Journal letters cannot substitute for bill amendments

Observers at the California State Capitol have noticed a trend under the Dome regarding the use of Letters to the Assembly and Senate Daily Journals as perhaps a substitute for making bill amendments.

This phenomenon is probably due to the advent of Prop. 54 and its 72 hours in print rule that precludes any last-minute amendments, even clarifying ones, to bills during the last three days of the legislative session.

Because bills cannot be amended in the final three days of the Session, authors and interest groups have been utilizing these Letters to the Journals in an effort to modify their “intent,” or even address concerns with explicit bill language that cannot be amended. Unfortunately, the use of these letters cannot be a substitute for making actual changes to the proposed statutory language.

By way of background, both houses of the Legislature provide a process by which a legislator can publish a letter in either the Assembly Daily Journal (generally for the author of a bill in the Assembly) or the Senate Daily Journal (generally for the author of a bill in the Senate) in order to explain the legislator’s intent behind his or her bill.

Historically, the Assembly and Senate may publish these letters in their respective daily journals for several possible reasons, such as to explain an ambiguity in the bill, or to explain particular changes in the law that are being proposed. During the last few Legislative Sessions, however, their use has been expanded as a potential substitute for actual bill language changes.

When considering the intent of the Legislature, state courts do not generally consider statements by individual legislators. (In re Application of Lavine (1935) 2 Cal.2d 324.) Even when the individual legislator is the author of a bill, courts cannot guarantee that the other members of the Legislature who voted for the bill shared the same views about the bill as the author. (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590.)

For this reason, state courts generally will only consider these letters to the journal (i.e., letters of intent published by one house or the other of the legislature) when the expression of intent appears to convey more than merely a personal view of the proponent of the bill. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 378.)

The California Supreme Court assessed the legal relevance of letters to the journal in In re Marriage of Bouquet. In that case, the Court held that a statement from a legislator is entitled to consideration when it reiterates the arguments leading up to the adoption of the legislation, rather than merely personal views. Id. at 590.

The state Supreme Court has since made clear that Bouquet referred to the admissibility of the evidence rather than the weight to be given to it. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692.) While letters to the journal are admissible, they exist on a spectrum of indicia of legislative intent. In Bouquet, the Supreme Court reasoned:

“To say that the letter properly bears upon the issue of legislative intent is not to hold that it necessarily concludes that issue. In many cases the indicia of intent are in conflict, and the proper construction of the statute requires us to impute weight to expressions of intent in accord with their probative value. Thus, a motion to print a letter of legislative intent commands less respect than a formal resolution of legislative intent. Likewise, an individual legislator’s recount of the argument preceding the passage of a bill probably merits less weight than extensive committee reports on the bill or a former record of legislative debates.”

Letters to the journal will be stronger indicia of intent when they have been agreed to by both the policy committee and minority consultants and passed by unanimous consent. (People v. Ramos (1996) 50 Cal.App.4th 810, 821, fn. 12.) In addition, letters not practically available to the entire Legislature are not as strong indicia as letters that were available prior to the legislative vote (White v. Ultramar (1999) 21 Cal.4th 563, 581, fn. 2), and that were exposed to public view. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701.

One practical problem is that almost all letters to the journal are printed after the floor votes have taken place and so courts are less likely to view them as having been taken into account by legislators before they cast their votes. Regardless of the weight to be given to these letters to the journal, the letters cannot be used to contradict provisions of a proposed statute in a bill or add language to a bill that does not exist.

In other words, letters to the journal are given nominal value by state courts and are only utilized when there is ambiguity in the statute being examined. If there is not ambiguity, then extrinsic evidence of legislative intent (such as these journal letters) are not even reviewed by state courts. If there is ambiguity, then this evidence may be considered, but it is not dispositive of determining legislative intent.

And, the letter to the journal must provide guidance to the state court in ascertaining legislative intent. It cannot be utilized to change the plain language of the statute or to provide some alternative interpretation of the bill’s language than what is written into statute.

In the end, if legislators or interest groups want the language of a bill to say something or mean something else than what is contained in the bill’s statutory language, then they will have to amend the bill prior to the 72-hour rule taking effect. Otherwise, they will have to wait until the next Legislative Session to amend the bill to reflect their desired outcome.

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