State v. Byers

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 45. (concurring). I write separately to respond to Justice Crooks's conclusion, in dissent, that the rules of statutory interpretation, specifically the plain meaning rule, "prohibit" a court from looking to legislative history, context, purpose, and subject matter when construing a statute in the absence of an express finding that the statute is ambiguous.1

¶ 46. An examination of our cases involving statutory interpretation demonstrates that this court often mechanically repeats the plain meaning rule that it will not resort to extrinsic sources when the meaning of the text is unambiguous. Yet in a large number of these cases the court has examined sources beyond the specific text of the statute at issue to determine the meaning of the language, regardless of any finding that the text is ambiguous.2 Even a casual observer of the *133Wisconsin cases would, without fear of being contradicted, summarize the case law as adopting inconsistent approaches to statutory interpretation.3

¶ 47. We should, I believe, stop paying lip service to the supremacy of the plain meaning rule4 and clearly *134adopt a more encompassing analytic model for statutory interpretation.5

*135¶ 48. This court has consistently and resolutely held that the purpose of statutory interpretation is to determine and give effect to the intent of the legislature in enacting a particular statute. It is, of course, a legal fiction to assert that there is an actual legislative "intent."6 "It is impossible to argue that a legislative body actually has a collective, corporate intent that is somehow the sum of the individual, and often conflicting, intents of its members."7

¶ 49. Rather, discerning and giving effect to the "intent" of the legislature is an exercise in logic in which a court determines what a reasonable person in the position of a legislator enacting the statute would have said about the legal issue presented in a given case.8 As Judge Richard Posner has written, "The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar."9 Rules of statutory interpretation are merely codified expressions of legal reasoning that assist courts in this task.

¶ 50. To insist dogmatically on the primacy and supremacy of the plain meaning rule, to the exclusion of *136all other rules of statutory interpretation, is neither helpful to this endeavor10 nor supported in law.11 Proper statutory interpretation requires that a court take a comprehensive view toward determining legislative intent. A court begins with the language of the statute and then considers all relevant evidence of legislative intent including its "scope, history, context, subject matter and purpose."12 All of these factors bear on the interpretation of the language, and no single one is exclusive or controlling.13

¶ 51. The language of a given statute is without a doubt the most important indication of legislative "intent." After all, the words are the objective manifestation of the legislative intent we seek to discern. More *137importantly, citizens obligated to follow the law, public officials elected to carry out the law, and attorneys employed to advise clients on the meaning of the law should be able to rely upon the words written in the Wisconsin Statutes when fulfilling these duties.

¶ 52. Nevertheless, language, especially statutory language, is often ambiguous. "Anything that is written may present a problem of meaning .... The problem derives from the very nature of words. They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision."14 Language is further a product of its time and context. "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."15

¶ 53. Moreover, statutory language is also specifically adopted with a purpose beyond the mere conveyance of words as symbols of meaning. The legislature enacts statutes in order to address social problems. As Karl Llewellyn has remarked, "If a statute is to make sense it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense."16

*138¶ 54. Proper statutory interpretation therefore requires that a court begin — but not necessarily end— with the language of the statute. A court must also consider all other relevant and available evidence concerning the history of the statute's enactment, the purpose of the statute, the statute's context, and the subject matter of the statute to ensure that it adopts the construction most consistent with the "intent" of the legislature. A judge must consider "the usual things that the intelligent literature on statutory construction tells him to look at — such as the language and apparent purpose of the statute, its background and structure, its legislative history . . . and the bearing of related statutes."17

¶ 55. Scholars have long understood that statutory interpretation is a process involving the consideration of all evidence bearing on the meaning of a statute.18 State courts are following suit. The Alaska *139Supreme Court, for example, has adopted a sliding-scale approach to statutory interpretation in which a court looks to the statutory language as well as all other extrinsic sources of information bearing on legislative intent, recognizing that the clearer the language is in a given statute, the more convincing other sources must be to prove a contrary legislative intent.19 Similarly, the Connecticut Supreme Court has rejected its on-again-off-again adherence to the plain meaning rule and made explicit that it will consider "all of those sources beyond *140the language itself without first having to cross any threshold of ambiguity of the language."20

¶ 56. Wisconsin should be no different. As early as 1871, our court recognized that the plain meaning rule was merely part of a broader, more comprehensive view toward statutory interpretation. We explained:

[T]he true rule for the construction of statutes is, to look at 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.21

This comprehensive analytical framework reflects a more pragmatic view of the legislative and judicial processes, promotes greater judicial candor, and maintains the supremacy of the legislature as the policy and rule making governmental institution. By using this comprehensive approach to statutory interpretation we acknowledge and deal with "interpretive problems that arise from the inherent ambiguity of language as well as the limits of our linguistic capabilities"22 and sufficiently uphold our duty to interpret and apply the statutory law of the state of Wisconsin.

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

¶ 58. I am authorized to state that Justice WILLIAM A. BABLITCH joins this concurrence.

Dissent, ¶ 65.

For an example of a recent Wisconsin case discerning legislative intent by looking to the language of a statute as well as its scope, history, context, subject matter, and purpose, see Fox v. Catholic Knights Insurance Co., 2003 WI 87, 263 Wis. 2d 208, 665 N.W.2d 181 (examining legislative history to support interpretation of unambiguous language).

The dissent cites to VanCleve v. City of Marinette, 2003 WI 2, ¶ 17, 258 Wis. 2d 80, 655 N.W.2d 113, and State v. Delaney, 2003 WI 9, ¶¶ 13-14, 259 Wis. 2d 77, 658 N.W.2d 416, for the proposition that the court must not look beyond the statutory language to ascertain a statute's meaning if the language of a statute is clear and unambiguous. Yet neither of these cases adopts such a simplistic method of statutory interpretation. In VanCleve, for example, this court looked to case law and legislative history to properly construe Wis. Stat. § 81.17. See VanCleve, 258 Wis. 2d 80, ¶ 23 ("In addition to the plain *133language of the statute, Wisconsin case law interpreting the statutory language provides guidance on this issue."), ¶¶ 28-29 (setting forth the historical construction and development of Wis. Stat. § 81.17). Similarly, in Delaney, this court admitted that even a clear and unambiguous statute could be construed contrary to its plain meaning "if a literal application would lead to an absurd or unreasonable result." Delaney, 259 Wis. 2d 77, ¶ 15 (citing Coca-Cola Bottling Co. v. LaFollette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982)).

See, e.g., Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History by the Wisconsin State Courts, 80 Marq. L. Rev. 161, 201-19 (1996); Brad A. Liddle, Statutory Construction —Legislative Intent — Use of Extrinsic Aids in Wisconsin, 1964 Wis. L. Rev. 660.

Rules of interpretation cannot by themselves be disposi-tive in interpreting a statute because almost every rule can be countered by an opposing rule. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950).

Moreover, the dissent's insinuation that employing the full array of rules of statutory construction should be equated with a "results-oriented" analysis is simplistic. Dissent, ¶ 63. The plain meaning rule can be manipulated as well as any other rule of statutory construction to reach a particular result. See 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 rather 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.").

*134Although courts may be influenced by rules of interpretation, the legislature apparently is not. Former Chief Judge of the District of Columbia Court of Appeals and former Congressman Abner Mikva writes of "canons of interpretation" as follows: "When I was in Congress, the only 'canons' we talked about were the ones the Pentagon bought that could not shoot straight." Abner Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 629 (1987).

I have used this approach in majority and minority opinions. See, e.g., Fox v. Catholic Knights Ins. Co., 2003 Wis. 2d 87, ¶ 44, 665 N.W.2d 181 (Abrahamson, C.J., concurring); State v. Peters, 2003 WI 88, ¶ 34, 263 Wis. 2d 475, 665 N.W.2d 171 (Abrahamson, C.J., concurring); State v. Davison, 2003 WI 89, 263 Wis. 2d 146, 666 N.W.2d 1 (Abrahamson, C.J., dissenting); State v. Cole, 2003 WI 59, 262 Wis. 2d 167, 663 N.W.2d 700; Juneau County v. Courthouse Employees, 221 Wis. 2d 630, 641-51, 585 N.W.2d 587 (1998); State v. Sample, 215 Wis. 2d 487, 510, 573 N.W.2d 187 (1998) (Abrahamson, C.J., concurring); State v. Stoehr, 134 Wis. 2d 66, 75-82, 396 N.W.2d 177 (1986); City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 244, 332 N.W.2d 782 (1983) (Abrahamson, J., dissenting); Milwaukee County v. DILHR, 80 Wis. 2d 445, 451, 456, 259 N.W.2d 118 0(1977).

I have tried to use this approach consistently, though I, like all judges, probably have not been consistent. Justice Scalia explains his inconsistency in using legislative history in interpreting statutes contrary to his textualist approach as follows: "I play the game like everybody else ... I'm in a system which has accepted rules and legislative history is used .. . You read my opinions, I sin with the rest of them." Judges and Legislators: Toward Institutional Comity, 175-75 (R. Katzmann ed. 1988) (Justice Scalia's comments during a panel discussion) 0quoted in Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441, 442 n.4 (1991)).

See, e.g., Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 Va. L. Rev. 423, 423 (1988).

Burt Neuborne, Background Norms for Federal Statutory Interpretation, 22 Conn. L. Rev. 721, 724 (1990).

Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 429 (1989) (arguing that searching for legislative intent does not involve looking for "a general legislative aim or purpose, but instead to see more particularly how the enacting legislature would have resolved the question, or how it intended that question to be resolved, if it had been presented.").

Richard A. Posner, Statutory Interpretation — In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983).

See State v. Courchesne, 816 A.2d 562, 581-83 (Conn. 2003) (concluding that the plain meaning rule is not a "useful rubric for the process of statutory interpretation" because it is inconsistent with the purposive and contextual nature of the legislative language, it is inherently self-contradictory, and it requires the court to engage in a threshold determination of whether language is ambiguous, which tends to lead to "intellectually and linguistically dubious" declarations that leave a court open to criticisms that it is results-oriented).

See Train v. Colo. Pub. Interest Research Group, Inc., 426 U.S. 1, 10 (1976) ("[W]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.'") (quoting United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543-44 (1940)).

Scott by Ricciardi v. First State Ins. Co., 155 Wis. 2d 608, 612, 456 N.W.2d 152 (1990) ("The cardinal rule in all statutory interpretation, as this court has often said, is to discern the intent of the legislature. The court will ascertain that intent by examining the language of the statute as well as its scope, history, context, subject matter and purpose.").

State v. Stoehr, 134 Wis. 2d 66, 82, 396 N.W.2d 177 (1986).

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 528 (1947).

Towne v. Eisner, 245 U.S. 418, 425 (1918); see also William N. Eskridge, Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1559 (1998) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)) ("Reading the legislative history puts the judge better in touch with the values, vocabulary, and policy choices of the authors of the statute....").

Llewellyn, supra note 4, at 400 (1950).

Posner, supra note 9, at 818; see also William N. Eskridge, Jr. & Philip P Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 352 (1990):

[A]n interpreter will look at a broad range of evidence — text, historical evidence, and the text's evolution — and thus form a preliminary view of the statute. The interpreter then develops that preliminary view by testing various possible interpretations against the multiple criteria of fidelity to the text, historical accuracy, and conformity to contemporary circumstances and values. Each criterion is relevant, yet none necessarily trumps the others.

See, e.g., T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20 (1988); Stephen Breyfer, On the Uses of Legislative History, 65 S. Cal. L. Rev. 845 (1992); Ronald Dworkin, Law as Interpretation, 60 Tex. L. Rev. 527 (1982); William N. Eskridge, Jr. & Philip P Frickey, Statutory Interpretation as Practical Reasoning , 42 Stan. L. Rev. 321 (1990); Daniel A. Farber & Philip P Frickey, Legislative Intent *139and Public Choice, 74 Va. L. Rev. 423 (1988); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947); L. Fuller, Positivism and Fidelity to Law — A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958); J. Willard Hurst, Dealing with Statutes (1982); Llewellyn, supra note 4; William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation (1999); Richard A. Posner, The Problems of Jurisprudence (1990); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388 (1942); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997); Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998); Norman J. Singer, Statutes and Statutory Construction § 45.02 (6th ed. 2000); Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. Chi. L. Rev. 149 (2001).

The literature on statutory interpretation is voluminous.

Homer Elec. Ass'n v. Towsley, 841 P.2d 1042, 1043-44 (Alaska 1992); State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) (under Alaska's sliding-scale approach to statutory interpretation, the more plain the language of the statute, the more convincing the evidence of contrary legislative intent must be).

See J. Willard Hurst, The Legislative Branch and the Supreme Court, 5 U. Ark. J. L. 487, 499 (1985) (suggesting this kind of sliding scale).

Courchesne, 816 A.2d at 578.

Harrington v. Smith, 28 Wis. 43, 59 (1871) (emphasis in original).

Sample, 215 Wis. 2d at 510 (Abrahamson, C.J., concurring) (citing Lawrence M. Solan, The Language of Judges 38, 117 (1993)).