dissenting.
I write to explore the elusive concept of “legislative intent” that guides the principal opinion. The statute, section 536.010(6), RSMo 2000, does not deal directly with matters involving the execution of prisoners, but it does say that matters concerning “only” inmates are not included in the administrative rules process. This statute, the principal opinion says, presents an “ambiguity” that must be resolved by discerning “legislative intent.”
Translation: What do we think the legislature was thinking if the legislature was thinking about this subject at all? Or, perhaps, more accurately: What do we think the legislature would think?
This line of analysis, I believe, needs a name. I would suggest, respectfully: “Imagined Legislative Intent” or “Anticipatory Legislative Intent.”
Justice Scalia has described the
regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not— and especially if a good reason for the ordinary meaning appears plain — we apply that ordinary meaning.
Chisom v. Roemer 501 U.S. 380, 404, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting). See, generally, Chevron *200U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). It is not, as Justice Scalia explains, the role of the court to render its expectation about what the legislature must have meant, but rather to look at the words of the statute itself. 501 U.S. at 405, 111 S.Ct. 2354. In this regard, the principal opinion seems to take the position that the legislature could not really have meant to include the execution protocol in the definition of a rule, and so, therefore, the legislature did not so include it. As the principal opinion concludes: “Read most naturally, this language demonstrates that the General Assembly crafted the statute with the understanding that execution protocols would not be subject to rulemaking. It is this Court’s role to effectuate this intent.”
Of course, it is far more likely, when considering this general statute as to administrative agency rules, that the legislature, as a body, did not consider the execution protocol at all. Perhaps if the legislature had considered the execution protocol, it would have mentioned it in the statute, and we would have explicit guidance to exclude or include the execution protocol in the definition of an agency rule.
In the absence of actual words, it is hard to discern the legislature’s “understanding” of a specific exception to the statute’s general provisions. Indeed, the legislature has proven its ability to indicate explicitly its awareness of an execution protocol. In section 546.720.2, RSMo 2000, the legislature makes specific mention of an “execution protocol,” stating that “[t]he section of an execution protocol that directly relates to the administration of lethal gas or lethal chemicals is an open record, the remainder of any execution protocol of the department of corrections is a closed record.”
But here, we do not have any such guidance. To quote Justice Scalia again, speaking not ex cathedra but in a law review: “... to tell the truth, the quest for ‘genuine’ legislative intent is probably a wild goose chase anyway.” 1 In the vast majority of cases, Scalia opines, “I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all.” Hence, what the administrative agency (or a court) would infer about legislative intent “represents merely a fictional, presumed intent.” Id,.
In the absence of legislative direction to the contrary, we have only the words of the statute as they are written. And we must take those words in them plain and ordinary meaning. I agree with Judge Teitelman’s conclusion as to them plain and ordinary meaning. Surely the manner by which the state plans to execute Middleton and the others awaiting a death sentence is a matter of concern to segments of the public and not “only” to the inmates who are to be injected with the prescribed lethal cocktail.
In my imagination, I can see the same legislative “intent” as the principal opinion seems to see in this case. I imagine that if Judge Teitelman’s reading of the statute were to prevail, today’s legislature hastily would pass a statute explicitly exempting the execution protocol. But it is not our job as judges to rewrite or pre-write a statute to say what we imagine the legislature would say. Actually writing statutes is purely the job of legislators.
*201We judges should use the legislature’s words as they are given to us. If legislators disagree with the results their current words produce, they can legislate and give us some new words. This would seem more lawful than for the Court to be imagining what these lawmakers would do and calling it statutory interpretation.
I join Judge Teitelman’s opinion, and I respectfully dissent.
. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511,517(1989).