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Brought to mind by this question regarding the vote for splitting of California into three states.

What happens to existing California state laws if it is split into three states? Does each state retain a copy of existing laws and work from there? Or is there some sort of 'cleaning of the slate'?

I'm aware that Kentucky was split off of Virginia, Maine off of Massachusetts, and West Virginia off of Virginia, but is there any consistent and applicable precedent from these?

  • I'll be interested in seeing answers, but I can't imagine a solution where they clean they slate. Is rewriting thousands upon thousands of pages of law actually an option? – Cort Ammon Jun 15 '18 at 21:20
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    I'm sure that would be part of how the split, were by some magic it actually happened, is negotiated and executed. They're not just going to be told "okay, you're states now, go figure out your laws and stuff." That'll all be worked out ahead of time. Which would take a very long time, especially considering the crazy ways the proposed split will be done and how heavily integrated all parts of CA are with each other (especially the border areas on the proposed three substates). But precedent? Dunno. – zibadawa timmy Jun 15 '18 at 22:49
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    At a national level, where one country has gained independence from another, all law before the date of independence remains as it is, and the new country is then free to add new laws, or repeal old ones, as it desires. This is what happened, for example, when British colonies gained independence. Although this isn't quite the same, it might provide some precedent. – Steve Melnikoff Jun 15 '18 at 22:50
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    From a practical perspective is it much easier if this is done along county lines than if it is not, because a lot of records needed by successor governments, like real property records and marriage records and court records are maintained at the county level. – ohwilleke Jun 15 '18 at 23:21
  • It won't happen, the U.S. government wouldn't allow such "changes". It would mean that the people can change things without their consent, they won't ever allow such hilarious ideas, that the people decides in important matters and not the political elite. – Gray Sheep Jun 15 '18 at 23:22
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Generally, the British common law doctrine of reception would apply here, even if not directly invoked (although most states used explicit language: e.g. chapter 2 of the West Virginia Code.) However, California is interesting because it did not do this. In ss. 20-23 of its Civil Code, it explicitly repealed everything before 1873 unless saved in the legislation. So theoretically California could go either way if it did split. That was then, however. I believe that it's fair to say that there were far fewer laws at the time, so "wiping the slate" was more feasible, but even back then there were criticisms of that approach. To do so now would essentially place the new state into a legal vacuum.

Although not an American example, something similar almost happened in Canada in the judicial reference case Re Manitoba Language Rights [1985] 1 SCR 721, 1985 CanLII 33 (SCC). It declared that, because the legislature had not enacted its laws in both English and French, as the Manitoba Act 1870 and Constitution Act 1867 said they had to, almost all the laws passed since 1890 were invalid. However, as this would produce "an invalid and ineffectual legal system" (question 2 and 3), the court granted a temporary extension of the validity of the invalid laws.

I think that this quote, from the paragraph after the previous quote, is instructive as to why a new state would not completely rewrite its laws:

The constitutional principle of the rule of law would be violated by these consequences. The principle of rule of law, recognized in the Constitution Acts of 1867 and 1982, has always been a fundamental principle of the Canadian constitutional order. The rule of law requires the creation and maintenance of an actual order of positive laws to govern society. Law and order are indispensable elements of civilized life.

  • Might be worth noting that the extension the Canadian SC offered is a common resolution for such court-ruled invalidations of laws on technicalities, especially if it affects many at once: give the legislative branch time to pass fixed versions, or if possible a bill that is little more than a "all bills passed by X and rendered invalid are now passed again". I believe Australia recently had to do this when some of its PMs were ruled constitutionally ineligible, and I think a few American states have had similar events. – zibadawa timmy Jun 16 '18 at 17:14

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