State v. Hall

JON P. WILCOX, J.

¶ 55. 0dissenting.) I dissent because I conclude that this court must construe the confidentiality provision found in Wis. Stat. § 139.91 (1993-94)1 (the "confidentiality provision") to provide protection coextensive with the Fifth Amendment. I agree that the affix and display requirement of the drug tax stamp law2 (the "stamp law") would unconstitutionally compel self-incrimination if it allowed the State to use a drug tax stamp as evidence in any criminal proceeding not related to payment of the tax. However, the majority misinterprets the legislative history of the stamp law and fails in its duty to preserve the statute.

¶ 56. The majority concludes that "the affix and display requirement of the stamp law has the direct and unmistakable consequence of incriminating any dealer who complies with the law." Majority op. at 75. It further asserts that the confidentiality provision does not provide protection coextensive with the Fifth Amendment. Majority op. at 76, 82. The majority interprets the confidentiality provision to allow the State to use the stamps found on some illegal drugs to establish the defendant's knowledge of the illegal nature of and intent to possess other illegal unstamped drugs. Majority op. at 78-79. The majority bases this conclusion on the language of the confidentiality provision. Id.

¶ 57. The confidentiality provision of Wis. Stat. § 139.91 provides:

*92The department may not reveal facts obtained in administering this subchapter, except that the department may publish statistics that do not reveal the identities of dealers. Dealers may not be required to provide any identifying information in connection with the purchase of stamps. No information obtained by the department may be used against a dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving possession of schedule I controlled substances or schedule II controlled substances on which the tax has not been paid or in connection with taxes due under s. 139.88 from the dealer.

(Emphasis added.) The majority reads the emphasized exception to mean that the State may use any information obtained through the administration of this subchapter in a prosecution for criminal possession of illegal drugs that were not stamped. Majority op. at 78-79. Therefore, according to the majority, affixing and displaying the stamps would constitute incriminating oneself. I believe that the majority misinterprets this provision.

¶ 58. First, the language of the confidentiality provision does not unambiguously create an exception for criminal proceedings for possession of illegal drugs. The legislature did not state: "except in connection with a proceeding for possession," instead the legislature stated: "except in connection with a proceeding involving possession of [illegal drugs] on which the tax has not been paid. ..." (Emphasis added.) Wis. Stat. § 139.91. The logical meaning of this passage is that information not independently obtained can be used, not in a criminal possession proceeding, but in a proceeding under § 139.95. This section provides:

*93(1) Any dealer who possesses a schedule I controlled substance or schedule II controlled substance that does not bear evidence that the tax under s. 139.88 has been paid shall pay in addition to any tax under s. 139.88, a penalty equal to the tax due. The department shall collect penalties under this subchapter in the same manner as it collects tax under this subchapter.
(2) A dealer who possesses a schedule I controlled substance or schedule II controlled substance that does not bear evidence that the tax under s. 139.88 has been paid may be fined not more than $10,000 or imprisoned for not more than 5 years or both.
(3) Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp or who affixes a counterfeit stamp to a schedule I controlled substance or schedule II controlled substance or who possesses a schedule I controlled substance or Schedule II controlled substance to which a false, altered or counterfeit stamp is affixed may be fined not more than $10,000 or imprisoned for not more than 10 years or both.

(Emphasis added.) The purpose of this section is to set forth the penalties for violations of the stamp law.

¶ 59. In addition to these penalties, a dealer who does not comply with the stamp law will have to pay the taxes due under § 139.88. Proceedings for unpaid taxes are referred to in the second part of the exception to the confidentiality provision: "... or in connection with taxes due under s. 139.88 from the dealer." Wis. Stat. § 139.91. Accordingly, under this interpretation, each of the exceptions serves a distinct purpose.

*94¶ 60. This construction of the confidentiality provision is also supported by legislative history. To lay the groundwork for our analysis we must first present an overview of the legislative history of the stamp law. The drug tax stamp bill that eventually passed was the result of several attempts to enact such a law. The first bill introduced in Wisconsin on this subject was 1987 AB 519. The legislative history of this bill is relevant to 1989 Wis. Act 122 because the confidentiality provision has similar language3 and because it may have been the original source for much of the language in the stamp law. In 1989, several more bills on this subject were proposed: (1) 1989 SB 295, introduced on October 3, 1989, (2) Oct. 1989 Spec. Sess. SB 6, introduced on October 12,1989, (3) Oct. 1989 Spec. Sess. AB 6, introduced on October 24,1989, (4) 1989 SB 356, introduced on November 1, 1989, (5) 1989 AB 633, introduced on November 2,1989, and (6) Oct. 1989 Spec. Sess. AB 12 (the "Governor's 1989 budget bill"), introduced on November 8, 1989. Each of these bills included confidentiality provisions similar to the one found in Wis. Stat. § 139.91.4 Finally, on November 9, 1989, Oct. *951989 Spec. Sess. Substitute Amend. 1 to Oct. 1989 Spec. Sess. AB 12 (the "substitute amendment to the *961989 budget bill") was introduced and eventually enacted as 1989 Wis. Act 122.5 In considering the legislative history of 1989 Wis. Act 122, a review of each of these bills is relevant as each used similar language and many directly used the drafts of earlier bills.6

¶ 61. The majority contends that the legislative history supports its conclusion that the confidentially provision does not bar the use of derivative information in criminal proceedings not related to the tax. Majority op. at 84. The majority bases this conclusion on three points: "(1) Legislative history reveals that the legislature's purpose for drafting the original drug stamp tax bill was to learn the identity of drug dealers. ... (2) Even in early drafts, the legislature knew that the stamp law presented self-incrimination problems of constitutional dimension, yet chose not to revise the bill. (3) The legislature was aware of how to draft a clear, unambiguous statute providing both direct and derivative use immunity, yet chose not to do so." Id. at 84. In using these bases to reach such a conclusion, the majority misinterprets and overemphasizes some por*97tions of the legislative history while ignoring other, more pertinent, information.

¶ 62. The majority's first point, that the legislature's purpose in drafting the stamp tax bill was to learn the identity of drug dealers, is based on the draft request form and a supporting memorandum found in the drafting record of 1987 AB 519. Majority op. at 85. In support of the majority's assertion, the majority cites the following description of the problem that the bill sought to address from the Drafting Request Form: "We have no control over drug dealers or knowledge of who they are." Id. at 85. The majority also cites part of a memorandum that was attached to the draft request. Id. The memorandum states:

I talked to Mark Warnsing, Legislative Assistant to Sen. Barkhausen in Illinois about the drug bill. . . . He said it is a bill that is pretty hard to vote against. The only real objection anyone had to it was its constitutionality but they have gotten around that. A drug dealer, according to the bill, can go to the Department of Revenue and obtain a stamp and the information has to be kept confidential. They cannot call the police and tell them that so and so has a drug stamp. It gives them 5th amendment protection. It does not legalize possession. If a dealer is caught selling a drug the law enforcement people can then contact the evenue [sic] department and obtain any information on file. The idea behind the bill is to get at the dealers. They are not concerned with an individual who has drugs in his possession because it would fill up the courts. An amendment would make the cost of the stamps 4 times the face value of each stamp instead of 100%. He said if you have any questions to call him.

*98When the information from the drafting record cited by the majority is read in isolation, it appears that the confidentiality provision of 1987 AB 519 was not intended to provide protection coextensive with the Fifth Amendment. However, the majority fails to fully consider the legislative history of 1987 AB 519.

¶ 63. A consideration of all the material contained in the drafting record reveals that Representative Foti intended to introduce a bill that mirrored the one that had been introduced in Illinois. This is significant because the Illinois confidentiality provision provides protection coextensive with the Fifth Amendment in the clearest of terms. The language of the Illinois confidentiality provision can be found in the drafting record for 1987 AB 519. The Illinois provision provided:

Section 13. Neither the Director nor a public employee may reveal facts contained in a report or return required by this Act, nor can any information contained in such a report or return be used against the dealer in any criminal proceeding, unless such information has been independently obtained, except in connection with a proceeding involving taxes due under this Act from the taxpayer making the return.

This provision, which unambiguously precludes the use of direct and derivative information, was the basis for the confidentiality provision in 1987 AB 519.

¶ 64. Further indications that this bill was intended to mirror the Illinois bill can be found in the previously mentioned drafting request form and in the memorandum which accompanied the drafting request form. Contrary to the majority's interpretation, the apparent purpose of the memorandum was to para*99phrase an explanation of the Illinois drug tax stamp bill given by Mark Warnsing, a legislative assistant to Illinois State Senator Barkhausen. In the closing line of the memorandum, the drafting attorney is told: "[Warnsing] said if you have any questions to call him." A phone number was written next to Mark Warnsing's name in the typed memorandum. Additionally, in response to a question in the drafting request which asked "Provide names and phone numbers of persons we may contact for more information," the following response was typed in: "Sen. Barkhausen, State of Illinois." This evidence suggests that the drafting attorney was told to draft a bill similar to the one from Illinois. This is significant because it suggests that Representative Foti wanted the hill to include a confidentiality provision that provided the same protection as the one in the Illinois bill — a confidentiality provision that provided protection coextensive with the Fifth Amendment.

¶ 65. Additional evidence of the legislature's intention to provide protection coextensive with the Fifth Amendment can be found in the drafting record of 1987 AB 519. First, after the above quoted memorandum was written on May 20, 1987, and after the Draft Request Form was filled out on May 21, 1987, the Department of Revenue (DOR) sent a memorandum to the Legislative Reference Bureau (LRB) drafting attorney for 1987 AB 519. This memorandum addressed several technical problems with an earlier draft of the bill including problems with the confidentiality provision. The memorandum stated in relevant part:

The confidentiality provision should clearly specify how the rules for the controlled substances tax differ from the general confidentiality rules for the *100department under s. 71.11(44). Under the general confidentiality rules for other state taxes, law enforcement officials can request access to the department's records.
The difficulty in maintaining confidentiality could result in dealers claiming that the requirement to pay the controlled substances tax violates their constitutional right against self-incrimination. There have been successful challenges of similar taxes on illegal activities in both state and federal courts.

This shows a concern over confidentiality and a desire to ensure that the statute did not violate the Fifth Amendment.

¶ 66. An even stronger indication of the legislature's intent can be found in the Analysis by LRB. Part of this analysis stated: "Information from a return is confidential and may not be used in any criminal proceeding except those related to the tax itself." This statement was included as an explanation at the beginning of the bill draft which was circulated to all legislative offices. The analysis was written by the attorney who drafted the bill; he should have known what was intended by Representative Foti.7 This same language was used in the LRB analysis of the Governor's 1989 budget bill and the substitute amendment to the 1989 budget bill which is the direct source of Wis. Stat. § 139.91. It is likely that almost every legislator read this analysis before voting on the stamp tax bill. Accordingly, this is very strong evidence that the legislature intended that the confidentiality provision *101preclude the use of information in any criminal proceeding not related to the tax.

¶ 67. The majority's assertion that 1987 AB 519 was enacted for an unconstitutional purpose, to learn the identity of dealers for use in criminal prosecutions not related to the tax, is not only in conflict with the legislative history of that statute, but is also in conflict with logic. This is because the majority's theory fails to explain why the statute included a confidentiality provision. If the purpose of the statute was to learn the identity of dealers in violation of the Fifth Amendment, there would have been no need for any confidentiality. In fact, the direct use of information, which the majority concedes is precluded by the confidentiality provision, would be the best means of identifying dealers. The absence of an explanation for the presence of the confidentiality provision casts serious doubts on the majority's assertion that 1987 AB 519 was drafted and that the stamp law was enacted for the purpose of identifying dealers and using that information in criminal proceedings not related to the tax.

¶ 68. Asa side point, the majority argues that the lack of revenue raising purpose underlying the act suggests that the purpose of the bill was to identify drug dealers. Majority op. at 85-86. On the contrary, this information merely tells us that the purpose was not to raise revenue. It is just as likely that the purpose was simply to provide additional penalties for drug dealers as that it was to identify them.

¶ 69. Finally, the majority contends that further evidence of the unconstitutional purpose of the legislature is provided by the fact that the legislature knew how to craft a confidentiality provision that would provide dealers with both direct and derivative use immunity. Majority op. at 86-89. In support of this *102contention the majority cites (1) the fact that the Minnesota confidentiality provision can be found in the drafting record of 1989 AB 633, (2) the fact that the legislature was aware of the potential constitutional problems through a memorandum from DOR that is in the drafting record of 1987 AB 519, and (3) the language used to provide for direct and derivative use immunity in Wis. Stat. § 972.085. Id.

¶ 70. Certainly, the confidentiality provision in Wis. Stat. § 139.91 could have been more artfully drafted; however, the fact that it differs from the Minnesota provision and the immunity provisions of Wis. Stat. § 972.085 does not prove that the legislature had an unconstitutional purpose in enacting the stamp law. In fact, a review of the drafting record of 1989 SB 295 indicates that the legislature intended to enact a law that mirrored the Minnesota stamp law. The bill draft request from Senator Te Winkle's office to the LRB drafting attorney states:

In reference to our discussion earlier today, and further discussion with Senator Te Winkle, I submit this request.
We would like legislation drafted to place a stamp tax on cocaine and marijuana that is similar to Minnesota's law, with the same penalty provisions.
The exception is that we would like to send the revenue from this tax directly to the Metropolitan Enforcement Groups (MEG's) or multi-jurisdic-tional groups (MJG's) in proportion to the incidence of drug crime in each group's area during the previous year.

The drafting request makes no mention of changing the confidentiality provision or of using the information in a criminal prosecution for possession.

*103¶ 71. Additionally, the DOR memorandum from the drafting record of 1987 AB 519 that the majority quotes does show that the legislature was aware of the potential for a conflict with the Fifth Amendment; however, it does not prove that the legislature chose to ignore these constitutional concerns. Instead, the legislative history of the stamp law demonstrates that the legislature attempted to provide protection coextensive to the Fifth Amendment in the confidentiality provision and believed that this had been done.

¶ 72. The strongest evidence of this intention is the language from the LRB analysis which states: "Information from a return is confidential and may not be used in any criminal proceeding except those related to the tax itself." This statement was included as part of the circulated bill draft for the first drug tax stamp bill, 1987 AB 519, the Governor's 1989 budget bill, and the substitute amendment to the 1989 budget bill, which was the version enacted as the stamp law.8 Additional evidence of this intention can be found in the drafting records for the various drug tax stamp bills that were introduced in 1989.

¶ 73. The drafting record for Oct. 1989 Spec. Sess. AB 6 contained as part of the drafting instructions a DOR memorandum entitled "Summary of Controlled Substances Tax Proposal." This memorandum stated in relevant part:

Confidentiality: Tax information may not be revealed or used against a dealer in a criminal proceeding, unless the information was independently obtained. This restriction does not apply to proceed*104ings involving the possession of untaxed controlled substances or other tax-related proceedings.

A similar description of the confidentiality provision is found in the drafting record for the Governor's 1989 budget bill: "Under your proposal, information from a controlled substance tax return would be confidential and could not be used in any criminal proceeding, except those relating to the tax itself."

¶ 74. Finally, an examination of the drafting record of the substitute amendment to the 1989 budget bill itself and a comparison of the language of that bill with the language in the Governor's 1989 budget bill reveals that the legislature attempted to craft an adequate confidentiality provision. The confidentiality provision of the Governor's 1989 budget bill, which was introduced on November 8,1989, provided:

77.97 CONFIDENTIALITY. The department may not reveal facts contained in a return required under s. 77.94, except that the department may publish statistics that do not reveal the identities of dealers or the contents of individual returns. Dealers may not be required to provide any identifying information on returns. No information contained in a return may be used against the dealer in any criminal proceeding, unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed controlled substances or taxes due under s. 77.93 from the dealer making the return.

In the drafting record for the substitute amendment there is a memorandum dated November 8,1989, from DOR to the Legislative Fiscal Bureau suggesting changes to the drug stamp tax provisions in the Governor's 1989 budget bill. This memorandum makes *105specific suggestions for changes in the confidentiality-provision:

In order to preserve confidentiality, the return requirement should be eliminated. Dealers should be able to purchase drug tax stamps on a cash basis in person or through the mail without having to submit a return which could identify them as a drug dealer.
Giving the Department of Revenue police powers with respect to the drug tax would allow the Department to enforce the fax directly without involving law enforcement authorities. This would simply [sic] administrative [sic] of the tax and ensure a higher level of confidentiality.

Also included in this drafting record is a written motion by Representative Kunicki that follows the suggestions of DOR:

Move to make the following modifications relating to administration and enforcement of the drug tax:
1. Require the Department of Revenue to enforce the provisions of the tax, and specify that duly authorized employes of the Department would have all necessary police powers to prevent violation of these provisions.
2. Delete the requirement that dealers must complete and submit tax returns in order to purchase drug stamps, and amend the bill's confidentiality provision to eliminate references to returns.

Finally, the language of the substitute amendment reflects these changes:

The department may not reveal facts obtained in administering this subchapter, except that the *106department may publish statistics that do not reveal the identities of dealers. Dealers may not be required to provide any identifying information in connection with the purchase of stamps. No information obtained by the department may be used against a dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed marijuana or controlled substances or taxes due under s. 139.88 from the dealer.

The deletion of references to returns in the confidentiality provision in response to the concerns expressed by DOR provides further evidence that the legislature intended to provide complete confidentiality.

¶ 75. I believe that the information contained in the various drafting records is more than sufficient to support the conclusion that the legislature intended to provide protection coextensive with the Fifth Amendment. However, despite the legislature's efforts to provide protection coextensive with the Fifth Amendment, I believe that there is an ambiguity in the language of the confidentiality provision. As the court of appeals astutely pointed out, "While § 139.91, STATS., prohibits the use of information obtained by the Department of Revenue in administering the tax, the presence of affixed stamps is not 'information obtained by the department.'" State v. Hall, 196 Wis. 2d 850, 865, 540 N.W.2d 219 (Ct. App. 1995). Although this could be read to allow the unconstitutional use of information gained by anyone other than the department, this court can only declare a statute unconstitutional if there is no viable alternative.

¶ 76. In determining whether a statute violates the constitution, the court must give the statute a great *107deal of deference. The party challenging the constitutionality of a statute has the burden to prove that the statute is unconstitutional beyond a reasonable doubt. State v. Carpenter, 197 Wis. 2d 252, 263, 541 N.W.2d 105 (1995). Constitutional challenges to a statute must overcome a strong presumption of constitutionality. State v. Theil, 188 Wis. 2d 695, 706, 524 N.W.2d 641 (1994). In addition, the United States Supreme Court has stated that it must not construe a statute to violate the Constitution if another reasonable construction is available. United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472 (1994); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988); National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979).9 The Wisconsin Supreme Court has also recognized this principle. Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d 649, 665 FN 13, 480 M.W.2d 502 (1992) ("The court must interpret a statute, if at all possible, in a manner that will preserve the statute as a constitutional enactment."); State v. Cissell, 127 Wis. 2d 205, 215, 378 N.W.2d 691 (1985) (There is a strong presumption favoring the constitutionality of a legislative enact*108ment, and "[t]his court will construe the statute to preserve it if it is at all possible."); Browne v. Milwaukee Bd. of Sch. Directors, 83 Wis. 2d 316, 331, 265 N.W.2d 559 (1978) (When a legislative enactment is attacked as being unconstitutional, "the cardinal rule of statutory construction is to preserve a statute and to find it constitutional if it is at all possible to do so." (Citations omitted.)); State ex. rel. Harvey v. Morgan, 30 Wis. 2d 1, 13, 139 N.W.2d 585 (1966) ("the duty of this court is not to impugn the motives of the legislature, but rather, if possible, to so construe the statute as to find it in harmony with accepted constitutional principles.")

¶ 77. The courts of other states have used this canon of construction as a basis for upholding similar tax stamp laws. See State v. Durant, 769 P.2d 1174, 1183 (Kan. 1989) ("This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute."); State v. Garza, 496 N.W.2d 448, 454 (Neb. 1993) ("State statutes are presumed to be constitutional, and when a law is constitutionally suspect this court will endeavor to interpret the statute in a manner consistent with the Constitution."); Zissi v. State Tax Comm'n, 842 P.2d 848, 857 (Utah 1992) ("[W]e are mindful of our power to save a statute from unconstitutionality by imposing on it a limiting construction. This power permits us to uphold an otherwise questionable statute by tailoring it to conform to the Constitution, which is what we must presume the legislature intended."); State v. Davis, 787 P.2d 517, 523 (Utah App. 1990) ("Based upon the foregoing, we find the pre-amendment Utah Drug Stamp Tax Act can be 'found to come within a constitutional *109framework,' by construing it to prohibit the use of any information gained as a result of a purchaser's compliance with the act to establish a link in the chain of evidence in a subsequent drug prosecution." (citation omitted)).10 Accordingly, the majority's declaration that the stamp law is unconstitutional is tantamount to declaring that it is not at all possible for this court to give the stamp law a constitutional construction. I disagree.

¶ 78. I believe that a construction of Wis. Stat. § 139.91 consistent with the intent of the legislature would render the stamp law constitutional. It is clear from an examination of the legislative history that the confidentiality provision was intended to provide protection coextensive with the Fifth Amendment. Accordingly, I would construe the confidentiality provision to preclude the use of any information not independently obtained in any proceeding except those related to the tax itself.

¶ 79. I am authorized to state that Justice Donald W. Steinmetz and Justice N. Patrick Crooks join this dissenting opinion.

Unless otherwise stated, all future statutory references are to the 1993-94 volume.

Wis. Stats, ch. 139, subch. IV (1993-94).

The confidentiality provision of 1987 AB 519 stated:

77.97 CONFIDENTIALITY. The department may not reveal facts contained in a return required under s. 77.94. No information contained in such a return may be used against the dealer in any criminal proceeding, unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed controlled substances or taxes due under s. 77.93 from the dealer making the return.

The following confidentiality provision was included in 1989 SB 295 and 989 AB 633:

77.97 CONFIDENTIALITY. The department may not reveal facts contained in a return required under s. 77.94, except that the department may publish statistics that do not reveal the identities *95of dealers or contents of individual returns. Dealers may not be required to provide any identifying information on returns. No information contained in a return may be used against the dealer in any criminal proceeding, unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed controlled substances or taxes due under s. 77.93 from the dealer making the return.

1989 SB 356 contained a slightly different provision:

77.97 CONFIDENTIALITY. The department may not reveal facts contained in a return required under s. 77.94. No information contained in a return may be used against the dealer in any criminal proceeding, unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed controlled substances or taxes due under s. 77.93 from the dealer making the return.

The confidentiality provision found in Oct. 1989 S.S. SB 6 and Oct. 1989 S.S. AB 6 provided:

139.91 CONFIDENTIALITY. The department may not reveal facts obtained in administering this subchapter, except that the department may publish statistics that do not reveal the identities of dealers. Dealers may not be required to provide any identifying information in connection with the purchase of stamps. No information obtained by the department may be used against a dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving possession of untaxed controlled substances or taxes due under s. 139.88 from the dealer making the return.

Finally, the Governor's budget bill contained the following provision:

77.97 CONFIDENTIALITY. The department may not reveal facts contained in a return required under s. 77.94, except that the department may publish statistics that do not reveal the identities of dealers or the contents of individual returns. Dealers may not be required to provide any identifying information on returns. No information contained in a return may be used against the dealer in any criminal proceeding, unless that information has been independently obtained, except in connection with a proceeding *96involving possession of untaxed controlled substances or taxes due under s. 77.93 from the dealer making the return.

Although the confidentiality provision was slightly amended by 1991 Wis. Act 39, these changes do not affect our analysis.

Oct. 1989 S.S. AB 12 contains previous drafts that can be traced through the LRB reference number to 1989 SB 295, and Oct. 1989 S.S. Substitute Amendment 1 to AB 12 uses language from Oct. 1989 S.S. SB 6 and Oct. 1989 S.S. AB 6. The drafting record of 1989 SB 295 contains a draft of 1989 AB 633. Similarly, the drafting record, of Oct. 1989 S.S. AB 6 contains a draft of 1989 SB 295. Finally, according to the drafting record 1989 SB 356 is a redraft of 1987 AB 519 and also uses language from a draft of 1989 AB 633.

A handwritten draft of the analysis was included with the drafting record.

It was also included in 1989 SB 295, 1989 SB 356, and 1989 AB 633.

See also Patricia A. Burke, Note, United States v. X-Citement Video, Inc.: Stretching the Limits of Statutory Interpretation?, 56 La. L. Rev. 937,943 (1996) ("The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.").

A number of states have upheld drug tax stamp laws without relying on the constitutional construction argument. Briney v. State Dept. of Revenue, 594 So. 2d 120 (Ala. Civ. App. 1991); Clifft v. Indiana Dept. of State Revenue, 641 N.E.2d 682 (Ind. Tax 1994); Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988); State v. Godbersen, 493 N.W.2d 852 (Iowa 1992).