Determining the intent of the legislature is sometimes important when arguing that a specific law or statute does not appy to your case. To do so extrinsic evidence of the Legislatures intent may aid statutory interpretation of arguably ambiguous language. The supposed ambiguity may not have to be initially apparent; just as with a contract, the extrinsic evidence of the Legislature’s intent can be used ro determine whether the statute is ambiguous in the first place. Judges, however, are sometimes reluctant to allow extrinsic evidence to be used discover an ambiguity when statutory language initially appears on its face to be plain.
Extrinsic evidence is essentially the history of how the statute came about. Otto von Bismark once quipped that “[l]aws are like sausages, it is better not to see them being made.” Extrinsic evidence is the record of the sausage-making process. It includes evidence that reflects the Legislature’s contemporaneous intent or understanding of what it was accomplishing in enacting a statute. Later expressions by the Legislature as to what it intended in a prior statute may also be considered as may contemporaneous administrative interpretations.
Recently, in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4ih 26, the Third District Court of Appeal extensively surveyed cognizable extrinsic evidence and how it must be brought to a court’s attention. Significantly, the Third District which decided Kaufman & Broad is based in Sacramento, the repository of much statutory history and the locale of many statutory construction disputes. Kaufman & Broad was obviously written for a much wider audience than just the parries before it. Its procedural posture – a published opinion issued on a routine motion for judicial notice – suggests that the Court was attempting to send a message to parties in a legal case and counsel in general. Kaufman & Broad purports to set out rules for courts in the Third District. But, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, either is binding on trial courts statewide and persuasive in all other appellate courts.