NEWMAN, J., Concurring. The majority conclude that the statement submitted by Senator Rodda to the Governor is “not a proper subject for consideration in determining the Legislature’s intent...” {ante, P- 701).
To decide that collateral issue we do not, of course, rely on the Evidence Code or the common law of evidence. Instead we look to precedents that concern statutes and the use of extrinsic aids when courts construe statutes. Also, we consider federal as well as state, precedents because California courts often interpret federal as well as state laws.1
Regarding legislators’ comments, the judicial opinions of earlier decades sometimes referred to admissibility rules. Illustrative is this dictum from Bagg v. Wickizer (1935) 9 Cal.App.2d 753, 757 [50 P.2d 1047]: “Where no ambiguity exists, the intention of the lawmakers must be determined by the language of the statute. In Ex parte Goodrich [1911], 160 Cal. 410 [117 Pac. 451, Ann. Cas. 1913 A, 56], it is said: \\ . [I]t still remains true that even legislative debates are not appropriate [703]sources of information from which to discover the meaning of the language of the statute. (United States v. Trans-Missouri Freight Assn., 166 U.S. 290 [17 Sup. Ct. 540, 41 L.Ed. 1007]; American Net & Twine Co. v. Worthington, 141 U.S. 468 [12 Sup. Ct. 55, 35 L.Ed. 821].) And it still remains true that even the testimony or opinions of individual members of the legislative body are not admissible for the purpose of showing what in fact was intended or meant by an act. (State v. Burk, 88 Iowa, 661 [56 N. W. 180]; Richmond v. Supervisors, 83 Va. 204 [2 S. E. 26]; People v. Smith, 78 Hun, 179 [28 N. Y. Supp. 912].)’ In People v. Stanley [1924], 193 Cal. 428 [225 Pac. 1], the Supreme Court said: ‘It is a cardinal rule applicable to the interpretation of statutes that in order to ascertain the intent of the legislature in enacting the same, recourse must first be had to the language of the. statute itself; and that if the words of the enactment given their ordinary and proper signification are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning.... ’ ‘This must be done even though it appear probable that a different object was in the mind of the legislature.’ (Mulville v. City of San Diego, 183 Cal. 734 [192 Pac. 702].)”
No longer do those ideas frame our approach to interpretive issues. No longer do judges risk distorting their analyses of statutes by insulating themselves from extrinsic aids. No longer does the discredited plain meaning rule, or any comparable admissibility rule, command that courts shield themselves from what legislators may have said relevantly.
“It would be anomalous to close our minds to persuasive evidence of intention on the ground that reasonable men could not differ as to the meaning of the words. Legislative materials may be without probative value, or contradictory, or ambiguous, it is true, and in such cases [they] will not be permitted to control the customary meaning of words or overcome rules of syntax or construction found by. experience to be workable-, they can scarcely be deemed to be incompetent or irrelevant .... The meaning to be ascribed to an Act... can only be derived from the considered weighing of every relevant aid to construction.” (United States v. Dickerson (1940) 310 U.S. 554, 562 [84 L.Ed. 1356, 1362, 60 S.Ct. 1034]; italics added. See also comments of Frankfurter, J. in United States v. Monia (1943) 317 U.S. 424, 431 [87 L.Ed. 376, 381-382, 63 S.Ct. 409], Traynor, J. in People v. Knowles (1950) 35 Cal.2d 175, 182 [217 P.2d 1], Linde, J. in Chapman Bros., etc. v. Miles-Hiatt Inv., Inc. (1978) 282 Ore. 643 [580 P.2d 540, 542, fn. 2].)
[704]Admissibility vs. Weight
The problems that continue to perplex us should not be treated as problems of admissibility. They are problems of weight, problems of persuasiveness. Courts usually are not persuaded, for example, by the testimony or affidavit or other statement of a legislator when it appears to have been articulated for use in a pending lawsuit.
Why post-dispute statements often lack weight and are not persuasive was discussed in Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 311, fn. 8 [118 Cal.Rptr. 473, 530 P.2d 161], as follows: “[I]t seems clear that the preferred declaration.. .can be given little credence. There is absolutely no showing that the present ‘interpretive’ declaration was before the rulemaking body of the agency when section 3316 was promulgated. [H] Moreover, the facts of the instant case illustrate the great potential for abuse that would arise if the profferred declaration were given significant weight. The declaration at issue was prepared by an employee of one of the parties to .this litigation subsequent to the filing of judicial proceedings. The self-interest inherent in such a process removes from the declaration the appearance of impartiality necessary to justify any reliance by the court.”
See too Bauman v. Islay Investments (1973) 30 Cal.App.3d 752, 756 [106 Cal.Rptr. 889]: “Despite the declaration of State Assemblyman Brown,4 we must determine for ourselves, on the basis of ordinary standards of construction, whether the ‘nonrefundable’ provision hereinafter discussed is valid in this case. While official committee reports can be utilized to aid in statutory interpretation, the views of individual legislators are of little help in determining the intent of the Legislature as a whole [citing Friends of Mammoth, infra]”
(The Bauman court’s fn. 4, 30 Cal.App.3d at p. 756, reads: “Respondents have attached to their brief filed in this court a declaration by Assemblyman Willie Brown, Jr., one of the coauthors of the bill which resulted in the enactment of section 1951. We set forth that declaration in Appendix ‘C’ to this opinion.” Cf. Boie-Hansen v. Sisters of Charity (1957) 152 Cal.App.2d 845, 848 [314 P.2d 189] (city councilman) and Larcher v. Wanless (1976) 18 Cal.3d 646, 654, fn. 10 [135 Cal.Rptr. 75, 557 P.2d 507] (“legislative affidavits do not address [the] crucial issue, except in... an implication refuted by the statute itself”). Note, though, the conclusion implied in Rosenthal v. Cory (1977) 69 Cal. [705]App.3d 950, 955 [138 Cal.Rptr. 442]: “[W]e find persuasive support for the trial court’s decision and our decision in the testimony of Senator Deukmejian, the author of the bill which became Government Code 75033.5. That testimony was to the effect that he intended the ‘tack on’ provisions to be included in that statute. While not conclusively controlling, an author’s statement of intent is highly probative on the question. (Campbell v. Board of Dental Examiners, 53 Cal.App.3d 283 [125 Cal.Rptr. 694]; Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 [104 Cal.Rptr. 761, 502 P.2d 1049].)” Generally see Delahanty, Super Legislators: One Person Amendment of Statutes in California, L.A. Daily J. Rep. (Sept. 22, 1978) No. 78-18, p. 4.)
Well-Settled Principles?
Citing In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589-590 [128 Cal.Rptr. 427, 546 P.2d 1371], the majority here endorse the contention that “use of Senator Rodda’s statement would violate well-settled principles of statutory construction.” (Ante, p. 699.) Also cited, for the proposition that “[a] legislator’s statement is entitled to consideration, however, when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion,” are Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 603 [45 Cal.Rptr. 512], and the dissenting opinion in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 284 [104 Cal.Rptr. 761, 502 P.2d 1049]. (Cf. Smith, Legislative intent: In search of the Holy Grail (1978) 53 State Bar J. 294, 298.) Further, “[t]he statement of an individual legislator has also been accepted when it gave some indication of arguments made to the Legislature and was printed upon motion of the Legislature as a ‘letter of legislative intent.’ (In re Marriage of Bouquet, supra, 16 Cal.3d, at pp. 590-591.)” (Ante, p. 700.)
My colleagues therefore disapprove Campbell v. Board of Dental Examiners (1975) 53 Cal.App.3d 283 [125 Cal.Rptr. 694] and, implicitly, the majority opinion in Friends of Mammoth, supra, 8 Cal.3d at pages 257-258. Surprisingly, innumerable other precedents have been ignored. One is Peralta Federation of Teachers v. Peralta Community College Dist. (1979) 24 Cal.3d 369 [155 Cal.Rptr. 679, 595 P.2d 113]. Here the court’s opinion states (ante, p. 697): “Present arguments...urging reexamination of [Peralta] are essentially the same as those ably articulated in the dissent.:and we are not persuaded to overrule that case.” Yet, in effect, the conclusion in Peralta that “a letter dated June 26, [706196]7, from Senator Grunsky to the Governor” was duly considered is now overruled. (24 Cal.3d at p. 380.)
Also, the majority cast doubt on the propriety of justices’ having used legislators’ comments in these recent opinions: Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 842, footnote 23 [160 Cal.Rptr. 323, 603 P.2d 425] (Bird, C. J.; Vasconcellos letter to Governor); In re Eric J. (1979) 25 Cal.3d 522, 534 [159 Cal.Rptr. 317, 601 P.2d 549] (Clark, J.; letter from Sen. Sieroty); California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 847 [157 Cal.Rptr. 676, 598 P.2d 836] (Richardson, J.; Governor’s reliance on PUC legal staff opinion); Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 887, footnote 5 [153 Cal.Rptr. 842, 592 P.2d 329] (Mosk, J.; no intimation that letters to Governor are inadmissible); People v. Tanner (1979) 24 Cal.3d 514, 520, footnote 4 [156 Cal.Rptr. 450] (Clark, J.; ACLU letter to Governor; cf. p. 543, fn. 3: Newman, J. responds; p. 545: Newman, J. cites A.G. letter to Governor); In re Marriage of Morrison (1978) 20 Cal.3d 437, 447, footnote 6 [143 Cal.Rptr. 139, 573 P.2d 41] (Bird, C. J.; Willson letter to Governor); People v. Peters (1978) 21 Cal.3d 749, 762 [147 Cal.Rptr. 646, 581 P.2d 651] (dis. opn. of Bird, C. J.; Sen. Song letter to Governor).
Against that array of recent opinions2 and against Friends of Mammoth and Peralta, supra, the majority rely on Rich v. State Board of Optometry, supra, 235 Cal.App.2d 591 at page 603 [45 Cal.Rptr. 512] and In re Marriage of Bouquet, supra, 16 Cal.3d at pages 589-590. In Bouquet this court did not, I submit, rule that Assemblyman Hayes’s “personal views” were inadmissible. They were characterized instead as “irrelevant” (id., p. 589; and see also p. 590: “The understandings of Assemblyman Hayes.. .do not per se expose the Legislature’s intent.”).
What about the cases that were cited in Bouquet? In re Lavine (1935) 2 Cal.2d 324 [41 P.2d 161, 42 P.2d 311] was decided the same [707]year as Bagg v. Wickizer, 9 Cal.App.2d 753 [50 P.2d 1047], the case I discussed in my third to fifth paragraphs above. Obviously it has become antiquated. Further, this excerpt shows that even 45 years ago the court was concerned more with weight than with admissibility (2 Cal.2d p. 327): “[W]e are satisfied that the language of said statute is sufficiently comprehensive to achieve the result for which petitioner contends and we therefore find it unnecessary to attach any weight to a letter, copy of which accompanies the petition, addressed to petitioner by the author of the bill introduced in the legislature, and which later became the statute here involved, wherein it is stated that the ‘object in introducing this bill [was] to bring about the full restoration to all rights and privileges, and particularly to the restoration of the practice of law of those who had been convicted of a crime and upon a review of the cause by the Governor, had been granted a full pardon’. In construing a statute we are to be governed solely by the language employed, and are not bound by the opinions of individual members of the legislative body.”
California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213 [187 P.2d 702], cited in Bouquet, 16 Cal.3d at page 589, does not discuss individual legislators’ statements. Sato v. Hall (1923) 191 Cal. 510 [217 P. 520] concerns “a speech in Congress” and “discussions preceding the enactment of the [federal] act,” which indisputably are admissible.
The Bouquet opinion mentions neither Friends of Mammoth, supra, 8 Cal.3d 247, 257, which implies that legislators’ statements are admissible whether or not they are “persuasive,” nor Ballard v. Anderson (1971) 4 Cal.3d 873, 881 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392] (accord); and see Silver v. Brown (1966) 63 Cal.2d 841, 846 [48 Cal.Rptr. 609, 409 P.2d 689]; Carmona v. Division of Industrial Safety, supra, 13 Cal.3d 303, 311, footnote 8.
Also ignored were Campbell v. Board of Dental Examiners (1975) 53 Cal.App.3d 283, 285 [125 Cal.Rptr. 694] (which, as noted above, the majority here now disapprove) and Tillie Lewis Foods Inc. v. City of Pittsburg (1975) 52 Cal.App.3d 983, 1006 [124 Cal.Rptr. 698].
Epstein v. Resor (N.D.Cal. 1969) 296 F.Supp. 214, 216, cited on Bouquet's page 589, 16 Cal.3d, does not correctly summarize the federal precedents. Note too that “the affidavit [was] prepared and submitted by the Honorable John E. Moss solely for purposes of this lawsuit.... ”
[708]In Bragg v. City of Auburn (1967) 253 Cal.App.2d 50, 54 [61 Cal.Rptr. 284], cited on Bouquet's page 589, 16 Cal.3d, the court seemed to focus on judicial notice questions: “Petitioner ‘filed’ in the court below a paper entitled ‘Declaration of James R. Mills.’ Mr. Mills declares that he was an Assemblyman, one of the authors of Assembly Bill 2981 at the 1961 legislative session. In a general way the paper declares Mr. Mills’ belief or opinion that the amended bill, equally with the original bill, would override the Mervynne decision. This declaration was filed in the trial court after the hearing on the mandamus application and after the trial judge had issued his memorandum opinion adverse to petitioner. It is ostensibly included in the clerk’s transcript on appeal. Petitioner points to Mr. Mills’ declaration as evidence of the legislative intent underlying the 1961 amendment of section 22508.
“The declaration is substantively and procedurally inacceptable. The statement of an individual legislator as to his intention, motive or opinion regarding a particular piece of legislation is inadmissible. (In re Lavine, 2 Cal.2d 324, 327 [41 P.2d 161, 42 P.2d 311]; Rich v. State Board of Optometry, 235 Cal.App.2d 591, 603 [45 Cal.Rptr. 512].) Mr. Mills’ declaration was neither offered nor received as evidence in the trial court. Its contents were ineligible for judicial notice. (See Evid. Code, §§ 450, 451, 452.) Inadmissible evidence may not be force-fed into litigation by metamorphosing it into a document ‘filed’ ex parte with the clerk’s office outside the arena of adversary trial; nor may it be bootstrapped into cognizability by designating it as part of the clerk’s transcript on appeal.”
Ignored in the Bragg case, apparently, was this second paragraph of the Law Revision Commission’s comment on Evidence Code section 450: “Under the Evidence Code, as under existing law, courts may consider whatever materials are appropriate in construing statutes.... That a court may consider legislative history, discussions by learned writers in treatises and law reviews, materials that contain controversial economic and social facts or findings or that indicate contemporary opinion, and similar materials is inherent in the requirement that it take judicial notice of the law. In many cases, the meaning and validity of statutes... can be determined only with the help of such extrinsic aids. Cf. People v. Sterling Refining Co., 86 Cal.App. 558, 564, 261 Pac. 1080, 1083 (1927) (statutory authority to notice ‘public and private acts’ of legislature held to authorize examination of legislative history of certain acts).... ” (See McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1015 [140 Cal.Rptr. 168].)
[709]That leaves Rich, supra, 235 Cal.App.2d 591, 603, cited in Bouquet, 16 Cal.3d at page 590 and also by the majority here (ante, p. 700). Only via dictum does it support a rule of inadmissibility; and for that dictum it relies solely on Lavine, Boie-Hansen, and Goodrich, all discussed and distinguished above.
So, is it true that “well-settled principles” support the rule the majority now propound? I think not. This court and Courts of Appeal, for at least 10 years and with considerable consistency,3 have not held extrinsic aids inadmissible and, rather, have observed a “Learned Hand rule” described as follows: “.. . Judge Hand’s opinions, while they make full use of legislative guides, nevertheless subordinate them, like the words of an act, to the principal task of deriving the specific intent of Congress from a full and sympathetic understanding of its purpose. [Fn. omitted.] [11] Thus subordinated, the legislative history may reliably explain a choice of words which on their face seem meaningless or inconsistent with the general purpose. It may reveal, for example, a deliberate truncation of the purpose, in which event the words must govern; or it may show that the choice of words resulted from some decision quite unrelated to the point at hand and so permit taking otherwise objectionable liberties with the normal meaning of the words.” (Cox; Judge Learned Hand and the Interpretation of Statutes (1947) 60 Harv.L.Rev. 370, 381-382. See also 2A Sands, Sutherland’s Statutes and Statutory Construction (4th ed. 1973) p. 217: “Insofar as legislative intention is taken as the standard of decision on a question of statutory construction, [fn. omitted] it can reasonably be argued that any legislator’s remarks which would throw light on the meaning of those words should be admitted, regardless of whether they are statements as to their meaning or statements as to the problems before the legislature. Although generally entitled to little probative weight, the value of such remarks could be left to depend upon how well informed their author appeared to be and how well he seemed to represent the views of his colleagues.” Cf. Wasby, Legislative Materials as an Aid to Statutory Interpretation: A Caveat (1963) 12 J. Pub. L. 262; Newman, A Legal Look at Congress and the State Legislatures, in Legal Institutions Today and Tomorrow (Paulsen edit. 1959) pp. 75-76 (“The art of deliberate ambiguity” and “The manufacture of legislative intent”).)
[710]The plain meaning rule fortunately has been discredited. We should not now concoct a new rule on admitting evidence that relentlessly will lead us to the kinds of vagaries and absurdities that the discredited rule helped effect.
I concur in the reversal of the judgment here, and I agree with the majority’s conclusion that Senator Rodda’s statement “provides little guidance” {ante, p. 701).
In this opinion I do not discuss differences between (1) statutes, and (2) other written laws such as constitutions, charters, ordinances, administrative regulations, treaties, etc.
See too, e.g., Stewart v. Board of Medical Quality Assurance (1978) 80 Cal.App.3d 172, 182-183 [143 Cal.Rptr. 641]; Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1977) 74 Cal.App.3d 150, 155 [141 Cal.Rptr. 474]; hearing denied December 15, 1977.
The majority opinion reads, “see also Stanton v. Panish (1980) 28 Cal.3d 107, 114..(ante, p. 700). By no means, I submit, does Stanton stand for the proposition that Chairman Bruce Sumner’s declaration was “considered [only] insofar as it chronicled events leading to [the] proposed amendment...” (ibid.). The per curiam opinion cites both Friends of Mammoth, supra, 8 Cal.3d at pages 257-258 and Tillie Lewis Foods, infra, 52 Cal.App.3d at pages 1006-1007. (Cf. post, dis. opn. at p. 710.)
Grant v. Adams (1977) 69 Cal.App.3d 127, 135 [137 Cal.Rptr. 834], and Lewis v. Ryan (1976) 64 Cal.App.3d 330, 335, footnote 1 [134 Cal.Rptr. 355], are inconsistent. For authority, each relies solely on Marriage of Bouquet, supra, 16 Cal.3d at page 589. (See too Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77, 89, fn. 14 [132 [710]Cal.Rptr. 158], which puzzlingly cites only Lavine, supra, 2 Cal.2d at p. 327 and Friends of Mammoth, supra, 8 Cal.3d at p. 258.)