I. Legislative Intent is a Matter of Law
Legislative Intent is a matter of law that is often resolved by a factual inquiry. Because it is a factual inquiry many lawyers instinctively think in terms of admissibility. But as a matter of law decided by the court, rules of evidence developed to protect juries should have no applicability. Factual inquiries into legislative intent need only address two issues, the authenticity of the information relied upon and the probative value of the information.
II. Jurisdictional Considerations
Each state court has its own rules and procedures for inquiring into legislative intent, although virtually all jurisdictions treat legislative history documentation as matter to be judicially noticed by the court, rather than as material to be introduced as evidence. Federal courts look to the law of the particular state for inquiries into the meaning of statutes from that state. The Federal Rules of Civil Procedure govern inquiries into the legislative history of federal law.
III. California Courts
A. General Authorities
California Code of Civil Procedure 1859 states in pertinent part: “In the construction of a statute the intention of the legislature … is to be pursued, if possible . . .”
California Government Code Section 9080, enacted by Chapter 928 of the Statutes of 1996, is an explicit statement that the documents generated in legislative deliberations are evidence of the intent of the legislature. Section 9080 begins with the following statement:
“(a) The Legislature finds and declares that legislative records relating to bills, resolutions, or proposed constitutional amendments before the Legislature provide evidence of legislative intent that may be important in the subsequent interpretation of laws enacted in the Legislature…”
Section 9080 discusses specific types of legislative committee documents appropriate for determining legislative intent in Section 9080(d), which provides:
(d) “Legislative records,” for purposes of this section, means records contained in an official committee file,including, but not limited to, all of the following:
(1) Committee staff analyses.
(2) Written testimony.
(3) Background material submitted to the committee.
(4) Press releases.
(5) Written commentary submitted to the committee on a bill, resolution, or proposed constitutional amendment. For purposes of this paragraph, “written commentary” does not include the following:
(A) Material not utilized by the staff of a fiscal committee in the preparation of any analysis for the members of that committee.
(B) Communications determined by the committee or its staff to be confidential.
(6) Versions of bills, resolutions, or proposed constitutional amendments assigned to the committee.
(7) Relevant interim hearing materials, studies, case materials, and articles.
That list, while clearly stating some types of documents that can be considered for legislative intent purposes, is not intended to exclude consideration of other types of documents not listed as evidenced by the phrase “but not limited to” in the introductory clause. A partial purpose for the list seems to be to guide legislative staff in interpreting the scope of their obligation to maintain records and grant public access to legislative records.
There are hundreds of California cases addressing the judicial notice of legislative history documents, the vast majority of which predate the enactment of Government Code Section 9080. None of the more recent cases cite or take note of Section 9080, and as of June of 2006 no case is listed in the annotated codes as citing Section 9080. Prior to the enactment of Section 9080 a leading authority for the general proposition that it is appropriate to take judicial notice of legislative history documents, and a decision with significant discussion about the purpose of and authority for relying upon legislative history, is the Supreme Court decision in California Teachers Association v. San Diego Community College District, (1981) 28 Cal. 3d 692. For a discussion in some depth see the annotation regarding “Statutes” in 58 CAL JUR Third. The discussion regarding extrinsic aids commences with Section 177.
B. Authentication
The most common mechanism for bringing legislative history documents to the attention of the court is through the Judicial Notice provisions contained in Evidence Code Sections 450 through 458. Key provisions include:
Evidence Code Section 452: “Judicial Notice may be taken of the following matters… (c) Official acts of the legislative, executive or judicial departments of the United States and of any state of the United States.”
Evidence Code Section 453: “The trial Court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and, (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”
Evidence Code Section 454: “(a) In determining the propriety of taking judicial notice of a matter, or the tenor thereof: (1) Any source of pertinent information, including the advice of persons learned in the subject matter, may be consulted or used… (b) Exclusionary rules of evidence do not apply except Section 352 and the rules of privilege.”
A leading case citing Evidence Code Section 452(c) as authority for a court to take judicial notice of legislative documents is Post v. Prati, (1979) 90 Cal. App. 3d 626, 153 Cal Rptr. 511. The court relied upon a variety of legislative documents, including correspondence to the Governor from state agencies and individual legislators.
Although a formal request for judicial notice is probably better practice, in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal. App. 4th 1379, the court accepted and relied upon legislative documents simply appended to a brief, apparently with no formal request for judicial notice. The court did extend to each party an opportunity to submit additional briefs, presumably to allow objections to the offered documents.
C. Probative Value
There are many types of documents that can be relevant to interpreting a particular statute, but not all documents are of equal persuasive value. Identifying three categories of documents, primary, secondary and tertiary documents, is useful for discussion purposes, (although case law has not generally categorized documents in this manner). The following discussion addresses a selection of specific categories and documents, beginning with primary sources.
Note regarding proceedings in the Third District Court of Appeal: A recent 3rd district decision sets forth very stringent rules about what documents can be considered as well as the proper way to present documents to the court. The case is Kaufman and Broad Communities Inc v. Performance Plastering Inc, 133 Cal. App. 4th 26 (2005) and will impact many of the topics discussed below for those in the Third
Appellate District. Two requests for depublication of the October 2005 decision were filed with the Supreme Court. They were denied without explanation, but could be useful for responding to arguments relying on Kaufman in other districts. The request of Los Angeles Law Firm of Gianelli and Morris focused primarily on conflicts between the Kaufman and Broad opinion and pre-existing case law. The depublication request of this office argued the opinion was inconsistent with Constitutional and statutory provisions, and did not reflect the reality of the legislative process and created inappropriate procedural hurdles.
1. Primary Sources
Documents that are formally developed during the legislative process, pursuant to procedural rules and legislative procedures, might be viewed as primary sources of legislative intent. Primary documents could include the actual legislative bill in all its amended versions, Legislative Counsel’s digests, committee analyses prepared for committee hearings on the bill, floor analyses given to the legislators when the bill is up for vote on the floor of the Assembly or Senate, fiscal analyses prepared by the Legislative Analysts Office and various other official publications. Cases have often treated primary documents as presumptively probative due to their formal status within the legislative process. (See for example, Wiley v. So. Pacific Trans. Co. (1990) 220 Cal. App. 3rd 177 relying on amended versions of a bill, Five v. Chaffey Joint Union School District, (1990) 225 Cal.App.3rd, 1548 and Quelimane Co. v. Steward Title Guar.Co., (1998) 960 P.2d 513 Cal. (1998) and California Teachers’ Ass’n v. Governing Bd. of Hilmar Unified School Dist., 95 Cal.App.4th 183, 192, 115 Cal.Rptr.2d 323 (2002), relying upon a Legislative Counsel digest, Hutnick v. Fidelity and Guaranty Co. (1988) 47 Cal. 3d 456, relying upon an analysis of the Assembly Committee on Judiciary, and Youngblood v. Gates (1988) 200 Cal. App. 3d 1302, relying upon floor analyses.)
2. Secondary Sources
Documents not part of the formal legislative process, but developed in response to the legislation and contained in the files of the legislative or executive branch relating to the legislation, can be viewed as secondary sources. Secondary sources might include items such as documents from the Governor’s file, the legislative committee files, the files of the author of the bill, the files of organizations within the legislature that prepare third reading analyses, or the files of state agencies. While probably not entitled to the same level of automatic presumptive weight as primary documents, individual secondary source documents can be very probative in particular circumstances, as circumstantial evidence of intent. (See for example People v. Superior Court (Memorial Medical Center) (1991) 234 Cal. App. 3d 363 relying upon documents from a legislative committee file, In re York, (1995) 9 Cal.4th 1133 relying on a letter from the Attorney General found in many legislative bill files, Kern v. County of Imperial, (1990) 226 Cal. App. 3d 391 relying on a statement by the sponsor of the legislation.) Additionally, sponsor statements have been found to be helpful sources of legislative intent, see Quarterman v. Kefauver, 55 Cal.App.4th 1366, 1373, 64 Cal.Rptr.2d 741 (1997).
3. Author Statements
One common secondary source, statements about the intent of legislation by the author of the bill, has been subject to relatively extensive discussion in appellate decisions. Author’s statements are often found in many legislative files, and in particular in the author’s bill file.
A series of cases from early in this century found author statements not entitled to consideration. These cases were typically addressing situations where the author of a bill, after the bill was passed, appeared in litigation to testify as to the legislative intent in enacting the bill, or made other statements about the legislative intent outside legislative deliberations.
These older cases often refused to consider these statements as reflective of the intent of the entire legislature. A line of lower court cases has built upon the evidentiary approach of the rule in the older cases, taking a restrictive view that many legislative documents must always be disregarded. (See for a recent example People v. Patterson, 72 Cal. App. 4th 438 (1999)). The underlying rationale of these cases is not consistent with Government Code Section 9080, so their continued vitality as precedent is doubtful.
These cases seem to test documents for admissibility standard rather than for probative value. This approach tends to require that the document stand alone as unimpeachable direct evidence of intent, and if it cannot then the document is discarded. They thus discard the circumstantial value of documents that provide background and context to the legislative deliberations.
The evolving modern understanding of the law seems to be represented by cases, in some cases decisions of the Supreme Court, recognizing that author statements made during the legislative process are probative. In some cases this finding is supported by explicit discussion, more broadly support can be found in the sheer number of cases relying upon a statement by the author. See, for issue discussion,
California Teachers Association v. San Diego Community College District, (1981) 28 Cal 3d 692. The guidelines set forth in this 1981 case are much more restrictive than the rule one would distill from the many subsequent appellate decisions that have relied on author’s statements. For an example see the Supreme Court decision of the following year, Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d 211. For a recent case exemplifying what seems to be the evolving mechanism to harmonize the
cases see Estate of Sanders, 2 Cal. App. 4th, 462 (1992), 474, footnote 15, which states that author statements “…that cast light on the history of the measure and the arguments before the legislature when it considered the matter – as opposed to the personal beliefs of the legislator (which may not reflect the collective view of the enacting legislative body) – are indicia of legislative intent.”
4. Agency Analyses
Bill analyses by executive branch agencies do not fit easily into this primary/secondary source categorization. They are not a primary document in that they usually have no official status in legislative rules. However, some executive branch documents, particularly when an agency is directly involved as a sponsor or opponent of the bill, should be viewed as more probative than other secondary documents. The “evolution of legislation from its introduction to its final form may provide some insight into underlying legislative intent; statements by sponsor of legislation are instructive, as are legislative committee reports on proposed legislation” Quarterman v. Kefauver, 55 Cal.App.4th 1366, 1373, 64 Cal.Rptr.2d 741, (1997).
Even in those circumstances where the agency was not directly involved in the legislation the official nature of agency analyses gives additional indicia of reliability beyond the fact that they appear in legislative or executive bill files.
One type of state agency document that has generated challenges in past decisions is enrolled bill reports submitted to the Governor. A 2004 decision of the Supreme Court has resolved the question. In Elsner v. Uveges (2004) 34 Cal. 4th 915, the Supreme Court took judicial notice of an enrolled bill report from the Department of Industrial Relations (id. at p. 934). The court stated at footnote 19 “Uveges challenges Elsner’s reliance on the enrolled bill report, arguing that it is irrelevant because it was prepared after passage. However we have routinely found enrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing, instructive on matters of legislative intent. (Citations.)”
5. Legislative Counsel’s Opinions
Opinions by Legislative Counsel are also difficult to classify as primary or secondary. Legislative Counsel opinions are opinions addressing specific interpretation questions about particular legislation. They often are found in legislative bill files. The opinions are prepared in response to a formal request by a legislator.
Legislative Counsel views their opinions as subject to the attorney client privilege. Thus they are ordinarily provided only to the requesting legislator, who may or may not disseminate the opinion. Despite the inability to be certain if anyone actually saw the opinion, other than the legislator who requested the opinion, courts have viewed Legislative Counsel opinions as highly probative in assessing legislative intent, presumably because of the Legislative Counsel’s key role in drafting legislation, and their presumed impartiality, (See North Hollywood Project Area Committee v. City of Los Angeles (1998) 71 Cal. Rptr.2d 675), Zipton v. W.C.A.B., 218 Cal.App.3rd 980 (1990).
6. Tertiary Sources
The third category of documents relating to legislative history is documents from outside the legislative process. Examples could include files from lobbying organizations, media articles about the legislation, trade publication discussion of the legislation, Law Review articles, Treatises, or other materials providing background on the law. These types of documents are typically used to confirm legislative intent suggested by other documents, or to place legislation in historical context.
D. Claiming Costs for Obtaining Legislative Intent Documents
Costs expended to obtain legislative history documentation from a commercial service have been found to qualify as costs under CCP 1033.5. Van DeKamp v. Gumbiner (1990) 221 Cal.App.3rd 1260.
E. Determining the Effective Date of Statutes
The law regarding the effective date of Statutes is contained primarily in Government Code Section 9600 and Constitution Article IV Section 8. Under the current general rule, in effect since 1974, statutes take effect on January 1 of the following year, unless the statute specifically states some other effective date.
There are exceptions for tax levies, budget appropriations and urgency statutes that go into effect immediately. Prior to 1974, the rule varied as one goes back in time, but generally statutes took effect 60 to 90 days after the Governor signed them.
Some knowledgeable practitioners find Government Code Section 9600 not altogether in harmony with the Constitution. When questions arise about the effective date of statutes it is wise to go to the Constitution first. See also the discussion on effective dates in the preliminary pages of the annotated codes.
F. Selected Code References Pertinent to Legislative Intent
The code sections governing the legislature and legislation are primarily in the Government Code in the 8000 to 11,000 sequence of sections. The two sections that become pertinent to legislative intent frequently are 9600, which governs the date statutes become effective, and 9605, which governs the effect of two or more pieces of legislation affecting one code section in one legislative session.
In the Government Code Section 8000 to 11000 sequence you will also find the statutory authorization for many of the organizations associated with the legislature, such as the Legislative Counsel (Sections 10200 et seq) and the California Law Revision Commission (Sections 8280 et seq).
G. Citing California Legislative Documents
The Supreme Court Citation Guide provides the form for a few legislative documents, such as chaptered statutes, bills, and other basic documents. But many of the most useful legislative documents are not specifically discussed. The Supreme Court also provides general citation guidelines for documents not specifically covered. As the guidelines apply to legislative documents your citation usually should include all the information necessary for the court to determine the source, subject and nature of the document.