Could Kentucky's Legislative Research Commission fix an obvious numbering error in an enacted bill?

Plain-English summary

Senator Jared Carpenter asked whether Kentucky's Legislative Research Commission could correct two sections of a 2012 act that pointed to the same transitional provisions as taking effect July 1, 2013. That duplication left the substantive UCC Article 9 provisions to take effect earlier under the ordinary constitutional rule. The Attorney General said the Commission could correct the error under KRS 7.136(1)(h) because it was a manifest clerical mistake, apparent on inspection and caused by inadvertence rather than a legislative policy choice.

The AG identified a specific correction: § 91 of Senate Bill 97 should refer to Sections 60 through 90 as taking effect July 1, 2013. The opinion relied on the redundant references, the earlier version of the bill whose similar error had been corrected before passage, and legislative committee testimony about the intended uniform date.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Legislative Research Commission staff

The opinion read KRS 7.136(1)(h) as allowing correction of a manifest clerical or typographical error while preserving the statute's prohibition on changing an act's sense, meaning, or effect. It treated the duplicate references in Senate Bill 97 as the kind of obvious drafting mistake the Commission could correct.

Secured-transactions readers

The AG said the uncorrected act would start substantive Article 9 changes before its transitional rules. It concluded that § 91 should make the substantive Sections 60 through 90 effective on July 1, 2013, alongside the transitional sections already assigned that date.

Common questions

Could the Commission change any enacted effective date it thought inconvenient?

No such broad power was recognized. The AG tied this correction to an error obvious from the bill and attributable to inadvertence, not legislative determination.

What was wrong with the 2012 bill's references?

Sections 91 and 102 both pointed to Sections 91 through 99 for a July 1, 2013, start. The AG said that left Sections 60 through 90, the substantive changes, with an earlier effective date.

What wording did the AG say the Commission could supply?

The opinion said § 91 could be corrected to read, “Sections 60 through 90 shall take effect on July 1, 2013.”

Background and statutory framework

The opinion compared Senate Bill 97 of 2012 with a 2011 predecessor whose similar numbering error had been noticed and amended before the earlier bill was vetoed. It defined a manifest clerical error as one obvious on inspection and resulting from inadvertence. KRS 7.136(1)(h) supplied the Commission's correction power; Ky. Const. § 55 explained the earlier default date that would apply without correction.

Citations and references

• KRS 7.136(1)(h): the Commission's authority to correct manifest clerical or typographical errors.
• Ky. Const. § 55: ordinary effective-date rule discussed for the uncorrected substantive provisions.
• S.B. 97 (2012), Sections 91 and 102: duplicated references analyzed by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_c94e7b9b-5b6f-471f-bf9b-c72ca473ed7c/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_c94e7b9b-5b6f-471f-bf9b-c72ca473ed7c

Original opinion text

OAG 12-010
July 3, 2012
Subject:

Whether the Legislative Research Commission has
the authority to correct a manifest clerical error in
the reference numbers of a section of an Act

Requested by:

Jared K. Carpenter
Senator, District 34

Written by:

Ryan Halloran
Assistant Attorney General

Syllabus:

The Legislative Research Commission may correct a
manifest clerical error in the reference numbers of a
section of an Act.

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

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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 uni-

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form 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 con-

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text, 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.”

Jack Conway
Attorney General

Ryan Halloran
Assistant Attorney General