Teschendorf v. State Farm Ins. Companies

SHIRLEY S. ABRAHAMSON, C.J.

¶ 64. (concurring). I agree with the majority opinion that under Wis. Stat. § 632.32(5)(i)2., uninsured motorist policy limits may not be reduced by worker's compensation payments that are not made to or on behalf of the insured, the insured's heirs, or the insured's estate.1

¶ 65. I write separately to point out that the majority opinion demonstrates the futility of labeling a statute as ambiguous or unambiguous as a means of statutory interpretation instead of just determining what a statute means.

*157¶ 66. The majority opinion states that Justices Ann Walsh Bradley, David T, Prosser, and Patience D. Roggensack conclude that Wis. Stat. § 632.32(5)(i)2. is ambiguous and that Justices Jon P Wilcox, N. Patrick Crooks, and Louis B. Butler conclude that the statute is unambiguous.2 I join neither camp.

¶ 67. This opinion demonstrates what I have written numerous times: The ambiguous/unambiguous, literal, plain meaning debate is a word game. The characterizations of "ambiguous," "unambiguous," "literal," and "plain meaning" are in the eyes of the beholder and appear to be conclusory labels a court pins on a statute.3

*158¶ 68. The majority opinion explains on the one hand that "a statute is ambiguous 'if it is capable of *159being understood by reasonably well-informed persons in two or more senses.' "4 On the other hand, the majority opinion also explains that a "statute is not ambiguous simply because the parties, the circuit court, and the court of appeals disagree as to its meaning."5 What the opinion does not tell us is which members of the court of appeals or this court are not "reasonably well-informed persons"?6

¶ 69. Furthermore, this court (or a justice) has often stated that the consequences of an interpretation of a statute should not be considered. On the other hand, the court (or a justice) has stated that the consequences of an interpretation should be considered.7 In the instant case, the ambiguous and unam*160biguous analyses in the majority opinion rely heavily on the fact that the result (i.e., consequence) of interpreting the statute to allow the reduction of underinsured motorist coverage by amounts paid into the Fund would produce an absurd result. Indeed, regardless of what we *161may have said in the past, there can be no question that this majority opinion does consider the consequences of alternative statutory interpretations to determine the reasonable interpretation of the statute.

¶ 70. A better approach to statutory interpretation would be to drop the ambiguous/unambiguous/literal/ plain meaning pretense and instead take a comprehensive view of statutory interpretatipn. It is time to take a holistic, less formalist approach to statutory interpretation. As I have explained previously, the court (some members more than others) silently takes a holistic approach anyway, despite lip service to the ambiguous/unambiguous/plain meaning shibboleths. In the present case, both the ambiguous and unambiguous/ literal/plain meaning camps properly conclude that the "legislative history, legislative purpose, and public policy"8 must be examined to determine the meaning of Wis. Stat. § 632.32(5)(i)2.

¶ 71. For the reasons set forth, I write separately.

Majority op., ¶ 2.

Majority op., ¶ 18, n.7, 8.

See, e.g., State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 63, 271 Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring) ("I have criticized this approach to plain meaning, ambiguity, and legislative history before. Language is often ambiguous; the distinction between 'plain' and 'ambiguous' is in the eye of the beholder; and both words too often are conclusory labels a court pins on a statute, making its decision appear result-oriented." (footnotes omitted)); State v. Peters, 2003 WI 88, ¶ 28, 263 Wis. 2d 475, 665 N.W.2d 171 (Abrahamson, C.J., concurring) (discussing fact that when the court determines a statute is unambiguous, it will use some canons of statutory construction, but not others); id., ¶ 40 (Bablitch, J., concurring) ("What is plain to one may be ambiguous to another. If good evidence as to legislative intent is present, why not use it?"); Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 43, 263 Wis. 2d 207, 655 N.W.2d 181 (Abrahamson, C.J., concurring) ("[T]his is another case in which the court mouths the exclusive plain meaning rule and then properly looks beyond the 'plain language' of the statute without finding that the statutory language is ambiguous." (footnote omitted)); id., ¶ 53 (Bablitch, J., concurring) (advocating the use of any useful and available information regarding legislative intent); State v. Byers, 2003 WI 86, ¶¶ 46-47, 263 Wis.2d 113, 665 N.W.2d 729 (Abrahamson, C.J., concurring) ("Even a casual *158observer of the Wisconsin cases would, without fear of being contradicted, summarize the case law as adopting inconsistent approaches to statutory interpretation."); State v. Delaney, 2003 WI 9, ¶ 38, 259 Wis. 2d 77, 658 N.W.2d 416 (Abrahamson, C.J., dissenting) ("Rules of statutory interpretation are designed to help courts discern the intent of the legislature, not to serve as blinders. In this case, the majority opinion uses the plain language rule to shield its eyes from the legislative intent to exclude motor vehicle offenses from consideration both as a predicate offense and a present offense under the habitual offender statute."); State v. Sample, 215 Wis. 2d 487, 510, 573 N.W.2d 187 (1998) (Abrahamson, C.J., concurring) (advocating a holistic approach to statutory interpretation and observing that "[b]y using this approach to statutory interpretation, judges can acknowledge and deal with interpretive problems that arise from the inherent ambiguity of language as well as the limits of our linguistic capabilities."); City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 236, 332 N.W.2d 782 (1983) ("This court has consistently stated that the spirit or intention of a statute should govern over the literal or technical meaning of the language used."); City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 244, 332 N.W.2d 782 (1983) (Abrahamson, J., dissenting) ("[T]his court may, contrary to the plain meaning rule, look outside the statute to see if there is persuasive evidence of a clear legislative intention different from that to which an ordinary reading of the plain words of the statute would lead.. .."); see also Ronald Dworkin, Law's Empire (1986) (focusing on the entire history of a statute and how it fits into the current legislative scheme); Richard A. Posner, The Problems of Jurisprudence (1990) (placing weight on the pre-enactment history of a statute); William N. Eskridge, Jr. & Philip E Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990) (urging consideration of a broad range of textual, historical, and other evidence in interpreting statutes); Richard A. Posner, Statutory Interpretation — in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 816-17 (1983) ("By making statutory interpretation seem mechanical *159rather than creative, the canons conceal, often from the reader of the judicial opinion and sometimes from the writer, the extent to which the judge is making new law in the guise of interpreting a statute or a constitutional provision.").

Majority op., ¶ 19 (quoting State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 47, 271 Wis. 2d 633, 681 N.W.2d 110).

Id. (citing Bruno v. Milwaukee County, 2003 WI 28, ¶¶ 18, 21, 260 Wis. 2d 633, 660 N.W.2d 656).

For various statements of a reasonable interpretation of a statute or an interpretation of a statute by a reasonably well-informed person, see, e.g., Bruno v. Milwaukee County, 2003 WI 28, ¶ 22, 260 Wis. 2d 633, 660 N.W.2d 656; id., ¶¶ 31-32 (Bradley, J., concurring); State v. Delaney, 2003 WI 9, ¶ 14, 259 Wis. 2d 77, 658 N.W.2d 416.

State v. Hayes, 2004 WI 80, ¶ 16, 273 Wis. 2d 1, 681 N.W.2d 203 ("Additional sources of legislative intent such as the context, history, scope, and objective of the statute, including the consequences of alternative interpretations, illuminate the intent of the legislature."); id., ¶ 112 n.2 (Sykes, J., dissenting) ("[T]he majority appears to be endorsing the concept that statutory interpretation involves a judicial policy judgment *160based upon a weighing and balancing of competing "purposes and consequences" of alternative interpretations. This leaves room for the substitution of the judiciary's subjective policy choices for those of the legislature, a phenomenon that a text-based, plain-meaning approach to statutory interpretation seeks to guard against."); State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 59, 271 Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring) ("[The majority opinion] recognizes that the purposes of the legislation should be considered in interpretation but refuses to consider the consequences of different interpretations as an aid to interpretation (but does consider the consequences right in this opinion)."); Panzer v. Doyle, 2004 WI 52, ¶¶ 39-40, 271 Wis. 2d 295, 680 N.W.2d 666 (after noting economic consequences suggested in amicus brief, stating that "[t]his court does not decide cases on these grounds," but further stating that "[t]his is not to say that the legal and practical consequences of our opinions are not considered."); Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶ 79, 270 Wis. 2d 146, 677 N.W.2d 233 (Abrahamson, C.J., dissenting) ("[A] court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective, including the consequences of alternative interpretations."); State v. Byers, 2003 WI 86, ¶ 56, 263 Wis. 2d 113, 655 N.W.2d 729 (Abrahamson, C.J., concurring) (quoting Harrington v. Smith, 28 Wis. 43, 59 (1871)); Harrington v. Smith, 28 Wis. 43, 59 (1871) ("[T]he true rule for the construction of statutes is, to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law; and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words.").

Majority op., ¶ 18.