An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
Legislature Battles Court Over How Statutes Should Be Construed
By Howard J. Bashman
Monday, August 11, 2003
A character in Lewis Carroll’s book Through The Looking–Glass observes that one who drafts language has far less power than another who defines what the words mean. The continued accuracy of that observation was demonstrated recently in Connecticut, where that State's Legislature and Supreme Court are facing-off over how statutes ought to be interpreted.
It is a well-settled principle of law that legislatures write statutes while courts, in the context of actual disputes, decide what the statutes actually mean. The most widely-accepted rule of statutory construction which courts follow in the United States is that, when a statute's language is clear and free from ambiguity, a court will apply the statute in accordance with its plain meaning. Faced with a clear and unambiguous statutory provision, a court will refuse to look at supplementary material such as legislative history and the like in deciding what the statute in question means.
As with most rules, the plain meaning rule has an exception. Where a statute's plain meaning produces absurd or unworkable results, a court is free to consider additional materials to determine if the legislature in fact intended a result other than what the plain meaning of a statute would dictate. And, of course, if a statute is not clear and unambiguous, a court remains free to examine sources beyond the statute’s text to determine its meaning.
On March 11, 2003, the Supreme Court of Connecticut became only the second court in the nation (the Supreme Court of Alaska was the first) to reject the plain meaning rule of statutory construction. Connecticut's highest court, by a vote of 5–2, ruled in State
, 816 A.2d 562 (Conn. 2003), that whenever a case requires a court to determine the meaning of a statute, the court should look not only at the statute's language, but also at every other source of relevant information, including legislative history, before reaching a conclusion. The ruling provoked a spirited dissent that accused the majority of adopting an approach that allows judges to substitute their view of what the law should be in place of what the law actually is as reflected in the text of an unambiguous statutory provision.
The facts of the Courchesne
case lend credence to the dissent's alarm. Those facts also reveal that the Connecticut Supreme Court's majority abandoned the more conservative approach to statutory construction in order to reach a result that was tougher on crime than the traditional approach to statutory construction would have produced.
Robert Courchesne had been convicted of stabbing to death a pregnant woman. The woman died en route to the hospital, but the hospital was able to deliver her daughter, who survived for forty-two days before dying of oxygen deprivation. The defendant was convicted of a crime statutorily defined as "the murder of two or more persons at the same time or in the course of a single transaction." A separate statutory provision states that an aggravating circumstance allowing imposition of the death penalty exists if "the defendant committed the offense in an especially heinous, cruel or depraved manner."
Courchesne's case thus presented the question whether the state had to prove that both murders were committed in the specified aggravated manner, or whether proving that one of the two murders was committed in that matter sufficed to allow imposition of the death penalty. Because the aggravating circumstance statute provided that "the offense" had to be committed in the specified manner, and because "the offense" here was statutorily defined as the murder of two people, the plain language of these statutes suggested to a majority of the justices serving on Connecticut's highest court that Courchesne was not eligible for the death penalty.
In the Courchesne
case, however, five justices on the Supreme Court of Connecticut agreed that the plain meaning rule was no longer the rule of statutory construction that courts in Connecticut should be applying. And when the majority reviewed all available information pertaining to the legislature’s intent, it "conclude[d] that proof that the defendant committed at least one of the murders in the specified aggravated manner is sufficient" to subject the defendant to a sentence of death. Ironically, by jettisoning the conservative approach to statutory construction, Connecticut's highest court was able to reach a conservative, law-and-order result in the case.
Connecticut's legislature was none too pleased with the new approach to statutory construction that the Supreme Court of Connecticut announced. On June 26, 2003, just slightly more than three months after the Courchesne
decision issued, Connecticut's governor signed into law legislation intended to require state courts in Connecticut to return to the traditional plain meaning approach to statutory construction effective October 1, 2003.
The new statute provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Because this new statutory provision has not yet taken effect, it is currently impossible to predict how the Supreme Court of Connecticut will react. On the one hand, Connecticut's state courts could simply choose to follow the legislature's direction and return to the more conventional, plain language approach to construing statutes. On the other hand, the judiciary could hold that the constitutional separation of powers that exists between the legislative and judicial branches of government in Connecticut precludes the legislature from specifying the method that the judiciary must employ to ascertain the meaning of statutes. Of course, the legislature enjoys exclusive control over what language appears in statutes and what the legislative history of any given statute consists of, but a court easily could conclude that the jurisprudential approach a court takes to construing a statute is beyond the control of the legislature.
Another concern presented by the newly-enacted statutory construction law is that on its face it purports to apply not only to statutes enacted after its passage but also to statutes currently on the books. As to preexisting statutes, is it proper for a legislature today to declare how a court must proceed in determining what those statutes mean when the court itself has already ruled that some other approach to statutory interpretation is more likely to produce the actual meaning of existing laws?
One of the most interesting aspects of the majority and dissenting opinions in the Courchesne
case is the discussion in those opinions concerning which method of statutory construction is more or less likely to allow judges surreptitiously to enact into law their own policy preferences under the guise of determining the policy preferences the legislature has duly enacted into law via statute. The legislature, in its new statutory construction law, has demonstrated that it favors the plain language approach; at least that is what the plain language of the new law unambiguously suggests. And judges themselves can ensure that judicial policy choices do not override legislative policy choices simply by refraining from issuing decisions that improperly substitute judicial preferences for the choices properly entrusted to and resolved by the legislature.
Our system of justice gives judges the final word as to what statutes mean, although where the judiciary reaches an incorrect result, the legislature has the power to enact a new law that more clearly spells out what the legislature is seeking to achieve. It remains to be seen whether the judicial system of Connecticut will allow the legislature to determine the approach to be taken when construing statutes that already are in existence, but my guess is that the new law will be declared unconstitutional at least to that extent. In any event, it will certainly be worth watching to see what transpires, after the new law takes effect on October 1, 2003, in Connecticut's battle between the courts and the legislature over how statutes should be construed.
This article is reprinted with permission from the August 11, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.