Can legislative findings and declarations be helpful to courts?

An example of how helpful well-drafted legislative findings and declarations can be in California legislation comes from a United States Court of Appeals for the Ninth Circuit decision in Welch v. Brown (834 F.3d 1041 (9th Cir. 2016)).

I believe in this federal appellate court decision that the findings and declarations were critical to the outcome of the case that deemed a California statute constitutional. In 2012, SB 1172 (Lieu) was signed into law as Chapter 835.

Section 1 of the bill has 15 uncodified legislative findings and declarations, most of which contain citations to medical journals and other factual statements (which is the purpose of findings and declarations, as opposed to legislative intent statements which are essentially opinions).

Section 2 of the bill contains the statutory language, which is comprised of three short sections that were added to the Business and Professions Code, including three definitions in the first section. The substantive provision of SB 1172 is contained in the second code section and is just one sentence in length:

Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.

The Ninth Circuit Court of Appeals twice upheld this 2012 statute. California became the first state to prohibit conversion therapy for children under 18. There were two district court rulings that were consolidated in the 9^th Circuit decision in which the appellate court ruled that the ban regulates professional conduct within the state’s traditional authority to protect child welfare, and the appellate court ruled that the statute does not violate the free speech or religious rights of licensed therapists. The U.S. Supreme Court later rejected multiple lower-court challenges seeking to overturn the 9th Circuit’s validation of the California law, allowing the ban to remain fully enforceable.

So, what does this law have to do with legislative drafting and statutory construction?

The appellate court decision heavily relied upon the legislative findings and declarations set forth in Section 1 of the bill to find the law to be constitutional. The following are the appeals court’s statements:

Legislative history, too, strongly suggests that the law was aimed at practices that occur in the course of acting as a licensed professional.

For example, in its express legislative findings, the legislature quoted a policy statement that found that“[s]ocial stigmatization of lesbian, gay and bisexual people is widespread and is a primary motivating factor in leading some people to seek sexual orientation changes.”

The documents in the legislative history recognized that religion is a motivating factor for some persons who seek to change their sexual orientation; but it also repeatedly listed “social stigmatization,” “unfavorable and intolerant attitudes of the society,” and “family rejection” as common causes of distress that might motivate people to seek counseling.

The legislative findings of SB 1172 cited a 2009 report from a Task Force convened by the American Psychological Association (“APA”). 2012 Cal. Legis. Serv. ch. 835, §1(b).

The legislative findings cite—in addition to the APA Task Force report—many other sources, including a 2009 resolution by the APA; a 2000 position statement by the American Psychiatric Association; a position statement by the American School Counselor Association; a 1993 article by the American Academy of Pediatrics; a 1994 report by the American Medical Association Council on Scientific Affairs; a 1997 policy statement by the National Association of Social Workers; a 1999 position statement by the American Counseling Association Governing Council; a 2012 position statement by the American Psychoanalytic Association; a 2012 article by the American Academy of Child and Adolescent Psychiatry; and a 2012 statement by the Pan American Health Organization. 2012 Cal. Legis. Serv.ch. 835, § 1(c)–(l). Those additional sources do not characterize the main motivation of persons seeking SOCE as being religious.

In all of these statements, the appeals court relied upon the fifteen legislative findings and declarations to uphold the statute from federal constitutional challenges. As a result, this published decision demonstrates the potential value of properly drafted legislative findings and declarations.

Unfortunately, in most instances, California bills that contain legislative findings and declarations are most often simple statements, without citation or verification. Instead, whether findings and declarations, special statute statements, or when amending a voter-approved initiative, these legislative declarations should be fact-based with appropriate citation, rather than mere statements of opinion.

What do I mean? For example, a prior bill contains these findings and declarations (that lack citation or verification):

SECTION 1. (a) The legislature finds and declares all of the following:

(1) The state owns an excess of land that has the potential to be suitable for conversion to affordable housing, use for other state agencies, and usable retail space.

(2) While the Department of General Services has made efforts to identify buildings in order to convert excess state properties into affordable housing, the change in remote work patterns necessitates an effort to maximize utilization for state-owned office buildings that are not candidates for disposal and conversion.

On the other hand, the following is from a recent bill that contains a good example of helpful findings and declarations (with citations):

SECTION 1.  The Legislature finds and declares all of the following:

(a) State law, including but not limited to, Section 2192 of the Streets and Highways Code, prohibits public funding from being used to purchase fully automated cargo handling equipment or infrastructure supporting that automated equipment.

(b) The Zero Emissions Port Electrification and Operations project, described in Article 3 (commencing with Section 30650) of Chapter 7 of Division 20 of the Public Resources Code, is not eligible for funding under the Clean Ports Program (42 U.S.C. Sec. 7433) as part of the Inflation Reduction Act of 2022 (Public Law No. 117-169) as it is a stand-alone utility upgrade.

(c) Expanded grid and fueling infrastructure will be necessary to charge and fuel human-operated cargo handling equipment and to meet the 2030 goals contained in the San Pedro Bay Ports Clean Air Action Plan.

As a result, when California bills use findings and declarations, they should be written in a manner that a reviewing court will be able to examine the underlying basis for the findings and declarations thereby more likely accepting them as legislative history and intent of the Legislature.

Support for The Micheli Files is provided by The McGeorge School of Law Capital Center for Law & Policy