Off the top of your head, can you describe the difference between “statutory history” and “legislative history”?
Statutory history refers to prior statutes governing the same subject matter, and how the applicable statute has changed over the years. Legislative history refers to any extrinsic source that may shed light on what the Legislature intended by the language it used.
The difference is important, because review of statutory history is part of a plain meaning analysis of a statute.
Thus, it can be considered without first finding an ambiguity in the statute; or it may be used to find an ambiguity that is not otherwise apparent from the text.
Legislative history, however, cannot to be considered without first finding an ambiguity in the statute.
A Wisconsin Supreme Court’s Jan. 23 holding that statutory history is part of plain meaning analysis is not the first. However, until now, it would have been easy to miss.
Ironically, the two justices who consistently rule that all legislative history is relevant, without expressly finding an ambiguity, wrote separately to argue that, if the court is going to use a plain meaning analysis, then statutory history is an extrinsic source that should not be used.
Meaning of ‘Disfigurement’
The case involved whether a worker was eligible to receive a workers’ compensation award for permanent disfigurement.
Since a fall at work, Gloria N. Graham can no longer walk without a cane, and she walks with a severely pronounced limp. Unable to find employment, she sought permanent disfigurement benefits.
Her former employer, Dane County, argued that, because her injury did not result in any visible scarring, she was not disfigured within the definition of that term in sec. 102.56(1).
Rejecting its own prior precedents consistent with Dane County’s position, LIRC held that Graham was eligible for an award, because her appearance and altered gait would negatively affect her employability and wages.
The circuit court, Court of Appeals, and a unanimous Supreme Court all affirmed.
However, the Supreme Court differed on the applicable rules of statutory construction that govern.
Since 1915, Wisconsin statutes have provided compensation for disfigurement, but the substance of the applicable statute has been amended many times: 1919; 1923; 1971; and 1978.
In the lead opinion, authored by Justice Patience Drake Roggensack, the court relied on the statutory changes over the years to conclude that the plain meaning of the statute includes appearance that may cause others to believe that the worker is less capable.
To support its use of statutory history, the lead opinion relied on two precedents. Richards v. Badger Mut. Ins. Co., 2008 WI 52, par. 22; and State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, par. 52, fn. 9.
However, these precedents would have been easy to overlook. The discussion in Kalal was limited to one footnote.
And in Richards, the court looked briefly to statutory history, only to conclude the statute was ambiguous, and then rely on other legislative history to ascertain the meaning of the statute.
In Graham’s case, however, statutory history played a prominent part in the court’s determination that “disfigurement” plainly includes her injuries.
The court wrote, “The statutory history of Wis. Stat. sec. 102.56(1) demonstrates that a statutory disfigurement award is based on the permanent appearance of the employee that he or she presents to others, which appearance may cause others to believe that the worker is less capable. It is not based on an actual permanent loss of functionality of the employee’s body, which is compensated under other statutory provisions such as Wis. Stat. secs. 102.52 to 102.555 and Wis. Stat. sec. 102.565.”
But Chief Justice Shirley S. Abrahamson wrote a concurrence, joined by Justice Ann Walsh Bradley, arguing that statutory history is not properly included in a plain meaning analysis.
Abrahamson wrote, “In seeking a plain meaning, the court seeks a meaning that anyone — a lawyer, a party, an administrator, or any reader — could discern simply by examining the text of the statute, perhaps with the aid of a dictionary, a book generally available to all.”
Discussing Richards, Abrahamson noted that the opinion of the court relied not on the majority opinion in Kalal, but on Abrahamson’s concurrence, which merely included statutory history as one form of legislative history relevant to interpreting any statute.
Addressing footnote 9 in Kalal, Abrahamson wrote that it “simply explains the scholarship of Professor Cass Sunstein,” which distinguished statutory history from legislative history.
Abrahamson wrote, “The Kalal majority opinion states neither that statutory history is part of a plain meaning analysis nor that Professor Sunstein considers statutory history to be part of a plain meaning analysis.”
On its face, the difference between statutory history and legislative history, and their proper roles in statutory construction may seem rather academic.
However, Raymond G. Clausen, of Clausen & Severson, in Madison, who represented Graham, said in an interview that the statutory history was necessary to refute Dane County’s reliance on prior LIRC interpretations of “disfigurement.”
Clausen noted that, as originally drafted, the statute did not even allow recovery for disfigurement, but as time went by, the statute was amended first to allow recovery, and then to expand its scope.
Clausen argued earlier LIRC decisions concerning disfigurement were not relevant, because under the earlier versions of the statute, recovery for the disfigurement in this case would clearly not have been allowable.
“We argued statutory history to make the point that it is irrelevant how LIRC had previously interpreted ‘disfigurement’ in older cases, because it was interpreting different statutes at the time,” Clausen said.