The Micheli Files: Some reminders and recommendations on using letters to the journals

ANALYSIS – As we head into the final two weeks of the 2023 California Legislative Session, I wanted to provide some reminders about the purpose and use of letters to the Assembly or Senate Daily Journals, as well as a few recommendations that I hope will be implemented in the future.

The Assembly has a short memo on these letters for “instances when a Member may need to submit a letter to the Journal for clarification on one of their bills.” Both houses of the Legislature specify a number of “instructions” for preparing this type of formal letter, including the following:

1. Letters expressing a bill author’s intent regarding his or her bill are to be submitted to the Assembly Daily Journal or the Senate Daily Journal.
2. These signed letters are submitted by the bill’s author(s) on their letterhead and addressed to the Chief Clerk of the Assembly (for an AB) or to the Senate Secretary (for an SB).
3. These letters are reviewed by the staff of the two legislative leaders of the respective house before they can be accepted, which may result in revisions to the letter, if requested.
4. Once approved by house leadership, then the house’s Majority Leader makes a motion to have the letter printed in that house’s journal. This is “generally done within one to two floor session days” after submission of the letter. During deadline periods, the letters are generally approved as one of the final items before adjournment on the last night of Session.

It is this last point in particular that gives rise to my recommendations set forth below. I am making these recommendations in my desire to have California courts give greater weight to these Daily Journal letters. The following are my recommendations for consideration:

First, in order to be more persuasive to a court, these letters should be adopted contemporaneously with the vote on the bill. Unfortunately, in almost all instances, the Daily Journal letters are compiled and submitted in one batch on the last night of the Legislative Session. One reason our state courts give these letters less weight is because “the Legislature as a whole” does not know about them, which is due to the fact that they are submitted and adopted after the bill has already been voted upon.

Even where statutory language is ambiguous, and resort to legislative history is appropriate, as a general rule in order to be cognizable, legislative history must shed light on the collegial view of the Legislature as a whole.

Second, while I have seen some Daily Journal letters sent to both houses, and even by non-bill authors, this approach is not recommended, because these letters will likely be given even less weight by a court in this state. In other words, limit letters to being written by the bill author(s) and submitted to the house of origin. Although there is no prohibition on either of these approaches, I think courts may be more inclined to reject them for purposes of statutory interpretation.

Third, the courts in this state have repeatedly said that “legislative history must shed light on the collegial view of the Legislature as a whole.” As a result, the views of a single legislator, even the bill’s author, are generally not given much weight, unless they reflect the “view of the Legislature as a whole.”

In light of this guidance from the state’s courts, from my perspective, first, the letter needs to be discussed at the time the bill is debated on the Assembly or Senate Floor, and before a vote on the bill is taken. Second, the bill author should either read or reference the contents of the letter while discussing the bill on the Floor, prior to the vote being taken

Where do we get this court guidance on the use of legislative materials and statutory construction principles? The seminal case is from the California Third District Court of Appeal in Kaufman & Broad. There, the appellate court explained, in approving some forms of legislative history that would be cognizable by the courts in this state (and rejecting other forms):

Even where statutory language is ambiguous, and resort to legislative history is appropriate, as a general rule in order to be cognizable, legislative history must shed light on the collegial view of the Legislature as a whole. (See California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701, 170 Cal.Rptr. 817, 621 P.2d 856.) Thus, to pick but one example, our Supreme Court has said, “We have frequently stated that the statements of an individual legislator, including the author of a bill, are generally not considered in construing a statute, as the court’s task is to ascertain the intent of the Legislature as a whole in adopting a piece of legislation. [Citations.]”  Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062, 48 Cal.Rptr.2d 1, 906 P.2d 1057.)

As a result, the Third District Court of Appeal in the Kaufman & Broad decision explained the types of legislative history documents that are not cognizable by this state’s courts. Specifically, the appellate court explained that an “Author Legislator’s Files, Letters, Press Releases, and Statements Not Communicated to the Legislature as a Whole” are not acceptable documents of legislative history.

As a result, even letters from a bill’s author to the Governor without an indication the author’s views were made known to the Legislature as a whole are not accepted as legislative history. (Heavenly Valley v. El Dorado County Bd. of Equalization, supra, 84 Cal.App.4th at p. 1340-1341, 101 Cal.Rptr.2d 591; People v. Patterson, supra, 72 Cal.App.4th at pp. 443-444, 84 Cal.Rptr.2d 870.). Similarly, the appeals court generally rejected statements by a bill’s author about a bill’s intended purpose (People v. Patterson, supra, 72 Cal.App.4th at p. 443, 84 Cal.Rptr.2d 870.)

Because of our judicial branch’s limited use of a bill author’s statements, such as those printed in the Daily Journals, I believe these Journal letters will be more readily accepted by our state courts if these letters are, first, adopted at the time the bill is being debated and voted upon (rather than the current practice of doing it after the fact) and, second, that the contents of the letter are shared with all legislators in the house of origin at the time they are voting on the bill (rather than the current practice of not doing so).

Adopting the approach set forth above for the use of Daily Journal letters by bill authors could then be given greater weight by our state courts because legislators “as a whole” will have been aware of the letter’s contents and those same legislators will have known the letter’s contents at the time they were voting on the bill.