Take a letter — to the Legislature’s journals

Lobbyists at the state Capitol have noticed a trend developing over the use of letters to the Daily Journals in the Assembly and Senate as a substitute for making bill amendments.

It’s a development little noticed by the public, but it is being closely watched by those with business before the Legislature.

The use of these letters cannot be a substitute for making actual changes to the proposed statutory language in bills.

This new phenomenon is due in part to voter-approved Proposition 54, which requires that bills – including their amendments, no matter how minor – be in print at least 72 hours before being acted upon. The rule is aimed at blocking any last-minute changes to bills during the last three days of the legislative session.

Proposition 54, approved in November 2016, has been in effect for the past three legislative sessions. Because bills cannot be amended in the final three days of the session, authors and interest groups have begun using these letters to the Journals to modify their legislative “intent,” or to even address concerns with explicit bill language that cannot be amended.

The use of these letters cannot be a substitute for making actual changes to the proposed statutory language in bills. So if the new trend is an attempt to get around Proposition 54, it’s not working.

But intent language can be significant and may play a role in court challenges.

Some background: Both houses of the Legislature provide a process by which a lawmaker can publish a letter in either the Assembly Daily Journal (generally for the author of a bill in the Assembly) or the Senate Daily Journal (generally for the author of a bill in the Senate) in order to explain the legislator’s intent behind his or her bill.

When considering the intent of the Legislature, state courts do not generally consider statements by individual legislators.

Historically, the Assembly and Senate may publish these letters in their respective daily journals for several possible reasons, such as to explain an ambiguity in the bill, to explain particular changes in the law that are being proposed, or for other reasons.

During the last two legislative sessions, however, their use has been expanded as a potential substitute for actual changes in the bill language.

When considering the intent of the Legislature, state courts do not generally consider statements by individual legislators. Even when the individual legislator is the author of a bill, courts cannot guarantee that the other members of the Legislature who voted for the bill shared the same views about the bill as the author.

For this reason, state courts generally will only consider these letters to the journal (i.e., letters of intent published by one or both houses of the Legislature) when the expression of intent appears to convey more than merely a personal view of the proponent of the bill.

The California Supreme Court assessed the legal relevance of letters to the journal in a case known as In re Marriage of Bouquet. In that case, the court held that a statement from a legislator is entitled to consideration when it reiterates the arguments leading up to the adoption of the legislation, rather than merely personal views.

The practical problem is that almost all letters to the journal are printed after the floor votes have taken place.

The state Supreme Court has since made clear that Bouquet referred to the admissibility of the evidence rather than the weight to be given.

In Bouquet, the Supreme Court reasoned:

“To say that the letter properly bears upon the issue of legislative intent is not to hold that it necessarily concludes that issue. In many cases the indicia of intent are in conflict, and the proper construction of the statute requires us to impute weight to expressions of intent in accord with their probative value. Thus, a motion to print a letter of legislative intent commands less respect than a formal resolution of legislative intent. Likewise, an individual legislator’s recount of the argument preceding the passage of a bill probably merits less weight than extensive committee reports on the bill or a former record of legislative debates.”

 The letter to the journal must provide guidance to the state court in ascertaining legislative intent.

The practical problem is that almost all letters to the journal are printed after the floor votes have taken place and so courts are less likely to view them as having been taken into account by legislators before they casted their votes. Regardless of the weight to be given to these letters to the journal, they cannot be used to contradict provisions of a proposed statute in a bill or add language to a bill that does not exist.

In other words, letters to the journal are given nominal value by state courts and are only utilized when there is ambiguity in the statute being examined. If there is not ambiguity, then extrinsic evidence of legislative intent (such as these journal letters) are not even reviewed by state courts. If there is ambiguity, then this evidence may be considered, but it is not dispositive of determining legislative intent.

And the letter to the journal must provide guidance to the state court in ascertaining legislative intent. It cannot be utilized to change the plain language of the statute or to provide some alternative interpretation of the bill’s language than what is written into statute.

In the end, if legislators or interest groups want the language of a bill to say something or mean something else than is in the bill, then they will have to amend the bill prior to the 72-hour rule taking effect, or wait until the next legislative session to amend the bill to reflect their desired outcome.
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Ed’s Note: Chris Micheli is an attorney and lobbyist with the Sacrament governmental relations firm of Aprea & Micheli, Inc.