Jan Raymond
Legislative History & Legislative Intent
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Professional Research and Consulting on Legislative History, Legislative
Intent, and other Legislative Research Services and information.
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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: That list, while clearly stating some types of documents that can be considered for legislative intent purpose, is not intended to exclude consideration of other types of documents not listed is 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. Short
guides to help in drafting a request for Judicial Notice and accompanying
points and authorities are available at http://najfiles.net/rpt/web.page. 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. If you are in the Third Appellate District the Kaufman and Broad, (supra), decision sets forth a very specific procedure for requests for judicial notice. 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, and seems consistent with the intent of Government Code Section 9080. Although case law has not generally categorized documents in this manner, as noted above case law has not reflected an awareness of Section 9080. Further, a fair reading of the case law over the last 40 years suggests that categorization reflects what the courts have actually been doing, although often the decisions discuss the documents in terms more akin to an admissibility standard than a probative value standard. The following discussion addresses a selection of specific categories and documents, beginning with primary sources. You may follow the links below to: Secondary Sources, Author Statements, Agency Analyses, Legislative Counsel's Opinions, or Tertiary 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 High School District, (1990) 225 Cal. App. 3d 1548 and Quelimane Co. v. Steward Title Guar. Co., (1998) 19 Cal.4th 26, and California Teachers Ass’n v. Governing Board of Hilmar Unified School District, 95 Cal.App.4th 183, 192 (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.)
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 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, (1994) 33 Cal. App. 4th 712 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 and Quarterman v. Kefauver, 55 Cal. App. 4th 1366, 1371 (1997) where the court relied upon a sponsor’s statement, stating “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 …”
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 consistant 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 come 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."
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.)"
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 for example Zipton v W. C.A.B. (1990) 218 Cal. App. 3d 980 and North Hollywood Project Area Committee v. City of Los Angeles, 61 Cal.App.4th 719, 724)
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.
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. 3d, 1260.
The code sections governing the legislature and legislation are primarily in the Government Code in the 8000 to 11,000 sequence of sections. 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. Sections 9070 to 9080 comprise the Legislative Open Records Act and provide clear authority for the use of legislative documents for legislative intent purposes. Provisions in the Constitution also govern the effective date of statutes, primarily in Article IV, Section 8. 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. 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). F. Citing California Legislative Documents The Supreme Court Citation booklet 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. For citation questions about specific legislative documents send us an e-mail. Federal Court Applying State Law A Federal Court exercising diversity jurisdiction and seeking to determine the intent of a State legislative enactment will look to the law of that state to determine how the State statute is to be interpreted, as the federal court is bound to render the same decision as would a state court. (See, generally, 28 USC Section 1652, Erie v. Tompkins, 304 U.S. 64, (1938), and Guaranty Trust Co. v. York, 326 U.S. 99 (1945). Generally state procedural rules will be followed as long as there is no direct conflict with the federal rules. (Hannav. Plummer, 380 U.S. 460 (1965)) If the state and federal law do not directly supercede one another, the courts should try to follow both. (See Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996)) Federal Court Applying Federal Law Federal Courts have
the power under Federal Rule of Evidence Section 201 to take judicial notice
of adjudicative facts. (See generally Sutherland on Statutory Construction,
Section 48.04) A number of courts have relied on Section 201(b) to judicially
notice documents relating to local, state and federal legislative and
administrative enactments. (See for example Carey v. Population Services,
Int’l, 431 U.S. 678 (1977), Green v. Bock Laundry Machine Co., 490
U.S. 504 (1989), Rabkin v. Dean, 856 F.Supp. 543 (N.D. Cal., 1994), Heck
v. Reed, 529 N.W. 2d 155 (1995)) FRCP Rule 201(b)(2) allows
judicial notice of facts that are “capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
questioned.” Under this rule, judicial notice of the legislative
history of a statute may be taken. (See Levy v. Scranton 780
F.Supp.897, 900 (1991) Detailed general discussion of the importance and use of legislative intent in State and Federal Courts is available in a number of treatises and law review articles widely available in law libraries and/or on line. Good sources to start a search for more detailed information on the applicable law in an individual jurisdiction include AM JUR, Sutherland on Statutory Construction, and ALR. The discussion in AM JUR 2d is in Volume 73, the annotation regarding "Statutes", beginning at Section 145. A pertinent annotation in ALR is the annotation at 70 ALR 5. California
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