Letters of intent: A bill’s author gets short shrift from the courts

One of the long-running points of contention when California courts examine what’s known as  “legislative intent” is the judiciary’s general disdain for statements made by the authors of legislation.

Those clear-language statements accompanying bills, common in the Capitol, seek to offer guidance and state the purpose and intention of an author’s legislation.

But because a bill’s author — just one of 120 state lawmakers — does not “speak for the legislative body as a whole,” the courts in California generally offer little, if any, deference to the views of that author.

The reality is that few legislators are well-versed in the provisions of the hundreds, if not thousands, of bills that come before them during the course of each year.

This should not be the case, because this lack of deference provided to the author may stem from the courts’ perception of the rough-and-tumble political realities of the legislative process.

Nonetheless, in order to address the judiciary’s stated concerns about lawmakers’ letters of intent, there is a solution to ensure that these letters do, in fact, reflect the legislative body as a whole. Legislative intent is and should be generally attributable to the legislative body as a whole.

Unfortunately, the reality is that few legislators are well-versed in the provisions of the hundreds, if not thousands, of bills that come before them during the course of each year of the two-year California legislative session.

On the other hand, the author of a bill is probably the most knowledgeable about the specific provisions of the bill and can speak most clearly about the “intent” behind the legislation. He or she can explain why specific words and phrases were or were not chosen to be incorporated into that bill and, ultimately, the statute.

As a result, the courts in this state should actually provide significant deference to the statements of those who are most familiar with the contents of the bill and truly understand the intent of the bill.

As a result, following the recommendations described at the end of this article, the authors’ letters of intent should carry significant weight in ascertaining the Legislature’s intent.

There are perhaps two dozen letters each year out of roughly 1,000 bills reaching the governor’s desk.

Because we’re talking law, you’ll have to buckle up now as we take a quick trip into the weeds.

By way of background, “the fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” Upland Police Officers Assn. v. City of Upland (2003); Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987).

“If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, ‘statutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes’.” People v. Arias (2008).

One method to help determine the legislative intent behind a specific bill is a letter that is published in the Assembly Daily Journal (by an Assembly bill author) or the Senate Daily Journal (by a Senate bill author).

These letters, for which there are perhaps two dozen each year out of roughly 1,000 bills reaching the governor’s desk, are most often used by the bill’s author to explain an ambiguity in the bill or explain the purpose of particular changes in the law as set forth in the bill.

In the Assembly and Senate, such a “letter to the journal” is a formal matter. The letter must be on the legislator’s letterhead and signed by that legislator. The general custom and practice of the two houses of the California Legislature is to have the respective leadership staff (i.e., both majority and minority parties) review the letter and determine whether they have any objections to its contents.

Different versions of the bill, committee and floor analyses, and other items are given greater weight than these letters by bill authors.

The policy committee consultants are often consulted as well, and may request revisions to the letter. The Assembly Speaker’s office reviews and approves letters (for letters by Assembly authors), as does the Senate President pro tempore’s office (for letters by Senate authors).

The two Republican Leaders in either house provide a similar review and approval to these letters expressing legislative intent on bills passed by both houses.

The courts in this state can use these letters as extrinsic aids in determining the intent of the Legislature. However, different versions of the bill, committee and floor analyses, and other items are given greater weight than these letters by bill authors. Again, the view of the courts is that these other documents are considered to be expressions of the legislative body as a whole, but not bill authors’ letters.

Nonetheless, a Journal letter may be the best indicator available regarding the intent of the bill’s author. Thus, they should be granted equal, if not greater, deference than these other documents of extrinsic evidence that are accepted as indicators of legislative intent.

The determination of legislative intent is important because there are instances in which there are legitimate legal disputes between parties as to what statutory language may mean or what was intended by the language contained in a bill.

Unfortunately, the courts offer a limited view in determining which legislative intent materials can be properly used.

In these cases, both parties to the dispute will attempt to argue that their interpretation is the correct one that should be adopted by the court. Obviously, it is up to the judiciary to determine whose view is the correct one.

Unfortunately, the courts offer a limited view in determining which legislative intent materials can be properly used to form the basis for a legal ruling on what was intended by the Legislature.

For example, the courts have determined that documents available to all legislators are the proper ones to use.

Of course, this is based upon the assumption that all legislators read all of these materials before casting their votes — an unrealistic view, given what actually happens in the legislative process, when legislators take several thousand votes on more than 2,000 bills per year.

This statement is not meant as a criticism of the Legislature or any individual legislators themselves. Instead, it is simply an acknowledgement that legislators cannot be expected to read every bill and all of the background materials for all of those bills, such as committee and floor analyses, and thoroughly understand the intent behind each and every measure and the particular wording used in the legislation when they are voting on thousands of bills each year.

Congress uses a committee “mark-up session” to delve deeply into the legislative language contained in a bill.

The other important point to understand is that California’s legislative history is lacking, particularly in comparison to the materials produced by the U.S. Congress, for example.

In a similar manner to the prior concern expressed, this is not a criticism of the California legislative process nor of the valuable and hardworking staff of the Legislature who prepare these analyses of pending legislation.

Rather, this statement is an acknowledgement that there is limited, insightful material produced in conjunction with the consideration of legislation, primarily because there are so many bills to be analyzed in a short amount of time due to tight legislative deadlines. As a result, these committee and floors analyses are often lacking in specifics about particular language used or not used in the bills.

For example, Congress uses a committee “mark-up session” to delve deeply into the legislative language contained in a bill. Federal legislators review in detail the language and discuss and debate the bill’s provisions and there are transcripts of those hearings.

At the federal level, there is the benefit of the Congressional Record, basically a verbatim transcript of debate and discussion regarding pending legislation.

In the California Legislature, on the other hand, committees rarely get into the details of bill language. There may be debate generally over the policy of a particular bill, but rarely any discussion about the bill’s actual language.

As a result, these documents that are so heavily relied upon by state courts – bill analyses – are often not helpful in resolving ambiguities in legislative language. That is because it is usually not the policy of a bill that is litigated or that is in dispute. Rather, it is particular language contained or not contained in a statute and the underlying bill that is the central issue.

Also at the federal level, there is the benefit of the Congressional Record, basically a verbatim transcript of debate and discussion regarding pending legislation, which is obviously very helpful for ascertaining legislative intent. Conversely, the Assembly Daily Journal and the Senate Daily Journal do not contain details regarding legislative debate. Thus, the main source of legislative intent in the California Legislature is a committee analysis.

Again, however, committee and floor analyses rarely provide details or insights into why specific bill language was or was not used in a bill.

California courts may be taking an unnecessarily narrow view of which items can be appropriately used to determine the intent of the Legislature.

Generally, the bill analyses explain existing law, changes to the law that are being proposed to be made by the bill, arguments for and against the bill, and a few staff comments or recommendations. However, rarely is specific bill language discussed and the reasons why that particular language was used. As a result, there are definite limitations in ascertaining insight or understanding into the language used by the Legislature when it comes to state bills.

Because of these factors, California courts’ reliance on certain legislative materials is important and appropriate, but the courts may be taking an unnecessarily narrow view of which items can be appropriately used to determine the intent of the Legislature.

One possible reason is that the judicial branch does not have a fundamental understanding of the legislative process and what actually happens when bills are considered and voted upon by legislators.

Letters to the journal are also occasionally used when no further amendments to a bill are going to be made and are used to address lingering concerns with bill language. Although some courts prefer to consider documents provided to all legislators as being the best indicator of legislative intent, these journal letters from a bill’s author are strong evidence of intent because the author of a bill is the legislator most intimately involved in a bill and its language.

Therefore, a letter from that legislator should be given at least equal weight, if not more weight, by the courts in this state when they are trying to figure out legislative intent.

In fact, it is probably the actual case that such a letter from a bill’s author should be viewed as the best evidence of intent. However, based upon the Supreme Court’s guidance in the Carter case, there must be a process followed by the two houses of the Legislature in publishing these letters.

“Where an author’s statements appear to be part of the debate on the legislation and were communicated to other legislators, we can regard them as evidence of legislative intent.” (Carter v. California Department of Veterans Affairs (2006))

Based upon this guidance from the California Supreme Court, these letters to the Assembly Daily Journal and Senate Daily Journal must be circulated among the members of the Assembly or Senate (depending on whether it is a letter for an AB or an SB) prior to the final floor votes on the particular bill.

Following this approach will then ensure that all legislators in that particular house have been given notice of the letter and an opportunity to review it prior to voting on the measure.

In that case, the courts should readily accept these letters to the journal and give them the weight that they deserve in determining legislative intent.
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Editor’s Note: Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc. He received his B.A. in Political Science-Public Service from the University of California, Davis (1989) and his J.D. from the University of the Pacific, McGeorge School of Law (1992). He also serves as a Lecturer at UC Davis King Hall School of Law.

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