The Bill Drafting Puzzle: Recognizing and Shaping the Pieces. Bryan Vincent House Legislative Services Louisiana House of Representatives

Transcription

1 The Bill Drafting Puzzle: Recognizing and Shaping the Pieces Bryan Vincent House Legislative Services Louisiana House of Representatives October 7, 2014

2 Part 1. The Bill Drafting Puzzle: Recognizing and Shaping the Pieces I. Know why it matters A. The hostile reader B. The citizen C. Clarity and precision D. We are alone II. Know the power-language relationship A. Powerful language B. Language of the powerful III. Know thine enemy A. History and continuing allure of legalese B. Agency jargon and popular terms C. Narrative beginnings D. Intentional obfuscation E. Insufficient time IV. Know your scales and arpeggios A. Require B. Authorize C. Prohibit D. Declare E. Condition F. Consequences G. Create/Abolish H. Exceptions V. Case study VI. Practice Page 2 of 12

3 Part 2. Points to Ponder when Considering Contingent Effectiveness Does the contingency have the effect of delegating the legislature's authority? Is the contingency sufficiently specific to have a date certain and will a specific effective date be determinable? Is the actual date knowable or is the triggering action so obscure that it will be difficult to figure out whether it has occurred? Is some notice required? Should the window of opportunity for a contingency event close after some specific time period or remain open indefinitely? Is there a need to distinguish the "if" and the "when"? Page 3 of 12

4 V. CASE STUDY L.R.S. 14:91.6 A. No person shall distribute or cause to be distributed to persons under eighteen years of age a promotional sample of any tobacco product. * * * C. Whoever violates a provision of this Section shall be fined... L.R.S. 14:91.13 A. It shall be unlawful for any person over the age of seventeen, while in the presence of any person under the age of seventeen and when there is an age difference of greater than two years between the two persons, to use, consume, possess, or distribute any controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act. B. Whoever violates the provisions of this Section shall be fined... L.R.S. 14:90.6 A. Gambling or wagering at a cockfight is the aiding or abetting or participation in any game, contest, lottery, or contrivance, in any location or place where a cockfight is being conducted and whereby a person risks the loss of anything of value in order to realize a profit. B. Whoever commits the crime of gambling or wagering at a cockfight shall be fined... L.R.S. 14:91.11 A.(1) The unlawful sale, exhibition, rental, leasing, or distribution of material harmful to minors is the intentional... * * * E. Whoever is found guilty of violating the provisions of this Section shall be fined... Page 4 of 12

5 L.R.S. 14:92.3. Retaliation by a minor against a parent, legal custodian, witness, or complainant A. Retaliation by a minor against a parent, legal custodian, witness, or complainant is the willful, malicious, and repeated threats of force against or harassment of a person or his property by a minor under the age of seventeen accompanied by an overt act on the part of the minor or by the apparent capability of the minor to carry out the threat or harassment, against a parent, legal custodian, person who filed a complaint against the minor, or a witness in a criminal case in which the minor is the defendant or charged with a delinquency and the minor intends to place that person in a reasonable fear of death, serious bodily injury, or damage to property. B. The provisions of Subsection A do not apply if the conduct of the parent, legal custodian, person who filed a complaint against the minor, or a witness in a criminal case in which the minor is the defendant or charged with a delinquency is acting in violation of any criminal law. C. A minor who violates the provisions of this Section shall be placed in the custody... Page 5 of 12

6 SOME VIRGINIA CRIMINAL STATUTES Code of Va. A person who (i) knowingly sells an unlawful electronic communication device or (ii) sells material, including hardware, data, computer software or other information or equipment, knowing, or having reason to know, that the purchaser or a third person intends to use such material in the manufacture of an unlawful electronic communication device, shall be guilty of a Class 6 felony Code of Va. It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing Code of Va. A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: A. In any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed; or Code of Va. Any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order is riot. Every person convicted of participating in any riot shall be guilty of a Class 1 misdemeanor. Page 6 of 12

7 VI. PRACTICE Example Code of Va. The Board of Education shall have the authority and it shall be its duty to see that the provisions of this article are properly enforced throughout the Commonwealth. Example 2. L.R.S. 33: (A) In the event the local and special assessments originally levied are insufficient for any cause whatsoever to pay the principal and interest, or the principal or interest, in any one year of the said certificate of indebtedness outstanding at their respective maturity dates, then in that event the parish, sewerage district, or commission issuing such sewerage certificates under the provisions of this Subpart, through its governing authority, is hereby authorized, empowered, and obligated by ordinance to levy and collect, at such time or times as may be necessary, an additional local or special assessment on each lot or parcel of real estate in the district or area involved, sufficient in amount to pay in full the said principal and interest, or the principal or interest, of such certificates of indebtedness at their respective maturity dates. Example Code of Va. There shall be a continuous open season for killing nuisance species of wild birds and wild animals as defined in Page 7 of 12

8 Example 4. L.R.S. 17:1187(B) Should a person taking sabbatical leave fail to return to service in the school system granting leave for one semester for each semester of leave following the expiration of such leave for any reason other than incapacitating illness as certified by two physicians, that person shall forfeit all compensation received during the leave period. Provided however, any school board may waive the provisions of this Section in accordance with prepublished criteria if it deems to be in the best interest of the school system to do so. No such waiver shall favor or discriminate against any employee or applicant because of his job description, age, race, or sex. Example 5. L.R.S. 17:1187(C) Notwithstanding any provision of Subsection B herein, no person who, upon the expiration of his sabbatical leave, immediately begins employment with a state-operated educational agency, city or parish school board, department, school, college, or university instead of returning to the school system which granted him such leave, shall be required to forfeit that portion of compensation paid to him by the state while he was on such leave. However, such person shall be required to reimburse the school system which granted him such leave any salary paid to him by such school system while he was on leave, except as provided in Subsection B herein. Page 8 of 12

9 Example 6. L.R.S. 38:2212(A)(1)(d)(v)) The annual limit by a public entity for any work to restore or rehabilitate a levee that is not maintained with federal funds, including mitigation on public lands owned by the state or a political subdivision, shall not exceed the sum of one million dollars, including labor, materials, and equipment, which is not publicly bid, as per the rates in the latest edition of the Associated Equipment Distributors Rental Rate Book, and administrative overhead not to exceed fifteen percent; provided that the work is undertaken by the public entity with its own resources and employees, or with the resources and employees of another public entity through a cooperative endeavor or other agreement with such entity. Example Code of Va. A pupil may be suspended for not more than ten school days by either the school principal, any assistant principal, or, in their absence, any teacher. The principal, assistant principal, or teacher may suspend the pupil after giving the pupil oral or written notice of the charges against him and, if he denies them, an explanation of the facts as known to school personnel and an opportunity to present his version of what occurred. In the case of any pupil whose presence poses a continuing danger to persons or property, or whose presence is an ongoing threat of disruption, the pupil may be removed from school immediately and the notice, explanation of facts, and opportunity to present his version shall be given as soon as practicable thereafter. Page 9 of 12

10 Example (E) Code of Va. No insurer shall take an adverse action against an applicant for a policy insuring an owner-occupied dwelling or the personal property of a tenant's residential property risk based on credit information, unless an insurer obtains and uses a consumer report procured within 90 days from the date the policy is first written. Example 9. L.R.S. 22:232.4(C) The majority of the voting shares of the capital stock of an insurance company reorganized under R.S. 22:231 shall not be conveyed, transferred, assigned, pledged, subjected to a security interest or lien, encumbered, or otherwise hypothecated or alienated by the mutual insurance holding company or intermediate holding company. Any conveyance, transfer, assignment, pledge, security interest, lien, encumbrance, or hypothecation or alienation of, in or on the majority of the voting shares of the reorganized insurance company which is required by this Section to be at all times owned by a mutual insurance holding company, is in violation of this Section and shall be void in inverse chronological order of the date of such conveyance, transfer, assignment, pledge, security interest, lien, encumbrance, or hypothecation or alienation, as to the shares necessary to constitute a majority of such voting shares. Page 10 of 12

11 Example 10. L. R.S. 17: (E)(1)(a)) On every occasion when an employee uses extended sick leave, a statement from a licensed physician certifying that it is a medical necessity for the employee to be absent for at least ten consecutive work days shall be presented prior to the extension of such leave. Example (B) Code of Va. No resident license requiring an examination shall be issued by the Commission later than 183 calendar days from the date the applicant satisfies the prelicensing examination requirements set forth in Applicants failing to satisfy this requirement shall be required to satisfy all prelicensing requirements, including the examination, again before applying. Page 11 of 12

12 Example (A)(1) Code of Va. A. The following shall be unlawful: 1. To hunt or kill any wild bird or wild animal, including any nuisance species, with a gun, firearm or other weapon, or to hunt or kill any deer or bear with a gun, firearm, or other weapon with the aid or assistance of dogs, on Sunday. The provision of this subdivision that prohibits the hunting or killing of any wild bird or wild animal, including nuisance species, on Sunday shall not apply to (i) raccoons, which may be hunted until 2:00 a.m. on Sunday mornings; (ii) any person who hunts or kills waterfowl, subject to geographical limitations established by the Director and except within 200 yards of a place of worship or any accessory structure thereof; or (iii) any landowner or member of his family or any person with written permission from the landowner who hunts or kills any wild bird or wild animal, including any nuisance species, on the landowner's property, except within 200 yards of a place of worship or any accessory structure thereof. However, a person lawfully carrying a gun, firearm or other weapon on Sunday in an area that could be used for hunting shall not be presumed to be hunting on Sunday, absent evidence to the contrary. Page 12 of 12