Possible hierarchy of legislative materials for statutory interpretation purposes

After a California judge or justice determines there is ambiguity in a state statute, they will turn to consideration of extrinsic evidence in an effort to ascertain the intent of the Legislature in crafting the statute. What sort of evidence is considered?

For more than one hundred and twenty-five years, California courts have examined evidence of legislative intent in construing state statutes, such as in County of Yolo v. Colgan (1901) 132 Cal. 265). In fact, I believe legislative materials should play a critical role in the judiciary’s consideration in cases of statutory interpretation. And I believe there should be a hierarchy of those materials used by the judicial branch.

In other words, some legislative materials should be given greater weight than others. In this way, I think there should be a hierarchy of materials to be considered after the court determines there is ambiguity in the statutory language. What is the basis for this hierarchy?

The California Court of Appeal, Third District, issued the preeminent decision (Kaufman & Broad Communities v. Performance Plastering) determining what are and are not “cognizable legislative materials” for courts in this state to consider. I understand and appreciate the concept of wanting legislative documents to reflect the body as a whole, or the collective judgment, of the Legislature.

As set forth in this appellate court decision, California courts prefer floor and committee analyses over statements by the bill author. But, I beg to differ with the appellate court in a few respects. First, there is some internal inconsistency in the reported decision itself.

For example, it distinguished between cognizable and non-cognizable legislative materials based on the threshold of whether it was “before the Legislature as a whole.” With that standard, how is the Governor’s Enrolled Bill Report cognizable?

An Enrolled Bill Report is confidentially prepared by executive branch entities, including relevant departments and agencies, as well as the Department of Finance. It is not shared with the Legislature. It is also submitted to the Governor after the bill has passed the Legislature and is pending on the Governor’s Desk for final action. Clearly, an EBR is not “before the Legislature as a whole.”

This and other examples demonstrate the judicial branch not fully understanding the legislative process. Judges in this state also attribute little value to statements made by the author of the bill because they do not reflect “the Legislature as a whole.” Yet, those legislators are the most knowledgeable about the statutory language and what is intended by the law.

In utilizing the appellate court’s approach generally, we could create a proposed hierarchy for consideration of legislative history materials. My proposed ranking of these items in terms of value from a legislative perspective are:

1. Codified or uncodified legislative intent statements.
2. Codified or uncodified legislative findings and declarations.
3. Letters to the (Assembly or Senate) Daily Journal by the bill author.
4. Assembly or Senate Floor Analyses.
5. Senate or Assembly Committee Analyses.
6. Materials from a Bill’s Sponsor(s).
7. Other relevant materials used by the Legislature in considering the legislation.

From my perspective, the author and the sponsors in particular, as well as those who actively and directly participated in the bill’s travels though the legislative process are in the best position to state what the intent or purpose of an enacted statute is what the language used in the statute was intended to mean. Why?

Because these are the folks who drafted and often negotiated the language. They are in the best position to explain the goal, the purpose, the intent. The Legislature as a while votes only on the bill’s concept and policy position. In other words, they are voting for or against the proposed policy (e.g., do they want to expand the Earned Income Tax Credit to additional beneficiaries in the proposed bill).

They are not voting on the language. They are not voting on why the statutory language uses the term person instead of taxpayer. They are not voting on the potential ambiguity created by the language unintentionally. They are simply voting aye to support expansion of the EITC or no to prevent its proposed expansion.

Now, I recognize that this argument will undoubtedly play into the hands of textualists and why they do not want to rely on legislative history due to its lack of reliability. However, they are mistaken in two regards.

First, legislative history documents are reliable, albeit not in every instance, but the judiciary has to rely on the correct documents. That is the basis for the suggested hierarchy of legislative history documents set forth above.

Second, while I believe in using the text first (as do California courts), primarily because legislators do in fact draft with a purpose and use consistent language and avoid unnecessary words, so the written words of the statute should be the defining words in most instances.

However, the reality is that any seasoned legislative drafter will readily admit is that there is no perfect statute; that no statute can be entirely free of some degree of ambiguity; and, that a statute cannot encompass every possible scenario in the future. As is often stated by legislative lawyers, a client could give 3 drafters the same assignment and there could be three distinct approaches drafted, all of which could work to address the client’s stated goal.

As a result, whether it is a practicing attorney trying to advise her client, or an enforcement agency trying to apply or implement the statutory language, or the judiciary trying to interpret the law, there may be a dispute in one or more of those instances. Therefore, I think even textualists have to consider legislative history on occasion in order to determine a case’s outcome. Besides, since we are trying to ascertain the legislative intent (after all the lawmaking authority is granted to them), what better way is there to try and glean that intent.

Now, in California, I will be the first to admit that our legislative history measures are quite limited. That is not a criticism of legislative staff or bill drafters. Instead, I think it is a product of our state Legislature having to consider too many bills. With too many bills comes insufficient time being spent on reviewing bill language and debating it.

Instead, for example, the Legislature could conduct “mock-up sessions,” similar to the U.S. Congress, where legislators actually go through a bill line by line, explain the purpose and intent, transcribe it, and then make it available for implementing agencies and interpreting judges.

While I have suggested that judges in this state should have a better understanding of the California legislative process, I also believe that the Legislature should do a better job of providing clear language and expressions of intent in its committee and floor analyses.

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