The use of bill signing messages by California governors

MICHELI FILES: What is a signing message and why do Governors use them? As readers may recall, Article IV, Section 10(a) requires that each bill that is passed by the Legislature “shall be presented to the Governor.” If the Governor signs the bill, then it becomes a statute.

However, if the Governor chooses to veto the bill, the Governor returns the unsigned bill along with objections to the bill (i.e., the explanation for the veto) to the house of origin. Despite no constitutional provision allowing them (or prohibiting them), many California Governors have used “signing messages” to accompany a Governor’s signature on a bill. U.S. Presidents also have long used signing messages.

The purpose of this article is to explain the use of signing messages not only by Governors, but also by the judiciary in their efforts to ascertain legislative intent about enacted bills. Let us begin with a review of what a signing message looks like.

Examples of Signing Messages

The following is an example of a bill from the 2022 California Legislative Session that Governor Gavin Newsom signed:

To the Members of the California State Senate:

I am signing Senate Bill 851, which makes technical changes that will allow taxpayers paying the Elective Pass-Through Entity Tax to fully utilize their Other State Tax Credit. These changes are clarifying of actions made this year through SB 113 {Chapter 3), a budget trailer bill.

Although this modification may result in a revenue reduction, I am signing this bill to clarify implementation so the Franchise Tax Board can execute the program in a manner that is consistent with previous legislative action. Maintaining structural balance and resiliency of the state budget is on ongoing challenge. In the future, bills with a significant fiscal impact, and particularly tax law changes, should be considered and accounted for as part of the annual budget process.

Sincerely, Gavin Newsom

While the Governor does not have to provide a signing message for any measure that the Governor signs into law, sometimes these messages play a valuable role to explain why the Governor signed a bill, or to request additional law changes be made by the Legislature, or to explain why a bill was not vetoed (e.g., the message set forth above).

Despite no constitutional provision allowing them (or prohibiting them), many California Governors have used “signing messages” to accompany a Governor’s signature on a bill. U.S. Presidents also have long used signing messages.

The following example from the 2022 Legislative Session of a signing message explains what the bill does, why the Governor signed it, and how this bill will be funded going forward, which is the main reason that the bill received a signing message:

To the Members of the California State Senate:

I am signing Senate Bill 490, which will require schools that receive federal funding for prepared meals to include a requirement in their bids and contracts that the agricultural food products purchased are grown, packed, or processed domestically, beginning in 2024. I was proud to have made universal, nutritious school meals a reality for California students. This Buy American policy will benefit the California agricultural industry and agricultural workers, as well as the students and teachers consuming these meals in our schools.

Agricultural products grown and processed in California and the United States meet more rigorous requirements for food safety, environmental standards, and worker protections. California is home to the best produce in the world – more than a third of the country’s vegetables and three quarters of the country’s fruits and nuts are grown in California. Signing this bill sends a message that California supports using our taxpayer dollars to purchase healthy, high-quality, and safe food products that also support reliable markets for our regional agricultural producers, processors, workers, and economies. This bill may result in additional costs beyond the funding for universal access to subsidized school meals provided in the budget. Any requests for additional resources to implement SB 490 will need to be reviewed and included in the annual budget process.

Sincerely, Gavin Newsom

These signing messages, again, can provide helpful explanations or even direct executive branch administrative agencies on how a bill should be implemented or interpreted. The messages can also provide guidance on any future legislative or budgetary action that may be required because of the bill’s enactment.

Signing Messages Are Part of the Legislative History

California’s courts have determined that gubernatorial signing messages are part of a bill’s legislative history, despite the fact that they come after the Legislature has already acted on a bill. For example, a state court of appeal characterized a gubernatorial signing message as legislative history in Nguyen v. Nguyen, 158 Cal. App. 4th 1636, 1660 (2008). The appeals court said, “there are two items in the legislative history that, in fact, support the trial court’s interpretation…”

The first was from the bill analysis prepared by the Assembly Committee on Elections and Redistricting. Committee and floor analyses on pending legislation have long been used to ascertain legislative intent when there is ambiguity in a statute.

The second item, the appeals court ruled, was Governor Schwarzenegger’s signing message. The appellate court cited part of the signing message in its decision: “I am signing Senate Bill 370 this year that allows the voter verified paper audit trail to be used for a recount and requires they be used for the 1-percent manual tally.” (Italics added.) In this case, the court clearly ruled that a signing message is also part of a bill’s legislative history.

California Courts Can and Do Rely on Signing Messages

There are more than two dozen appellate court decisions that I have reviewed, including several recent ones, in which state and federal courts in California rely upon these gubernatorial signing messages to help determine legislative intent and how to interpret a statute. Examples of these decisions include Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 3 Cal. 5th 1118, 1132 (2017) and Arias v. Kardoulias, 207 Cal. App. 4th 1429, 1435 (2012).

The following are many of the cases that have cited, approvingly, the use of signing messages by Governors in California.

In the Arias case, the court of appeal noted that the Legislature had amended a code section “to overrule Smith v. Rae–Venter Law Group to restore the law.” Then, the appeals court cited the Governor’s signing message and the court quoted the message as follows: “This bill codifies a body of case law holding that an employee is successful on appeal even if the court awards an amount that is the same or lesser than previously awarded by the Labor Commissioner.” (See Historical and Statutory Notes, 44 West’s Ann. Lab. Code (2010 supp.)”

The Arias court additionally wrote, “Also, the Governor’s written signing message indicated that the bill’s (the MMC statute’s) provisions would “‘Appl[y] to first contracts only,’” and as to pre–2003 certifications, “‘[t]he parties must have attempted to negotiate for one year….’ “(Historical and Statutory Notes, 44A West’s Ann. Lab. Code (2011 ed.) foll. § 1164, p. 401.)”

In the Gerawan case, the California Supreme Court cited legislative findings and declarations as described in the bill analysis, and the high court also said, “see also Governor’s signing message to Leg. on Assem. Bill No. 2596 and Sen. Bill No. 1156 (Sept. 30, 2002), Sen. Recess J. (2001–2002 Reg. Sess.) p. 6227.)”

In addition, the California court of appeal affirmatively stated, “[the] Governor’s written memoranda issued upon signature of [a] bill is admissible on the issue of legislature’s intent.” In re Carr, 65 Cal.App.4th 1525 (1998). The appeals court described, “of further relevance in terms of the Legislature’s intent was Governor Wilson’s letter when he signed Assembly Bill No. 2716. A Governor’s written memoranda issued upon signature of a bill is admissible on the issue of the Legislature’s intent. (People v. Ledesma, supra, 16 Cal.4^th at p. 100, 65 Cal.Rptr.2d 610, 939 P.2d 1310 [signature message]; People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328 [press release]; see Legislature v. Reinecke (1972) 6 Cal.3d 595, 598, 99 Cal.Rptr. 481, 492 P.2d 385 [“we urge the Legislature and the Governor, in the exercise of their shared legislative power to enact laws”]; Lukens v. Nye (1909) 156 Cal. 498, 503, 105 P. 593 [Governor is participating in the Legislative process when bills are considered and signed].)”

The Carr court went on to explain, “In the present case, Governor Pete Wilson wrote the Legislature explaining why he was signing Assembly Bill No. 2716 and noted: “I have signed this date Assembly Bill No. 2716. [¶] This bill would limit to 15% the credit inmates in state prison or local custody could earn to reduce their prison sentences for violent crimes.” (Governor Wilson, Letter to Leg. re: Stats.1994, ch. 713.).” The Carr court clearly relied upon the signing message when it stated, “Governor Wilson’s signature message explicitly stated that state prisoners were to be subject to the 15 percent limitation on presentence section 4019 conduct credits.”

In addition, the federal courts have also used Governor’s signing messages. For example, in Association des Éleveurs de Canards et d’Oies du Québec v Becerra, 870 F.3d 1140 (2017), the federal appellate court said, “Then-Governor Arnold Schwarzenegger echoed this sentiment in his signing statement: “This bill’s intent is to ban the current foie gras production practice of forcing a tube down a bird’s throat to greatly increase the consumption of grain by the bird. It does not ban the food product, foie gras.” Signing Message of Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003…”

In a footnote, the court in Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49 (2013) explained, “On July 11, 2012, the Governor approved legislation known as the “California Homeowner Bill of Rights” (Sen. Bill No. 900 (2011–2012 Reg. Sess.); Assem. Bill No. 278 (2011–2012 Reg. Sess.)). (Governor Brown’s signing message on Assem. Bill No. 278 (2011–2012 Reg. Sess.) July 11, 2012.) The California Homeowner Bill of Rights prohibits, among other things, “dual track” foreclosures, which occur when a servicer continues foreclosure proceedings while reviewing a homeowner’s application for a loan modification; requires a single point of contact for homeowners who are negotiating a loan modification; and expands notice required to be given to the borrower before the lender can take action on a loan modification or pursue foreclosure. (Governor Brown’s signing message; see Stats. 2012, ch. 86, §§ 1–25; Stats. 2012, ch. 87, §§ 1–25.)”

In the appellate decision in Kim v. Workers’ Comp. Appeals Bd., 73 Cal.App.4th 1357 (1999), the court noted that “The $16,000 rehabilitation ceiling was one of several reforms intended to reduce the cost of California’s Workers’ Compensation system. In his message confirming signature of the legislation the Governor asserted that excessive Workers’ Compensation expenses had cost California 60,000 jobs per year. (The signature message in the historical and statutory notes of 42 West’s Anno. Ins. Code (1999 pocket supp.) § 675, p. 37.)”

Signing messages have also been relied upon in the budget context. In St. John’s Well Child & Family Center v. Schwarzenegger, 50 Cal.4th 960 (2010), the appeals court explained, “On July 28, 2009, the Governor exercised his line-item authority to reduce or eliminate several items contained in Assembly Bill 4X 1, and then signed the measure into law. (Rev.2009 Budget Act.) The Governor eliminated numerous separate line items contained in various sections of Assembly Bill 4X 1. The effect of these reductions was to further decrease the total amount appropriated in the 2009 Budget Act by more than $488 million. Many of the items reduced by the Governor already had been reduced by the Legislature in Assembly Bill 4X 1 from the amounts appropriated in the 2009 Budget Act. The Governor’s signing message explained that his cuts to the spending bill were for the most part designed “to increase the reserve and to reduce the state’s structural deficit.” (Governor’s July 28 Message [concerning Assem. Bill 4X 1, §§ 18.00, 18.10, 18.20, 18.40]; see also id. [same, concerning §§ 17.50, 18.50].)”

In another state appeals court case, Pearl v. W.C.A.B., 81 Cal.App.4th 1033 (2000), the court said, “The Governor’s signature message to the California Assembly contained the following language: “[E]qually important, these reforms crack down on those who are defrauding the system. This legislation marks the beginning of the end for the stress-mill millionaires.” (Letter from Governor Wilson to the Members of the California Assembly, July 16, 1993.)”

Another California appellate court, in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees Retirement Assn., 19 Cal.App.5th 61 (2018), noted that, “According to the Governor’s signing message, this legislation was enacted to allow Los Angeles County to curb pension abuse based on the inclusion of flexible benefits and allowances in pensionable compensation. (Governor’s signing message to Assem. on Assem. Bill No. 1659 (Sept. 7, 1993) Stats. 1993, ch. 396.) Although the Governor urged cleanup legislation to make the exclusion applicable uniformly, this was never done. (Ibid.; see § 31461.1.)”

Similarly, in People v. Garcia, 63 Cal.App.4th 820 (1998), the court quoted from a signing message: “The Governor’s lengthy signature message provides, in part, as follows: “This bill adds intentional drive-by killing to the first degree murder statute and increases the penalty for second degree drive-by murder by five years to twenty years to life….” (Historical and Statutory Notes, 47 West’s Ann. Pen. Code (1998 supp. pamp.) § 189, p. 157, emphasis added.)”

In Sonoma State University v. Workers’ Comp. Appeals Bd., 142 Cal.App.4th 500 (2006), the state appeal court noted, “This amendment was apparently intended to further combat fraudulent psychiatric claims. (Sakotas v. Workers’ Comp. Appeals Bd. (2000) 80 Cal.App.4th 262, 272–273, 95 Cal.Rptr.2d 153.) “In recognition of this intent, the Governor’s signature message to the California Assembly contained the following language: [¶] ‘This package of reforms saves money by tightening the standard for stress claims in the system, the fastest growing type of claim in …workers’ compensation.’” (Id. at p. 273, 95 Cal.Rptr.2d 153.)”

And, in Sakotas v. W.C.A.B., 80 Cal.App.4th 262 (2000), the state appellate court said, “As indicated, the Legislature enacted section 3208.3, subdivision (b)(1) to combat the proliferation of fraudulent psychiatric claims and reduce the costs of workers’ compensation coverage. In recognition of this intent, the Governor’s signature message to the California Assembly contained the following language: “This package of reforms saves money by tightening the standard for stress claims in the system, the fastest growing type of claim in the workers’ compensation.””

In another criminal case, the appeals court in People v. Chavez, 101 Cal.App.4th 88 (2002), said, “When the bill was signed on September 29, 1993, Governor Pete Wilson’s signature message heralded the fact that this amendment to section 189 “adds intentional drive-by killing to the first degree murder statute….” (Historical and Statutory Notes, 47A West’s Ann. Pen. Code (1999 ed.) foll. § 189, p. 93.) Expressly designed to curb violence, the message reiterated that the codification of “drive-by killing in the first degree murder statute allows prosecutors to convict drive-by assassins upon proof of a specific intent to kill.” (Ibid.) Wilson’s message similarly recognizes the requirement of a specific intent to kill.

In People v. Ledesma, 16 Cal.4th 90 (1997), the appeals court said, “Further bolstering our conclusion, the Legislature in 1993 added to section 12022.5(d) murder “perpetrated by means of shooting a firearm from a motor vehicle.” (Stats.1993, ch. 611, § 31.5.) This revision was part of Senate Bill No. 310, a package of amendments increasing penalties for drive-by killings. (See Historical Note, 47 West’s Ann. Pen. Code (1997 supp.) § 189, p. 139.) In his signature message, Governor Wilson noted, “this bill imposes a sentence enhancement of up to five years for the use of the firearm.” (Ibid.)” Additionally, in a footnote, the appeals court said, “In signing this comprehensive legislative package, the Governor made the following comments in his signature message to the Legislature, dated July 16, 1993: Bray v. Workers’ Comp. Appeals Bd., 26 Cal.App.4th 530 (1994)”

A court of appeal, in the case of In re Marriage of Wood, 37 Cal.App.4th 1059 (1995), set forth the following: “The Historical Note to the statute cites Governor Wilson’s signature message in which he stated: “‘This bill would eliminate the income of a subsequent spouse or nonmarital partner when determining or modifying child support except in those cases where excluding the income would lead to extreme and severe hardship to the child subject to the child support award….’” (See West’s Annot. Fam. Code, notes following § 4057.5.)”

Finally, there have been a number of unpublished appellate court decisions using signing messages. While these decisions cannot be cited in court, they are nonetheless instructive of the use of gubernatorial signing messages and they are consistent with all of the reported decisions.

For example, in Vanguard Medical Management Billing, Inc. v. Baker (2017), which was a federal district court in California, the trial court explained that “the Governor included a Signing Message that also appears to address the procedural due process issue. RJN at 4:8–26. The Signing Message reads …”

The federal district court in Vanguard Medical Management Billing, Inc. also provided several other useful citations: “See Cal. Emp’t Stabilization Comm’n v. Payne, 31 Cal.2d 210, 213–14 (1947); Guillen, 147 Cal.App.4th at 945 (“Although subsequent declarations of the Legislature are not binding authority, they are appropriate for the court to consider as evidence of the original legislative intent for a measure.”); see also In re Carr, 65 Cal.App.4th 1525, 1535 (1998) (“A governor’s written memoranda issued upon signature of a bill is admissible on the issue of the Legislature’s intent.”); People v. Ledesma, 16 Cal.4th 90, 100 (1997) (considering Governor’s signing statement in interpreting amendment to statute).”

Similarly, a state appellate court in Castillo v. Military Department (2015), in an unpublished decision, said, “The Governor’s signing message explains the need for such protections for service members who are called into active service, leave civilian jobs, and may experience financial hardship. The signing message states the bill “will ensure that equal protection is provided to all California National Guard members and other reservists, who unselfishly put their civilian lives on hold to serve and protect millions of Californians.” (See Historical and Statutory Notes, 46 West’s Ann. Mil. & Vet. Code (2010 ed.) foll. § 395.06, p. 197.)

Likewise, another California court of appeal, in the unpublished decision of Lewis v. County of Los Angeles (2020), explained in a footnote: “Were it necessary to look to legislative history, the signing statement plaintiff chiefly relies on still does not help him. When section 63.1 was amended, then-Governor Pete Wilson prepared a signing statement that reads, in relevant part: “[I]n many cases[,] taxpayers are unaware that they need to apply for the exemption until a supplemental assessment is levied, which doesn’t happen until after the three year window has expired. This bill addresses this ‘tax trap’ by allowing a claim to be filed within six months of mailing of the supplemental assessment.” (Governor’s signature message to Sen. on Sen. Bill No. 675 (Oct. 1, 1993) 2 Sen. J. (1993-1994 Reg. Sess.) p. 3503.) According to plaintiff, it is “evident” from this statement “that when the statute refers to the mailing of the notice it is also requiring that the notice actually be received by the taxpayer.”

In another unpublished California court of appeals case, District Council #16 Northern California Health and Welfare Agency (2018), the court noted: “In his signing message for Assembly Bill No. 2907, Governor Gray Davis explained the bill would help “level the playing field” for health care providers during contract negotiations with health care service plans to help ensure consumers have continuity of care. (Cal. Business, Transportation & Housing Agency, Enrolled Bill Rep. on Assem. Bill No. 2907 (2001–2002 Reg. Sess.) p. 15.)”

Lastly, in the unpublished decision of People v. Norbury (2015), the California appellate court said, “We see nothing in the legislative history or Governor Wilson’s signature message issued on the enactment of the amendment to section 189 that would support defendant’s restricted definition of motor vehicle as that term is used in section 189. The purpose of section 189, simply put, is to punish more harshly the perpetrator who kills someone in a public area by shooting at them “from a motor vehicle.” (Legis. Counsel’s Dig., Sen. Bill No. 310 (5 Stats. 1993 (Reg.Sess.) Summary Dig., p. 236.))”

As can be seen from the examples set forth above, both state and federal courts in California can and do rely upon signing messages that occasionally accompany the Governor’s signature on a bill.