The Micheli Files: Is there a difference between intent and policy statements in statutes?

ANALYSIS – Readers of bills and statutes will regularly come across statements of legislative intent, such as paragraphs that usually begin with either “It is the intent of the Legislature to …” or “The Legislature finds and declares that …” On other occasions, readers may come across statements that “it is the policy of the state.” Both are expressed opinions or state desires of the Legislature.

For example, a plus section at the end of a bill recently provided:

It is the policy of this state that all state agencies, boards, and commissions shall utilize their authorities in furtherance of the biodiversity conservation purposes and goals of Executive Orders B-54-18 and N-82-20.

OR

It is the policy of this state that public agencies shall not approve projects as proposed that are inconsistent with or would impair the successful implementation of the strategies required by subdivision (b).

These two examples attempt to establish a policy of the state. This leads to the question of whether there is any legal distinction or other significance between “intent” and “policy” statements used in California statutes. Unfortunately, neither term is defined in state law. However, based upon the historical usage of these two terms, we have a general idea of how they are used in statutes.

In some ways, statements of intent and policy are similar and, of course, they are both made by the Legislature, even though policy statements generally do not include an introductory statement like intent ones do. But there are some differences between the two.

In reviewing numerous statutes and bills, we find that the statements of legislative intent are more often specific in nature, but they can sometimes be general statements as well. Policy statements are usually broader because they tend to express goals, rather than being specific in nature. While there are exceptions to these generalities, these two types of statements are used for different purposes.

An additional question that can be posed is why would the Legislature use a policy statement in statute, rather than simply imposing a mandate or even providing discretion whether to implement a policy. For example, a recent 2023 bill provides the following

Section 5890 of the Public Utilities Code is amended to read:

It is the policy of the State of California that subscribers and potential subscribers of a state video franchise holder should benefit from equal access to video service within the franchise service area, regardless of income level.

If this bill is signed into law by the Governor, it will establish a statutory “policy” of the State of California. However, this policy statement could be changed to an affirmative requirement. For example, this statutory provision could provide:

Subscribers and potential subscribers of a state video franchise holder shall benefit from equal access to video service within the franchise service area, regardless of income level.

OR

A state video franchise holder shall provide equal access to video service within the video service area to all subscribers and potential subscribers, regardless of income level.

In either of these two examples, the statute would be imposing an obligation to provide equal access to subscribers, rather than merely making a policy statement. A policy statement is like an intent statement in that it is an expression of opinion by the Legislature. It does not carry the weight and enforceability of an actual statute. So, rather than making a policy statement, why not impose an affirmative obligation or duty instead?