An interesting debate about statutory history emerged at the Wisconsin Supreme Court this past term in County of Dane v. LIRC (2009 WI 9). By statutory history, the court is referring to previous versions of a statute, which the legislature has subsequently repealed or revised. Even prior to County of Dane, the court had stated, “By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute.” Richards v. Badger Mutual Insurance (2008 WI 52).
The current debate centers on whether reliance on statutory history is consistent with a plain meaning analysis. Justice Roggensack has asserted, “statutory history is part of a plain meaning analysis because it is part of the context in which we interpret statutory terms.” Chief Justice Abrahamson, on the other hand, asserts that statutory history is inconsistent with a plain meaning analysis because if the text is plain, there is no need to go beyond the text.
While the intellectual debate over statutory history is commendable, the arguments thus far have been misplaced, and as a result, we should refocus the debate. The debate should not center on whether statutory history is consistent with a plain meaning analysis because such a debate does not answer when and how statutory history can be utilized. As such, the current debate is meaningless. Rather, the debate should center on whether statutory history is an intrinsic or extrinsic aid to interpretation.
Permit me to explain by setting forth briefly Wisconsin’s approach to statutory interpretation, which will show that statutory history’s classification as an intrinsic aid or extrinsic aid significantly affects its usefulness. In Kalal v. Circuit Court of Dane County (2004 WI 58), the Wisconsin Supreme Court reevaluated its approach to statutory interpretation and adopted — some would argue reaffirmed — a more formal, statutory meaning approach. In short, the court established the following framework: First, if the language is clear on its face, the plain meaning will be applied. Second, if the statute is not plain and thus needs to be interpreted, intrinsic aids may guide the interpretation. Third, extrinsic aids may be consulted only if the statute is ambiguous.
As a result, if statutory history is an extrinsic aid, the history may be used only when there is an ambiguous statute, which is generally an infrequent occurrence. I, however, would argue that statutory history is as an intrinsic aid for statutory interpretation. As provided in Sutherland’s Statutes and Statutory Construction, intrinsic aids are canons of construction (e.g., grammar, punctuation, or textual canons), dictionary definitions, titles, context, scope, and surrounding statutes. Previously enacted versions of a statute fall nicely within the realm of these other intrinsic tools because the focus remains on the statutory text. One would be confined to the statute’s text — either the current or the previous version. Unlike typical types of extrinsic evidence, such as common law and legislative history, the legislature has voted on previous versions of a statute. To the extent that words or phrases have been added or subtracted over the years, this provides great insight as to what the legislature meant when it worded the current version of the statute. Concerns about legislative history and other materials not voted on by the legislature do not apply to previous versions of a statute. In conclusion, if we refocus the debate over statutory history, the arguments will likely be fleshed out and the usefulness of statutory history will come to fruition.
I wholeheartedly agree that statutory history should be considered an intrinsic aid. In fact, both sides of the debate should be able to agree on that. Statutory history uses a source that has been passed by the full legislature, and including it in the analysis permits the court to gain additional insight into the legislature’s intent. One would think this would satisfy both camps.
The debate has played out as it has, however, because accepting statutory history as an intrinsic source necessarily requires one to accept the statutory analysis set forth in ex rel Kalal, something that to my knowledge the Chief Justice has never done. The Chief filed a separate opinion in Kalal and has reaffirmed her position in several opinions since that time. To my knowledge, the Chief has never even cited to Kalal despite the fact that it is a significant realignment in the way statutes are interpreted. As Professor Fallone would say, she has “disagreed with the premise.”
Mr. Petrashek’s insightful comments bring up an interesting question. Does a supervisory court have the authority to instruct lower courts on how to approach statutory interpretation? Given the Chief’s reluctance to cite Kalal, perhaps she agrees that the scope of the Wisconsin Supreme Court’s power does not entail mandating how lower courts interpret statutes. Of course, it could be that the Chief Justice just does not agree with how the majority in Kalal has instructed the lower courts. In any event, I wonder if the supreme court’s supervisory powers encompasses such instruction on statutory interpretation. Has the United State’s Supreme Court set forth similar instructions? I do not believe so. Moreover, in the area of constitutional law, the United States Supreme Court has taken an originalist approach in cases such as Crawford v. Washington, but certainly the Court has not stated that it will approach all constitutional questions from only an originalist understanding.