Frequently asked question: Can Legislative Intent Service, Inc. locate California Legislative Counsel Opinions?

Capture3FAQ: Can Legislative Intent Service, Inc. locate California Legislative Counsel Opinions?

Answer: Yes, when the Opinion is part of the legislative history of a proposed, failed or chaptered bill.

Our expertise at Legislative Intent Service, Inc. includes:
• Determining the legislative history of state and federal statutes;
• Identifying the bills most likely to be of interest to your issue;
• Locating and analyzing the materials related to these bills;
• Providing the materials in pdf form.

This process can lead to locating Legislative Counsel Opinions.

First, some background on the California Office of the Legislative Counsel:

Founded in 1913, the Office of Legislative Counsel is a nonpartisan public agency that drafts legislative proposals, prepares legal opinions, and provides other confidential legal services to the Legislature and others.
(http://legislativecounsel.ca.gov/)

The Legislative Counsel prepares its legal opinions at the request of a member of the Legislature, or the governor, on an existing law or pending legislative proposals:

. . . These opinions typically address the interpretation or constitutionality of provisions of existing law, or of pending legislative proposals, and cover a wide range of subject areas of the law. . . .
(See http://legislativecounsel.ca.gov/legal-services; emphasis added)

Are Legislative Counsel Opinions subject to public document requests and are they privileged?

Legislative Counsel Opinions are not subject to public document requests and they are privileged unless the opinion has been released.

Pursuant to Government Code §10207(a) and (b)(1), the opinions are considered privileged and confidential by Office of the Legislative Counsel and it is up to the Legislative Member or Governor to choose to release the opinion:

Gov. Code §10207, Attorney-client relationship with legislators and Governor; public records; issuance of opinions to Governor
(a) The Legislative Counsel shall maintain the attorney-client relationship with each Member of the Legislature with respect to communications between the member and the Legislative Counsel except as otherwise provided by the rules of the Legislature. All materials arising out of this relationship, including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by the Legislative Counsel, are not public records, except as otherwise provided by the rules of the Legislature or when released by the member for whom the material was prepared. When he or she determines that the public interest so requires, the Legislative Counsel may release any material arising out of the attorney-client relationship with a former Member of the Legislature who is not available to execute a release.

(b)(1) The Legislative Counsel shall maintain the attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. All materials arising out of this relationship, including, but not limited to, legal services concerning any bill in the Governor’s hands for rejection, approval, or other action, legal services concerning any legal opinion provided to the Governor, and legal services concerning any matter as the circumstances permit and the Governor requests, prepared by the Legislative Counsel, are not public records, except when released by the Governor. When he or she determines that the public interest so requires, the Legislative Counsel may release any material arising out of the attorney-client relationship with a former Governor who is not available to execute a release.
(Gov. Code §10207(a) and (b)(1))

When an author chooses to place the opinion in their legislative bill file for a particular bill and release it to the public, then the opinion is released. Similarly, a committee may receive the opinion from the author for consideration, and the opinion may then appear in the committee’s legislative bill file records released to the public. There is also the possibility that the Legislative Counsel itself may release an opinion, if the member or the governor is no longer able to do so.

How does Legislative Intent Service, Inc. find a Legislative Counsel Opinion?

If you are searching for a particular Legislative Counsel Opinion, the key will be identifying the bill that may have generated the opinion. That can take some time if the bill is not readily apparent, such as when a court cites to a particular opinion number without reference to the underlying bill. Once the possible bill (or bills) is identified, we acquire all the materials for that particular bill, including related predecessor bills, and failed competitor bills. We then review all the materials for the opinion and provide it in pdf format when located.

What if the person requesting the Opinion was not the author of a particular bill?

Legislative Counsel Opinions related to a particular bill are required to be sent to the lead author of the bill, no matter who requested the opinion. Pursuant to the Rules of the Legislature, whenever the Legislative Counsel issues an opinion to any person other than the first-named author of a bill, the member must deliver two copies of the opinion to the first-named author. (See Joint Rules of the Senate and Assembly, 2009-10 Regular Session, rule 34) Similarly, Government Code §10207(b)(2) requires two copies of any opinion prepared for the governor to also be sent by the Legislative Counsel to the first-named author of the bill.

How important is a Legislative Counsel Opinion in determining legislative intent?

The court in Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921 stated that a Legislative Counsel opinion is entitled to “great weight” in determining legislative intent:

Opinions of the Legislative Counsel, though not binding, are entitled to great weight when courts attempt to discern legislative intent. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17, 270 Cal.Rptr. 796, 793 P.2d 2.) Here, the Legislative Counsel’s opinion recognized that the Forest Practice Act allows for overlapping agency jurisdiction in situations where timber harvesting also affects water resources. The legislative record thus establishes that the implications of section 4514, subdivision (c) were fully appreciated at the outset, and further demonstrates that the savings clause’s plain language controls this case.
(Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 939)

For further examples of cases discussing Legislative Counsel Opinions and legislative intent, see, http://www.legintent.com/pa/statutory_construction.pdf or go to our web site at www.legintent.com.