Refusal Case Analysis

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The decision marks the end of a half-year of confusion over exactly what is the accepted procedure for statutory construction in Wisconsin courts.

The court devoted a great deal of ink to debating the proper procedure at the end of last term. Then, the court began the new term with Hubbard v. Messer, 2003 WI 145, 297 Wis.2d 92, 673 N.W.2d 676, in which, in the words of Justice Patience Roggensack’s concurrence, the lead opinion ascertained legislative intent while “purposely not analyzing whether [the statute at issue] is ambiguous.” Id., 297 Wis.2d at 113.

Finally, we have guidelines for how to organize arguments: (1) argue the statute unambiguously means what you want it to, and support the argument with “the meaning of the statute,” using “scope, context, and purpose”; and (2) argue that, even if the statute is ambiguous, it still supports your client’s position, and support that argument with “legislative intent,” using “legislative history.”

One particularly valuable aspect of the decision is the concurrence of Chief Justice Abrahamson, which includes a lengthy catalogue of sources of legislative history, and where they can be located.

An interesting question, however, is whether the decision can be construed to create two different classifications of legislative history. Nothing in the lead opinion explicitly expresses such an interpretation, but it is also true, as Abrahamson observed, “Some types of history are further removed from the legislative process than others.”

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Furthermore, despite finding the statute unambiguous, the lead opinion cites one source of legislative history — the Judicial Council Committee Note — which characterized sec. 968.02(3) as a “check” on the power of district attorneys.

As justification, the court cites Seider v. O’Connell, 2000 WI 76, pars. 51-52, 236 Wis.2d 211, 612 N.W.2d 659 for the proposition that “legislative history is sometimes consulted to reinforce a plain meaning interpretation of a statute.”

However, committee notes are not merely closer to the legislative process, but a strong practical reason supports treating such notes differently than other legislative history — they are included in the annotated statutes. Traditionally, a complete search of the legislative history would require an attorney to travel to Madison. In contrast, the committee notes, rather than requiring any extensive research, are at the end of the statute and are impossible to miss.

– David Ziemer

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David Ziemer can be reached by email.