Borrowing Statute Analysis

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Apart from the holding, which is itself a major change in the law, the decision is noteworthy for a significant change in the relevance of legislative inaction following a court decision.

In Green Bay Packaging v. DILHR, 72 Wis.2d 26, 35, 240 N.W.2d 422 (1976), the Supreme Court held that legislative inaction does not “rais[] a conclusive presumption of tacit adoption and ratification by the legislature. The weight accorded to this evidence is overcome where this court can unequivocally conclude, as here, that the prior construction is contrary to the clear and express language of the statute. The aim of all statutory construction is to discern the intent of the legislature, and where the meaning of the statute is plain, this is better evidence of the true legislative intent than nearly complete legislative inaction following a construction by this court.”

The court added, “Legislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation.”

In the case at bar, however, the court not only did not go so far as to employ a “conclusive presumption of tacit adoption,” but it did not even apply the rebuttable presumption that the court in Green Bay Packaging said is appropriate.

Furthermore, the language of the statute in question in the case at bar was not “clear and express”; on the contrary, the court explicitly found it to be ambiguous.

Thus, legislative inaction after a court decision has gone from creating a presumption that should be overcome only if the language of the statute clearly and unambiguously means something else, to having all but nonexistent value in statutory interpretation.

The court cited with approval, the following quote: “To explain the cause of non-action by Congress [following a judicial construction of a statute] when Congress itself sheds no light is to venture into speculative unrealities.” Helvering v. Hallock, 309 U.S. 106, 119-120 (1940).

Also noteworthy is the court’s treatment of the Judicial Council Committee Notes.

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The dissent treated the statement that, in Wisconsin, statutes of limitation are not statutes of repose, as clear and unambiguous indicia of the legislative intent.

However, the majority opinion noted that committee notes are not the text of the statute itself, and thus, language in them are not subject to the plain meaning rule.

The majority wrote, “The dissent contends that the Judicial Council Note embodies a clear legislative intent that Wis. Stat. sec. 893.07 not apply to foreign periods of limitation that operate as statutes of repose. The Note, which is not part of the statute, only refers to statutes of repose by quoting a proposition from a 1944 case of his court. Clearly, if we are to use this language to interpret sec. 893.07, we are obligated to discern the meaning of the phrase being quoted and adopted as part of the Note.”

More simply stated, if a term in a statute — such as statute of limitation — is ambiguous, its use in the legislative history is necessarily ambiguous also, and the plain meaning rule can never be employed to definitively require a particular interpretation of that term as used in the history.

– David Ziemer

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David Ziemer can be reached by email.