BRIEFS FOR THE BRIEF WRITER: Legislative history – how to find it when you need it

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Your client is being sued under a new or obscure Wisconsin statute, which has not been discussed in any reported or unreported cases. The statute contains no statement of its purpose, and its language could be read both to include and exclude your client.

Your head starts to hurt. Legislative history! You haven’t researched a statute’s history since law school, and you only did so then because your legal writing teacher made you. You have no clue where to start.

Well, don’t worry. Legislative history may not be the most scintillating research topic, but it remains an important one. And more tools than ever exist to help you through the process.

The purpose of researching a statute’s legislative history, of course, is to determine the legislature’s intent in enacting a statute, when the statute itself does not contain a statement of purpose. Unfortunately, Wisconsin’s legislative history has not been abundant, mostly consisting of drafting notes (if any), bills, adopted amendments and rejected amendments. Counsel is left to extrapolate the legislature’s intent by piecing together these bits of the puzzle.

Because this is a complicated process, and to avoid reinventing the wheel, first check to see whether any law review, bar association or CLE practice articles or materials exist regarding the statute and its history. These frequently are not listed in the annotated statute notes.

If your statute is a version of a Model Act or Uniform Law, an internet search for reports regarding the creation of those provisions may provide usable background information.

If those searches turn up empty, the best source is the Wisconsin Legislative Reference Bureau, which provides nonpartisan drafting and research services to the Wisconsin legislature. Although the Reference Bureau’s primary function is to serve the legislature, the Reference Bureau will provide help, although not extensive research, to attorneys searching a statute’s legislative history. The Reference Bureau keeps files of bill drafting records, procedural histories, bills and amendments, meeting minutes and newspaper clippings, often dating back decades.

The Reference Bureau’s research and information services phone number is 608-266-0341. My preference is to run an initial search on the internet and follow that up with a call to one of the research attorneys, who are the experts in this area. Some of these materials are obtainable from the Wisconsin legislature site, legis.wisconsin.gov/Pages/default.aspx, or computerized research services like Westlaw or Lexis. The Reference Bureau, however, offers a centralized source from which different types of materials from different sources may be obtained.

If you are forced to start from scratch, first find the session laws—the Wisconsin Acts, that created or amended your statute. These will be listed in the History section at the end of the statute (i.e. 2000 a. 4, which translates to 2000 Wis. Act 4). Note that, up to 1983, Acts were known as Chapters (i.e., 1970 c. 8). You can locate the Act (or Chapter) itself from your computerized research service, the hardbound books titled “The Laws of Wisconsin”, or “Acts” under the “Wisconsin Law” section on the Wisconsin legislature site.

The Act creating the law will have the bill number which created it, assembly or senate, in the top corner. The bill creating the new law will usually have a short analysis by the Reference Bureau on the first page. The next step is to locate the relevant bills, and determine whether amendments were made or proposed. You can trace these bills’ progress (or stalling) through committees, replacement bills and up to the vote on the final law’s passage, through the legislature’s website and the assembly/senate journals for the period. For bills introduced since 1995, procedural histories can be accessed most easily HERE.

The above is the most rudimentary of legislative history search procedures. If your statute is complex, evolved after many amendments or was highly contentious, a trip to the Reference Bureau may be the best course.

Historically, testimony at legislative committee hearings and speeches at legislative floor debates—potentially critical legislative history sources—were not recorded or summarized. That is changing with WisconsinEye, a nonprofit organization which provides media coverage of, among other things, the Wisconsin legislature’s activities. Its function is like C-Span, but on a state level. Online archives are located on the site.

Several publications/internet sources provide much needed help researching Wisconsin legislative history. These include Researching Legislative History in Wisconsin, by the Wisconsin Legislative Reference Bureau. Ask the LRB, by the Wisconsin Legislative Reference Bureau; and A Guide to Researching the Legislative History of Wisconsin Laws, by the University of Wisconsin Law Library.

Finally, while this article focuses on Wisconsin legislative history, the Mauer School of Law in Indiana has compiled a list of online legislative history sources and guides for all 50 states. Depending on your area of practice and the specific issue before you, this compilation could be a lifesaver (be sure to update it).

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected]. The Wisconsin Law Journal named her one of the 2012 Women in the Law.