LP06: Lectures 23 & 24 Statutory Interpretation/Construction We have covered the process by which a bill becomes law and the powers related to that process, we visited the scene of the crimes, we now turn to more technical and legalistic aspects of: 1. How bill is constructed and 2. How a court determines the meaning of a statute The goal is to minimize the possibility of a court construing a statute in a manner inconsistent with the drafter's intent. Inter-relationship The topics statutory interpretation/construction and bill drafting are interrelated. Understanding how courts interpret statutes is important to the drafting process. Bill drafting is presents the best opportunity for the Legislature to avoid the clutches of the court. First: Statutory Interpretation I start with the premise that every lawyer should know how statutes are interpreted before they start drafting them. "Definition of Statutory Construction/ Interpretation (From Legal, Legislative, and Rule Drafting in Plain English, Martineau and Salerno) "The process by which a court decides a case upon the basis of the statute. Most often the terms interpretation and construction are use as synonyms. Two step process "When a court construes a statute, it generally is engaging in the first of a two step process. "This first step is determining what the words of the statute mean." "The second step, what most of law school is about, is the process of applying the statute to the facts of the case before it. Courts are sometime not very good at dividing the two tasks, but blend them together. Nonetheless, these two functions form the product of a courts decision." Relationship between Statutory Construction-Legislative Drafting "It might appear that statutory construction, being concerned with the interpretation and application of statutes already enacted, is of little or no importance to the drafter. Nothing could be further from the truth. "While the proponent of a particular bill is the immediate audience of the legislation, the court, which has the final word on what the legislation means and how it is to be applied, is the ultimate audience. BEFORE THE DRAFTER STARTS TO DRAFT! "Therefore, it is essential for the drafter of legislation to be generally familiar with the approaches that courts take to statutory construction, how courts use the canons of statutory construction, how courts have construed specific words the drafter may use, and the reliance the court places on the various sources of legislative history. Goals "The goal of the legislative drafter should be to use language that is so clear and unambiguous that it will force a court construing the statute to construe it the way that the proponent intends it to be construed. "A related goal of the drafter is to minimize the occasions when courts find that the language used in a statute is not an adequate expression of legislative intent thus requiring a resort to extraneous aids." Problem of Interpretation When there is a problem of interpretation we look: First to the text of the statute, Second to the cannons of interpretation/ constructions for guidance, and Finally to the legislative history (see UC Hastings and UCLA websites) LEGISLATIVE HISTORY This aspect of the course is important to all lawyers, whether or not they have anything to do with the legislative process. If you become involved with the legislative process, the legislative publications are the means by which you track legislation. If you simply practice law you will deal with the product of the legislative process-- statutes, knowledge of legislative publications is helpful when conducting statutory research. LEGISLATIVE HISTORY Aids that assist in finding legislative history because they allow the researcher to trace a statutes creation during its journey through the process for the purposes of determining its legislative history LEGISLATIVE PUBLICATIONS BE SURE TO TAKE A LOOK AT THE ASSIGNED READING RELATIVE TO LEGISLATIVE PUBLICATION. IT TIES INTO THIS COMPONENT OF THE COURSE AND IS WELL EXPLAINED IN CALIFORNIA’S LEGISLATURE. YOU SHOULD KNOW WHICH PUBLICATION TO GO TO FOR THE INFORMATION YOU SEEK LEGISLATIVE PUBLICATIONS DAILY FILE DAILY JOURNAL DAILY HISTORY WEEKLY HISTORY FINAL HISTORY TABLE OF SECTIONS AFFECTED STATUTORY INDEX STATUTORY INTERPRETATIONTHEORY A lot like constitutional law theory: trying to explain human (judges) behavior. In addition to knowing the text, the legislative history, and the cannons, know your judges. The judiciary is often the ultimate audience Evolving Attitude Of The Judiciary Recall the evolving attitude of the judiciary studied at the beginning of the course. To refresh your memory: It starts with what Lord Coke said centuries ago: “the common law, developed by the judiciary, historically has been viewed as "perfection of human reason" and "makes the lawyer proud of his heritage, and the layman fearful to intrude." This ideal is contrasted with the statute, "appearing merely as the voice of the majority, and seemingly only as durable as that majority. It simply states its commands and pleads no reason for its cause. It is what the butcher, the baker and the candlestick maker pleases, a laying on of profane hands upon the law." PLAY SONG Contemporary view: Scalia “The state of the science of statutory interpretation in American law is accurately described by a prominent treatise on the legal process as follows: Do not expect anybody's theory of statutory interpretation, whether it is your own or somebody else's, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. (Henry M. Hart, Jr. & Albert M. Sacks) “Surely this is a sad commentary: We American judges have no intelligible theory of what we do most. “Even sadder, however , is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory. Whereas legal scholarship has been at pains to rationalize the common law-to devise the best rules governing contracts, torts, and so forth-it has been seemingly agnostic as to whether there is even any such thing as good or bad rules of statutory interpretation.” TWO ISSUES MAIN ISSUE: WHAT IS THE ROLE OF THE JUDGE (note recent debate re: Supreme Court appointments) IS IT TO DETERMINE THE MEANING OF THE STATUTE IN ACCORDANCE WITH THE INTENT OF THE LEGISLATURE OR PEOPLE IF AN INITIATIVE? IS IT TO DETERMINE THE WISDOM OF THE POLICY BEHIND THE STATUTE? IS IT A COMBINATION OF THE TWO? RELATED ISSUE: WHAT VALUE SHOULD BE PLACED ON LEGISLATIVE HISTORY? USE OF LEGISLATIVE HISTORY IS BOTH A CURRENT AND HISTORIC CONTROVERSY IN US LAW The Cannons I asked you to read the Llywellen article, and I would like to talk about it in its historical context as well as the theoretical basis of statutory interpretation, [formalism, realism, legal process (purposefulism), textualism, pragmatism, and the cannons]. LLEWELLYN’S POINT There are two opposing cannons on almost cannon of statutory construction. Is it more accurate to say the each cannon has its qualification? Like rule against hearsay has qualifications (excited utterance) Legal Realism & the Canons' Revival John F. Manning, 5 Green Bag 2d 283 (2002) IN THE TWELVE QUICK PAGES of Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, Karl Llewellyn largely persuaded two generations of academics that the canons of construction were not to be taken seriously. His point was simple: The canons are indeterminate, and judges use them to justify reasoning by other means. With less impact, earlier realists had made similar claims. Legal Realism & the Canons' Revival “But Llewellyn made a chart. At the end of his essay, he aligned 28 "Thrusts" against 28 "Parries." Finding that each canon had an equal and opposite counterpart, “Llewellyn urged courts to "give up that foolish pretense [that] there must be a set of mutually contradictory correct rules on How to Construe Statutes." “In place of these technicalities, Llewellyn proposed a more functional approach to interpretation - one that sometimes sought legislative "intent," but more commonly tried "to make sense" of a statute in light of its "broad purposes." Legal Realism & the Canons' Revival “Many scholars still subscribe to Llewellyn's basic insight. “The real news, however, is: first, that a large and growing number of academics (and academics-turned-judges) now believe in the utility of canons of construction (including many of the particular canons that Llewellyn listed), and, “second, that the newly faithful cover a broad philosophical spectrum. “Modern textualists, who tend to be formalist in orientation, understandably favor the use of canons, particularly the traditional linguistic canons. Justice Scalia, for instance, argues that many such canons are "so commonsensical that, were [they] not couched in Latin, you would find it hard to believe that anyone could criticize them." THE CANNONS: CAL JUR ON STATUTES With respect to statutory interpretation/construction included in the reading are the relevant provisions of CAL JUR 3d They are the principal lawyers tool in ascertaining the relevant case law relative to construing statutes. These materials seem to go on forever. The CAL JUR 3d section on statutes is over 250 pages long, and it is not really narrative, but is more in horn book form. Consequently, it is a concise summary of what is important about construing statutes. I have condensed the he 250+ of materials down to 30 pages pursuant to a negotiated agreement with the publisher, Bancroft-Whitney, to include the entire index, all of the "summaries" of each section, a few of the complete provisions relating to "Interpretation- generally" (to give an idea how is structured). CAL JUR As you look at the summaries note section numbers-these refer to the text following the summary where the concept is fully addressed. This will be apparent when you look at the materials on interpretation. I did not provide all of the additional material on interpretation (only Secs. 82-86, 88), so read the summary on interpretation. I do not expect you to know this all, just be aware that it exists as a research tool. When you read the Brousard case, you will see an application of many of these principles. Statutes: Interpretation: Generally The rules of interpretation/construction by which the meaning of particular language is to be ascertained are the same whether the language to be construed is found in a statute, constitutional amendment, initiative measure, ordinance or administrative rule or regulation. The term "statute" will be used to refer to all of these types of enactments. RESOLVE DOUBTS—NOT CREATE THEM TO CONSTRUE A STATUTE IS TO SEARCH AFTER THE LEGISLATIVE INTENT, AS EXPRESSED IN THE STATUTORY LANGUAG THE RULES OF STATUTORY INTERPRETATION/CONSTRUCTION ARE DESIGNED TO AID IN RESOLVING DOUBTS ABOUT THE MEANING OF STATUTES, NOT TO CREATE DOUBTS OR DEFEAT LEGISLATIVE INTENT. Ascertain the Intent of the Legislature 1. All rules of statutory construction are subject to the controlling principle that the fundamental purpose of statutory construction is to ascertain the intent of the legislature in order to effectuate the purpose of the law involved. If the legislature has declared its intent, the courts must accept the declaration (see PRA, Secs.81001, 81002, Gov. C.) Consequential result is that the intent of the legislature prevails over the letter, and the letter will, if possible, be read so as to conform to the spirit of the act. However, an intent that finds no expression in the words of the statute cannot be found to exist. Ambiguity, generally, is the prerequisite for construction. Where the meaning of a statute is plain, its language clear and unambiguous, and there is no uncertainty or doubt of the legislative intent, there is no need for construction and the courts should not indulge in it. If the words of the statute, given their ordinary and popular meaning, are reasonably free from uncertainty, the courts will look no further to ascertain the legislative intent. In construing a statute, the first step is to examine the language for ambiguity. The courts should follow the language used and five it its plain meaning, whatever the courts feels about the wisdom, expediency or policy of the act. Exception is found where the plain meaning will lead to absurd results. Nature of ambiguity- -words of doubtful meaning -position of sentences, uncertainty whether they apply to a part or to the whole of an act -language that is unambiguous in a common sense, but has acquired a different technical meaning as words of art. Presumptions of Interpretation Legislature: Intended to enact a valid statute Intended the law to have some effect, and every word and provision is intended to have meaning and perform a useful function. Knows and states in enacting and amending legislation that it does not intend to act capriciously or unconstitutionally if the language admits to alternative interpretations. Does not intend to use inconsistent provisions on the same subject Intends exceptions to its language when necessary to avoid injustice or absurd consequences Presumptions of Interpretation Does not intent to legislate by implication Intended to change existing law. Legislature is familiar with past and existing legislation as well as common law rules, and enacts new statutes and amendments or reenacts statutes in light of existing judicial decisions. Legislature has adopted prior judicial constructions as part of a new amended, or reenacted statute, if the subsequent enactment is framed in language substantially similar to that previously construed by the courts. Legislature is aware of judicial decisions construing particular statutory words or phrases and to have used these words or phrases in a subsequent statute, dealing with the same or similar subject, in the same sense and construed by the courts. However, the legislature is not presumed to be aware of administrative interpretative rulings or practices, absent a showing that they were brought to legislative attention or unless they are of long-standing duration. Specific rules and maximums/cannons 1. Every word in a statute must be given a meaning. 2. Words are to be interpreted according to the rules of grammar and punctuation. 3. Words are used in their ordinary meaning unless a technical meaning is suggested by the other words in the statute. 4. Different words have different meanings. 5. The same word used in different places has the same meaning. (related principle: in para materia-- those that relate to the same thing or person should be read together as if one) Specific rules and maximums/cannons 6. Ejusdem generis: a general word is limited by the more specific words with which it is used. 7. Noscitur a sociis: a word takes some meaning from the words with which it is used. 8. Expressio unius est exclusio alterius- The mention of one thing excludes the another 9. "Shall" is mandatory and "may" is permissive (may not is prohibitory). 10. "And" is conjunctive and "or" is disjunctive. Interpretive power of the courts Courts should "declare the law" not make it. Under the guise of interpretation/construction a court should not: --rewrite --add what has been omitted --omit what has been inserted --give effect beyond that gathered from the plain and direct import of the terms used --read into it an exception, qualification or modification that will nullify a clear provision or materially affect its operation to make it conform to a presumed intention not expressed or otherwise apparent in the law --do violence to the language used --deviate from the language used --refuse to apply plain and unambiguous language Remember Watson v. FPPC When the language of a statute is susceptible to more than one meaning, it is the courts duty to accept the meaning intended by the legislature, so far as it can be ascertained. Power Courts Lack The courts do not have power to legislate, and cannot substitute their ideas for those expressed by the legislature. The judicial function is simply to ascertain and declare what is in terms or in substance contained in the statute and not seek hidden meanings not suggested by the statute or by available extrinsic aids. Power Courts Lack Courts are not empowered to act as super legislatures and should not be concerned with the wisdom, motive, or policy behind a legislative enactment. Courts may not declare a statute obsolete by reason of a supervening change in the conditions under which it was enacted (Note: Calabresi notion). The courts power is confined to: --determining whether the subject of the legislation is within the legislative power --whether the means adopted by the legislature to accomplish the desired result are reasonably appropriate to that purpose and have a substantial relation thereto. Aids to Interpretation What courts (and lawyers) look to in construing statutes: 1. Language of statute [text]. 2. What appears on the bill, but is outside of what is considered the statute: -title -action lines in bill -plus sections at end of bill -legislative counsel's digest Extrinsic Aids EXAMPLES: Legislative records -author's bill file -recorded debates surrounding the passage of the bill -testimony of individual legislators regarding motive, intentions are inadmissible for the purpose of showing what in fact was intended or meant by a given event post-enactment reiteration of the discussions, arguments and events receding passage of a bill, such as those at a committee hearing, however less weight than given to extensive committee reports on the bill or formal record of debates. Extrinsic Aids -chaptered bill file, Sec. of State, archives (Explain contents: letters, committee analysis. (not enrolled bill reports—created by executive, not part of legislative process) Interpretive comments by the California Law Revision Commission. Comparing versions of the bill to see what the Legislature has rejected. Other bills on the same subject rejected by the legislature at the same time. Related statutes in this jurisdiction. Similar statutes in other jurisdictions and the judicial interpretation/construction of them. History of the time when the bill was enacted. Extrinsic Aids- Motive Generally, the declaration of a legislator as to his or her motives or intent is viewed as the weakest and most unreliable kind of indication of what the Legislature intended to do and there is a reluctance to rely on statements made by members of the legislature to determine the intent of the entire Legislature (Walters v. Weed, 45 Cal 3d 1, at p. 10). Note the case of Marriage of Bouquet 16 Cal 3d 583 where the Cal Supreme Court considered as evidence of legislative intent, a resolution that contained a motion to print a letter in a legislative journal (Senate Journal) that was written by the author of a bill to explain his intent. In Bouquet the court concluded that the letter was more than a personal understanding of the author, despite the fact that it was published after the passage of the bill, because it was published pursuant to a motion of the house to publish it. While not dispositive of legislative intent, the court felt bound to give weight to the expression of intent in accordance with its probative valueNote: California law bars the probing of either the mental or the deliberative process or legislator or their staffs (see County of LA v. Superior Ct. 13 Cal 3d 721 and Soon Hing v. Crowley 28 L. Ed. 1145). Extrinsic Aids Contemporaneous interpretation/construction given a statute by an administrative official charged with its enforcement or interpretation (great weight unless clearly erroneous). Difference given contemporaneous interpretation/construction by state executive officers charged with the duty of executing it, especially if the interpretation/construction has extended over a long period of time. Interpretation/construction given by Attorney General is given great weight. Interpretation/construction by the Legislative Counsel is persuasive. RE: Ballot measure- argument of proponents/opponents and other documentation- title, summary, analysis (explain public viewing). California Law Library publication: "Locating Legislative Intent by Extrinsic Aids" Law Lib. Paper #13 "Sources of Legislative Intent in California 3 Pac. LR 63; and "The Use of Extrinsic Aids in Determining Legislative Intent in California: The Need for Standardized Criteria 12 Pac LR. 189. Controversy relative to use of legislative history: Extreme poles of the two opposing points of view Textualist: only look to the text of the statute Pragmatists: look to anything that is useful Issue: To what extent should a judge deviate from the text? THE 1991 JUSTICE LESTER W. ROTH LECTURE: ON THE USES OF LEGISLATIVE HISTORY IN INTERPRETING STATUTES. STEPHEN BREYER (Written when Chief Judge, U.S. Ct App., First Circuit.) Until recently an appellate court trying to interpret unclear statutory language would have thought it natural, and often helpful, to refer to the statute's "legislative history." The judges might have examined congressional floor debates, committee reports, hearing testimony, and presidential messages in an effort to determine what Congress really "meant" by particular statutory language However, some argue that courts use legislative history almost arbitrarily. Using legislative history, Judge Leventhal once said, is like "looking over … a crowd and picking out your friends." Others maintain that it is constitutionally improper to look beyond a statute's language. BREYER: USES OF LEGISLATIVE HISTORY IN INTERPRETING STATUTES These and other criticisms are taking their toll. Judge Patricia Wald has pointed out that the Supreme Court relied on legislative history in almost every statutory case it decided in 1981. By 1989, the Court decided a significant number of statutory cases (ten out of about sixty-five) without any reference to legislative history at all. In the 1990 Term, the Court decided 19 out of about 55 such statutory cases without its use. Referring to legislative history to resolve even difficult cases may soon be the exception rather than the rule. BREYER: USES OF LEGISLATIVE HISTORY IN INTERPRETING STATUTES BREYER DEFENDS THE CLASSICAL PRACTICE OF USING LEGISLATIVE HISTORY AND URGES THAT THOSE WHO ATTACK ITS USE TO BE MORE SENSITIVE TO PROBLEM OF ABUSE OF LEGISLATIVE HISTORY, BUT NOT TO CONDEMN ITS USE ALTOGETHER. BREYER: THE USEFULNESS OF LEGISLATIVE HISTORY- EXAMPLES Using legislative history to help interpret unclear statutory language seems natural because legislative history helps a court to understand the context and purpose of a statute. Outside the law we often turn to context and purpose to clarify ambiguity. Consider, for example, a sign that says "no animals in the park." The meaning of even so simple a sign depends heavily on context and purpose. Does "animal" include a squirrel, a dog, or an insect? BREYER: THE USEFULNESS OF LEGISLATIVE HISTORY- EXAMPLES Breyer provides examples of five circumstances in which courts reasonably use legislative history to help reach correct results in difficult cases, starting with the least controversial examples and ending with the kind that most disturbs the critics. First circumstance: TO AVOID AN ABSURD RESULT Blackstone himself, more than two hundred years ago, pointed out that a court need not follow the literal language of a statute where doing so would produce an absurd result. Considering such problematic language in a case, should not a judge examine the history of the statute to see whether the language is, in fact, as absurd as it appears, or whether it may serve a reasonable purpose that did not occur to the parties or to the court? Green v. Bock Laundry Machine Co A Federal Rule of Evidence, enacted into law as a statute, stated that evidence of a witness's prior convictions was admissible if the "court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant." Why does the Rule use the word "defendant?" Should it not say either "accused," thus limiting the Rule's effect to criminal cases, or "other party?" Suppose the prejudicial effect is not "to the defendant" but to the civil plaintiff. Suppose, for example, that the plaintiff's star witness has a serious but almost irrelevant criminal record. Admission of that record would hurt the plaintiff and help the defendant. Why should anyone wish to distinguish between plaintiffs and defendants in this way in a civil case? Green v. Bock Laundry Machine Co Before concluding that the distinction in a civil case was absurd, that no good reason supported it, and that the courts should read the Rule's instruction as applying only to criminal defendants, the Supreme Court checked the history of the Rule to see if the drafters had some special purpose in mind. Only after the Court found no evidence in the legislative history of any such purpose did it hold that the Rule, despite its language, did not apply to civil defendants. Justice Scalia, a vocal critic of the use of legislative history, wrote that this kind of use was proper. He said that a judge will, and presumably should, consult history "to verify that what seems . . . an unthinkable disposition . . . was indeed unthought-of, and thus to justify a departure from the ordinary meaning of the word[s]" in the statute. This kind of use of legislative history does not seems controversial. Second circumstance: DRAFTING ERROR Legislative history can also illuminate drafting errors. A statute's language might seem fairly clear. The language might produce a result that does not seem absurd. Yet, legislative history nonetheless might clearly show that the result is wrong because of a drafting error that courts should correct. Drafting Error Consider the following example: A federal criminal statute says "whoever . . . possesses any false, forged, or counterfeit coin, with intent to defraud any person" is guilty of a crime. n13 The question in a case the First Circuit decided in 1982 was whether the statute covers a person who (with the requisite fraudulent intent) possesses, in the United States, false Krugerrands, gold coins used as currency in South Africa, but not in the United States. Drafting Error The history of this statute, however, shows a narrower meaning. In 1965 Congress reorganized, and slightly rewrote, a set of anti-counterfeiting statutes, of which this provision was one. During the 150 years that preceded the reorganization, this provision constituted a small part of a statutory paragraph, most of which prohibited the making of counterfeit coins. This older paragraph contained an important qualifying phrase, indicating clearly that the provision applied to American coins and not to foreign coins. Drafting Error When Congress rewrote the statutes in 1965, it kept the qualifying phrase in the reorganized provision that governs the making of counterfeit coins. That provision now says that "whoever falsely makes . . . any coin . . . in resemblance of" any United States coin or any foreign gold or silver coin that is "current in the United States or in actual use and circulation as money within the United States" is guilty of a crime. But when Congress separated the "possession" provision from the larger paragraph, it did not include the qualifying provision that limited its application to coins "current" as money in the United States. Drafting Error Without this history, one might think that a false Krugerrand obviously falls within the scope of the statute's words "any . . . counterfeit coin." But does it? After all, the word "any" in a statute rarely means "any at all in the universe." It almost always has some context-implied limitation. Moreover, for 150 years this particular statute explicitly did not apply to ancient coins, Krugerrands, or counterfeits of any other coin not currently used as American currency. Should a court read the provision to continue this limitation, reading the word "any" as so limited, or should it assume that the "possession" statute, unlike its near cousin, the "making" statute, includes false Krugerrands? Either answer seems reasonable. In answering this question, would you not want to know just what Congress had in mind in 1965 when it reorganized and rewrote the preexisting statutes? Drafting Error The 1965 House and Senate Reports on the counterfeiting legislation provide fairly clear answers. They specify that the congressional reenactment of the law, reorganizing it and rewriting some of it, was intended to serve purely organizational objectives. They say that Congress expected, after the changes, that the law would remain what it was before the changes. These reports reveal that the individual staff members who rewrote the law thought that the legislators wanted them to accomplish a purely technical, non-substantive drafting objective. The reports thereby indicate that no one in Congress intended to change substantive law or to rewrite federal counterfeiting law so that it helped protect the currency of all nations, including South Africa, or ancient Greece and Rome. Third circumstance: WHEN THERE IS A SPECIALIZED MEANING Even the strongest critics of the use of legislative history concede that a court should take full account of any special meaning that a statutory word may have. The word "standing," for example, means something quite different in a statute on civil procedure than on a subway poster. Presumably the critics see nothing wrong with looking to history to help determine whether a particular word has a specialized meaning and, if so, what sort. But why should that history specifically exclude legislative history? SPECIALIZED MEANING Pierce v. Underwood, is a Supreme Court opinion authored by Justice Scalia. One of the legal questions in the case concerned the meaning of the phrase "substantially justified," as used in the Equal Access to Justice Act. A private party who wins a suit against the government is entitled to attorneys' fees unless the government's position was "substantially justified." Pierce v. Underwood The Court considered whether "substantially justified" means "better than reasonable," or even "less than reasonable." The Court held that the word "substantial," in effect, means "reasonable." In reaching this conclusion, Justice Scalia made various comparisons with other areas of law, including the following: Judicial review of agency action, the field at issue here, regularly proceeds under the rubric of "substantial evidence" set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(E). That phrase does not mean a large or considerable amount of evidence but rather "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." [citing Consolidated Edison Co. v. NLRB] SPECIALIZED MEANING The interesting part of this quotation is the date of the Consolidated Edison case, namely 1938. The reason it is interesting is that Justice Scalia uses that case to help explain the somewhat technical meaning of a word in the Administrative Procedure Act, which did not become law until 1946. It is worth asking how Justice Scalia knew that the meaning of the word in the 1946 statute was given in a case decided eight years earlier. The well-known answer to this question is that the 1946 House and Senate Reports make clear that in the Administrative Procedure Act, Congress intended to enact into law recommendations contained in the Report of the Attorney General's Committee on Administrative Procedure. That report cites the Consolidated Edison definition, as does a later report by the Attorney General, which focused specifically on the bill that Congress enacted into law in 1946. SPECIALIZED MEANING This later report appears as an appendix to the Senate Report on the bill, and in the Congressional Record, as an extension of remarks made during floor debate. That is how the administrative law community knows, and is very certain, that the APA's term "substantial evidence" means just what Justice Scalia says it means. This example demonstrates a fairly common function of legislative history -- explaining specialized meanings of terms or phrases in a statute that were previously understood by the community of specialists (or others) particularly interested in the statute's enactment. Fourth circumstance: IDENTIFYING A "REASONABLE PURPOSE" A court often needs to know the purpose a particular statutory word or phrase serves within the broader context of a statutory scheme in order to decide properly whether a particular circumstance falls within the scope of that word or phrase. REASONABLE PURPOSE Example Congress revised federal bankruptcy law in 1984. The statute contained a phrase, "core proceeding," not previously used in a federal statute. The statute authorized a federal Article I bankruptcy judge to hear and determine "core proceedings" without the consent of the parties. For non-core matters the bankruptcy judge could make binding decisions only with the parties' consent. What is a core proceeding? What is a non-core proceeding? REASONABLE PURPOSE The statute lists fifteen examples of core proceedings, but also says that "core proceedings include, but are not limited" to the fifteen enumerated examples. Why did Congress not set forth a complete list? Probably because those who drafted this provision feared they would not be able to imagine, in advance, every possible kind of proceeding that should be included. The First Circuit found itself faced with a circumstance not on the fifteen-item list, had to decide whether an Article I bankruptcy court could decide a debtor's post-petition state-law contract claim -- a claim that arose after the debtor filed for bankruptcy -- without the parties' consent. Was such a post-petition state-law controversy a core or non-core proceeding? REASONABLE PURPOSE Legislative history of the 1984 legislation provided the answer First, it clearly stated that Congress passed the Act in response to the Supreme Court's decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., n28 which held that the Constitution's separation-of-powers principles did not permit Article I bankruptcy courts to adjudicate a debtor's pre-petition state-law contract claim -- a claim that arose before the debtor filed its bankruptcy petition. Second, floor statements made by the bill's sponsors, Democratic Representative Kastenmeier, and Republican Representative Kindness, clarified the relation of the word "core" in the statute to the Marathon case. They explained in detail that they intended the words "core proceedings" (over which the bankruptcy courts would have full decision- making powers) to encompass as many different kinds of proceedings as the Constitution would permit. They referred to proceedings outside the "core" as "Marathon-type" cases, and explained that "jurisdiction in core bankruptcy proceedings is broader than the summary jurisdiction under pre-1978 law." REASONABLE PURPOSE Without the legislative history, without the floor statements, a different result may have been reached. More importantly, the incompatibility between the result the court could have reached (but did not) and those congressional objectives, seen from a general institutional or governmental perspective, would be undesirable. Fifth circumstance: CHOOSING AMONG REASONABLE INTERPRETATIONS OF A POLITICALLY CONTROVERSIAL STATUTE Final example: a statute that evoked strong political support and opposition in Congress and was enacted with language that is unclear or silent about an important issue that faces a court. POLITICALLY CONTROVERSIAL STATUTE Consider a 1981 case in our court that arose out of the Urban Mass Transportation Act of 1964. Act provided financial aid for urban mass transit systems, and it foresaw that the states receiving aid would likely acquire privately owned mass transit systems. The Act, in section 13(c), said that if a state received aid the federal Secretary of Labor had to certify that the state had made "fair and equitable arrangements . . . to protect the interests of employees affected" by the transit funding. POLITICALLY CONTROVERSIAL STATUTE The Secretary of Labor issued various regulations under section 13(c), the thrust of which was that the Secretary would consider an arrangement "fair and equitable" if the employees and the state employer agreed to them. The case before the court asked whether this provision of federal law, section 13(c), preempted a Massachusetts state statute that instructed its Transit Authority not to negotiate away its power to insist upon productivity-enhancing work-rule changes whenever it negotiated new contracts with the transit unions. Could Massachusetts, by statute, instruct its Authority to act contrary to this Secretary-approved arrangement? If section 13(c) and regulations promulgated pursuant to it preempted conflicting state law, the answer to this question was "no." POLITICALLY CONTROVERSIAL STATUTE The text of the statute does not answer the preemption question. The legislative history of section 13(c), however, did suggest an answer. First, the Secretary of Labor, Willard Wirtz, testified about the draft bill that became section 13(c) in the committee hearings that preceded its enactment into law. He said that when the Labor Department drafted the bill it had consulted the Amalgamated Transit Workers' Union and the AFL-CIO, and that section 13(c) would not supersede state law. POLITICALLY CONTROVERSIAL STATUTE Second, the preemptive effect of section 13(c) was discussed on the floor of Congress just prior to the bill's enactment. Senators hostile to the entire bill, such as Senator Barry Goldwater, asked whether or not it would preempt state law. Senators favoring the bill, such as Senator Pete Williams and Senator Jacob Javits, replied that section 13(c) would not preempt state law. Secretary Wirtz's testimony, and the floor debate, seemed clear and definite, and they helped our court decide that the provision did not preempt the Massachusetts law. BREYER-- CONCLUSION I did not dwell upon the problems of the legislative process, however, because my focus was the judiciary. I have simply argued that, viewed in light of the judiciary's important objective of helping to maintain coherent, workable statutory law, the case for abandoning the use of legislative history has not yet been made. Present practice has proved useful; the alternatives are not promising; radical change is too problematic. The "problem" of legislative history is its "abuse," not its "use." Care, not drastic change, is all that is warranted. Symposium on Statutory Construction (1950) Lord Halsbury: "I believe the worst person to construe it is the person who is responsible for its drafting." Mr. Justice Holmes: "I don't care what their intention was. I only want to know what the words meant." Bishop: "A statute is simply a fresh particle of legal matter dropped into the previously- existing ocean of law." Felix Frankfurter: "Judicial legislation...embodies part of the constitutional struggle to secure institutions calculated to preclude autocracy by distributing governmental power among the three departments of government.” Lord Justice Denning: "A judge must not alter the material of which it [an act] is woven, but he can and should iron out the creases." Shall We Dance? Statutes are now the predominant source of law. Resolution of many if not most cases today involve statutes. Two cultures in the statutory world in which we live the judiciary and the legislature Problem of drafting statutes and with statutory construction "as often as not is the unawareness that the legislative branch and the judicial branch have of each other's game rules." Judge Abner Mikva Shall We Dance? "The continuing emphasis on cases and judicial analysis ignores broader, and perhaps more fundamental, issues that reach beyond the confines of a particular case or code section. Commentators in legal publications give little scholarly attention to the legislature or the legislative process, except for legislative history, or the legislative products, the statutes themselves. "In contrast to the academic focus on judicial interpretation of statutes, much statutory interpretation takes place in the attorney's office in advising clients, in administrative agencies enforcing statutes, and in business offices in making business decisions" Broussard How statutory interpretation works in practice. Justice Kennard proceeds in the following order: --identifies the ambiguity, --states the rules of construction, --reviews the legislative history, --looks to extrinsic aids (legislative counsel's digest, committee and floor analysis, --determines the construction of the statutes, --applies that construction to the facts of the case Halbert Lumber There is an order in the most fundamental rules of statutory interpretation. The key is applying it in the proper sequence. Three possible steps: 1. Examine the actual language of the statute --best evidence of legislative intent --words should be given their ordinary everyday meaning unless the statute itself specifically defines the words to give them special meaning If the meaning is without ambiguity, doubt, or uncertainty, then the language controls 2. If the meaning of the words is not clear, go to the second step.—Refer to the legislative history if that fails to reveal clear meaning-- go to the third step 3. Apply reason, practicality, and common sense to the language at hand- --interpret words to make them workable and reasonable --accord the words common sense and justice --avoid an absurd result.