The Debate over Statutory History

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 By statutory history, the court is referring to previous versions of a statute, which the legislature has subsequently repealed or revised.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.    

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More on Coulee Catholic Schools v. LIRC

discriminationAs Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question presented, I think the Court’s holding was straightforward, correct, and not very dramatic.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

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Coulee Catholic: Of Loopholes and Legislating

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the “ministerial exception” to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher’s claim against the school for age discrimination must be dismissed.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

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