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
v. Courchesne, 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.