Legislative analysis of legislative history materials begins with a fundamental rule: to construe or interpret a statute, the court’s primary objective is to determine the legislative intent of the enactment; all other rules of construction yield to this rule. When the text of a statute is unambiguous and provides a clear answer, the courts generally go no further than that text. However, when a statute’s language supports multiple interpretations, then California law permits resort to extrinsic sources to ascertain legislative intent. This includes the legislative history and administrative interpretations of the language.
While laws in California have been enacted in each legislative session since the 1850’s, not many Californians understand the process by which a bill becomes law. For a number of states such as California, the legislative process is accompanied by useful documentation and materials that provide evidence of purpose, intent, rationale, and development of the language of the law in question.
A. Legislative Analysis Materials: Let’s start with the “bill” itself.
In very simple terms, a bill will be introduced by a legislator (author) either for the sake of the author or for an interested stakeholder or a constituent to remedy a problem. By reading each amended version of the bill, you will be able to identify the broad policy framework within which you must analyze any individual section, word, phrase, or clause that might be of interest to you. Each bill is broken out by simple, orderly section references: “Section 1,” “Section 2,” et seq. Your statute will be affected within one of these bill “section” references.
Modern California bills (from 1967 to date) contain a “Legislative Counsel’s Digest,” which provides a brief analysis prepared by the Legislative Counsel’s Office, which functions as the attorneys to the Legislature, within each amended version of the bill.
As you read each amended version of the bill for your section and/or your language of focus, legislative analysis requires you need to ask yourself, in which version of the bill does your language first appear? What is the date of that amended version of the bill? If it is language added at the end of the Legislative session (August and September), you may need to consider whether your language was developed in an earlier competitor or failed predecessor bill. For California, this is not an uncommon occurrence and the materials comprising the legislative history of any failed related bill may offer more useful insight regarding the development of specific language that was popped into the enacting bill at the end of the session.
Also, consider the bill overall – your legislative analysis should ask was this a single-section bill? Was this a massive enactment or revision of an area of law? Was this an omnibus bill? Was this a “budget trailer” bill? Each of these considerations will assist your understanding the context within which your language was being affected – in other words, was the enacted bill substantive or nonsubstantive to your statutory language?
It is important to read the beginning and end of each bill for any possible uncodified legislative findings, declarations, statements of intent, and urgency clauses.
Another feature to look for would be double-joining language within the bill. Double-joining is a legislative action taken to connect and then order the amendment of a single code section by more than one bill in the same legislative session. The goal is to avoid text being amended out by the bill “chaptered” last — under California law, the highest chaptered bill will “chapter out” any earlier chaptered measures. If you find double-joining language, you will want to review that double-joined bill to determine whether it originally was substantive to your statute or language of interest.
B. Legislative File Materials for the Committees, Author and Governor
There are usually surviving committee files for the Senate and Assembly policy and fiscal committees reviewing the bill. Also, you will want to see if the author will release his or her legislative bill file – these files contain letters of support and opposition as well as amendment drafts. From 1943 forward, there may be a California governor’s “chaptered bill file” available as long as the governor is not a currently sitting governor.
Legislative analysis compels you to study these committees’ analyses and file materials by looking for the history of the bill in each page of legislative history documents, and by asking and answering for yourself the following questions:
- Who sponsored this legislation?
- What was the problem to be remedied or the circumstances being addressed?
- Who are the proponents and opponents to this measure? Why are they supporting or opposing the bill? Did the opponents remain oppositional after later amendments to the bill were passed?
- Was this bill the product of an interim hearing, task force report, or a study process?
- Was the language enacted by the bill derived from a model act, uniform law, or the law of another state?
- Were there any other bills, competing or preceding this bill, in the legislature?
The file materials may contain specific discussion on your statutory language, but if not, examine the context by which your statute was being affected. For legislative analysis purposes, if ever you are not able to locate specific discussion within the legislative history documents on your research question, review all of the materials enclosed to see if there could be an arguable assessment of the goals and purpose that you may find applicable to your research issues. You can draw some conclusions based on an assumption that your section’s language as affected was intended to be consistent with public policy being promoted by this legislation.
C. Cognizable Legislative History
Determine the relevance and reliability of the document(s) to your analysis of legislative intent. For each document containing discussion relevant to the language of focus, or your issue within the legislative history materials obtained, ask yourself:
- Who wrote this document [for example, was it the legislative committee’s staff; the sponsor of the bill; the legislator; a department analyst; Legislative Counsel, or the Legislative Analyst?]
- What is the document exactly?
- Where did you find the document? Was it in the committee file? Was it a committee analysis? Do you see the relevant discussion repeated or paraphrased in other legislative history materials?
- When was the document of interest to you written? Does that date correlate to when your language was placed in the bill or affected substantively by the bill?
- Why was this bill proposed? What is the background driving this legislation?
- How do the materials address your legislative intent question? Do the materials specifically answer why your language was being added, amended, or deleted? If not, do the materials provide sufficient policy discussion that inferentially explains the likely reasons why your language was affected?
Responses to these questions will aid your legislative analysis of any particular legislation and enable you to determine whether a court would consider the discussion in the documents related to the language of focus or your issue relevant to determining the legislative intent, and reliable indicia of legislative intent. Some courts refer to this as determining whether the documents are “cognizable legislative history” that is, documents that shed light on the collegial view of the legislature as a whole.
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