Legislative History Tips: A Page From the Courts’ Unofficial Playbook by Carolina Rose
The California courts routinely take judicial notice of many types of legislative history records to construe statutes1, most commonly to clarify ambiguous terms, but also to reinforce a statute’s “plain meaning” — a growing trend.
Controversial Records Identified by the 3rd DCA. But in Kaufman & Broad v. Performance Plastering, Inc. (2005) 133 Cal. App. 4th 26, the relevancy of correspondence preserved in unpublished legislative bill files for determining legislative intent was given a big thumbs down by the Third District Court of Appeal (3rd DCA) when such materials were not “communicated to the Legislature as a whole.” Unfortunately, the California Supreme Court declined to depublish the decision on December 14, 2005, leading some to wonder if Kaufman might have a life beyond its own jurisdiction.2 (NOTE: Practitioners with 3rd DCA jurisdiction cases should become familiar with all of the Kaufman limitations regarding when and how to present legislative history records to that court.) However, at least two cases have undermined the 3rd DCA’s limits in this area—one by the California Supreme Court, and the other by the 3rd DCA itself.
The Supreme Court Declines to Follow Kaufman. In Sockup v. Law Offices (2006) 39 Cal. 4th 260, the Supreme Court took notice of an “entire legislative history” that included Kaufman-banned materials such as “the views of individual legislators or advocates of the legislation rather than the Legislature as a whole.” Id. n.9. However, it made a point of only relying upon official bill analyses and bill versions to reach its opinion—records it described as “indisputably proper subjects of judicial notice.” Here the Court appeared to go out of its way to show that it would make up its own mind about which documents it would rely upon from the “entire legislative history” in spite of Kaufman.
The Kaufman Court does an About-Face One Year Later. In Cequell III Communications I, LLC v. Local Agency Formation Commission (2007) 149 Cal. App. 4th 310, the 3rd DCA departed from its strict Kaufman limits when it relied upon a bill analysis by a private party and the accompanying letter sent to the bill’s author which had been “located in the files of the Assembly Committee on Local Government.” Id. at 326.
Moreover, No Published Decision Addresses the 800-Pound Gorilla in the Room: Government Code (Gov. C.) § 9080. This section clearly establishes the relevancy of records found in legislative committee, floor, and partisan caucus bill files—including correspondence—for determining legislative intent, and without regard to whether they were communicated to the “Legislature as a whole.” As co-founder and President of Legislative Research, Inc., I was instrumental in the 1996 enactment of § 9080; and I proposed it with the actual legislative enactment process in mind: There is no such thing as the “Legislature as a whole.” The Legislature functions on a committee basis (review by individual committees and committees of the whole (i.e., the floor of each house); and each committee level generates potentially relevant legislative history records as recognized in § 9080. The fact that no published opinion has yet relied upon the wide ranging applications of this section qualifies it as a potentially potent sleeping giant for the practitioner.
The 3rd DCA’s about-face in Cequill reflects a common judicial stance. As in Sockup, the courts prefer to rely upon high comfort zone records such as legislative committee analyses and bill versions. But when they don’t do the trick, and when a second tier record-like correspondence strongly supports a court’s preferred outcome, guess what is likely to happen? Practitioners are wise to follow the courts’ unofficial playbook when it comes to using controversial legislative history records. If it helps, use it—especially in light of Gov. C. § 9080.
1 Examples of the wide variety of records that the California Supreme Court has relied upon are:
Bill versions: Quintano v. Mercury Casualty Co. (1995) 11 Cal. 4th 1049 at p. 1062, fn. 45.
Legislative Counsel’s bill digests: In re Jesusa V. (2004) 32 Cal. 4th 588, 650.
Journals & calendars: People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 504, 520, 528.
Committee analyses: Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465, fn. 7.
State agency analyses/reports: (Example, FPPC) People v. Snyder (2000) 22 Cal. 4th 304, 309.
Legislative Analyst’s fiscal analyses: People v. Snook (1997) 16 Cal. 4th 1210, 1218.
Assembly floor analyses: Eisner v. Uveges (2004) 34 Cal. 4th 915, 934.
Senate partisan caucus analyses: People v. Snyder (2000) 22 Cal. 4th 304, 310.
Senate floor analyses: Campbell v. Regents of the University of California (2005) 35 Cal. 4th 311, 330.
Hearing transcripts: Lantzy v. Centex Homes (2003) 31 Cal. 4th 363, 377.
Enrolled (governor) reports & memos: Parnell v. Adventist Health System West (2005) 35 Cal. 4th 595, 604-605.
Enrolled (governor) correspondence: California Teachers Assoc. v. San Diego Community College District (1981) 28 Cal. 3d 692, 700; Martin v. Szeto (2004) 32 Cal. 4th 445, 450-451.
CA Law Rev’n Comm’n Reports: Mejia v. Reed (2003) 31 Cal. 4th 363, 377.
Related bills: Lantzy v. Centex Homes (2003) 31 Cal. 4th 363, 377.
Ballot materials: People v. Canty (2004) 32 Cal. 4th 1266, 1281.
2 Located in Sacramento, California’s Court of Appeal, Third Appellate District is one of the three original courts of appeal established by constitutional amendment in 1904. Its jurisdiction stretches over 23 counties: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo and Yuba. The geographical area of the District is larger than the combined area of Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont. Practitioners with 3rd DCA jurisdiction cases should become familiar with all of the Kaufman limitations set forth regarding the use and presentation of legislative history records before that court.
Carolina Rose (1976 J.D., Stanford) is co-founder and President of Legislative Research, Inc. (LRI) and is a member of SCALL and AALL. LRI (established 1983) specializes in the historical research surrounding the adoption of California codes and regulations. Carolina worked for the California legislature for 7 years where she was responsible for over 200 measures; provides expert witness consulting in the reconstruction of legislative history; and teaches MCLE seminars on legislative history, related ethical advocacy strategies and regulatory history research