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California Law Revision Commission

-- Last revised 4/18/07 --

Commission Materials as Legislative History

[Note: The material on this page is drawn from the Commission's 2004-2005 Annual Report.]

Commission recommendations are printed and sent to both houses of the Legislature, as well as to the Legislative Counsel and Governor.[1] Receipt of a recommendation by the Legislature is noted in the legislative journals, and the recommendation is referred to the appropriate policy committee.[2]

The bill introduced to effectuate a Commission recommendation is assigned to legislative committees charged with study of the matter in depth.[3] A copy of the recommendation is provided to legislative committee members and staff before the bill is heard and throughout the legislative process. The legislative committees rely on the recommendation in analyzing the bill and making recommendations to the Legislature concerning it.[4]

If an amendment is made to the bill that renders one of the Commission's original Comments inconsistent, the Commission generally will adopt a revised Comment and provide it to the committee. The Commission also provides this material to the Governor's office once the bill has passed the Legislature and is before the Governor for action. These materials are a matter of public record.

Until the mid-1980's, a legislative committee, on approving a bill implementing a Commission recommendation, would adopt the Commission's recommendation as indicative of the committee's intent in approving the bill.[5] If a Comment required revision, the revised Comment would be adopted as a legislative committee Comment. The committee's report would be printed in the journal of the relevant house.[6]

The Legislature has discontinued the former practice due to increased committee workloads and an effort to decrease the volume of material reprinted in the legislative journals. Under current practice, a legislative committee relies on Commission materials in its analysis of a bill, but does not separately adopt the materials. Instead, the Commission makes a report detailing the legislative history of the bill, including any revised Comments. Bill reports are published as appendices to the Commission's annual reports.[7]

Use of Commission Materials To Determine Legislative Intent

Commission materials that have been placed before and considered by the Legislature are legislative history, are declarative of legislative intent,[8] and are entitled to great weight in construing statutes.[9] The materials are a key interpretive aid for practitioners as well as courts,[10] and courts may judicially notice and rely on them.[11] Courts at all levels of the state[12] and federal[13] judicial systems depend on Commission materials to construe statutes enacted on Commission recommendation.[14] Appellate courts alone have cited Commission materials in several thousand published opinions.[15]

Commission materials have been used as direct support for a court's interpretation of a statute,[16] as one of several indicia of legislative intent,[17] to explain the public policy behind a statute,[18] and on occasion to demonstrate (by their silence) the Legislature's intention not to change the law.[19] The Legislature's failure to adopt a Commission recommendation may be used as evidence of legislative intent to reject the proposed rule.[20]

Commission materials are entitled to great weight, but they are not conclusive.[21] While the Commission endeavors in Comments to explain any changes in the law made by a section, the Commission does not claim that every consistent or inconsistent case is noted in the Comments,[22] nor can it anticipate judicial conclusions as to the significance of existing case authorities.[23] Hence, failure of the Comment to note every change the recommendation would make in prior law, or to refer to a consistent or inconsistent judicial decision, is not intended to, and should not, influence the construction of a clearly stated statutory provision.[24]

Some types of Commission materials may not properly be relied on as evidence of legislative intent. Courts have on occasion cited preliminary Commission materials such as tentative recommendations, correspondence, and staff memoranda and drafts in support of their construction of a statute.[25] While these materials may be indicative of the Commission's intent in proposing the legislation, only the Legislature's intent in adopting the legislation is entitled to weight in construing the statute.[26] Unless preliminary Commission materials were placed before the Legislature during its consideration of the legislation, those materials are not legislative history and are not relevant in determining the Legislature's intention in adopting the legislation.[27]

A Commission study prepared after enactment of a statute that analyzes the statute is not part of the legislative history of the statute.[28] However, documents prepared by or for the Commission may be used by the courts for their analytical value, apart from their role in statutory construction.[29]



            [1].          See Gov't Code §§ 8291, 9795; see also Reynolds v. Superior Court, 12 Cal. 3d 834, 847 n.18, 528 P.2d 45, 53 n.18, 117 Cal. Rptr. 437, 445 n.18 (1974) (Commission "submitted to the Governor and the Legislature an elaborate and thoroughly researched study").

            [2].          See, e.g., Senate J. Aug. 18, 2003, at 2031 (noting receipt of 2002-2003 recommendations and their transmittal to the Committee on Judiciary).

            [3].          See, e.g., Office of Chief Clerk, California State Assembly, California's Legislature 126-27 (2000) (discussing purpose and function of legislative committee system).

            [4].          The Commission does not concur with the suggestion of the court in Conservatorship of Wendland, 26 Cal. 4th 519, 542, 28 P.3d 151, 166, 110 Cal. Rptr. 2d 412, 430 (2001), that a Commission Comment might be entitled to less weight based on speculation that the Legislature may not have read and endorsed every statement in the Commission's report. That suggestion belies the operation of the committee system in the Legislature. See White, Sources of Legislative Intent in California, 3 Pac. L.J. 63, 85 (1972) ("The best evidence of legislative intent must surely be the records of the legislature itself and the reports which the committees relied on in recommending passage of the legislation.").

            [5].          See, e.g., Baldwin v. State, 6 Cal. 3d 424, 433, 491 P.2d 1121, 1126, 99 Cal. Rptr. 145, 150 (1972). For a description of legislative committee reports adopted in connection with the bill that became the Evidence Code, see Arellano v. Moreno, 33 Cal. App. 3d 877, 884, 109 Cal. Rptr. 421, 426 (1973).

            [6].          For an example of such a report, see Report of Senate Committee on Judiciary on Assembly Bill 3472, Senate J. June 14, 1984, reprinted in 18 Cal. L. Revision Comm'n Reports 1, 115 (1986).

            [7].          Commission reports have in the past been published as well in the legislative journals. See, e.g., In re Marriage of Neal, 153 Cal. App. 3d 117, 124, 200 Cal. Rptr. 341, 345 (1984) (noting that Chairman of Senate Judiciary Committee, when reporting on AB 26 on Senate floor, moved that revised Commission report be printed in Senate Journal as evidence of legislative intent).

            [8].          See, e.g., People v. Williams, 16 Cal. 3d 663, 667-68, 547 P.2d 1000, 128 Cal. Rptr. 888 (1976) ("The official comments of the California Law Revision Commission on the various sections of the Evidence Code are declarative of the intent not only of the draft[ers] of the code but also of the legislators who subsequently enacted it. [Citation]").

            [9].          See, e.g., Hale v. Southern Cal. IPA Med. Group, Inc., 86 Cal. App. 4th 919, 927, 103 Cal. Rptr. 2d 773, 778 (2001):

In an effort to discern legislative intent, an appellate court is entitled to take judicial notice of the various legislative materials, including committee reports, underlying the enactment of a statute. (Kern v. County of Imperial (1990) 226 Cal. App. 3d 391, 400, fn. 8 [276 Cal. Rptr. 524]; Coopers & Lybrand v. Superior Court (1989) 212 Cal. App. 3d 524, 535, fn. 7 [260 Cal. Rptr. 713].) In particular, reports and interpretive opinions of the Law Revision Commission are entitled to great weight. (Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal. App. 4th 23, 30, fn. 10 [17 Cal. Rptr. 2d 340].)

            [10].        Cf. 7 B. Witkin, Summary of California Law Constitutional Law § 96, at 149 (9th ed. 1988) (Commission reports as aid to construction); Gaylord, An Approach to Statutory Construction, 5 Sw. U. L. Rev. 349, 384 (1973).

            [11].        See, e.g., Barkley v. City of Blue Lake, 18 Cal. App. 4th 1745, 1751 n.3, 23 Cal. Rptr. 2d 315, 318-19 n.3 (1993).

            [12].        See, e.g., Sullivan v. Delta Air Lines, Inc., 15 Cal. 4th 288, 935 P.2d 781, 63 Cal. Rptr. 2d 74 (1997) (California Supreme Court); Administrative Management Services, Inc. v. Fidelity & Deposit Co., 129 Cal. App. 3d 484, 181 Cal. Rptr. 141 (1982) (court of appeal); Rossetto v. Barross, 90 Cal. App. 4th Supp. 1, 110 Cal. Rptr. 2d 255 (2001) (appellate division of superior court).

            [13].        See, e.g., California v. Green, 399 U.S. 149 (1970) (United States Supreme Court); Southern Cal. Bank v. Zimmerman (In re Hilde), 120 F.3d 950 (9th Cir. 1997) (federal court of appeal); Williams v. Townsend, 283 F. Supp. 580 (C.D. Cal. 1968) (federal district court); Ford Consumer Fin. Co. v. McDonell (In re McDonell), 204 B.R. 976 (B.A.P. 9th Cir. 1996) (bankruptcy appellate panel); In re Garrido, 43 B.R. 289 (Bankr. S.D. Cal. 1984) (bankruptcy court).

            [14].        See, e.g., Collection Bureau of San Jose v. Rumsey, 24 Cal. 4th 301, 308 & n.6, 6 P.3d 713, 718 & n.6, 99 Cal. Rptr. 2d 792, 797 & n.6 (2000) (Comments to reenacted statute reiterate the clear understanding and intent of original enactment); Brian W. v. Superior Court, 20 Cal. 3d 618, 623, 574 P.2d 788, 791, 143 Cal. Rptr. 717, 720 (1978) (Comments persuasive evidence of Legislature's intent); Volkswagen Pac., Inc. v. City of Los Angeles, 7 Cal. 3d 48, 61-63, 496 P.2d 1237, 1247-48, 101 Cal. Rptr. 869, 879-80 (1972) (Comments evidence clear legislative intent of law); Van Arsdale v. Hollinger, 68 Cal. 2d 245, 249-50, 437 P.2d 508, 511, 66 Cal. Rptr. 20, 23 (1968) (Comments entitled to substantial weight); County of Los Angeles v. Superior Court, 62 Cal. 2d 839, 843-44, 402 P.2d 868, 870-71, 44 Cal. Rptr. 796, 798-99 (1965) (statutes reflect policy recommended by Commission).

            [15].        In this connection it should be noted that the Law Revision Commission should not be cited as the "Law Revision Committee" or as the "Law Review Commission." See, e.g., Venerable v. City of Sacramento, 185 F. Supp. 2d 1128, 1132 (E.D. Cal. 2002) (Law Revision "Committee"); Ryan v. Garcia, 27 Cal. App. 4th 1006, 1010 n.2, 33 Cal. Rptr. 2d 158, 160 n.2 (1994) (Law "Review" Commission).

            [16].        See, e.g., People v. Ainsworth, 45 Cal. 3d 984, 1015, 755 P.2d 1017, 1036, 248 Cal. Rptr. 568, 586 (1988).

            [17].        See, e.g., Heieck & Moran v. City of Modesto, 64 Cal. 2d 229, 233 n.3, 411 P.2d 105, 108 n.3, 49 Cal. Rptr. 377, 380 n.3 (1966).

            [18].        See, e.g., Southern Cal. Gas Co. v. Public Utils. Comm'n, 50 Cal. 3d 31, 38 n.8, 784 P.2d 1373, 1376 n.8, 265 Cal. Rptr. 801, 804 n.8 (1990).

            [19].        See, e.g., State ex rel. State Pub. Works Bd. v. Stevenson, 5 Cal. App. 3d 60, 64-65, 84 Cal. Rptr. 742, 745-46 (1970) (finding that Legislature had no intention of changing existing law where "not a word" in Commission's reports indicated intent to abolish or emasculate well-settled rule).

            [20].        See, e.g., Nestle v. City of Santa Monica, 6 Cal. 3d 920, 935-36, 496 P.2d 480, 490, 101 Cal. Rptr. 568, 578 (1972).

            [21].        See, e.g., Redevelopment Agency v. Metropolitan Theatres Corp., 215 Cal. App. 3d 808, 812, 263 Cal. Rptr. 637, 639 (1989) (Comment does not override clear and unambiguous statute). Commission materials are but one indicium of legislative intent. See, e.g., Estate of Joseph, 17 Cal. 4th 203, 216, 949 P.2d 472, 480, 70 Cal. Rptr. 2d 619, 627 (1998). The accuracy of a Comment may also be questioned. See, e.g., Buzgheia v. Leasco Sierra Grove, 30 Cal. App. 4th 766, 774, 36 Cal. Rptr. 2d 144, 149 (1994); In re Thomas, 102 B.R. 199, 202 (Bankr. E.D. Cal. 1989).

            [22].        Cf. People v. Coleman, 8 Cal. App. 3d 722, 731, 87 Cal. Rptr. 554, 559 (1970) (Comments make clear intent to reflect existing law even if not all supporting cases are cited).

            [23].        See, e.g., Arellano v. Moreno, 33 Cal. App. 3d 877, 885, 109 Cal. Rptr. 421, 426-27 (1973) (noting that decisional law cited in Comment was distinguished by the California Supreme Court in a case decided after enactment of the Commission recommendation).

            [24].        The Commission does not concur in the Kaplan approach to statutory construction. See Kaplan v. Superior Court, 6 Cal. 3d 150, 158-59, 491 P.2d 1, 5-6, 98 Cal. Rptr. 649, 653-54 (1971). For a reaction to the problem created by the Kaplan approach, see Recommendation Relating to Erroneously Ordered Disclosure of Privileged Information, 11 Cal. L. Revision Comm'n Reports 1163 (1973); 1974 Cal. Stat. ch. 227.

            [25].        See, e.g., Rojas v. Superior Court, 33 Cal. 4th 407, 93 P.3d 260, 15 Cal. Rptr. 3d 643 (2004) (tentative recommendation, correspondence, and staff memorandum and draft); Yamaha Corp. v. State Bd. of Equalization, 19 Cal. 4th 1, 12-13, 960 P.2d 1031, 1037, 78 Cal. Rptr. 2d 1, 7 (1998) (tentative recommendation). However, in some cases, proposed legislation will be based on a tentative, rather than final, Commission recommendation. See, e.g., Estate of Archer, 193 Cal. App. 3d 238, 243, 239 Cal. Rptr. 137, 140 (1987). In that event, reliance on the tentative recommendation is proper.

See also Ilkhchooyi v. Best, 37 Cal. App. 4th 395, 406, 45 Cal. Rptr. 2d 766, 772-73 (1995) (letter responding to tentative recommendation); D. Henke, California Legal Research Handbook § 3.51 (1971) (background studies).

            [26].        Cf. Rittenhouse v. Superior Court, 235 Cal. App. 3d 1584, 1589, 1 Cal. Rptr. 2d 595, 598 (1991) (linking Commission's intent and Legislature's intent); Guthman v. Moss, 150 Cal. App. 3d 501, 508, 198 Cal. Rptr. 54, 58 (1984) (determination of Commission's intent used to infer Legislature's intent).

            [27].        The Commission concurs with the opinion of the court in Juran v. Epstein, 23 Cal. App. 4th 882, 894 n.5, 28 Cal. Rptr. 2d 588, 594 n.5 (1994), that staff memoranda to the Commission should not be considered as legislative history.

            [28].        See, e.g., Duarte v. Chino Community Hosp., 72 Cal. App. 4th 849, 856 n.3, 85 Cal. Rptr. 2d 521, 525 n.3 (1999).

            [29].        See. e.g., Sierra Club v. San Joaquin Local Agency Formation Comm'n, 21 Cal. 4th 489, 502-03, 981 P.2d 543, 551-52, 87 Cal. Rptr. 2d 702, 712 (1999) (unenacted Commission recommendation useful as "opinion of a learned panel"); Hall v. Hall, 222 Cal. App. 3d 578, 585, 271 Cal. Rptr. 773, 777 (1990) (Commission staff report most detailed analysis of statute available); W.E.J. v. Superior Court, 100 Cal. App. 3d 303, 309-10, 160 Cal. Rptr. 862, 866 (1979) (law review article prepared for Commission provides insight into development of law); Schonfeld v. City of Vallejo, 50 Cal. App. 3d 401, 407 n.4, 123 Cal. Rptr. 669, 673 n.4 (1975) (court indebted to many studies of Commission for analytical materials).