Points and Authorities

POINTS AND AUTHORITIES

SUPPORTING EXPERT WITNESS TESTIMONY BY

WILLIAM H. KELLER

DIRECTOR OF LEGISLATIVE INTENT SERVICE

A. Expert Witness Testimony to Assist the Court in Interpreting Legislative History and Intent Is Permitted by the Evidence Code and Recognized as Appropriate by the Appellate Courts.

1. Legislative history is a proper subject for judicial notice for both trial and appellate courts. (Evid. Code 452, subd. (c), and 459; People v. Superior Court (1996) 13 Cal.4th 497, 504, fn.1 [53 Cal.Rptr.2d 789, 917 P.2d 628].) The court may judicially notice legislative history on its own motion or on the motion of a party. (People v. Cruz (1996) 13 Cal.4th 764, 780, fn. 9 [55 Cal.Rptr.2d 117, 919 P.2d 731]; Grubb & Ellis Co. v. Bello (1993) 19 Cal.App.4th 231, 240 [23 Cal.Rptr.2d 281].)

2. A court has broad discretion to take information, including expert opinion, to determine the propriety of judicially noticing legislative history and its meaning. (Evid. Code Section 454 subd. (a)(1) & (2).) Additionally, an appellate court has the same power to take judicial notice of a matter as the trial court has under Evidence Code Section 454. (Evid. Code 459 subd. (b).) In this regard, Evidence Code Section 454 in part states:

“In determining the propriety of taking judicial notice of a matter or the tenor thereof: (1) Any source of pertinent information, including the advice of persons learned in the subject matter may be consulted or used, whether or not furnished by a party. (2) Exclusionary rules of evidence do not apply except for Section 352 and rules of privilege. (Evid. Code 454 subd. (a)(1) & (2).)”

3. Additionally, Evidence Code Section 460 specifically provides that the court, in taking judicial notice of a subject, may hear the opinion of an expert.

“Where the advice of persons learned in the subject matter is required in order to enable the court to take judicial notice of a matter, the court on its own motion or on motion of any party may appoint one or more such persons to provide such advice. If the court determines to appoint such a person, he shall be appointed and compensated in the manner provided in Article 2 (commencing with Section 730) of Chapter 3 of Division 6. (Evid. Code, 460).

4. Evidence Code Section 730 supplements Evidence Code Section 460, and concerns the general circumstances of using experts to assist the court:

“When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.” (Evid. Code 730.)

5. Court acceptance of an expert does not preclude any other party from offering its own information on the propriety of taking judicial notice of the legislative history and its tenor, or prevent a party from offering its own expert witness testimony on the same matter. (Evid. Code, 455 subd. (a), and 733.)

6. Expert opinion on the meaning of judicially noticed legislative documents offered by one or more parties is taken by the court “before the jury is instructed or before the cause is submitted for decision by the courts “ (Evid. Code 455 subd. (a).) The expert opinion need not be received in open court, and in the case of a jury trial, it generally is not.

7. In the context of Evidence Code Sections 454, 455, 460 and 730, the “matter” before the court when it examines legislative history is the obligation of the court to construe a statute consistent with the intent of the Legislature, as provided for in Code of Civil Procedure Section 1859, which reads:

“In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (Code of Civ. Proc., 1859.)

8. A vast body of case law supports the common practice of examining legislative history as a method of ascertaining legislative intent and satisfying the obligations that Code of Civil Procedure 1859 imposes on the courts (See e.g. Watts v. Crawford (1995)10 Cal.4th 743, 753-54 [42 Cal.Rptr.2d 81, 896 P.2d 807].)

9. Several appellate court cases have recognized that expert witness testimony on legislative intent as evidenced by the legislative history is helpful to the court and admissible. In Fallbrook Sanitary District v. San Diego Local Agency Formation Commission (1989) 208 Cal.App.3d 753, 759 [256 Cal.Rptr. 590], the Court of Appeal addressed a question of legislative intent in construing a statute. The court, in examining the statute and its legislative purpose, noted that “expert evidence of an act’s legislative history.... is an appropriate means of assisting courts in understanding and interpreting statutes.” (208 Cal.App.3d 753, 764; see also Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 781-82 [195 Cal.Rptr. 393](noting that the statutory history fully supports the testimony of a qualified expert analyst of legislative intent).)

B. William H Keller has the Special Knowledge, Skill and Training to Qualify Him as an Expert and Assist the Court in Evaluating Legislative History and Intent

10. Evidence Code Sections 454, 460 and 730 give the courts great discretion in determining when expert evidence is required to assist the court. Once the court determines, on its own motion or the motion of a party, that expert testimony is appropriate, Evidence Code Section 720 (a) establishes the qualifications necessary to testify as an expert witness:

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code 720 subd. (a).)

11. Mr. Keller’s background clearly qualifies him as an expert. His education includes graduation Cum Laude from UCLA with a degree in Political Science and a Juris Doctor degree from the University of California at Davis. Following law school, Mr. Keller was selected through competition to be an Assembly Fellow. At the Legislature, Mr. Keller served as Legislative Assistant to Assemblyman William T. Bagley, and later as an Associate Consultant to the Assembly Welfare Committee.

12. After leaving the legislative staff, Mr. Keller founded Legislative Intent Service. Under his direction over the past 26 years, his firm has researched the Historical background of over 20,000 California, federal and sister state code sections. Legislative Intent Service currently produces about 1,500 legislative histories yearly for courts and attorneys across the country. As part of this work, Legislative Intent Service prepares each year numerous analyses directly for the California District Courts of Appeal. Legislative Intent Service has been cited by name in over 40 California appellate cases.

13. Mr. Keller gives 10 to 12 classes a year to law firms and local bar associations on legislative history and statutory construction. These lectures have been certified by the California State Bar Association as approved MCLE activities. Mr. Keller has also lectured to numerous other groups, including law school classes, legal secretaries and law librarians. Mr. Keller co-authored an article entitled “Finding Legislative Intent in California” published in the January, 1986 issue of the California State Library Foundation Bulletin.

14. On the basis of this special knowledge, experience and education, the California Courts have recognized Mr. Keller as an expert and have allowed him to give opinion testimony in approximately 35 instances. Mr. Keller has submitted written declarations in numerous other cases.

15. Mr. Keller has been cited by name in three published California Appellate Court Opinions, in addition to several unpublished opinions. (See Roberts v. Gulf on Corporation (1983) 147 Cal.App.3d 770, 781-83 82 [195 Cal. Rptr. 393]; Lynch v. State Board of Equalization (1985) 164 Cal.App.3d 94,112 [210 Cal. Rptr. 335]; Jimenez v. WCAB (1991) 1 Cal.App.4th 61, 67 fn. 3 [1 Cal.Rptr.2d 660].)

16. In the case of Roberts v. Gulf Oil Corporation, the court specifically describes Mr. Keller’s testimony as that of a “qualified expert analyst” of legislative intent. (Id. At 781.) The decision goes on to acknowledge Mr. Keller’s testimony regarding the Legislature’s intent in enacting the statue at issue, and his study of the legislative history, including what the materials did not reveal as well as what they did. (Id. at 782-83.)

17. Mr. Keller’s expertise has also been explicitly acknowledged in cases outside the state court system. (Judd v. United States (S.D.Cal. 1987) 650 F. Supp. 1503,1511 fn.10.)

C. Expert Witness Testimony on Legislative History and Intent Does Not Usurp the Role of the Court to Determine What the Law Is.

18.Axiomatic to our legal system is the role of the court to say what the law is.(Downer v. Bramet (1984) 152 Cal.App.3d 837, 842 [199 Cal. Rptr. 830].) Testimony on legislative history and legislative intent does not violate this tenet. Examining legislative history is only one aspect of interpreting legislative intent. The plain meaning rule is also an element of this inquiry. (Petaluma v. Sonoma (1993) 12 Cal.App.4th 1239, 1244, 1247 [15 Cal.Rptr.2d 617].) Additionally, interpretation of legislative intent is only one aspect of statutory construction, and functions only in conjunction with the maxims of statutory construction and case law precedent. (Harris v. Capital Growth Investors XlV (1991) 52 Cal.3d 1142,1156-60 [278 Cal. Rptr. 614, 805 P.2d 873]; 7 Witkin, Summary of Cal. Law (9th Ed. 1988) Constitutional Law, 92-100, pp. 145-153. Furthermore, expert witness testimony is not inadmissible simply because it approaches an ultimate issue in the case. (Evid. Code, 805.) Finally, the directive of Code of Civil Procedure Section 1859 requiring the court to pursue legislative intent when construing a statute says to do so only “if possible.”

19. As noted above, courts construing statutes rely on a variety of methods in addition to analysis of legislative history and legislative intent. Courts routinely examine the “plain meaning” of a statute to determine the law’s import. The court may make this examination as part of a synthesis of the elements of statutory construction. (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal.Rptr.2d 233, 851 P.2d 27].) Alternatively, the court may also make this examination of “plain meaning” as a separate analytical step prior to reaching external indicia of intent. (DaFonte v. Upright, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) In neither case does testimony on legislative history and intent subvert the court’s ability to establish the meaning of the law independently of historical evidence of intent.

20. In addition to the Plain meanings rule, courts also adhere to interpreting statutes consistent with various maxims of statutory construction. For example, courts routinely conduct in pari materia analysis when construing statutory language. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763 [280 Cal.Rptr. 745, 809 P.2d 404].) As a further example, courts usually afford the construction of a statute by a state agency great weight, and will not overturn it absent a showing that the construction is clearly erroneous or unauthorized (Rizzo v. Board of Trustees (1994) 27 Cal.App.4th 853, 861 [32 Cal.Rptr.2d 892].) Given that maxims of statutory construction form a distinct aspect of the courts’ statutory analysis, testimony on legislative history and intent cannot, in itself, displace the courts’ from their customary role of establishing the law.

21. The courts also routinely examine prior case law interpretations of a statute in an effort to establish coherent meaning in the law. (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 343 [33 Cal.Rptr.2d 109, 878 P.2d 1321].) Where a court has previously construed a statute, case law precedent ensures that any testimony on legislative history and intent does not unduly influence a court’s reading of the law.

22. The distinction between appropriate testimony about the history and framework of a law and inappropriate testimony on the proper judicial interpretation of a law was recognized in Western Medical Enterprises, Inc. v. Albers (1985) 166 Cal.App.3d 383, 392 [212 Cal.Rptr. 434]. In this instance, the Court of Appeal ruled that expert testimony on the interpretation of Medi-Cal rules and regulations was properly received by the trial court. This decision is consistent with the cases allowing expert witnessing on legislative intent noted in Paragraph 9 above. (Cf. American Home Assurance v. Hagadorn (1996) 48 Cal.App.4th 1898, 1902-3 [56 Cal.Rptr.2d 536](allowing expert testimony on the intent of an amendment to the workers’ compensation law).)

23. These cases are easily distinguished from another line of cases disallowing testimony on pure legal opinions. In the leading case on this issue, Communications Satellite Corporations v. Franchise Tax Board (1984) 156 Cal.App.3d 726, 747 [203 Cal.Rptr. 779], the Court of Appeal correctly rejected expert testimony on the proper interpretation of a tax statute as applied to uncontroverted facts, which effectively directed a verdict. In this case, the expert testified on conclusions of law based on his interpretations of a uniform act.

24. Similarly in Downer v. Bramet (1984) 152 Cal.App.3d 837, 841-2, one party sought to introduce evidence first from her own attorney, and then from independent counsel, on the legal test for determining whether a transfer was a gift or compensation. The appellate court upheld a trial court decision to exclude this proffered testimony as within its discretion. The court noted that calling witnesses “to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury...” (Id. at 842.)

25. In sharp distinction, expert witness testimony on legislative history and intent is based on expert evaluation of historical documents, and not simply an opinion on the meaning of law. Moreover, testimony on legislative history and intent does not lead the court inexorably to any particular conclusion as to the proper judicial interpretation of the law. Legislative history and intent are elements of a court’s statutory construction analysis, and expert testimony is accepted to assist the court in one part of that process.

26. Furthermore, given that expert witness testimony on legislative history is designed to assist the court in interpreting legislative intent, it does not usurp the role of the court to instruct the jury. This point is recognized in Evidence Code 455 which notes that such expert opinion is usually not given before a jury because it is ‘not received in open court”. Evid. Code, Section 455.) Neither does expert witness testimony on legislative history impose on the province of the jury to apply the facts to the law.

D: Conclusion