requirements
4.14 Funds and the Receipt and Disposition of Monies
4.15 Heading Change
4.16 Increases in State Revenues; Supermajority Vote Required ("Prop. 108")
4.17 Interstate Compacts
4.18 Judicial and Administrative Review
4.19 Legislative Intent; Findings Sections
4.20 Liberal Interpretation Sections
4.21 Licensure, Certification and Registration
4.22 Nonseverability and Severability Clauses
4.23 "Notwithstanding" Clauses
4.24 Open Meetings
4.25 Penalties; Civil and Criminal
4.26 Population
4.27 Preemption
4.28 Procurement Code; Exemption
4.29 Quorum; Joint Authority of Board or Commission Members
4.30 References to Nonstatutory Entities
4.31 Rules
4.32 Saving Clauses
4.33 Short Title
4.34 Statutory Boards, Commissions, Committees and Councils
4.35 Sunrise Legislation
4.36 Sunset Legislation
4.37 Tax Measures (Property); Required Statement of Objectives
4.38 Transfer of Cost of Program From Political Subdivision to State
4.39 Transfer of Personnel, Equipment and Monies
4.40 Transferring and Renumbering Statutory Sections
4.41 Uniform and Model Acts
4.42 Vacancy Savings
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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 of state officers by the
governor and their confirmation by the Senate. 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 in the
following order:
• An amount of monies. ("The sum of $__________")
• A source of the monies. ("is appropriated from __________")
• A fiscal year of applicability. ("in fiscal year ____")
• A recipient (either a fund or a state agency). ("to __________")
• A purpose. ("for __________.")
The drafter can usually place these requirements in a single sentence.
Categories
There are four categories of appropriation bills:
• The general appropriation bill.
• Separate appropriation bills.
• Incidental appropriation bills.
• Supplemental appropriation bills.
The general appropriation bill contains numerous appropriations for the different
departments of the state, state institutions, public schools and interest on the public debt.
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Note: Effective date. 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
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: Effective date. 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: Effective date. 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. (Article IV, part 1, § 1(3),
Constitution of Arizona; Garvey v. Trew, 64 Ariz. 342, 170 P.2d 845 (1946).) A
supplemental appropriation is a specific appropriation and may not contain statutory or
session law. Note: Effective date. Supplemental appropriations go into effect on the
signature of the governor. Supplemental appropriations are noted as such in the bill title and
section heading.
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• The following is an example of a separate appropriation bill:
Section 1. Appropriation; insect control
The sum of $50,000 is appropriated from the state
general fund in fiscal year 20__-20__ to the governor to
defray the cost of controlling insects in agricultural areas.
• 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; registrar
of contractors; general operating
expenditures
In addition to the appropriation made by Laws 20__,
chapter ___, section __, the sum of $150,000 is appropriated
from the state general fund in fiscal year 20__-20__ to the
registrar of contractors for deposit in the contractors'
license fund to meet general operating expenditures.
• The following is an example of an incidental appropriation:
Sec. 3. Appropriation
The sum of $50,000 is appropriated from the state
general fund in fiscal year 20__-20__ to the Arizona state
parks board for the purposes provided in this act.
• 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; department of transportation;
furnishings and equipment
The sum of $185,000 is appropriated from the state
highway fund in fiscal year 20__-20__ to the department of
transportation to purchase furnishings and equipment.
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 end 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.
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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 begin, 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 [date] without an expenditure or encumbrance. In
addition, all monies remaining unencumbered or unexpended on
[date] 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 unspent 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 in fiscal year 2013-2014.
Note: It is very important to consider including 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
end of the fiscal year.
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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 end of the current fiscal year and also for purposes of the state
expenditure limitation. (See article IX, § 17, Constitution of Arizona.)
Reversion of appropriation
If the sponsor of a bill wants an appropriation to lapse on a date other than July 1, the
drafter should use a reversion clause. 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
October 1, 2014 from the appropriation made by Laws 2013,
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 certain new
appropriations, reductions, increases, transfers 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 § 4.34.)
Checklist
When establishing a committee the drafter should consider the following:
• Membership and qualifications. A committee should be composed 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 § 4.30.) Note also: When prescribing
membership by legislators say "not more than _________ of whom are members of
the same political party".
• Terms of office. Initial terms of statutory committees must be staggered.
(See § 4.34.)
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• Appointing authority. Who appoints the members? Again, the members should
not be appointed by a specific private entity. (See § 4.30.)
• Officers. The language should specify who is to serve as chairperson of the
committee or allow the committee to select a chairperson. The drafter may also provide for
cochairpersons or for the rotation of chairpersons.
• 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.)
• Meetings. The drafter may wish to 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.
• Powers and duties. The drafter should describe, by a list if necessary, the
committee's powers and duties. Note: In most situations the drafter must include language
stating that the committee "shall submit a report of its findings and
recommendations to the governor, the president of the senate and the
speaker of the house of representatives on or before (insert month, day and
year) and shall provide a copy of this report to the secretary of state".
• Staffing. The drafter may include language to require a particular agency to
provide the committee with administrative support and meeting room space.
• Duration. If the committee is temporary, the drafter must include a delayed repeal
section for the act or the relevant bill sections. This date should be September 30 of the year
following the date the final report is due to allow the committee to complete unfinished work
and to give the legislature an opportunity to extend the committee before the committee's
enabling legislation is repealed.
• Appropriation. The drafter may include an incidental appropriation section at the
end of the bill to fund the committee's operation.
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, e.g., Barber Pure Milk v. Alabama
State Milk Cont. Bd., 156 So. 2d 351 (Ala. 1963).
Note: The drafter should avoid using the term "ex officio member" because it is
confused with the term "advisory member". If a sponsor intends that a particular committee
member not have voting privileges, the drafter should include language that states this fact
and indicates that the advisory member is not counted for the purpose of determining the
presence of a quorum.
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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. Block, 189 Ariz. 269, 942 P.2d 428 (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 compensation is not 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:
• Submission to the voters of a related proposed constitutional amendment.
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• The passage of another related act.
• 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 the bill could be invalidated.
• 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.
• If a provision of a bill is made conditional on the results of an election, but not
pursuant to the power of the referendum (article IV, part 1, § 1, Constitution of Arizona), the
conditional enactment section should also include a provision stating that the bill is not
intended to be voter protected under Proposition 105 (see page 24). An example of such a
provision is:
B. The enactment of any provision of this act
conditioned on the results of the election does not constitute
a submission of any provision of this act to the voters under
the power of the referendum.
A bill may not contain both a conditional enactment and a requirements for
enactment ("Prop. 108") section or an emergency clause.
• 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
_____, fifty-first legislature, __________ regular session,
relating to ____________, becomes law.
35
• The following illustrates conditional enactments contingent on other conditions:
Sec. __. Conditional enactment; notice
A. 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) on or
before (insert a cutoff period to preclude ongoing conditional
status).
B. The (appropriate state agency) shall notify in
writing the director of the Arizona legislative council of the
date on which the condition is met or if the condition is not
met.
Note: It is very important for such a conditional enactment section to include both
of the following:
1. A date by which the condition must be met to avoid an indefinite conditional
status.
2. A requirement that the director of the Arizona legislative council be notified in
writing of the date on which the condition is met.
• If a bill is amending a statutory section that was previously enacted subject to a
condition and the condition has not yet been met, the drafter should use language similar to
the following to ensure that the amendments to the section are also subject to the same
condition:
Sec. __. Conditional enactment
Section 41-2123, Arizona Revised Statutes, as amended by
Laws 2005, chapter 104, section 2 and this act, becomes
effective on the date prescribed by Laws 2005, chapter 104,
section 7 but only on the occurrence of the condition
prescribed by Laws 2005, chapter 104, section 7.
A conditional enactment should be noted at the end of the bill title with the words
"; PROVIDING FOR CONDITIONAL ENACTMENT". (See §§ 2.7 and 2.10.)
Conditional repeal
The drafter should not use conditional repeals of statutory sections unless there is a
compelling reason to do so. Conditional repeals of statutory sections are problematic
because of the uncertainty they cause relating to determining whether a condition has been
met and the specific date of the repeal.
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An example of a clause providing for a conditional repeal is:
Sec. __. Conditional repeal; notice
A. 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.
B. The administration 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. Note also that conditional
repeals of statutes and previously enacted session laws are noted in the bill title.
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 ____________
legislature, ______ 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 2A
Sutherland Statutory Construction § 46:1 (6th Ed). However, the drafter should define a
word or term that is used in statute or in session law and 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. Do not define a term that does not appear in the statutory text.
Note: Section 1-215, A.R.S., contains definitions that apply to all statutes and other
laws of this state. 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.
Format
Place a definition section that applies to an entire title, chapter or article in a separate
statutory section at the beginning of that title, chapter or article.
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Alphabetize definitions in a word-by-word manner in which a space is alphabetized
before any letters (see paragraphs 4 and 5 below). The introduction must indicate whether
the definitions apply to the title, chapter or article and state 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. A term that is described by what it does not mean is not enclosed 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. "LICENSE FEES" MEANS....
5. "LICENSEE" MEANS....
6. "LIFE THREATENING ILLNESSES" INCLUDES....
Note in the example above that defined terms that appear in the plural form are still
followed by either the singular "includes" or "means".
Restrictive vs. extensive definitions
A definition that is restrictive is followed by the word "means". A definition that is
extensive is followed by the word "includes". See 2A Sutherland Statutory Construction
§ 47:7 (6th Ed). Do not use the phrase "means and includes".
General definition sections vs. internal definitions
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
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),...".
Section headings
The inclusion of a definition subsection is noted in the section heading. Since the
definition subsection is the last subsection of a section, definitions are noted last in the
section heading as either "; definition" or "; definitions".
Note: Do not note in the section heading a definition that is introduced by the words
"For the purposes of this (subsection) (paragraph) (subdivision)
(item). . .".
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Note: 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.
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 "FOR THE PURPOSES OF THIS __________, 'PROVIDER' 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
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 PURSUANT TO
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.
4.8 DELAYED REPEAL PROVISIONS
Delayed repeal provisions may be included as a separate subsection at the end of a
temporary law section, but before the definitions subsection, if any. The subsection should
read "This section is repealed from and after ." An incorporated
delayed repeal provision is included in the section heading of the temporary law but is not
included in the bill title.
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Note: The following example of a delayed repeal provision is appropriate for new
statutes or existing statutes:
Sec. __. Delayed repeal
Section 42-101, Arizona Revised Statutes, (as
amended/added by this act, if applicable) is repealed from and
after December 31, 2014.
Note: Delayed repeals of statutory laws and previously enacted temporary laws are
included in the bill title.
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 to deputy officials powers 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.
4.11 EFFECTIVE DATE AND TIME OF ENACTMENTS
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 the instant after midnight
(i.e., 12:01 a.m.). State v. Soloman, 117 Ariz. 228, 571 P.2d 1024 (1977). Exceptions to
the general effective date are as follows:
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• A bill that has a specific delayed effective date.
• A bill that is conditionally enacted. (See § 4.5.)
• An emergency measure that is passed by a "supermajority" vote of the legislature.
(Article IV, part 1, § 1(3), Constitution of Arizona.)
• A supplemental appropriation. (See § 4.2.)
• An act increasing state revenues through new or increased taxes or assessments.
(Article IX, § 22, Constitution of Arizona.) (See § 4.16.)
Note: If a law goes into effect during a legislative session because it contained an
emergency clause or met "Prop. 108" requirements, the drafter must conform bills and
amendments that are still being considered during the same session to that now current law.
Note: A listing of the general effective dates of all legislation enacted since 1956 can
be found in the front of the hardbound volumes and pocket parts of the Thomson
Reuters/West publication of Arizona Revised Statutes.
Conflicting provisions; effect
• An act that purports to take effect on a specified date before the general effective
date but that is not a duly enacted emergency measure takes effect on the general effective
date notwithstanding the specified date.
• A duly enacted emergency measure, a "Prop. 108" 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
• If the governor does not sign or veto a measure within five days (Sunday
excepted) after receipt, while the legislature is in session, the measure takes effect on the
general effective date.
• 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.
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• 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
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.
• 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.
• 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, the measure takes effect on the sixth day; if the governor 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 enactments 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.)
For example, an act or statute that takes effect "from and after September 30" takes
effect on October 1 at 12:00 a.m.
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.
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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).
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 OCTOBER 1, 2013, THE DEPARTMENT SHALL...." The drafter may also use
lead-in language in a specific bill section to make that section operative at a subsequent time
by stating in the bill section lead in that "Section 32-0000, Arizona Revised
Statutes, is amended effective from and after September 30, 2013, to
read:" or "Title 32, chapter 1, article 1, Arizona Revised Statutes, is
amended by adding section 32-0000 effective from and after September 30,
2013, to read:".
Retroactivity of statutes
Section 1-244, A.R.S., requires that the retroactivity of a statute be "expressly
declared". However, a statute does have retroactive effect if it is merely procedural and the
statute does not affect or impair vested rights. Bouldin v. Turek, 125 Ariz. 77, 607 P.2d 954
(1979). To expressly declare that a statute is effective retroactively, 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, 2013.
Note: If the retroactivity applies to amended 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, 2010.
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Delayed effective date
The following is an example of a delayed effective date:
Sec. __. Effective date
Sections 23-527 and 23-528, Arizona Revised Statutes, as
amended by this act, are effective from and after December 31,
2014.
Bill title
Effective dates, including delayed effective dates, emergency clauses and
requirements for enactment, are not noted in the bill title.
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 refers to the
date the statute was originally enacted.
Note: In new or existing statutory text, do not use the phrase "THE EFFECTIVE DATE
OF THIS ACT".
4.13 FINGERPRINTING REQUIREMENTS
The following language allows state agencies access to state and federal criminal
record information for noncriminal justice purposes such as licensing, certification and
employment:
EACH APPLICANT FOR (state the category of regulation or
the type of employment) SHALL SUBMIT A FULL SET OF
FINGERPRINTS TO (state the name of the office or agency) FOR
THE PURPOSE OF OBTAINING A STATE AND FEDERAL CRIMINAL RECORDS
CHECK PURSUANT TO SECTION 41-1750 AND PUBLIC LAW 92-544. THE
DEPARTMENT OF PUBLIC SAFETY MAY EXCHANGE THIS FINGERPRINT DATA
WITH THE FEDERAL BUREAU OF INVESTIGATION.
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4.14 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 END OF A FISCAL YEAR.
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 DEPOSIT, PURSUANT TO SECTIONS 35-146 AND 35-147, NINETY
PER CENT OF ALL MONIES COLLECTED UNDER THIS CHAPTER IN THE
BOARD OF MEDICAL EXAMINERS FUND AND THE REMAINING TEN PER CENT
IN THE STATE GENERAL FUND.
B. MONIES DEPOSITED IN THE BOARD OF MEDICAL EXAMINERS
FUND ARE SUBJECT TO SECTION 35-143.01.
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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. 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.
Note also that the reference as in the above example to §§ 35-146 and 35-147,
A.R.S., is not included if the monies are:
• From a federal funding source that is otherwise required to remain separate from
state treasury monies. (See § 35-142, subsections G and H, A.R.S.)
• Taxes received by the state treasurer from a county. (See § 35-145, A.R.S.)
• Private monies and contributions. (See § 35-149, A.R.S.)
• Received by statutorily created authorities.
An agency may not charge or collect a fee unless the fee is for a specific activity
expressly authorized by statute. (See § 41-1008, A.R.S.)
Nonlapsing clauses for funds
Funds that are subject to legislative appropriation 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].
The drafter should note this clause by adding "; exemption" at the end of the
section heading.
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.
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Proper citation of a fund
To cite a fund that is established in another statutory section the drafter should refer
to the "(EXACT NAME OF FUND) ESTABLISHED BY SECTION __________". If the
other statute only provides authority for an entity to establish the fund, refer to the "(EXACT
NAME OF FUND) ESTABLISHED PURSUANT TO SECTION __________". Do not use
"FUND ESTABLISHED IN SECTION __________".
4.15 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";
4.16 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 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; two-thirds vote
Pursuant to article IX, section 22, Constitution of
Arizona, this act is effective only on the affirmative vote of
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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
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 provisions have no effect.
Note also: The inclusion of a requirements for enactment section is not noted in the
bill title.
4.17 INTERSTATE COMPACTS
An interstate compact is an agreement between two or more states on interstate
policy or procedure. To ensure enforceability, compacts are usually enacted into the laws of
the compacting states.
As a general rule, an interstate compact should be enacted as identical text by each
state except as required to accommodate the unique needs and internal operation of the
compact in each state. Even though a draft compact may not conform to Arizona bill
drafting rules, every attempt should be made to preserve the uniform expression of the
provisions. Changes to correct spelling and other clerical and technical errors and minor
form and style conformity issues may be acceptable, but the drafter should keep in mind that
text variance from state to state tends to undermine the unity and utility of the interstate
agreement.
The entire compact is given a single A.R.S. section number such as:
17-502. Wildlife violator compact
THE WILDLIFE VIOLATOR COMPACT IS ADOPTED AND ENACTED AS
FOLLOWS:
(insert text of compact, including numbering and
formatting)
If an existing state officer or department is to function for purposes of an interstate
compact, that authority should be established in a separate A.R.S. section following the text
of the compact:
30-722. Administration
THE RADIATION REGULATORY AGENCY IS DESIGNATED AS THE
AGENCY RESPONSIBLE FOR PERFORMING ANY ADMINISTRATIVE AND
ENFORCEMENT DUTIES ASSIGNED TO THIS STATE BY THE SOUTHWESTERN
LOW-LEVEL RADIOACTIVE WASTE DISPOSAL COMPACT.
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4.18 JUDICIAL AND ADMINISTRATIVE REVIEW
Administrative review
Except as provided in § 41-1092.02, A.R.S., uniform administrative hearing
procedures apply to all appealable agency actions and contested cases. These procedures are
found in title 41, chapter 6, article 10 and include hearing requirements and requirements for
notice, service and review of administrative decisions.
If the drafter does not want these procedures to apply to administrative decisions of a
particular state agency or to particular decisions made by a state agency, the drafter should
add the exemption to § 41-1092.02, A.R.S.
Note: For clarity, if a state agency is subject to title 41, chapter 6, article 10, the
drafter should cite title 41, chapter 6, article 10.
Note also that if a state agency is exempt from title 41, chapter 6, article 10, the
drafter should cite the administrative procedures that do apply. (For example, title 41,
chapter 6, article 6, A.R.S.)
Judicial review
Final administrative decisions of state agencies are subject to judicial review
pursuant to title 12, chapter 7, article 6, A.R.S. Section 41-1092.08, subsection H, A.R.S.,
provides certain exceptions to judicial review for agencies that are subject to uniform
administrative hearing procedures. (See title 41, chapter 6, article 10, A.R.S.)
The drafter may use the following language to provide for judicial review of
administrative decisions:
If an agency is subject to title 41, chapter 6, article 10, A.R.S.:
EXCEPT AS PROVIDED IN SECTION 41-1092.08, SUBSECTION H,
A DECISION OF THE DEPARTMENT IS SUBJECT TO JUDICIAL REVIEW
PURSUANT TO TITLE 12, CHAPTER 7, ARTICLE 6.
If an agency is not subject to title 41, chapter 6, article 10, A.R.S.:
A DECISION OF THE DEPARTMENT IS SUBJECT TO JUDICIAL
REVIEW PURSUANT TO TITLE 12, CHAPTER 7, ARTICLE 6.
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4.19 LEGISLATIVE INTENT; FINDINGS 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:
• 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.
• 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.
• 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, e.g., Friends of Mammoth v. Board of Super. of Mono
City, 104 Cal. Rptr. 761, 502 P.2d 1049 (1972), 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.
• 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.
• 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, e.g., Matter of D.E.R., 155 Wis. 2d 240, 455 N.W. 2d 239 (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.
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Exceptions
An intent clause may be useful only under the following circumstances:
• Recodification. If a bill only recodifies existing law without making any
substantive changes, a statement of legislative intent may clarify this fact.
• Constitutionality. If there is reasonable probability that a provision of a bill may
be declared unconstitutional, 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 1A Sutherland Statutory
Construction §§ 20:3 to 20:5 (6th Ed.).
Required use
• Section 41-2955, subsection E, A.R.S., requires that the enabling legislation for
each new agency contain a "policy or purpose statement," setting forth the objectives of the
program. Section 41-2955, subsection B, A.R.S., makes the same requirement for the
rescheduling of each agency for a new cycle. The purpose of these statements is to assist the
auditor general to determine if an agency is meeting its legislative mandate.
The following is an example of a purpose section used in the continuation of an
agency:
Sec. _. Purpose
Pursuant to section 41-2955, subsection B, Arizona
Revised Statutes, the legislature continues the board of
technical registration to promote the public safety and
welfare by regulating architects, assayers, engineers,
geologists, home inspectors, landscape architects and land
surveyors.
Note: For new agencies the citation is to § 41-2955, subsection E.
• Section 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."
• Section 43-223, A.R.S., requires that the enabling legislation for any new
individual or corporate income tax credit contain a purpose clause that explains the rationale
and objective of the tax credit.
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Note: If an intent or legislative findings 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 appear as nonstatutory text at or near the end of a bill. (See § 2.10.)
4.20 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.
4.21 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.
4.22 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:
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Sec. __. Nonseverability
If any portion of this act is finally adjudicated
invalid, the entire act is void.
Note: Section 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.
4.23 "NOTWITHSTANDING" CLAUSES
To state an exception to existing law, the drafter may introduce language with
"NOTWITHSTANDING ANY OTHER LAW,", "NOTWITHSTANDING ANY LAW TO THE
CONTRARY,", "NOTWITHSTANDING ANY STATUTE TO THE CONTRARY," or
"NOTWITHSTANDING ANY OTHER STATUTE,". Do not say "Notwithstanding any other law to
the contrary".
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.
Note: To avoid confusion, do not use an "except as provided" clause that refers back
to the "notwithstanding" clause.
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4.24 OPEN MEETINGS
Section 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.
4.25 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 or action.
Penalties may be civil or criminal, or both. A civil penalty may be imposed by a
public officer or agency, may give an injured person a cause of action against the offender or
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.
Civil and criminal penalty provisions
• The following are two examples of civil penalty provisions:
AFTER A HEARING, THE BOARD MAY IMPOSE A CIVIL PENALTY OF
NOT MORE THAN ________ DOLLARS AGAINST A LICENSEE WHO
KNOWINGLY VIOLATES THIS CHAPTER. THE BOARD SHALL DEPOSIT
PURSUANT TO SECTIONS 35-146 AND 35-147, PENALTIES COLLECTED
PURSUANT TO THIS SECTION IN THE ________ FUND.
* * *
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.
Note: Add "; civil penalty" to the section heading unless the civil penalty is just
one of several disciplinary measures or penalties.
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• 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.
Note: Add "; classification" to the section heading. Use the singular
"classification" even if there is more than one criminal offense classification.
Note: State a criminal penalty as a classified offense (e.g., "class 3 felony") instead
of as a specific penalty ("imprisonment for 2 to 7 years and a fine of up to $150,000").
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.
Criminal offenses; penalties
Criminal offenses are divided into six 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
§ 13-803, A.R.S. Prison terms and maximum fines for individuals convicted of felony
offenses are prescribed in title 13, chapter 7 and § 13-801, A.R.S. Jail terms and maximum
fines for individuals convicted of misdemeanor offenses are prescribed in §§ 13-707 and
13-802, 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.)
Note: There are mandatory surcharges and assessments that are added to every fine,
penalty and forfeiture pursuant to §§ 12-116.01, 12-116.02, 12-116.04, 12-116.05,
12-116.06, 13-3423 and 16-954, A.R.S.
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4.26 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 or town)
with a population of (less than) (more than) _________ (million)
(thousand) persons".
Note: The word "population" is defined in § 1-215, A.R.S., as meaning "the
population according to the most recent United States decennial census". This definition
applies to all of the statutes and laws of this state. Note also that 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 §§ 28-6532 and 42-5029, A.R.S.) The population for each county
according to the United States 2010 census is as follows:
Greenlee: 8,437; La Paz: 20,489; Graham: 37,220; Santa Cruz: 47,420;
Gila: 53,597; Apache: 71,518; Navajo: 107,449; Coconino: 134,421;
Cochise: 131,346; Mohave: 200,186; Yuma: 195,751; Yavapai: 211,033;
Pinal: 375,770; Pima: 980,263; Maricopa: 3,817,117
4.27 PREEMPTION
The following is an example of language the drafter should use if the drafter is asked
to provide for state preemption. Note that "; state preemption" is included in the section
heading:
3-243. Seed labeling regulation; state preemption
THE REGULATION AND USE OF SEEDS ARE OF STATEWIDE
CONCERN. THE REGULATION OF SEEDS PURSUANT TO THIS ARTICLE AND
THEIR USE IS NOT SUBJECT TO FURTHER REGULATION BY A COUNTY,
CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE.
4.28 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:
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Sec. __. Exemption from the procurement code
For the purposes of this act, 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: Section 35-729, A.R.S., is an example of a permanent exemption in statutory
law.
4.29 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 constitute a quorum, or both, may be set by the legislature at something
other than a majority.
4.30 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.
4.31 RULES
Authority to make rules
The following language authorizes a state agency to make 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).
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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
For the purposes of this act, the department of health
services is exempt from the rule making requirements of title
41, chapter 6, Arizona Revised Statutes, for one year after
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.
Retention of rules
In transferring administrative functions from one agency to another, the drafter
should consider including language to retain current rules, such as:
Sec. __. Retention of rules
All rules adopted by the department of health services
pursuant to section 36-1300, as repealed by this act, remain
in full force until amended by the department of economic
security.
(See also § 4.39.)
4.32 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.
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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 (See 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 does not affect 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.
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4.33 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 are 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: If the drafter makes changes to a uniform act, the drafter should cite it, for
example, as the "Revised Arizona Probate Code" instead of the "Uniform Probate
Code".
4.34 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. (See § 4.36.)
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".
Appointment of members by legislature
Drafters should be careful in establishing a board, commission, committee or council
that performs an executive function for which the legislature appoints members. If the
legislature appoints a majority of the members, a possible violation of the separation of
powers doctrine may occur. See State ex rel. Woods v. Block, 189 Ariz. 269, 942 P.2d 428
(1997).
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Initial terms of members; terms of additional members
Initial terms of appointed members or of additional members should be
staggered. The provision prescribing their terms of office appears near the end of a bill in
temporary law in the following style:
Sec. __. Initial terms of members of (name of board,
commission, committee or council)
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 of _____ are:
1. One term ending January ____, 2014.
2. Two terms ending January ____, 2015.
B. The _____________ (insert governor or appropriate
official) shall make all subsequent appointments as prescribed
by statute.
Note: If a person is appointed pursuant to § 38-211, A.R.S., add "on the third
Monday in" before "January".
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 CHAIRPERSON 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, 2013 of
two members of the Arizona board of regents, the governor
shall appoint two members pursuant to section 38-211, Arizona
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Revised Statutes, for a term beginning January 19, 2013 and
ending January 15, 2019.
C. On the expiration of the term in January, 2014 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 17, 2014 and
ending January 20, 2020. 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 the 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:
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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 medical board 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., which 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.
The Arizona Supreme Court has analyzed this matter as involving two distinct issues,
the abolition of an executive office and the ousting of a tenured office holder, and has held
that the legislature cannot accomplish the second by means of the first, because that would
violate the principles of separation of powers. Ahearn v. Bailey, 104 Ariz. 250, 451 P.2d 30
(1969). However, that case recognized that if" an office is abolished and no substitute
created, the office may be so abolished whatever may be the reason for its abolishment",
even if officeholders incidentally lose their position thereby. Id. at 255.
4.35 SUNRISE LEGISLATION
Regulation of health and nonhealth professions
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
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applicants for either initial regulation or an increased scope of practice must meet. Title 32,
chapter 44, A.R.S., prescribes the requirements that applicants for initial regulation of
nonhealth professions must meet.
Mandated health coverage
If a bill would mandate certain health coverage as a component of individual or
group health insurance policies, the drafter should be aware of the reporting requirements of
title 20, chapter 1, article 3, A.R.S.
4.36 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:
41-3015.12. Board of cosmetology; termination July 1, 2015
A. The board of cosmetology terminates on July 1, 2015.
B. Title 32, chapter 5 is repealed on January 1, 2016.
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:
• The section number corresponds to the year of the sunset termination. In the
sample statute, § 41-3015.12 corresponds with the year 2015. All agencies that terminate in
2015 were assigned a statute section in the 41-3015.__ series.
• The agency terminates "on July 1" of the appropriate year.
• 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.
• 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.
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• 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 § 4.19.)
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 41-3013.11, Arizona Revised Statutes, is
repealed.
Sec. 2. Title 41, chapter 27, article 2, Arizona
Revised Statutes, is amended by adding section 41-3023.11, to
read:
41-3023.11. Board of behavioral health examiners;
termination July 1, 2023
A. THE BOARD OF BEHAVIORAL HEALTH EXAMINERS TERMINATES
ON JULY 1, 2023.
B. TITLE 32, CHAPTER 33 IS REPEALED ON JANUARY 1, 2024.
Sec. 3. Purpose
Pursuant to section 41-2955, subsection B, Arizona
Revised Statutes, the legislature continues the board of
behavioral health examiners to promote the safe and
professional practice of behavioral health and its related
professions.
Sec. 4. Retroactivity
Sections 1 and 2 of this act are effective retroactively
to July 1, 2013.
Note: For purposes of drafting sunset legislation:
Always number a ten-year sunset continuation section so that it ends in the same
number as the number assigned to the current sunset section (.11 in the above example).
Always number a ten-year sunset section for a new agency so that it ends as .01
regardless of any other bill that may also add that same section number. After the legislative
session is over, the legislative council will renumber any duplicate section numbers.
For a sunset continuation or a sunset section for a new agency that is scheduled for
review in any other year, always number the sunset section so that it ends in the next
available number for the year in which the sunset is scheduled. After the legislative session
is over, the legislative council will renumber any duplicate section numbers.
Note: Always check the statutory reference and any applicable recommended
statute improvement note to make sure a name change has not occurred since the last sunset
legislation.
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New program termination
The drafter must also be aware that § 41-3102, A.R.S., requires that "[a]ny new
program that is established by the legislature shall include in its enabling legislation a
specific expiration date for the program that is not more than ten years after the effective
date of the program's enabling legislation." Section 41-3101, A.R.S., defines "program" as
"functions and activities of a state agency or within a state agency that are preplanned to
fulfill a distinct mission".
The drafter will need to carefully determine on a case-by-case basis if this section
applies to a particular bill. If the bill includes a sunset section, it is not necessary to also
include the requirements of § 41-3102, A.R.S.
If the drafter or the sponsor believes that a bill contains a new p