Why Intrinsic Evidence Is the Superior Use of Legislative History

Why Intrinsic Evidence Is the Superior Use of Legislative History By Chris Micheli

            Based on the seminal California Third District Court of Appeal decision in Kaufman & Broad v. Precision Plastering, the courts in this state have discerned between cognizable (which is subject to judicial notice) legislative history and noncognizable (which is not accepted). The key requirement under the Kaufman & Broad decision is that the legislative history be shared with the Legislature as a whole so that it can be properly viewed as the collective intent of the legislative body.

            As a result of this court decision, specific types of legislative history acceptable to the courts are listed, from committee and floor analyses to opinions of the Legislative Counsel and reports of the California Law Revision Commission. In light of this court decision and the basis for what qualifies as cognizable legislative history, it is intrinsic evidence (from the text of the bill) that should carry the most weight.

            And I am not referring to the statutory text as California courts are required to apply the plain meaning rule first. Instead, I am referring to other items found in the text, such as the Legislative Counsel’s Digest, as well as uncodified or codified legislative findings and declarations, policy or purpose statements, and statements of legislative intent. Why?

            I believe they should be given the most deference by the courts in this state because these statements, most often contained in an uncodified Section One of the bill, are considered by all Members of the Legislature in both houses, versus legislative history like committee and floor analyses which are only viewed by members of that particular house for the most part.

            In other words, after the Kaufman & Broad decision, and similar to the approach taken by federal courts, Assembly and Senate policy committee and Floor analyses are given great weight because they are viewed as being considered the collective view of the Legislature. However, these bill analyses actually represent and are considered by the respective houses, rather than the entire body.

            On the other hand, findings and declarations, and statements of legislative intent, because they are in the body of the bill that is obviously considered by all of the Members of the two houses of the California Legislature, are the only evidence truly considered by the Legislature as a whole. As a result, I believe California courts should ascribe the most weight to these statements expressed by the Legislature when trying to “ascertain and effectuate the intent of the Legislature.”