Kaufman case and cognizable legislative history documents

In the key case to discuss the use of legislative intent materials, we find clear guidance provided by the decision. The appellate court issued its written decision on August 30, 2005 and, since then, it has been cited affirmatively more than 80 times.

The case is Kaufman & Broad Communities, Inc., et al. v. Performance Plastering, Inc. (2005) 33 Cal.Rptr.3d 362. The written decision was issued by the Third District Court of Appeal and involved an opinion ruling on a motion for judicial notice of legislative history documents.

In a 3-0 decision, the appellate court set forth a listing of legislative history documents that are cognizable as well as those that do not constitute cognizable legislative history. There are numerous sources to help determine the legislative history and intent of a bill’s provisions the court determined.

The California Rules of Court allow a party to seek a court to take judicial notice of documents that constitute cognizable legislative history. In this case, Performance Plastering sought for the court to accept legislative history of a 1998 amendment to California Revenue & Taxation Code Section 19719, which was added by Assembly Bill 1950.

The Kaufman court set forth that, in order that legislative intent be given effect, the statute should be construed within the ordinary meaning of the language used and in harmony with the whole system of law.  A wide variety of factors may illuminate legislative design, such as context, object in view, evils to be remedied, history of the times, and of legislation upon the same subject, public policy, and contemporaneous construction.”

In Kaufman, the court first discussed legislative history in general terms. The court began by criticizing “many attorneys” and “some professional legislative intent services” companies for their expansive view of legislative process papers being properly subject to judicial notice.

In fact, the appellate court told practitioners that the lack of segregation and justification for each request for judicial notice “must stop.” The court went on to describe “the purpose of this opinion is to help attorneys to better understand the role of legislative history and to encourage them to request judicial notice only of documents that constitute cognizable legislative history.”

How should those seeking to determine legislative intent proceed? First, one must review the introduced bill, each amended version of the bill, and the final bill language that was chaptered. The purpose of doing so is to understand the changes made to the bill language, particularly which words and phrases were included or excluded. Courts also try to identify the broad policy framework and the statutory scheme within which to analyze any individual section, word, phrase, or clause of interest.

Courts first look to ascertain whether the legislative history document is relevant and whether the source is reliable so that the court will accept the document(s) as indicative of intent of the Legislature. What the appellate court did in the Kaufman case was to create two categories of legislative history documents.

The court specifically listed those it deemed to be “cognizable legislative history” and those it determined to be “not cognizable legislative history.” The appellate court distinguished the two on the basis that “cognizable legislative history” is that which “must shed light on the collegial view of the Legislature as a whole.”

In December 2005, the California Supreme Court was asked to depublish the Kaufman decision, but the Court declined.

Cognizable Legislative Documents
Pursuant to the Kaufman decision, the following are the documents that constitute cognizable legislative history in the court of appeal for the Third Appellate District and the cases that the court cited:

1. Ballot Pamphlets: Summaries and Arguments/Statement of Vote
2. Committee Files
3. Conference Committee Reports
4. Different Versions of the Bill
5. Floor Statements
6. House Journals and Final Histories
7. Reports of the Legislative Analyst
8. Legislative Committee Reports and Analyses (including statements pertaining to the bill’s purpose)
9. Legislative Counsel’s Digest
10. Legislative Counsel’s Opinions/Supplementary Reports
11. Legislative Party Floor Commentaries
12. Official Commission Reports and Comments
13. Predecessor Bills
14. Statements by Sponsors, Proponents and Opponents
15. Transcripts of Committee Hearings
16. Analyses by Legislative Party Caucuses (e.g., Senate Democratic and Republican)

Non-Cognizable Legislative Documents
Pursuant to the Kaufman decision, the following are the documents that do not constitute cognizable legislative history in the court of appeal for the Third Appellate District and the cases that the court cited:

1. Authoring Legislator’s Files, Letters, Press Releases and Statements Not Communicated to the Legislature as a Whole
2. Documents with Unknown Author and Purpose
3. Enrolled Bill Reports Prepared by Executive Branch for Governor
4. Handwritten Document Copies, without Author, Contained in Assembly-member’s Files
5. Letter from Consultant to the State Bar Taxation Section to Governor
6. Letter from the Family Law Section of the State Bar of California to Assemblymember or Senator
7. Letters to Governor Urging Signing of Bill
8. Letters to Particular Legislators, Including Bill’s Author
9. Magazine Articles
10. Memorandum from a Deputy District Attorney to Proponents of Assembly Bill
11. Proposed Assembly Bill Which Was Withdrawn by Author
12. State Bar’s View of the Meaning of Proposed Legislation
13. Subjective Intent Reflected by Statements of Interested Parties and Individual Legislators, Including Bill’s Author, Not Communicated to Legislature as a Whole
14. Views of Individual Legislators, Staffers, and Other Interested Persons

Concerns with the Kaufman Decision
One issue raised in the Kaufman decision is whether the opinion undermines the importance of seeking legislative intent by limiting the information the court can take into account. Does reliance on a handful of documents limit consideration of the remainder of the bill file? Should a court review the entire body of documents related to a bill’s enactment? Does consideration of the entire set of documents better explain what problem was being addressed and how the legislation was developed?

The Kaufman decision specifically excludes some types of documents from consideration by a court, but they may be relevant to determining intent in some cases. In addition, does the Kaufman decision contravene existing state statutes?

For example, the Code of Civil Procedure explicitly provides “In the construction of a statute the intention of the Legislature … is to be pursued, if possible”. (emphasis added) In addition, the Evidence Code provides that, in taking judicial notice, “Any source of pertinent information…may be consulted or used.”

In addition, Section 454(b) provides “Exclusionary rules of evidence do not apply except Section 352 and the rules of privilege”. (emphasis added) These statutes may provide the basis for courts to consider all documents from legislative bill files and allow individual judges to determine their probative value.

The fundamental concern expressed by critics of the Kaufman decision is that it is reliant upon the decision in California Teachers Assn. v. San Diego Community College Dist. Here the court determined that the legislative history documents must shed light on the collegial view of the legislature to be useful.

Based upon its reliance on this decision, the Kaufman court further restricted the general rule to limit documents to statements communicated to the legislature as a whole. But this position belies a misunderstanding about the legislative process and the knowledge of legislators when voting on bills.

In concept, the idea that a document setting forth legislative history must be “communicated to the legislature as a whole” does not make much sense because it is based upon the faulty assumption that those types of documents actually reflect the intent of the Legislature. It also assumes that the entire Assembly and the entire Senate has read a bill analysis, for example, and acknowledges that this document reflects their intent in voting for the bill.

The other point is that litigation over statutory language needing an interpretation by the judiciary is rarely reflected in the legislative documents supplied to the entire Legislature. Instead, these legal disputes over language could more likely be helped by statements made by the bill’s author, its supporters, and its opponents.

For example, litigation usually results over the precise language of a statute and an ambiguity or dispute over whether the language applies or does not apply to a particular set of facts. But this type of situation is almost never addressed in the documents supplied to the Legislature as a whole. Instead, it will be other documents generally not accepted as being of probative value and cognizable under the Kaufman decision.