March 20, 2003
SUMMARY OF STATE V. COURCHESNE
By: Christopher Reinhart, Associate Attorney
You asked for a summary of the Connecticut Supreme Court's ruling in State v. Courchesne (262 Conn. 357 (2003)).
In State v. Courchesne, the defendant was convicted of one of the crimes under the capital felony statute that makes a defendant eligible for the death penalty: “murder of two or more persons at the same time or in the course of a single transaction.” After conviction of a capital felony, the court holds a sentencing hearing where the jury considers statutory aggravating factors and mitigating evidence to decide whether to impose a death sentence. At issue in this case was the aggravating factor that “the defendant committed the offense in an especially heinous, cruel, or depraved manner.” The court considered whether that aggravating factor had to be proven as to both murders or only one in order to make the defendant subject to the death penalty.
Justice Borden wrote the majority opinion, joined by Justices Norcott, Palmer, and Vertefeuille. The majority concluded, after considering the purpose and context of the relevant statutes, that proof that the defendant committed at least one murder in that manner is sufficient. They also rejected a claim that the rule of lenity required the statutes to be construed in favor of the defendant.
The majority then addressed the court's method of statutory interpretation. They rejected the plain meaning rule, which states that when the language of a statute is plain and unambiguous, the court cannot go beyond the text to consider other sources of meaning. They found that the rule is inconsistent with the nature of legislative language because meaning cannot be divorced from its purpose and context and, among other things, the rule has led the court to a number of intellectually and linguistically dubious declarations.” The majority then adopted an approach that requires the court to consider all relevant sources of meaning (such as legislative history, legislative purpose, and the context of the statute) in addition to the statutory language without any requirement of finding ambiguity.
Justice Norcott wrote separately to concur with the majority's approach to statutory interpretation but expressed his belief that the death penalty is unconstitutional. Justice Katz wrote separately to concur and dissent. She joined the majority in its opinion on statutory interpretation but wrote to express her belief that the death penalty is unconstitutional and described her interpretation of the statutes in this case.
Justice Zarella wrote in dissent, joined by Chief Justice Sullivan. They argued that the majority's use of the tools of interpretation led to a flawed assessment of the statutes. They concluded that the rule of lenity should require the court to interpret the statutes in favor of the defendant because a reasonable doubt exists about their meaning. They also argued that there was no reason to abandon the plain meaning rule and suggested an approach to statutory interpretation consistent with the plain meaning rule.
For purposes of the appeal, the court considered as undisputed that (1) the defendant stabbed Demetris Rodgers to death while she was pregnant; (2) she died at the hospital but her baby was born alive; and (3) the baby lived for 42 days before dying.
The defendant was convicted of one of the crimes under the capital felony statute that makes a defendant eligible for the death penalty: “murder of two or more persons at the same time or in the course of a single transaction” (CGS § 53a-54b(7)). After conviction of a capital felony, the court holds a sentencing hearing where the jury considers statutory aggravating factors and mitigating evidence to decide whether
to impose a death sentence. At issue in this case was the aggravating factor that “the defendant committed the offense in an especially heinous, cruel, or depraved manner” (CGS § 53a-46a(i)(4)).
The defendant argued that the aggravating factor statute requiring that “the offense” be committed in a “heinous, cruel, or depraved manner” refers to the capital felony offense that the defendant is convicted of, which in this case is the murder of two people. Thus, the defendant argued that both murders must be committed in the aggravated manner.
Justice Borden wrote the majority opinion, joined by Justices Norcott, Palmer, and Vertefeuille.
The majority stated that statutory interpretation is a reasoned search for the legislature's intent and involves looking to the words of the statute, the legislative history and circumstances surrounding its enactment, the legislative policy the statute was designed to implement, and its relationship to existing legislation and common law principles governing the same general subject matter.
The majority concluded that under the death penalty statutory scheme, the aggravating factor in this case is established if the defendant's mental state and conduct meet the requirement for one victim. They reasoned as follows.
1. If the language is applied literally, the defendant's interpretation probably carries more weight than the state's. But this position cannot stand further scrutiny.
2. The language viewed literally and in isolation suggests the defendant's interpretation but when it is viewed in its context and history, the aggravating factor statute referring to “the offense” in this case means the murder of either of the two people referred to in the statute and not both murders.
3. The court ruled in an earlier case that the capital felony offense of murder committed in the course of 1st degree sexual assault includes two crimes that are two constituent parts. In this case, the constituent parts of the capital felony are two murders. Thus, reference to “the offense” refers to these constituent parts. This permits the interpretation that the aggravating factor can be satisfied by proof of its existence with respect to at least one of the constituent parts.
4. The aggravating factor at issue in this case has not changed since this death penalty scheme was enacted in 1973. The 1973 statute included murder in the course of kidnapping, which includes two constituent parts, and other forms of capital felony that involved only one underlying offense. There is no rationale for the legislature to have set a higher bar for imposing the death penalty when the underlying capital felony involved two underlying felonies. Thus, in 1973, the aggravating factor that applied to murder during kidnapping did not apply to both underlying felonies.
5. In 1980, the legislature added the provisions on multiple-murder and murder during a sexual assault to the capital felony statute. Based on the history and the absence of contrary evidence, the legislature intended to treat all three capital felonies involving two underlying offenses the same way with respect to the unchanged aggravating factor. There is no reason why the legislature would have intended to treat them differently and “to attribute such a meaning to the legislative language, would be to attribute to that language a perverse result.” Otherwise, someone who committed two murders, the most serious felony on two victims, would have a higher bar than when someone committed two felonies of unequal seriousness on one victim, and only one involved the victim's death.
6. Under any rational system of deterrence and moral hierarchy, someone who murdered two people in a single transaction must be at least equally subject to deterrence and at least equally morally blameworthy as someone who murders and either kidnaps or sexually assaults one victim in the course of a single transaction.
The majority also rejected the defendant's argument that if the legislature meant the aggravating factor to apply to only one murder it should have written it differently. The majority stated that it must consider the question of what the legislature meant by what it did say.
Strict Construction And Lenity
Under the strict construction of criminal statutes, or rule of lenity, ambiguity in a criminal statute is resolved in favor of the defendant by applying the statute only to conduct clearly covered. When a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute, the rule of lenity applies.
The defendant argued that these rules applied to this case and that the court had previously required a statutory construction implicating the death penalty to be based on a conclusion that the legislature clearly and unambiguously made its intention known and that doubts about the penal code should be resolved against imposing harsher punishment.
The majority stated that these rules apply when a contrary interpretation would not frustrate an evident legislative intent and, after the court has engaged in the full process of statutory interpretation, there is a reasonable doubt about the statute's intended scope. They stated that these rules are important guidelines to legislative meaning but the rules cannot replace careful and thoughtful interpretation.
The majority also rejected two other arguments by the defendant based on the structure of the capital felony statute and how Connecticut's statutory language differs from other statutes.
Approaches to Statutory Interpretation
The majority next discussed the court's approach to statutory interpretation and stated that it has not been consistent. They stated that the court has relied on sources beyond the statutory text to determine the meaning of the language the legislature intended for at least a century, but during that time the court often declined to use these sources when the meaning of the text appeared plain and unambiguous, relying on the “plain meaning rule.” But the majority stated that the court has often stated that it will look at all available evidence when interpreting statutes, including the language, legislative history, circumstances of enactment, purpose and policy of the statute, and its relationship to existing legislation and common law because the meaning of language is best understand by viewing it in context and the purpose behind it. The majority stated that at times the court has used these tools without any requirement of ambiguity (citing Bender v. Bender, 258 Conn. 741 (2001)).
Reject Plain Meaning Rule
The majority made explicit that they rejected the plain meaning rule. They stated that the rule means that in cases where the court finds that language is plain and unambiguous, the court cannot as a matter of law go beyond the text to consider other evidence of the language's meaning no matter how persuasive it might be. Under the rule, courts seek the objective meaning of the language used by the legislature, not in what the legislature meant to say but in the meaning of what it did say. They stated that the rule has an exception when the plain and unambiguous meaning would create an unworkable or absurd result, but otherwise there is a threshold of ambiguity that the court must surmount in order to consult additional sources
The majority stated that the plain meaning rule is not useful for the following reasons.
1. The rule is fundamentally inconsistent with the nature of legislative language. Meaning cannot be divorced from the purpose for which it was used and from its context. The legislature's purpose in using that language matters and it matters what meaning the legislature intended the language to have.
2. The rule is inherently self-contradictory. It states that if the language is plain, there is no room for interpretation. But applying language to the facts of a case is an interpretation.
3. The rule has an exception if the plain language would produce an absurd result, because the legislature could not have intended it. This requires an implicit inquiry into the legislature's intent or purpose and the court rules out the plain meaning. There is no reason to prevent the court from going beyond the text to rule in a different meaning that other sources might suggest.
4. The requirement of finding ambiguity before looking beyond the text has led to a number of “intellectually and linguistically dubious declarations” that risk opening the court to criticism as being result-oriented. The court has stated the threshold test in various ways and there is little value in a rule that has led the court into dubious distinctions.
New Approach to Statutory Interpretation
The majority stated that statutory interpretation is a reasoned search for the legislature's intent, which is a reasoned search for the meaning of the statutory language as applied to the facts of the case. They stated that the legislative process is purposive and legislative language is best understood in its context and considering the purposes behind it. The majority stated that this requires the court to consider all relevant sources of meaning and the court will now ordinarily consider all of these sources without any threshold or requirement of ambiguity. These sources include: the words of the statute, legislative history, circumstances of enactment, legislative policy the statute is designed to implement, and relationship to existing legislation and common law on the same general subject matter. The court stated that considering more evidence makes it more likely that the court will arrive at a proper conclusion.
The majority stated that a statute's language remains the most important factor in interpretation because (1) it is what the legislature enacted and the governor signed, (2) it is the law, (3) the process of interpretation is the search for the meaning of that language as applied to the facts of the case, and (4) all language has limits and courts cannot attribute a meaning that the English language will not bear.
The majority stated that the statutory interpretation process always begins with a searching examination of the language, an attempt to determine the range of plausible meanings, and a narrowing of the range to those that appear most plausible. But the majority stated that the process does not end there. They stated that the purpose and context of the language are directly relevant to its meaning and other sources are to be considered along with the legislative purpose to determine the meaning of the language as applied to the case.
The majority stated that in most cases, the plain meaning will, after considering other sources, be the legislatively intended meaning. But in some cases, the other sources will indicate a different meaning strongly enough to lead the court to conclude that the legislature intended the language to have a different meaning. The majority described this new approach as a sliding scale, where the more strongly the text suggests a particular meaning, the more persuasive the other sources will have to be in order to conclude that the legislature intended a different meaning. The majority stated that this approach is easier to state than to apply and it will require a judgment weighing all the evidence.
Although no other jurisdiction specifically adopted this form of statutory interpretation, the majority stated that it is not startlingly new in its core: that the court can look for the meaning of otherwise clear statutory language beyond its literal meaning even when the meaning would not result in an absurd or unworkable result. They stated that this stretches back to the 16th century.
Response to the Dissent's Arguments
The majority then responded to the main points of the dissent as follows.
1. The dissent questions the appropriateness and reliability of finding the purpose of the statute. This is a fundamental difference of view on the nature of legislation. It is appropriate and necessary to consider the legislature's purpose and the court's experience shows that there is no particular difficulty in finding it.
2. The dissent argues that the court will substitute its own notion of policy for the policy of the legislature. This may happen and any court may be intellectually dishonest in any task. But the risk is just as great with the plain meaning rule. By looking at all the evidence of meaning before making a ruling, the risk of intellectual dishonesty will be minimized.
3. The dissent argues that the plain meaning rule is based on the constitutional separation of powers. There is no basis for this. Nothing in the federal or state constitutions compels any method of statutory interpretation. Nothing precludes this method or compels the use of the plain meaning rule. The task of the legislative branch is to draft and enact statutes and the task of the judicial branch is to interpret and apply them in the context of specific cases.
4. The dissent argues that legislative history should be used only if other interpretive tools fail to produce a single, reasonable meaning. The dissent argues that legislative history is an unreliable method of finding legislative intent and it facilitates decisions based on the court's policy preferences rather than neutral principles of law. It is difficult to understand why the dissent would use legislative history at all and they reserve its use as the tiebreaker in the most difficult cases. Experience shows that legislative history, when reviewed and used in a responsible, discriminating, and intellectually honest manner, can be reliable evidence of legislative intent. In addition to legislative hearings and debate, legislative history includes official commentary to statutory codifications. These are routinely cited as reliable evidence of legislative intent. A statute's historical development is often used and without substituting the court's own view of policy. The dissent also states that legislative history is insidious, but a court does not need any particular method if it is determined to be intellectually dishonest and result-oriented.
JUSTICE NORCOTT CONCURRING
Justice Norcott agreed with the majority's approach to statutory interpretation. But he stated that he has long felt that the death penalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in determining who lives or dies at the hands of the state. He stated that he wrote separately to emphasize that he joined the majority only because (1) this case presented a narrow, preliminary issue of statutory construction that did not require consideration of constitutional issues and (2) it had not reached the death penalty hearing stage yet and imposition of the death penalty would not necessarily follow as a direct result of this decision. He added that the court will hear the defendant's general challenges to the death penalty after the penalty phase if necessary.
JUSTICE KATZ CONCURRING AND DISSENTING
Justice Katz agreed with the majority in rejecting the defendant's arguments and agreed on its process of statutory interpretation. She stated that she believes the death penalty does not comport with contemporary standards of decency and violates the state constitution's prohibition against cruel and unusual punishment. But she concurred in the judgment because of her obligation, consistent with her oath and responsibilities as a justice, to decide the issue before the court even though it enables the state to proceed to the penalty phase with a diminished burden of proof. She stated that she appreciates the tension between her belief and resolving this appeal but was mindful that the defendant can bring other challenges to the death penalty later.
Justice Katz stated that the court avoids statutory interpretations that yield bizarre or irrational results and the defendant's interpretation would lead to a bizarre result. She argued as follows.
1. The defendant's argument that each capital offense contains two substantive elements and the aggravating factor must apply to both misreads the case law and is inconsistent with the legislative purpose behind the creation and amendment of the capital punishment scheme. The case law can be read as implicitly applying the aggravating factor to both substantive elements of an offense only because the court has never explicitly applied it to only one. The statutory language contradicts such an application. For five of the capital felony offenses, the aggravating factor could not apply to both substantive elements (offenses such as murder of a police officer cannot be construed so that both the murder and the police officer were committed in an especially heinous, cruel, or depraved manner).
2. The defendant's interpretation contradicts the apparent legislative intent. The legislative history shows that the capital sentencing scheme's purpose and the purpose of the multiple murder amendment was deterrence. It is rational to assume that the legislature considered murder the ultimate crime. Each offense in the capital felony statute is at its base a murder and is singled out as death eligible because of an additional characteristic. For all of the capital felony offenses except multiple murder, the state must prove that the aggravating factor applies only to one murder. If the legislature viewed murder as the ultimate crime and it enacted the capital felony statute to deter certain murders, it would be irrational to require two aggravated murders before the multiple murder offense becomes death eligible when one aggravated murder is sufficient under the other death eligible offenses. In addition, since the legislature's express intent in the multiple murder amendment was to deter multiple murders, it would be irrational to make it more difficult for the state to establish that this offense is death eligible.
3. The defendant also argues about states with similar capital punishment schemes (Virginia and Alabama) but neither supports their argument.
4. The defendant's argument about the differences between Connecticut's law, the Model Penal Code, and a proposed 1973 federal law are also unpersuasive because there is no mention of these sources in the legislative history indicating that the legislature considered their language.
Justice Katz agreed, consistent with the majority's principles of statutory construction, that the state's interpretation is more rational and the correct one. She stated that the defendant's interpretation is plausible but a careful review of the statutory language and scheme, legislative intent, and the practical outcome of such an application shows that the interpretation is not rational and could not be the legislature's intention. She stated that the defendant's strongest argument involves the statute's plain language and it is at first persuasive but the plain language is only the beginning of statutory interpretation. She stated that further examination using the other tools of statutory construction shows that the arguments are hollow.
Justice Zarella wrote in dissent, joined by Chief Justice Sullivan. He called the majority's opinion “nothing short of breathtaking” because the majority abandons the plain meaning rule and fails to apply the rule of lenity to a death penalty case where they state that the text of the statutory provision at issue favors the defendant's interpretation. He states that the majority's use of their tools of interpretation leads to a flawed assessment of the rationality of the legislature's choices in drafting the statute.
He stated that the statute's text suggests rejecting the defendant's interpretation but he was not convinced that the statute is clear and unambiguous which, under well established law, is constitutionally required if the court is to reject the defendant's interpretation.
Critique of the Majority's Analysis
Justice Zarella stated that the majority's interpretation is a series of assertions about the purported irrationality of what they perceive as the probable textual meaning of the statute. He found their assertions unpersuasive. He argued as follows.
1. The majority agrees with the defendant that the most persuasive textual reading is that the aggravating factor must be proven for both murders. This is consistent with appellate rulings that use of the word “offense” refers to all and not part of the elements of an offense. But the majority concludes that the statute's context and history support the state's interpretation. An interpretation based on inserting words into the text should be rejected and the majority implicitly does this based on unpersuasive reasons.
2. The majority states that there are two parts of the capital offense (two murders) and concludes that this permits the interpretation that the aggravating factor can be satisfied with proof of at least one of those parts. This is circular logic that assumes the majority's conclusion.
3. The majority's analysis of how the aggravating factor applies to murder in the course of kidnapping is the underpinning of their theory. They state that it is irrational to have a higher bar to prove the aggravating factor for both murders in the multiple-murder capital felony when other capital felonies only require proof as to one murder. But there is nothing irrational about reading the statute to require proof of the aggravating factor as to all parts of the offense. It will be harder to prove two elements than one but this does not mean the classification is irrational.
4. The fact that a particular capital offense has two underlying felonies does not necessarily suggest that the legislature believed it should be as easy to impose the death penalty for that capital offense as another.
5. It might be unusual for the legislature to intend the aggravating factor to require proof as to both parts when it added the multiple-murder offense while it only required one part for kidnap-murder, but one rationale is that the legislature did not deem multiple murders to be as morally abhorrent as murder in the course of kidnapping. There is nothing irrational about this determination and the legislative genealogy suggests that the legislature did make such a determination (quoting several legislators expressing doubts about whether the moral abhorrence of multiple murders justified its classification as a capital felony). The legislative history shows a possible rationale, even if it is assumed that the legislature in 1973 only intended to require proof of the aggravating factor in regard to the murder in kidnap-murder.
6. A more fundamental problem is that the majority's theory rests entirely on their previous conclusion that the state can establish the aggravating factor for kidnap-murder by proving the murder was committed in a cruel manner. It makes no sense to rely on this interpretation which the majority, not the legislature, presents for the first time in this opinion.
7. The majority states that they cannot conceive of a legislative rationale for setting a higher bar for the death penalty for multiple murder than it previously set for kidnap-murder. But before the 1980 amendment added multiple-murder to the capital felony statute, the bar was higher for one because one could result in the death penalty and the other could not. The legislature apparently did not regard multiple-murder to be as morally blameworthy as kidnap-murder. The system of deterrence adopted in 1973 is exactly the system that the majority now suggests is irrational. Implicit is that it would have been irrational for the legislature to enact such a statute in 1973.
8. The majority states that the question is whether the legislature intended a heavier burden for multiple-murder than for the other capital felonies. This is the question only if it is assumed that the legislature intended to make proof of the aggravating factor for kidnap-murder depend on committing the murder but not the kidnapping in a cruel manner. The majority and not the legislature reached this conclusion.
The Rule of Lenity
Justice Zarella found the majority's rejection of the rule of lenity under the circumstances of this case distressing and would have ruled that the rule of lenity required the state to prove the aggravating factor for both murders. He reasoned as follows.
1. It is startling that the majority does not adhere to the rule of lenity, a fundamental constitutional principle of due process and separation of powers. The court has previously ruled that this rule is especially pertinent to a death penalty statute. The rule of lenity applies whenever there is a reasonable doubt as to the scope of a statute. It is not merely a means of statutory construction as the majority asserts, but is rooted in due process and the separation of powers.
2. This court has stated that any statutory construction implicating the death penalty must be based on a conclusion that the legislature has clearly and unambiguously made its intention known. In earlier cases, the court ruled that a criminal statute should not be applied to impose criminal liability unless the legislature has expressly intended it. Rather than try to distinguish that ruling, the majority ignores it.
3. The majority holds that although the plain language favors the defendant's interpretation, other tools of statutory interpretation remove all reasonable doubt that the defendant's interpretation is erroneous. They find an express legislative intent to impose the death penalty under the circumstances of this case. It is clearly unjust to subject the defendant to the death penalty on proof that one murder was cruel while stating that the text suggests that both murders must be proven to have been committed in a cruel manner. The majority fails to provide a persuasive reason for its interpretation and does not show beyond a reasonable doubt that the legislature expressly intended the result.
4. The “offense” in the aggravating factor refers to the capital felony which, in this case, is multiple-murder. The text does not suggest that the state prove the aggravating factor for both murders but instead requires the state to prove that the offense as a whole was committed in a cruel manner, considering the totality of the circumstances surrounding the offense and without focusing on whether each part of the offense was committed in a cruel manner.
5. This court's cases have never tied an aggravating factor to a particular part of a capital felony and its analysis has focused on the totality of the circumstances.
6. The legislature is presumed to know how to draft a statute to reach a particular result. It could have required proof as to all or part of the offense but instead it required the state to prove that “the offense” was committed in a cruel manner.
7. A reasonable doubt exists about the statute's meaning. Thus, under the rule of lenity, the state must prove both murders occurred in the aggravated manner. It is not clear beyond a reasonable doubt, as the law requires, that the defendant's interpretation is erroneous. The court has long employed the reasonable doubt formula and only rarely concludes that the rule applies. The rule of lenity does not mean that any defendant with an interpretation claim will prevail but it is clear that the rule applies when the defendant has a strong textual argument. The majority, dissent, state, trial court, and defendant all construe the statute differently, which strengthens the conclusion that the rule of lenity should apply.
Majority's Approach to Statutory Interpretation
Justice Zarella strongly disagreed with the majority's approach to statutory interpretation and stated that the court should adhere to the plain meaning rule, as it has along with nearly every other court in the nation for the past 100 years. He stated that the problems inherent in their approach are illustrated by their opinion in this case. He reasoned as follows.
1. The majority's method of statutory interpretation in “an incorrect deviation from our traditional mode of statutory interpretation and an impermissible usurpation of the legislative function.”
2. The majority's heavy reliance on unexpressed statutory purposes is particularly inappropriate when the text is plain and unambiguous. Even proponents of the approach adopted by the majority acknowledge that nontextual sources should be used only when a statute is unclear.
3. A purpose derived from legislative history, the entirety of the statute, the aim of the statute, or the judge's imagination is normally of such generality as to be useless, unless it is cover for the judge to do justice as he see fit (quoting Chief Judge Walker of the 2nd Circuit).
4. It is highly questionable whether legislation can reflect any single underlying purpose. It is a mistake to attribute a collective intention to the actions of a group.
5. The majority fails to provide guidance on the significance of the other interpretive tools in its new approach and instead envisions a case-by-case basis where the court can pick and choose among the tools to construct a meaning. An explanation of the relative importance of these tools is of vital importance to litigants, judges, legislators, and the public.
6. The majority declares incorrect a method used by this court in hundreds of cases in the past century. The rule's pedigree is impressive. The U.S. Supreme Court and the overwhelming majority of federal and state courts rely on it. It is not unusual for a court to find that the text is plain and unambiguous. The majority states that its approach is not “startlingly new” but it makes this court an outlier among nearly all federal and state courts and with respect to this court's jurisprudence of the last 100 years.
7. The majority does not provide any evidence that the plain meaning rule has impeded this court's interpretive process. The majority's change comes from its philosophical bent, which will some day prove unsound.
8. The majority states that the plain meaning rule is fundamentally inconsistent with the purposive and contextual nature of legislation and it matters what meaning the legislature intended. The court should not be governed by unstated purposes but what was actually enacted into law.
9. The plain meaning rule is premised on the fact that only the text is formally approved by the legislature and governor and the aspirations of legislators in the legislative history or the court's notions concerning the rationality of legislative schemes are not. Applying the plain language gives effect to a government of laws and not men. The objective meaning should govern and not the legislature's subjective intent in choosing the text.
10. Individuals can no longer rely on the plain meaning of laws but will be forced to rely on this court's later use of other sources to discern the scope of a statute. This is unfair.
11. The plain meaning rule encourages judicial restraint and predictability in interpretation. Disregarding it amounts to judicial lawmaking.
12. This is also a separation of powers issue. Under the majority's approach, a judge will ask himself what purpose a wise and intelligent lawmaker would attach to a statute, then he will ask what he believes the purpose is. He will assume the role of law giver and substitute judicially ascribed notions of the purpose for the plain meaning of the text the legislature chose. There is no basis for the majority's assertion that the rule does not have a basis in the separation of powers.
13. The incentive to write clear statutes and for interest groups to get their views into law has diminished importance if they know the court will not be limited to the plain language but will decide cases based on the unenacted purposes behind the law.
14. The majority asserts that the rule is inherently self-contradictory because even when the language is plain and ambiguous, the court is making an interpretation. Whatever label is put on it, this is not a reason to reject the rule.
15. The majority suggests that the absurdity exception to the plain meaning rule shows that it's true goal is to reveal legislative intent. Under the rule, absurd and ambiguous statutes cause an objective interpreter to inquire further into meaning because a reasonable person would not believe the law is what it appears on its face. This is not because the rule is concerned with uncovering legislative intent.
16. The majority contends that the rule led to inconsistent law on the plain meaning rule and this leaves the court open to criticism as being result-oriented. It seems unfair to cite misguided deviations from the rule as a reason not to follow it. Many of the decisions cited as “intellectually and linguistically dubious” are reasons the court should follow the rule more closely and not reasons to abandon it.
Even if it is difficult to craft a plain meaning rule that creates consistent statutory interpretation, the debate over textual arguments is one of the most important reasons to adhere to the rule. This emphasizes the primacy of the text because the best textual argument is likely to prevail.
1. The majority's case-by-case approach is subject to result-oriented criticism by encouraging unfettered discretion in using various tools of statutory construction. It expands judicial power to the determent of the legislature. The approach virtually guarantees there will be some evidence for nearly any interpretation a court may wish to advance. Litigants are likely to view the court as one that does justice as it sees fit rather than as applying the law evenhandedly, a grave danger to an institution that depends on trust as an essential source of its legitimacy.
2. The majority contends that adhering to the plain meaning rule ignores the statutory purpose. But the rule embodies the common sense notion that when the text is plain and unambiguous, the purpose is reflected in the text. No court, except in Alaska, has stated that it can disregard the use of plain and unambiguous language in favor of a judicially determined statutory purpose.
Justice Zarella stated that the majority suggests that the plain meaning rule is a rule of law but he stated that it is well established that the rule is an axiom of experience. He added that the plain meaning rule and the majority's rejection of it is judicial philosophy, not substantive law, and the majority's ruling on statutory interpretation expresses their judicial philosophy and not the manner that he will interpret statutes.
Method of Statutory Interpretation
Justice Zarella then offered his own approach to statutory interpretation that he stated is more consistent with the fundamental role that the text should play in interpretation. He stated that statutory interpretation is a reasoned and ordered search for the meaning of legislation, seeking to determine the meaning of the language as understood by a reasonable person. He described a method of statutory construction using the following steps.
1. First, look to the words of the statute and if they are plain and unambiguous, there is no need to look further unless an interpretation produces an absurd result. Generally, words and phrases are construed according to their approved usage. Ordinary canons of construction apply in seeking the plain meaning, recognizing that they are not infallible.
2. If the meaning is not clear, then eliminate all possible interpretations that render the statutory scheme incoherent or inconsistent. If more than one reasonable interpretation remains, then consider the statute's relationship to other legislation and common law principles of the same general subject matter and eliminate incompatible interpretations.
3. If ambiguity remains, review the legislative history and circumstances of enactment.
4. If the statute is still ambiguous, apply any applicable presumptions in reaching a final interpretation.
5. This approach gives primary importance to the statutory text and reaffirms adherence to the plain meaning rule.
He stated that this approach gives legislative history a diminished role because:
1. it is generally used to find subjective legislative intent which should not be part of the interpretive process;
2. it is an unreliable source of intent because it is unrealistic to think that it can sufficiently reveal the mental states of a majority of legislators and the executive (and this is the relevant intent, not the intent of a committee or an individual legislator);
3. commentators question its reliability because of concerns over manipulation by legislators and interest groups that seek to influence judicial interpretations after failing to have their views adopted in the text;
4. it facilitates rather than deters decisions that are based on the court's policy preferences rather than neutral principles of law; and
5. many scholars and jurists are increasingly concluding that it should be given little or no weight.