Court of Appeal says: "This must stop"

Even though it's off the topic, I can't resist posting about Kaufman & Broad Communities, Inc. v. Performance Plasterin, Inc., ___ Cal.App.4th ___ (Oct. 3, 2005), decided on Monday by the Third District. That Court is apparently exasperated by the voluminous requests for judicial notice it receives of legislative history materials:

Many attorneys apparently believe that every scrap of paper that is generated in the legislative process constitutes the proper subject of judicial notice. They are aided in this view by some professional legislative intent services. Consequently, it is not uncommon for this court to receive motions for judicial notice of documents that are tendered to the court in a form resembling a telephone book. The various documents are not segregated and no attempt is made in a memorandum of points and authorities to justify each request for judicial notice. This must stop.

Slip op. at 2. The Court went on to provide a very useful list of the kinds of legislative history materials courts may judicially notice, and the kinds of materials they may not:

DOCUMENTS CONSTITUTING COGNIZABLE LEGISLATIVE HISTORY IN THE
COURT OF APPEAL FOR THE THIRD APPELLATE DISTRICT
A. Ballot Pamphlets: Summaries and Arguments/Statement of Vote
B. Conference Committee Reports
C. Different Versions of the Bill
D. Floor Statements
E. House Journals and Final Histories
F. Reports of the Legislative Analyst
G. Legislative Committee Reports and Analyses
H. Legislative Counsel’s Digest
I. Legislative Counsel’s Opinions/Supplementary Reports
J. Legislative Party Floor Commentaries
K. Official Commission Reports and Comments
L. Predecessor Bills
M. Statements by Sponsors, Proponents and Opponents Communicated to the Legislature as a Whole
N. Transcripts of Committee Hearings
O. Analyses by Legislative Party Caucuses (e.g. Senate Democratic and Republican)
P. Enrolled Bill Reports

DOCUMENTS NOT CONSTITUTING LEGISLATIVE HISTORY IN THE COURT OF
APPEAL FOR THE THIRD APPELLATE DISTRICT
A. Authoring Legislator’s Files, Letters, Press Releases and Statements Not Communicated to the Legislature as a Whole
B. Documents with Unknown Author and Purpose
C. Handwritten Document Copies, without Author, Contained in Assemblymember’s Files
D. Letter from Consultant to the State Bar Taxation Section to Governor
E. Letter from the Family Law Section of the State Bar of California to Assemblymember or Senator
F. Letters to Governor Urging Signing of Bill
G. Letters to Particular Legislators, Including Bill’s Author
H. Magazine Articles
J. Proposed Assembly Bill Which Was Withdrawn by Author
K. State Bar’s View of the Meaning of Proposed Legislation
L. Subjective Intent Reflected by Statements of Interested Parties and Individual Legislators, Including Bill’s Author, Not Communicated to Legislature as a Whole
M. Views of Individual Legislators, Staffers, and Other Interested Persons

Slip op. at 5-15 (citations omitted). Each of the items is followed by extensive citations to supporting authority. Someone put in an enormous amount of work drafting this. The opinion is well worth a read.

Comments

[Scott McMillan]

I've seen this practice of seeking judicial notice of legislative process materials becoming increasingly prevalent. I was introduced to the technique by one of my adversaries, who had obtained the entire legislative record for one statute. Since that time, I too, began attaching the entire record of a statute to my motions and appeals where legislative intent seemed appropriate. It seemed as though it wouldn't be proper to just put in a small bit of the record as the adversary would argue that the isolated statement was out of context. But, it seemed like much of the information that are in those records are superfluous and certainly wouldn't be admissible at trial. I'm certain that it is a dark day for our friends at Legislative Intent Services.