4.I: WISCONSIN SOURCES FOR COURT INTERPRETATION OF LEGISLATIVE ACTIONS
State ex rel Kalal v Circuit Court for Dane County
271 Wis. 2d 633, 681 N.W. 2d 110, 2004 WI 58, May 25, 2004
Chief Justice Shirley Abrahamson, in a concurring opinion, included this "nonexhaustive list of various forms of 'history' that have been and will be helpful in interpreting a statute."
¶ 69. Here is a nonexhaustive list of various forms of "history" that have been and will be helpful in interpreting a statute. The majority opinion appears to set forth a global approach to statutory interpretation but is silent about use of the following sources of statutory interpretation:
- Nonstatutory Provisions. The legislature often adopts provisions that appear in the session laws but not in the compiled statutes. Nonstatutory provisions often set forth statements of legislative findings, intent, or purpose, or rules of construction. These nonstatutory provisions have the force of law and aid the court in interpretation of statutes.
- Statutory history. An historical note appears in the Wisconsin Statutes after each statutory section, tracing its history since 1970. History notes in the current volumes of the Wisconsin Statutes cover the period from 1971 to date. The Revisor of Statutes publishes a separate volume, Wisconsin Annotations, which contains a history from 1848-1970. By analyzing the changes the legislature has made over time, a court may infer intent.
- Prefatory Notes (Analysis) to Bills. Wisconsin Stat. § 13.92(1)(b)2 provides that the Legislative Reference Bureau (LRB) shall "prepare in plain language an analysis of each original measure, to be printed with the measure when it is introduced." The purpose of the analysis is to clearly and objectively describe, in understandable language, the substance and effect of a legislative proposal so that legislators are adequately advised about the legal effect of the proposal. The Prefatory Note (Analysis) is distributed to all legislators and appears in the bill jacket available at the LRB and on microfiche at the State Law Library. A court should use great care before relying on a Prefatory Note (Analysis) because the bill may be changed after the Note has been prepared. Notes are not prepared or updated for amendments. Courts have relied on this useful history.
- Judicial Council Materials. The Judicial Council was created in 1951. It drafts rules for the court and laws for the legislature. The Judicial Council notes appear with the text of the rules and laws in the Wisconsin Statutes, but neither the court nor the legislature ordinarily adopts the Notes as part of the statute or rule. Courts have used the Notes to aid in interpretation of a statute. Materials generated by the Judicial Council beyond the Notes are available at the State Law Library, the State Historical Society, and the Legislative Reference Bureau and on web sites.
- Joint Legislative Council Materials. The Joint Legislative Council was created in 1947. It consists of legislators and functions through study committees that include legislators and public members. The study committees investigate various subject areas at the request of the legislature or the Council, and offer their recommendations in bill form to the Council. The Council proposes legislation to the legislature. When proposing legislation, the Joint Legislative Council typically includes explanatory notes in the bill. These notes are often available in Wisconsin Statutes. Courts rely upon the Council's explanatory notes when examining history. Materials produced by the Joint Legislative Council and its committees, in addition to the Notes, including minutes of the meetings and summaries of testimony, are available at the office of the Joint Legislative Council, the Legislative Reference Bureau, and the State Historical Society in Madison. The staff of the Joint Legislative Council also prepares information bulletins that are available at the LRB.
- Legislative Committee Records. In addition to the committees that report to the Joint Legislative Council, various legislative committees hold hearings and propose legislation. The committees do not keep verbatim or summary records of committee deliberations or testimony presented. The Legislative Council collects the materials submitted to these committees and keeps the materials in its office in Madison. Committee materials may also be deposited at the Wisconsin Historical Society, and the Historical Society may also have papers deposited by individual legislators.
- Records of Special Legislative Committees. At times the legislature creates special study committees to propose legislation. These committees may have published reports and documents available for public inspection which this court has used in statutory interpretation.
- Bill Drafting Records. Each bill, resolution, and joint resolution introduced since 1927 has its own drafting record. A drafting record contains all written materials, letters, and memoranda given to or created by a legislative drafting attorney in the process of drafting a bill, resolution, or subsequent amendment. Although the drafting records are by-products of the drafting process and are not designed to document legislative intent, the records may indicate legislative intent, and bill drafting records, including the fiscal impact statements, have often been used by courts. Bill drafting records are available on microfiche at the LRB, the State Law Library, and the State Historical Society in Madison, and the Milwaukee Public Library and the Marquette University Law Library in Milwaukee. The staff of the LRB also prepares very helpful information bulletins that are available at the LRB.
- Legislative Journals. Each house publishes its own journal that provides a procedural record of legislative action including roll call votes, messages from the governor, and occasionally, other communications. Wis. Stat. § 13.17. The journals are organized by date. The journals can be found in the LRB library collection for legislative sessions since the territorial period.
- Bulletin of Proceedings. The Bulletin of Proceedings of the Wisconsin Legislature contains procedural histories for all introduced proposals, a subject index, and a listing of the statutory sections affected by the session laws. The Bulletin is organized by bill number and is available in the LRB library collection.
- Governor's Study Committees. The Governor may create a committee on a particular subject to make recommendations and to draft proposed legislation necessary to implement those recommendations. The LRB and the State Historical Society catalog materials published by state agencies, including reports of governors' task forces and committees. Courts have considered these reports in determining legislative intent.
- Governor's Veto Message. If the governor vetoes a bill, the governor must: [R]eturn the bill, together with the objections in writing, to the house in which the bill originated. The house of origin shall enter the objections at large upon the journal and proceed to reconsider the bill.
- Wisconsin courts have considered the veto message when examining the meaning of a statute.
- Cases Interpreting the Statute. Courts have often referred to prior cases interpreting the statute.
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