Understanding California Legislative History and Intent

CA-legislatureAttorneys, lobbyists, legislative staff and others examining California statutes should understand the basics of legislative history and intent research. Unfortunately for attorneys, the subject of legislative intent is not a particularly well covered aspect of the typical law school curriculum where heavy emphasis on the case method of studying law tends to restrict the discussion of legislative purpose to what the courts say on the subject.

However, because California courts have a long tradition of relying upon bill analyses and other evidence of legislative history in the same manner as they do case law – to clarify the meaning of a statute and properly apply the Legislature’s intent – practitioners would do well to know how to discover and apply the Legislature’s intent with respect to the statutes that at are issue in their cases.

For others, such as lobbyists, staff or the media, the focus is typically upon the proposed solution contained in a particular piece of legislation, and not upon the accompanying expressions of legislative intent. However, both are important. At minimum, it is a good idea to confirm one’s understanding of a proposed legislative solution with the statements of legislative intent from the bill’s legislative history. Here are at least three reasons why:

(1)  Our codes are rife with ambiguities that the courts will look to the legislative history to clarify.

(2) The courts will overlook a statute’s plain reading if it collides with evidence of the Legislature’s actual intent or to avoid an absurd application.

(3) Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and Sacramento Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the Legislature in enacting a particular new law or amending an existing law.

Sir Francis Bacon is attributed with the statement “knowledge is power.” Applying that wisdom here, lobbyists and others should be well versed in the legislative history and intent of the code sections that their clients have hired them to “watch” and or/amend. Attorneys should utilize a well-established area of legal research that can shed light on the meaning of statutory terms at issue. And solid news reporting should include relevant aspects of the story surrounding how and why the bill of interest was passed.

In California, the primacy of legislative intent has long been established by both statute and case law. For example, Code of Civil Procedure Section 1859 (enacted in 1872) provides this mandate to the courts: “In the construction of a statute, the intention of the Legislature … is to be pursued, if possible.” Also, the judicial notice statutes identify admissible legislative history materials in Evidence Code Section 452(c). The cases cited under those sections identify various records with which the courts have a high comfort level.

In general, evidence of legislative intent can be derived from two primary sources: An intrinsic analysis of the statute and its surrounding statutory context according to standard principles of statutory construction, and the use of extrinsic aids to reconstruct the legislative history of a statute.

The wider historical circumstances surrounding the adoption of a statute can yield extrinsic evidence of legislative intent that is outside the statute itself, such as relevant historical background, the chronology of events and the presumption that the Legislature is aware of prior law. Again, such evidence may even contradict any so-called “plain reading” of the statute which contradicts persuasive, extrinsic evidence of legislative intent.

In properly researching legislative history and intent, interested persons should ask the following questions to guide their efforts:

  • What is the plain meaning” of the language in the statute? To what extent is the meaning self-evident?
  • Why was the statute adopted? What needs prompted it? What problem or evil was the Legislature trying to correct?
  • What happened in the Legislature during the process of adoption? What is the statute’s legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was created? What has been the response of the courts, the agency charged with administering the statute, the legislature, the public, scholars, etc.?

The California State Archives has a vast collection of original legislative papers that can be accessed by source and session year (e.g., authors’ files, committee and study files, Governor’s Chaptered Bill Files, party caucus files, Senate Floor analyses files, agency files, Law Revision Commission Study Files). Interested persons can phone in research requests to the State Archives at (916) 653-2246, but be prepared to wait as they often have backlogs. “Walk-ins” receive priority treatment and the $.25 per page cost must be paid in advance.

In addition, a wide variety of state legislative offices have insightful materials (i.e., legislator offices, committee offices, partisan offices, floor analysis offices), especially when it comes to more recent legislation, as well as agency analyses and bill files. Access to records held by these offices varies widely depending on the personalities involved and their willingness to make their files available to members of the public. The Legislative Open Records Act, Gov’t Code Sections 9070, et seq. assures public access as specified.

Finally, there are numerous sources to help determine the legislative history and intent of a bill’s provisions such as:

  • The Legislature’s own online databases. They provide committee and floor analyses, bill versions, the final calendars, votes and governor’s vetoes, past session laws, journals, etc. It is not recommended that you rely upon the minimal collection of legislative history materials that Westlaw provides. In the main, it merely provides materials that you can obtain for free from the Legislature’s websites.
  • Previous related, failed legislation. The history of predecessor failed bills can be considered relevant when the legislative effort spans multiple sessions.
  • Interim hearing study and/or transcript and related files. Excerpts from testimony at public legislative hearings which preceded the enactment of a statute may be of some relevance in ascertaining legislative intent.
  • Other formal studies and/or recommendations, such as those published by the California Law Revision Commission or a state agency.
  • All versions of the bill, as introduced, amended, enrolled and chaptered along with Legislative Counsel’s Digest on the face of the bills. Always note when your language of interest came in and relevant amendments.
  • Legislative Journal entries addressing substantive matters. Letters of intent by the author, committee reports, and similar information contained in the Journals.
  • Bill Background Worksheets, which are requested by the committee and filled out by the author’s office, sometimes with attachments.
  • Policy and fiscal committee analyses (both partisan and nonpartisan versions).
  • Department of Finance fiscal reports.
  • Floor analyses for third reading (both partisan and nonpartisan versions).
  • Statements by the author for committee and floor purposes.
  • The legislative author’s letter to the governor. Note that the courts can be more friendly toward such letter if they cast light on the history of a measure and are a reiteration of legislative discussion and events, and not merely as an expression of personal opinion.
  • Statements by proponents and opponents, such as letters, testimony, position papers, etc.
  • Analyses by state agencies.
  • Opinions by the Legislative Counsel and the Attorney General.
  • Enrolled Bill Reports to the governor from various state entities, such as the Legislative Counsel, agencies and departments and the governor’s staff.
  • Contemporaneous, unpassed legislation may be a significant indicator of the intent underlying legislation passed during the same session.
  • Online research manuals can be helpful. For example, Legislative Research & Intent LLC, which is a commercial provider of legislative history research, supplies numerous complimentary research assistance and resources at www.lrihistory.com.

It is important for attorneys and others to possess a basic understanding of what legislative history research consists of and where to look for insights into what the Legislature intended when it enacted a new law or amended an existing statute. An insistence upon going beyond simply reading the statute allows one to consider valuable extrinsic evidence of what was intended by the Legislature in the adoption of the particular legislation of interest.

Carolina Rose is the President and Founder of Legislative Research & Intent, LLC which has provided legislative history research since 1983, and provides related expert witness services. Chris Micheli is an attorney and lobbyist with the firm of Aprea & Micheli, Inc. For more information contact carolina.rose@lrihistory.com or cmicheli@apreamicheli.com

How Does Policy Analysis Work in the California Legislature?

 

CA-legislatureHave you ever wondered how the California Legislature goes about analyzing the thousands of proposals that are introduced as bills? And, how does the Legislature’s process for bill analysis differ from policy analysis methodologies used almost everywhere else, including academia and the private sector? The answers to these questions provide some interesting insights into the strengths and weaknesses of California’s legislative process.

For anyone who has seen a bill from the California Legislature in print, one of the first items addressed is a section entitled, “Legislative Counsel’s Digest.” Is this an analysis of the bill? Not really. Instead, the purpose of the Legislative Counsel’s Digest is to succinctly describe current law and then summarize the changes that are proposed in the legislation.  The Digest thus describes how the bill proposes to change existing law. Otherwise, the Digest is strictly neutral; it neither evaluates the pros and cons of the proposal nor makes any recommendations.

So, who does the analysis of bills and where do you go to find them? Quite simply, legislative proposals in California are analyzed by the staff of the committees to which they are referred and by the staff of the respective houses prior to a proposal coming up for a floor vote. Thus, a typical bill that makes it into law is analyzed six times: by a policy committee and a fiscal committee in each house and a floor analysis in each house. These analyses are accessible via the California Legislative Information website maintained by the Legislative Counsel.

If you pulled up bill analyses from several different committees, you would notice there is no set process or methodology being applied. Instead, you would note that there seems to be some common elements addressed in most of the analyses, but that each committee and each floor applies their own methodologies. Some policy committees in the Assembly and Senate have well deserved reputations for extensive analyses that include in-depth discussion of existing law and the proposed changes contained in the bill.

And they reflect the intent of the author and explain in detail the arguments for and against the proposed law changes. There are other committees whose analyses are often limited, merely reciting some of the language in the proposed legislation without much discussion that would provide valuable insights for those trying to understand or learn the intent behind changes in the law.

So, there is no fixed policy analysis methodology in the Legislature and the quality of analysis can vary from committee to committee, floor to floor, or even bill to bill. Nonetheless, what are the common elements that are covered in most legislative bill analyses and how do these analyses differ from policy analysis methodologies taught in academia and used almost everywhere else?

When we examine the bill analysis methodologies used in the California Legislature (and most other legislative bodies), we find the policy analysis is focused on the evaluation of a specific proposal. In other words, rather than beginning the analysis with a definition of the problem, the analysis emanates from a proposed solution (i.e., a bill).  This approach is understandable given that most legislative processes begin with the introduction of a bill that contains the text of a specific solution to try and address a public policy problem.

Typical elements addressed in a bill analysis thus include:

  • a summary of current law and a description of how the proposal would change existing law
  • a summary of the purpose of the bill
  • arguments in opposition and support
  • current or prior California legislative proposals on the same subject and the disposition of those proposals
  • what other states have done
  • results of research studies
  • fiscal effects
  • a listing of parties or organizations that have registered official support or opposition

While legislative bill analysis methodologies typically focus on the evaluation of a specific proposal, policy analysis methodologies taught in academia and used almost everywhere else tend to start from a definition of the problem.  Once the problem is defined, the analysis turns to identifying and evaluating the various alternatives for addressing the problem. The policy analysis is a rigorous, multi-step process that involves a thorough analysis of the various alternative means of addressing the problem.

While a legislative bill analysis of a specific solution can involve extensive research and considerable evaluation, there are pitfalls to this approach. Given the nature of the legislative process, the tendency is to become preoccupied with the solution and pay less attention to identifying and analyzing the various solutions to an underlying problem.  Authors of legislation are understandably inclined to focus on building the case for the particular solution for which they are advocating. All too often they tend to overlook the underlying steps of defining the problem, identifying alternatives, selecting criteria, and projecting outcomes.

And, all too often, the staff who analyze legislative measures also overlook these underlying steps. As a consequence, legislatures often get stuck in a contest of wills over specific solutions instead of first attempting to define and agree upon the underlying problem. Without a clear understanding and agreement on the problem they are attempting to address, legislators deprive themselves of a key element in reaching consensus.

There are some practical realities that make if difficult for legislative bodies to apply traditional policy analysis methodologies. With nearly 2,500 bills introduced each year in California (and upwards of 8,000 amendments made to these bills) it is an unrealistic expectation that legislative staff would have the time to engage in such thorough analyses on every bill and every amendment. On the other hand, while a thorough analysis of each bill and each amendment might be impossible, this does not mean that traditional policy analysis cannot be infused into at least a portion of the legislative process.

Decisions about how and when to infuse traditional policy analysis methodology into the legislative process are appropriately made by the leadership of the respective houses. One possibility would be to hold authors of legislation accountable to conduct and produce a formal policy analysis on each piece of legislation and major amendment being proposed. These formal analyses would accompany the proposal, thereby providing committee and floor staff something to review and critique. Another possibility would be for committee chairs and floor leaders to have discretion as to the measures needing a full scale policy analysis prior to a vote.

Regardless of the method chosen, we believe that additional time and effort needs to be spent on analyzing both the problems and the possible solutions before legislation is considered, let alone adopted. In the rush “to do something,” the Legislature often needs to return to the policy issue because the prior legislation did not accomplish what it had intended. It was either inadequate to effectively solve the problem being addressed or it was poorly crafted and needs to be revisited. In either instance, the policy analysis was probably limited and perhaps a more comprehensive analysis would have resulted in a better policy solution.

In summary, while most legislative bodies use policy analysis methodologies that focus on evaluating specific solutions, it is imperative that the underlying policy analysis steps not be overlooked. Even though legislative bodies may be concentrating on the evaluation of specific solutions, they cannot properly do so unless they have the discipline to define the problem, identify and evaluate the various alternatives, and formulate the best solution. The legislative process would be better served in the long-term by providing greater policy analysis of both the problems and the solutions being debated.

Thomas Nussbaum is the former Chancellor of the California Community Colleges.  Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.

A Unique Role for the Legislature in the Rulemaking Process

CA-legislatureThe state of California has over 200 agencies, departments, boards and commissions that can make public policy via their authority to adopt regulations, often referred to as their rule-making authority. There is a lengthy list of state agencies that have adopted regulations which can be found on the website of California’s Office of Administrative Law. OAL’s website also provides direct access to the California Code of Regulations, which is organized under 28 subject matter titles.

There are several ways in which the Legislature can influence the rule-making activities of state executive branch agencies, primarily through the lawmaking and budgetary processes. For example, the Legislature can adopt statutory changes to expand or limit a specific state agency’s authority to adopt regulations, or the Legislature can utilize the “power of the purse strings” through the budget process to persuade a state agency’s rule-making actions. California law also provides a unique role for the Legislature to influence the quasi-legislative efforts of the executive branch. This brief article looks at that unique role.

The APA

The Administrative Procedures Act requires procedures for rule-making and administrative hearings by these numerous state agencies and departments. The APA is found at Chapters 3.5, 4 and 5 [commencing with Section 11340] of Part 1 of Division 3 of Title 2 of the California Government Code. California’s APA is based largely on the federal APA.

Generally speaking, the authority of state agencies and departments to adopt policy (through rule-making) is defined and restricted by statute. It is an established principle of administrative law that an agency cannot exceed its legally-prescribed authority to regulate. On the other hand, some statutes confer broad powers to selective state agencies regarding matters that directly affect the public generally (e.g., Department of Motor Vehicles, Air Resources Board, and Department of Fair Employment and Housing).

Legislative Review of Regulations

Under the Joint Rules of the California Legislature, the Joint Rules Committee, as well as the respective Rules Committees of both the Assembly and Senate, may approve any request for a priority review of a regulation pursuant to Section 11349.7 of the Government Code. If such a request is approved, the Joint Rules Committee must submit any approved requests to the Office of Administrative Law.

In addition, under the Joint Rules, any member of the Senate may request the Senate Committee on Rules, and any member of the Assembly may request the Speaker of the Assembly to direct a standing policy committee of their respective houses or the Office of Research of his or her respective house to study any proposed or existing regulation or group of related regulations.

Upon receipt of such a study request, the Senate Committee on Rules or the Speaker of the Assembly determines whether a study will be made of the regulation(s). In reviewing the request, the Senate Committee on Rules or the Speaker of the Assembly must determine (1) the cost of making the study; (2) the potential public benefit to be derived from the study; and, (3) the scope of the study.

Under the Joint Rules, the study may consider, among other relevant issues, whether the proposed or existing regulation:

(1) Exceeds the agency’s statutory authority.

(2) Fails to conform to the legislative intent of the enabling statute.

(3) Contradicts or duplicates other regulations adopted by federal, state or local agencies.

(4) Involves an excessive delegation of regulatory authority to a particular state agency.

(5) Unfairly burdens particular elements of the public.

(6) Imposes social or economic costs that outweigh its intended benefits to the public.

(7) Imposes unreasonable penalties for violation.

The review must be done in a timely manner and any concerns must be transmitted to the Senate Committee on Rules or the Speaker of the Assembly, as well as the relevant state agency that is promulgating the regulation. In the event that a state agency takes a regulatory action that the reviewing entity finds to be unacceptable, the entity must file a report for publication in the Daily Journal of its respective house indicating the specific reasons why the regulatory action should not have been taken. The report may include a recommendation that the Legislature adopt a concurrent resolution requesting the state agency to reconsider its action or that the Legislature enact a statute to restrict the regulatory powers of the state agency taking the action.

Chris Micheli is an attorney and legislative advocate at the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be contacted at 916-448-3075 or cmicheli@apreamicheli.com. He serves as an Adjunct Professor at McGeorge School of Law.