Some Notes on the Use of Legislative History in California

Some Notes on the Use of Legislative History in California By Chris Micheli

When interpreting ambiguous statutes in California, the courts of this state may examine the legislative history of an enacted statute in order to try and effectuate the intent of the Legislature. In such a case, it is important for legislators, staff, and interest groups to better understand the need to provide adequate legislative history.

We begin with “what is cognizable legislative history”? The courts of this state generally follow the Third District Court of Appeal decision, Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26. Basically, cognizable legislative history, which are acceptable documents in California, refers to documents that shed light on the collective view of the Legislature as a whole.

As a result of the Kaufman decisions, state courts use these materials to interpret ambiguous statutes, but exclude subjective statements, such as those sometimes offered by individual lawmakers or third parties in the California legislative process.

What are some examples of these cognizable documents (i.e., documents accepted by the courts)? California courts generally accept officially produced documents that were widely circulated and available to the Legislature during the passage of the bill. These include:

 

• Bill Analyses prepared for the Floors, as well as those prepared by legislative committees, caucuses, and the Legislative Analyst's Office.
• The Legislative Counsel’s Digest, which is found at the beginning of every printed bill.
• Official statements made by sponsors, proponents, or opponents of the bill that are formally presented or communicated to the entire legislative body during debate.

What are some examples of non-cognizable documents (i.e., documents that are not accepted by the courts)? Courts will generally reject documents that reflect only personal or subjective intent. These include:

 

• Letters, press releases, or other documents from an individual lawmaker (including the bill's author) that were not communicated to the entire Legislature.
• Letters to a legislator or the Governor, news articles, and other items from a third party.

Probably the most important guidance is that, in order to be acceptable legislative history, the document “needs to have been communicated to the Legislature as a whole.” That is because legislative history is only cognizable if it sheds light “on the collegial view of the Legislature as a whole.” (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30)

This is also why the statements of individual legislators are typically considered to be irrelevant by the courts in this state (See People v. Wade (2016) 63 Cal.4th 137, 143), unless it can be shown that those statements were shared with the Legislature as a whole (i.e., both houses) during debate on the legislation.

It is important that these documents are communicated to both houses because the courts have determined that they cannot rely on actions by one house of the Legislature that were rejected by the other house, for example. (See Mooney v. Pickett (1971) 4 Cal.3d 669, 678 [“we cannot derive the legislative purpose from actions of one house of the Legislature which were rejected by the other house”].)

In addition, some other aspects of legislative history are also considered by the courts in California. For example, “the evolution of the legislative language after the bill's introduction” “can offer ‘considerable enlightenment as to legislative intent . . . .’ ” People v. Tokash (2000) 79 Cal.App.4th 1373, 1378)

While there is no guarantee that all documents produced in the consideration of a bill in the California Legislature will be accepted and used by the courts of this state, the following are some recommendations to follow in light of California courts’ use of legislative history in order to ascertain the intent of the Legislature:

 

1.     The most cited by the courts for cognizable legislative history are the bill analyses from the Assembly and Senate Floors. That is because these documents are communicated to all legislators on their respective Floors. As a result, the Floor Analyses should be thorough and helpful for understanding the intent of the proposed legislation and to highlight relevant information for subsequent judicial review of the bill.

2.     Letters from sponsors, proponents, and opponents should be addressed to all legislators and distributed to all legislative offices, rather than be addressed to an individual legislator (e.g., just the author). And those communications should be made available prior to the debate and vote on the bill to demonstrate that they were available and could be considered by the Legislature as a whole.

3.     For the bill’s author, whether submitting a letter for example to the Governor, or a letter to the Daily Journal of the Assembly or Senate, must be distributed to the entire Legislature to have a real opportunity to be considered by the courts. And these Journal letters must be communicated to the Legislature prior to voting on the bill. Moreover, these Journal letters should be read on the respective Floors prior to the bill being take up for consideration and vote. To do so later means it is just a letter from the individual legislator that was not communicated to the Legislature as a whole.