Legislative documents that are considered by the General Assembly are drafted by the Legislative Reference Bureau (LRB) on behalf of legislators. Requests for drafting are also accepted from Constitutional Officers and State agencies.
Pre-drafts that have been prepared by government attorneys, private
attorneys, and others can be helpful to LRB in drafting legislative documents,
but they are helpful only if the pre-drafts are well written and if the
persons who prepare the pre-drafts understand the requirements of the legislative
process and, also, are not blinded by their own pride of authorship. The
overriding goal in drafting a legislative document is to accomplish a substantive
change in the law; excessive pride of authorship often defeats accomplishing
that goal.
LEGISLATIVE PROCESS AND DOCUMENTS
A person who attempts to pre-draft legislation must have at least an elementary understanding of the legislative process, including the basic legislative documents considered by the General Assembly and the legislative actions that affect those documents.
The only type of legislative document that may become law is a bill. Thus, a bill is always the primary document.
An introduced bill may be amended in the house of origin. An amendment changes specific language or, sometimes, the entire content of a bill. A bill that passes the house of origin is engrossed (amendments, if any, adopted by the house of origin are incorporated into the text of the bill).
The engrossed bill is then considered by the second house. If the bill passes the second house without amendment, it has passed both houses and is enrolled (identical to the engrossed bill). The enrolled bill is then sent to the Governor.
The second house, however, may amend the bill before passing it. If so, the house of origin may adopt a motion to concur in one or more of the second house's amendments. If the house of origin concurs in all of the second house's amendments, the bill has passed both houses and is enrolled (incorporating the second house's amendments) and sent to the Governor.
The house of origin, however, may adopt a motion not to concur in one or more of the second house's amendments. If so, the second house may adopt a motion to recede from all of its disputed amendments, in which case the bill has passed both houses and is enrolled (incorporating amendments concurred in by the house of origin, if any; otherwise identical to the engrossed bill) and sent to the Governor.
The second house, however, may adopt a motion not to recede from any one or more of its amendments, in which case a conference committee consisting of members of each house is usually appointed to attempt to resolve the differences between the houses. A conference committee may then file a conference committee report. The conference committee report may recommend that the houses take one or more of the following actions: that the second house recede from disputed amendments, that the house of origin concur in disputed amendments, or that the bill be further amended in a specified way. If the report is adopted by both houses, the bill has passed both houses and is enrolled (incorporating any amendments that are concurred in and any other amendatory changes made by the report) and sent to the Governor.
If the Governor approves the bill (or fails to act on the bill within 60 calendar days), the bill becomes law.
The Governor may veto a bill in its entirety. If so, the General Assembly may adopt a motion to override a total veto by a three-fifths majority and the bill becomes law.
The Governor may amendatorily veto a bill and make specific recommendations for changes to the bill. If so, the General Assembly may override the amendatory veto by a three-fifths vote in the same manner as a total veto. Alternatively, the General Assembly may adopt a motion to accept the specific recommendations of the Governor by a majority vote. The bill is then re-enrolled (incorporating the Governor's changes), and the re-enrolled bill is sent to the Governor for certification. If the Governor certifies that the acceptance conforms to the specific recommendations for change, the bill becomes law.
There are two additional types of vetoes with respect to appropriation bills. An item veto allows the Governor to entirely nullify a specific item of an appropriation bill. The General Assembly may override the item veto by a three-fifths vote. The other type is a reduction veto by which the Governor reduces the amount of an item of appropriation. The item becomes law in its reduced amount. The General Assembly may override the reduction veto by a majority vote, in which case the item becomes law in its restored amount.
A bill that becomes law is thereafter known as an Act of the
General Assembly and is assigned a Public Act number; for example, P.A.
88-551, indicating the 551st Public Act of the 88th General Assembly.
LEGAL AUTHORITIES CONCERNING LEGISLATION
The following are the basic legal authorities with which a person pre-drafting legislation must be familiar:
The Statute on Statutes (5 ILCS 70/)
The Effective Date of Laws Act (5 ILCS 75/)
The Bill Introduction and Duplication Act (25 ILCS 35/)
Senate Rules
House Rules
A bill is a proposal. What the bill proposes is that the General Assembly and the Governor take the appropriate actions so that the language of the bill becomes law. Once the bill becomes law it is an Act of the General Assembly.
When a person drafts a bill, that person is tempted to assume the vantage point of what is then the present, the time at which the bill (a proposal) is being drafted. Thus, the drafter will write in the future tense having in mind that the bill will become law or the situation being written about will occur on a later date. For example, "A person who shall violate this Section shall commit a Class 1 felony." This is wrong.
An Act speaks continuously and should generally be written in the present tense. When an Act is applied years after it becomes law, it is something that speaks then and there. Thus, a drafter should write the language of a bill from the vantage point of any time when the Act is being applied (the then present) rather than from the vantage point of the time at which the bill is being drafted. For example, "A person who violates this Section commits a Class 1 felony."
The last example eliminates the use of "shall" in the future tense.
"Shall" is properly used, however, to indicate that something is mandatory:
"The court shall sentence the defendant to perform 10 hours of community
service."
The basic unit of Illinois statutory law is an Act of the General Assembly. The State Finance Act, the Probate Act of 1975, and the Illinois Municipal Code are examples. Although the last example is designated a "Code", it is nevertheless an Act.
Two types of provisions in bills are those that create new Acts and
those that amend existing Acts. For example, House Bill 955 of the 89th
G.A. (P.A. 89-18) contained new provisions creating the Parental Notice
of Abortion Act of 1995 and also contained amendatory provisions changing
existing Acts. On the other hand, House Bill 2028 of the 88th G.A. (P.A.
88-625) contained only amendatory provisions changing certain Sections
of the existing Comprehensive Health Insurance Plan Act.
For purposes of illustration, the following is an example of a bill
for a new Act that also contains amendatory provisions. The numbers running
down the left side of the page are line numbers. A page break is indicated
between Sections 20 and 90.
1
AN ACT concerning agricultural production in Illinois.
2 BE IT ENACTED BY THE PEOPLE OF THE STATE OF ILLINOIS,
3 REPRESENTED IN
THE GENERAL ASSEMBLY:
4
Section 1. Short title. This Act may be cited as the Soybean Soup Act.
5 Section 5. Definitions. In this Act:
6 "Department" means the Department of Agriculture.
7 "Illinois soybean" means a soybean that is harvested in Illinois.
8 "Municipality" has the meaning ascribed to it in Section 1-1-2 of the Illinois Municipal Code.
9 "Soybean" means the edible seed of the plant glycine soja.
10
"Soybean soup" means a soup whose main non-liquid ingredient, by weight,
is Illinois soybeans.
11 Section 10. Soybean soup at State Fair. The Department shall serve soybean soup on the
12 fairgrounds of the Illinois State Fair at Springfield at all times when the fair is open to the general public.
13 The Department shall charge $1 for each 8-ounce bowl of soup. The proceeds, after deducting the actual cost
14
of the soup ingredients, bowls, spoons, and napkins, shall be deposited
into the Soybean Soup Fund.
15 Section 15. Soybean Soup Fund; grants.
16 (a) The Soybean Soup Fund is created as a special fund in the State Treasury.
17 (b) Subject to appropriation, the Department shall make grants to Illinois municipalities from the
18 Soybean Soup Fund for the purpose of promoting the consumption of soybean soup within the municipality.
19 (c) The Department shall promulgate rules concerning applications for grants and the use of grant
20
moneys.
21 Section 20. Penalties. A person who knowingly obtains a bowl of soybean soup from the
22 Department on the fairgrounds of the Illinois State Fair at Springfield without paying the statutory charge (i)
23 commits a Class C misdemeanor and (ii) is liable to the Department in a civil action for statutory damages of
24
$1,000.
1 Section 90. The State Fair Act is amended by changing Section 5 as follows:
2 (20 ILCS 210/5) (from Ch. 127, par. 1705)
3 Sec. 5. State Fairs; promotion.
4
(a) The Department shall annually hold a
State Fairs Fair at Springfield and DuQuoin to
promote
5 agriculture, promote the agriculture industry, and provide for exhibits and activities in the fields of industry,
6 education, the arts and crafts, labor, entertainment, and other areas of interest to the people of the State.
7 (b) The Department shall comply with the Soybean Soup Act at each State Fair at Springfield.
8
(Source: P.A. 84-1468.)
9 (20 ILCS 210/8 rep.)
10
Section 95. The State Fair Act is amended by repealing Section 8.
11 Section 97. The State Finance Act is amended by adding Section 5.401 as follows:
12 (30 ILCS 105/5.401 new)
13
Sec. 5.401. The Soybean Soup Fund.
13
Section 99. Effective date. This Act takes effect upon becoming law.
Generally, a bill must be confined to a single subject. Ill. Const.,
Art. IV, Sec. 8. Although not constitutionally required, that single subject
should be expressed in the title. "AN ACT concerning gaming" is better
than "AN ACT concerning horse racing and riverboat gambling", which suggests
that there are two subjects.
A bill without an enacting clause or with a defective one is probably
unconstitutional. Ill. Const., Art. IV, Sec. 8; 1910 Op. Atty. Gen., p.
77.
Every new Act should have a short title for ease of reference. A short
title should be short, accurate, and unique. The "Village Library Act",
75 ILCS 40/, is a good short title. The "Senior Citizens and Disabled
Persons Property Tax Relief and Pharmaceutical Assistance Act", 320 ILCS
25/, is an awful short title; no wonder most people refer to it colloquially
as the Circuit Breaker Act.
Never define a term and then not use it. To avoid this, many drafters wait until after the substantive provisions have been drafted before they define terms.
Do not hide substantive provisions in a definition. The substantive provisions are then in an unexpected place and easy to overlook.
When defining a term by listing its component parts, be careful to think
through and make explicit whether the list is intended to be exhaustive.
Absent clear language, a list of components is usually construed to be
exhaustive. Rock v. Thompson, 85 Ill. 2d 410 (1981). Thus, to say
that " 'person' means an individual, a partnership, or a corporation" would
probably be construed to exclude a trust and a municipality. If a list
is intended to be exclusive, it is better to be explicit rather than to
rely on court interpretation. For example, " 'person' includes only individuals,
partnerships, and corporations". If the list is not intended to be exhaustive,
that should be made clear. For example, " 'person' includes without limitation
individuals, partnerships, corporations, political subdivisions, and all
other legal entities".
Organization is the key to drafting the main provisions of a bill.
One way for a drafter to analyze what he or she wants to accomplish is to think about it as a series of essential directions. Giving directions is, after all, what a statute does. The directions are often limited by certain contexts and conditions, and the directions need to be supplemented by procedural and other matters.
Some directions are commands: "The Department of Public Health shall prepare a brochure concerning the early detection of breast cancer." Other directions are enablers: "A county board, by ordinance, may impose a cigarette tax." Some directions apply only in a given context (a situation that the subject does not control): "If the decedent did not make an anatomical gift [a context], the surviving spouse of the decedent may make anatomical gifts from the decedent's body [an enabler]." Other directions apply only upon a specified condition (something the subject does control): "A person who pays the license fee after its due date [a condition] must pay a $5 late fee [a command].
Once the essential directions and their contexts and conditions are determined, the next step is to create a chronological or other logical framework for those directions. Supplemental procedural or other matters concerning the directions may then be filled in.
It is not necessary to go through this process in detail each time a
draft is written, but it is helpful to at least have it in mind when one
puts pencil to paper (or fingers to keyboard).
Penalties are generally either criminal, civil, or administrative. A
criminal penalty should be set forth as a classified offense (felony or
misdemeanor) or as a petty offense or business offense. 730 ILCS 5/5-1-1.
For example, "Class 3 felony" should be used instead of "imprisonment for
2 to 5 years and a fine of up to $10,000".
The Illinois Constitution provides that a bill expressly amending a law must set forth completely the Section amended. Ill. Const. Art. IV, Sec. 8. Thus, even the most minor change requires the entire text of the Section to be set out in the bill. This is a good reason to draft short Sections. An egregious example is Section 39.5 of the Environmental Protection Act, 415 ILCS 5/39.5, which implements the federal Clean Air Act and would require 72 pages in a bill just to change one word.
One thing that is critically important in drafting amendatory changes to an existing Section of law is to start with the current version. The statute books and CD-ROMs usually are not current for very long. One or more new Public Acts may have intervened. Thus, a search of supplements and new Public Acts is always necessary. LRB maintains a statute database and update list that are always current so that LRB drafts can be prepared using current law.
In drafting amendatory provisions, the drafter must understand the differences
between plain text, stricken text, and underscored text. Underscored text
is new matter being added to an existing Act, and stricken text is existing
matter that is being deleted. If matter is being both added and deleted
at the same point, the convention is to put the underscored matter first.
In an amendatory provision, plain text is existing law that is not being
changed. (See Section 90 of the sample bill). In a new Act, however, plain
text is the proposed new law (see Sections 1 through 20 and Section 99
of the sample bill).
A bill becomes law on the date the Governor signs it, 60 days after presentation if the Governor fails to act, on the date the second house overrides a veto or votes to restore a reduced item of appropriation, or on the date the Governor certifies acceptance of an amendatory veto.
The date a bill becomes law is not to be confused with its effective date. If the bill provides that it is to take effect upon becoming law, then the two dates are the same. Otherwise, the effective date is the same day or later.
The effective date set forth in a bill may be a specific date (for example, January 1, 1999) or a measured date (for example, 60 days after becoming law). A bill may have multiple effective dates (for example, all effective upon becoming law, except certain Sections effective on January 1, 1999) or may have alternative effective dates (for example, on September 1, 1998 or upon becoming law, whichever is later). If a bill becomes law after the effective date stated in the bill, then its effective date is when it becomes law.
If a bill has no express effective date, then the Effective Date of Laws Act, 5 ILCS 75/, supplies the date. If the bill passed prior to June 1, it takes effect the next January 1. If it passed after May 31, it takes effect June 1 of the next year.
Determining the date passed can be complicated. The general rule is that a bill passed on the date both houses of the General Assembly first approved the bill in the form in which it becomes law. If the Governor signs the bill or it becomes law because of the Governor's inaction, that date is when the second house approved the bill without amendment on third reading, when the house of origin concurred in all of the second house's amendments, when the second house receded from all of its amendments, or when a conference committee report was adopted by both houses. If the General Assembly overrides a veto or restores an item reduction, the date passed relates back to the times stated in the previous sentence because that was the time it was first approved in its final form. If the General Assembly accepts an amendatory veto, the date passed is when both houses have voted to accept the amendatory veto because this is the first time the General Assembly has approved the bill in its final form; there is no relation back as there is with a veto override. Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303 (1988); People ex rel. Klinger v. Howlett, 50 Ill. 2d 242, 247 (1972). (These cases take precedence over the definition of "passed" in Section 3 of the Effective Date of Laws Act, 5 ILCS 75/3.)
Something to consider when deciding what effective date to give a bill
is that a bill passed after May 31 that provides for an effective date
earlier than June 1 of the next calendar year must pass by a three-fifths
vote. Thus, a bill with an immediate effective date may pass by a majority
vote in May, but if the bill is considered during the fall veto session, it must pass by a three-fifths vote.
The following is a sample amendment based on the sample bill:
AMENDMENT NO. ____. Amend House Bill 9999 as follows:
on page 1, by deleting line 8; and
on page 1, line 17, by changing "municipalities" to "counties";
and
on page 1, line 18, by changing "municipality" to "county";
and
on page 2, line 4, by replacing "a State
Fairs Fair at Springfield and DuQuoin" with the
following:
"2 a State Fairs, one Fair
at Springfield and one at DuQuoin, each".
In order to be able to prepare an amendment, the drafter must know what the state of the bill will be at the time the amendment is offered. If not, the amendment may be technically flawed. If the amendment will be offered in the house of origin, the base document is the introduced bill. In the second house, the base document is the engrossed bill. Any amendments that have been adopted by the house in which the amendment will be offered must be considered. The drafter must also anticipate if any other pending amendments may be adopted first. If the person requesting the amendment is unsure, alternative amendments may have to be drafted.
An amendment is a series of instructions to the enrolling and engrossing clerk. The instructions must be clear and precise.
The first thing the drafter must do is locate where the change is to occur. This is usually done by reference to page and line numbers of the bill as illustrated in the sample amendment. Sometimes, however, because of a previous amendment, reference cannot be made to page and line numbers of the bill. In this case, it might be possible to reference page and line numbers of the previous amendment. Otherwise, the place where the change will occur must be located by description. For example, assuming the sample amendment is adopted: In Section 15, subsection (b), by changing "counties" to "townships".
Once the place where the change will occur is located, the next step
is to set forth the specific changes as illustrated in the sample amendment.
Note that the rules for plain, stricken, and underscored text must be followed.
The base documents for preparing a conference committee report are the
engrossed bill and the second house's amendments that have already been
concurred in by the house of origin, if any. The first thing a conference
committee report must do is to decide whether the disputed amendments of
the second house are to be concurred in or receded from. That could be
the end of the report. Most often, however, the report recommends further
changes to the bill. These changes are set forth in the report in the same
form as an amendment.
NUMBERING. LRB generally numbers Sections of a bill in multiples of five: 5, 10, 15, and so on. This allows new Sections to be added by amendment while the bill is being considered by the General Assembly using whole numbers without having to renumber subsequent Sections. Also, in a new Act, Sections can be added more easily using whole numbers in future years, thus avoiding confusing Section number series like 2a, 2b, 2b.01, 2b.1, 2c, and so on. Articles are numbered in multiples of five for the same reasons: for example, Article 5, Section 5-5.
Exceptions are short title Sections in new provisions, which are numbered "1", effective date Sections, which are numbered "99" or "999", and amendatory Sections in a new Act, which are numbered in the 90's or 900's before the effective date Section.
RENUMBERING. LRB's policy is to avoid renumbering Sections and subsections of existing law whenever possible. If Sections or subsections are renumbered, then references within the same and other Acts must be changed. If they are not changed, the statutes are wrong. Moreover, previous citations in court decisions, administrative rules, journal articles, and other documents are then misleading.
OUTLINE FORMAT. The preferred outline format, because it is consistent with most Illinois statutes, is as follows: "5" Section, "(a)" subsection, "(1)" paragraph, and "(A)" subparagraph. Subdividing a Section beyond subparagraphs is usually too confusing. The preference in unformatted lists is "(i)", "(ii)", "(iii)", and so on.
CITATIONS TO OTHER ACTS. Other Acts should always be cited by reference to the Section of the Act and its short title. The ILCS cite may be added. For example, "subsection (a) of Section 7-123 of the Code of Civil Procedure (735 ILCS 5/7-123)".
AMENDMENT BY REFERENCE. Express amendment of another Act without setting forth the amended text is invalid. Ill. Const., Art. IV, Sec. 8; People ex rel. Peoria Civic Center Authority v. Vonachen, 62 Ill. 2d 179 (1976). For example, in a different Act to say that the "State Purchasing Act does not apply to purchases under this Section" is invalid unless the State Purchasing Act is itself amended to make the exception.
SHORT SECTIONS AND SENTENCES. As previously noted, the Illinois Constitution requires the full text of a Section of existing law to be set forth in a bill even if only one word is being changed. Thus, short Sections allow for more manageable bills. Short sentences are also a virtue. They are easier to understand. Short sentences are, however, usually harder to write. The philosopher Pascal wrote a long letter to a friend. At the end of the letter he apologized and said he just did not have time to write a short letter. A drafter should take the time to write short sentences and Sections.
CONSISTENCY IN SERIES. Always remember that each element of a series should make sense if it were there in the sentence without the other elements of the series. Look at Section 90 of the sample bill; in Section 5 of the State Fair Act the word "promote" needs to be added to make the series consistent.
LAWYERISMS. Words and phrases like "said", "aforesaid", "herein", "to-wit",
"such", "subsequent to", "pursuant to", "in lieu of", and their lawyerish
ilk tend to confuse rather than elucidate. All have commonly understood
equivalents that non-lawyer legislators (now the great majority) will appreciate
in their bills and other legislative documents.