Request By:
Jared K. Carpenter
Senator, District 34
Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Statutes construed : KRS 7.136(h)
Opinion of the Attorney General
Jared K. Carpenter, Senator from District 34, has requested an opinion from this office whether the Legislative Research Commission ("LRC") has the authority to correct an error in the reference numbers of a section of an Act. We advise that the LRC has the authority to correct a manifest clerical error in the reference numbers of a section of an Act.
In 2010, the National Conference of Commissioners on Uniform State Laws and the American Law Institute approved a Uniform Act ("2010 Amendments") to amend the Uniform Commercial Code, Article 9 ("UCC Article 9"). The purpose of the 2010 Amendments were to fix issues arising out of the 1998 revisions to UCC Article 9, and help adapt secured transactions law to electronic media. The effective date for all sections in the Uniform Act is July 1, 2013. In 2011, Senator Jared K. Carpenter proposed Senate Bill 143 ("S.B. 143 (2011)") to adopt the Uniform Act in Kentucky. S.B. 143 (2011) contained an error in that Section 88 stated that "Sections 88 to 96 shall take effect on July 1, 2013," and Section 101 also stated that "Sections 88 to 96 shall take effect on July 1, 2013." Sections 88 to 96 were the transitional provisions of the 2010 Amendments designed to handle secured transactions made prior to July 1, 2013, and §§ 60 to 87 were the parts of the act enacting the substantive changes to UCC Article 9. S.B. 143 (2011) thus would have made the substantive provisions of the act effective 90 days after passage under Ky. Const. § 55, and the transitional provisions of the act effective on July 1, 2013. This error was caught before passage of the bill and corrected in House Floor Amendment 3, making the effective date July 1, 2013 for §§ 60 to 96 of the bill. S.B. 143 (2011) was passed by both houses and vetoed by Gov. Beshear for inconsistencies between §§ 99 and 100, which dealt with federal tax lien filings, and other federal law.
In 2012, LRC staff were instructed to prepare another bill adopting the 2010 Amendments, using S.B. 143 (2011) as a template, which was subsequently proposed as Senate Bill 97 ("S.B. 97 (2012)"). S.B. 97 (2012) contained a parallel error to the original S.B. 143 (2011): both § 91 and § 102 read "Sections 91 to 99 of this Act take effect July 1, 2013." In S.B. 97 (2012), §§ 60 to 90 represented the substantive provisions, and §§ 91 to 99 represented the transitional provisions; once again the substantive provisions would take effect 90 days after passage, while the transitional provisions would take effect on July 1, 2013. However, this time the error was not noticed before passage, and S.B. 97 (2012) was signed into law on April 11, 2012. As a result, §§ 60 to 90 of S.B. 97 (2012) constituting the substantive changes to UCC Article 9 will take effect on July 12, 2012, while §§ 91 to 99 constituting the transitional provisions will take effect on July 1, 2013.
It is undisputed that the difference in effective dates between §§ 60 to 90 and §§ 91 to 99 in S.B. 97 (2012) is an error. The intent of uniform acts is that they are uniform across states, and of the 28 states that have adopted the 2010 Amendments, all have adopted them with the July 1, 2013 effective date for all provisions. There is clear evidence from the prior amendment to S.B. 143 (2011) and testimony to the House Judiciary Committee ( Meeting Before the H. Judiciary Comm. Regarding Senate Bill 97, 2012 Reg. Sess. 13-14) that the legislature thought it was enacting the 2010 Amendments with the uniform effective date of July 1, 2013. Further, having the substantive provisions take effect before the transitional provisions is clearly absurd and would result in legally conflicting requirements for secured transactions in Kentucky, and create confusion between secured transactions in Kentucky and other states. It is clear that the error needs to be corrected so that § 91 should read "Sections 60 to 90 of this Act shall take effect July 1, 2013"; the issue in this opinion is whether the Legislative Research Council has the authority to correct it.
Sen. Carpenter argues that this is a manifest clerical error that the LRC has the authority to correct under KRS 7.136(1)(h). KRS 7.136(1) provides in relevant part:
(1) The Commission, in maintaining the official version of the Kentucky Revised Statutes, shall not alter the sense, meaning, or effect of any act of the General Assembly, but may?
(h) Correct manifest clerical or typographical errors.
There are no Kentucky cases interpreting what constitute "manifest clerical or typographical errors" for the purposes of KRS 7.136(h). However, clerical errors in the court context have been well defined. "'Clerical errors' are universally defined by both courts and textwriters as inadvertences or oversights by the maker of the record? and which are apparent on the face of the document or record in which they appear, and are, therefore, discoverable by inspection. "
Cardwell v. Com., 12 S.W.3d 672, 680 (Ky. 2000). Black's Law Dictionary (9th ed. 2009) defines a clerical error as "an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination." Thus in the court context, a clerical error is the result of inadvertence and not judicial determination, and is apparent from the document upon inspection.
Applying the reasoning of the definition of clerical error in the court context to the legislative context, a clerical error in a bill may be defined as an error that is the result of inadvertence and not legislative determination, and is apparent from inspection of the document. KRS 7.136(h) further specifies that the clerical or typographical error must be "manifest. " "The dictionary defines 'manifest' as 'clearly apparent to the sight or understanding; obvious.'"
Tennessee Protection & Advocacy, Inc. v. Wells, 371 F.3d. 342, 348 (6th Cir. 2004). Taken together, a manifest clerical error in the legislative context is an error that is obviously apparent upon inspection of the bill or statute, and is the result of inadvertence rather than legislative determination.
The error in S.B. 97 (2012) meets the definition of manifest clerical error. It is obviously apparent from the redundancy in sections 91 and 102 that one of the sections contains a clerical error. The error is also the result of inadvertence by the drafters of the bill rather than legislative determination, as the legislature clearly thought that it was passing a bill that would make all of the changes to UCC Article 9 effective on the same date. Since it is a manifest clerical error, the LRC has the authority to correct it under KRS 7.136(h). Thus the LRC may correct the error in § 91 of S.B. 97 (2012) so that it reads, "Sections 60 through 90 shall take effect on July 1, 2013."