While some aspects of drafting bills and amendments in California are certainly generic in nature to all types of legislative bill drafting, there are several unique aspects that are a part of bill drafting in the state of California. In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there’s the usual plain meaning rule where the judiciary will look to the “plain meaning” of the statutory language. Of course, in a legal dispute, the statutory language rarely has the same plain meaning to both parties of that dispute.

On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help the judiciary interpreting the bill language. Those who draft and analyze bill language are aware that there are many other canons of statutory construction, but after these general rules, bill drafters in California need to think about some of the following other issues such as conflicts with other bills. Here are some other aspects to consider.

Retroactive Versus Prospective Nature of the Bills

As you’re probably aware, in most instances, bills are prospective in their application. Most bills in California are effective on January 1 of the following year. However, in some instances a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will be applied retroactively.

For example, what effective date is contemplated? Should the bill drafter include a statement that the bill clarifies existing law? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited unless a public purpose is expressed in the bill language that justifies the retroactive application of the bill’s provisions.

Legislative Intent Language

Some bills include intent language which expresses the findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and the cons of using intent language. The following is one appellate court statement on the use of such language. “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body.” That was in Ballard v. Anderson back in 1971. They also said that other extrinsic aids to determine legislative intent are generally more persuasive.

There are other aspects that are unique to bill drafting in California, but these highlighted ones give you a sense of some of the factors to consider when drafting bills and amendments in California.

You can find a transcript of today’s podcast here.

Over the weekend Professor Leslie Gielow Jacobs – Director, Capital Center for Law & Policy – appeared on KCRA 3 News to discuss the latest legal challenge to the Affordable Care Act. Her comments from the story are below.

On what to expect from the Appeals Court hearing the decision holding the Affordable Care Act unconstitutional:

It is my prediction that the Appeals Court will reverse his ruling and we’ll be right back where we are.”

On judging legislative intent:

What the judge was supposed to do was look at the intent of Congress and say – Well, without the individual mandate did Congress intend for the rest of the statute to stay there? – and it seems quite clear that in 2017 Congress did intend the statute to stay there because it didn’t abolish the statute itself.”

On the next step, appealing the ruling:

It’s hard for me to imagine that we won’t get a stay that puts this on hold because this is a momentous decision, it affects a lot of people, and the reason to give a stay is so the Court of Appeals has enough time to consider the matter.”

You can find the complete story by KCRA’s Max Resnik here.

 

Publishing Letters to the Journal (transcript)

Today’s post is on publishing letters to the Journal for determining legislative intent.

Sometimes in order to explain the intent behind a specific piece of legislation, one or both houses of the Legislature will utilize a process by which a legislator publishes a letter stating his or her intent to explain the piece of legislation. For Assembly Members, this is published in the Assembly Daily Journal, and for Senators this is published in the Senate Daily Journal.

Generally this letter from the legislator is used to explain perhaps an ambiguity in the bill, or explain the purpose of a particular change in the law or for some other reason. Again, in both the State Assembly and the State Senate such a letter to the Journal is a rather formal process. For example, the letter must be on the legislator’s letterhead and signed by that particular legislator.

The general custom and practice of the two houses of California’s Legislature is to have the respective leadership staff – meaning both the majority Democrat and minority Republican parties – review the contents of that letter from the legislator and determine whether or not either party has any objections to the contents found in the letter. Now, the consultants to the majority and minority parties may request revisions to that letter to the Journal, otherwise they’ll give their consent.

Now, if approval is not received by both sides of the aisle – and this is a rare occurrence – then the legislator can request that the letter be printed in the respective Daily Journal with a majority vote.

The general practice is that the Assembly letters are authored by the individual Assembly Member and they’re addressed to the Chief Clerk of the Assembly. Senate letters are written by the individual Senator, of course on his or her letterhead, and are addressed to the Secretary of the Senate.

 

Rules of Statutory Construction (transcript)

Today’s post is on rules of statutory construction primarily for the non-lawyer.

For those working in and around the California State Capitol, it’s important to understand general rules of statutory construction whether you’re a lawyer or a non-lawyer.

The general rule of statutory construction is to effectuate the intent of the Legislature, which basically requires the courts to give the statutory language its usual and ordinary meaning.

The fundamental rule of statutory construction is known as the plain language rule. Basically, this rule provides that when the meaning of a statute is clear and unambiguous, there’s usually no need for a court to apply any of those rules of statutory construction because the plain meaning of the statute can be ascertained without resorting to what we call the use of extrinsic aids to help in understanding the language.

Under this rule, if the statute is clear then the courts presume the Legislature meant what they wrote in the statute and the courts give effect to the plain meaning of that statute.

In order to resort to the general rules of statutory construction, a court must determine that there’s ambiguity in the statutory language and as a result it’s unclear what was intended by the Legislature in enacting the particular statute. The courts have determined that a party demonstrates statutory ambiguity by providing an alternative meaning to the statutory language and, as a result, the statutory language can be given more than one interpretation, then a court generally should consider extrinsic aids to determine the purpose of the statute and the intent of the Legislature.

Among the extrinsic aids are the legislative history of the statute, the public policy surrounding its enactment, the statutory scheme in which the language is found, and other related issues. In this regard, the language of a statute should be construed in light of the rest of the statutory scheme in which the particular statute is found. The goal of the court is to harmonize the parts of the statute by considering the context of the statutory framework in which this particular statute is found.

 

Court Cases Related to California’s Legislative Process (transcript)

Today’s post is an overview of specified court cases related to California’s legislative process.

As you can imagine, there are a number California Appellate Court decisions that related to the legislative process. These cases deal with a number of separate and distinct issues. While I don’t cover all of them, there are some major cases that capitol observers and insiders should be aware of.

The first one is Kaufman & Broad Communities v. Performance Plastering which was a California in Appellate Court decision 2005. The 3rd District Court of Appeal clarified that a determination of the existence of any ambiguity occurs not at the time of a motion for judicial notice but by the panel of judges that hear the appeal. The case has been cited more than 80 times by other appellate courts in California for what documents may be utilized to ascertain legislative intent in interpreting statutes.

Another case you should aware of is Yamaha – Yamaha Corporation of America v. the State Board of Equalization. This case was decided by the California Supreme Court in 1998. The decision says that in general the deference afforded to an agency’s interpretation of a statute by the agency that is charged with enforcing and interpreting that statute will vary based on a legally informed and common sense assessment of the statute’s context.

The next case of interest is Association for Retarded Citizens v. Department of Developmental Services. It was decided in 1985 by the California Supreme Court. The lawsuit alleged that certain spending decisions issued by the Director of the department were void. The Court entered an order granting a preliminary injunction at the lower level and said administrative action that is not authorized by or is inconsistent with acts of the Legislature is void.

This is just a sampling of the cases I go over in today’s podcast.

 

 

 

How To Research California Legislative History and Legislative Intent

Today’s podcast is about getting a better understanding of California legislative history and intent research. Of course, many law review articles and books have been written on legislative history and intent. This podcast covers the subject in a summary fashion.

At a minimum, it is a good idea to cross reference one’s understanding of a proposed legislative solution with the statements of legislative intent that you can glean from the bill’s legislative history. My friend, Carolina Rose, identified a couple of reasons why:

  1. California codes’ statutes are rife with ambiguities that the courts will look to the legislative history in an attempt to clarify.
  2. The courts will overlook a statute’s plain meaning if it collides with evidence of the legislator’s actual intent, or it is an effort to avoid an absurd application.
  3. Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and State Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the California Legislature in enacting a particular new law or amending an existing law.

In general, evidence of legislative intent can be derived from two primary sources, either an intrinsic analysis of the statute and its surrounding statutory context, according to traditional standards and principles of statutory construction; or by the use of extrinsic aids which are used to reconstruct the legislative history of a statute.

The wider historical circumstances that surround the adoption, or amendment, or repeal of a statute can also yield extrinsic evidence of legislative intent that’s found outside the statute itself. There are a few questions that interested persons should ask to help guide their efforts in properly researching legislative history. Again, these questions come from my friend Carolina Rose:

  • What is the plain meaning of the language in statute, and to what extent is that meaning self-evident?
  • Why was the statute adopted?
  • What need or needs prompted it?
  • What problem or problems was the Legislature trying to correct?
  • What happened in the Legislature during the process of adopting the bill? What’s the statutes legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was adopted?

As for where you can find the resources to help answer those questions, you’ll have to listen to the podcast.