LEGISLATIVE HISTORYLEGISLATIVE HISTORY

Introduction and UsesIntroduction and Uses

Victoria K. TrottaVictoria K. Trotta

ASU Ross-Blakley Law LibraryASU Ross-Blakley Law Library

INTRODUCTIONINTRODUCTION

What is ‘legislative history’?What is ‘legislative history’? Why do we need to know about it?Why do we need to know about it? Where is it in the legal research cosmos?Where is it in the legal research cosmos? What goes into one?What goes into one? Why do lawyers want one?Why do lawyers want one? How do courts use it?How do courts use it?

The Issue in a NutshellThe Issue in a Nutshell

“WORDS AND WHAT THEY MEAN ARE A LAWYER’S BIG

PROBLEM”

What is Legislative History?What is Legislative History?

“ “Information Information embodied in any embodied in any legislative documents legislative documents that provide the that provide the meaning and meaning and interpretation of the interpretation of the statute”statute”

How are Legislative Histories Used by How are Legislative Histories Used by the Federal and State Courts?the Federal and State Courts?

State courts differ in their useState courts differ in their use Federal courts make greater use of themFederal courts make greater use of them West Digest SystemWest Digest System

– topic: Statutestopic: Statutes– keynumbers: 213 - 217.4keynumbers: 213 - 217.4

» 217 “history in general”217 “history in general”

» 217.2 “legislative history of act”217.2 “legislative history of act”

In Federal and State CourtIn Federal and State Court

General rule: Plain languageGeneral rule: Plain language Resort to legislative history not necessary Resort to legislative history not necessary

when language of statute is plainwhen language of statute is plain But, when statute is ambiguous, OK to But, when statute is ambiguous, OK to

consult legislative historyconsult legislative history

More…..More…..

But, ambiguity is not always considered a But, ambiguity is not always considered a prerequisite for use of extrinsic aids - the prerequisite for use of extrinsic aids - the plain meaning rule is not to be used to plain meaning rule is not to be used to thwart the intent of congress by thwart the intent of congress by excluding…enlightenment from the excluding…enlightenment from the legislative fileslegislative files

And Finally,And Finally,

The plainer the language, the more The plainer the language, the more convincing a contrary legislative history convincing a contrary legislative history must be to overcome the natural purport of must be to overcome the natural purport of a statute’s languagea statute’s language

Thought for the DayThought for the Day

“I don’t care what the legislature intended, I just want to know what the words mean.”

Chief Justice Oliver Wendell Holmes

1899

Sources for Investigating Sources for Investigating Legislative HistoriesLegislative Histories

Sands [Sutherland], Sands [Sutherland], Statutory ConstructionStatutory Construction Cohen, Berring, Olson, Cohen, Berring, Olson, How to Find the Law How to Find the Law

9th ed9th ed Kunz, et al, Kunz, et al, The Process of Legal Research, The Process of Legal Research,

4th ed4th ed Jacobstein and Mersky, Jacobstein and Mersky, Fundmentals of Fundmentals of

Legal Research, 6th edLegal Research, 6th ed Arizona Legal Research GuideArizona Legal Research Guide

““Intrinsic Aids”Intrinsic Aids”

Context Context Titles, preambles, enacting clausesTitles, preambles, enacting clauses Definition provisions, savings clausesDefinition provisions, savings clauses Headings, punctuationHeadings, punctuation

““Extrinsic Aids” - A SpectrumExtrinsic Aids” - A Spectrum

Enactment historyEnactment history– This is the stuff of a classic ‘legislative history’This is the stuff of a classic ‘legislative history’– Bill as introducedBill as introduced

» highly usefulhighly useful

– Amendments to the billAmendments to the bill» highly usefulhighly useful

– Hearings heldHearings held» not too useful.Statements made by outsiders - nope!not too useful.Statements made by outsiders - nope!

More Extrinsic AidsMore Extrinsic Aids

Committee Reports - StandingCommittee Reports - Standing– highly useful, esp if reasons bill is being highly useful, esp if reasons bill is being

recommendedrecommended Committee Members - StandingCommittee Members - Standing

– some use; more than debaterssome use; more than debaters In most states, the standing committee In most states, the standing committee

merely recommends passage - not much merely recommends passage - not much detail!detail!

Extrinsic Aids IIIExtrinsic Aids III

Committee Reports - SpecialCommittee Reports - Special– Very useful!Very useful!

Conference ReportsConference Reports– Very useful!Very useful!

Extrinsic Aids IVExtrinsic Aids IV

Statements Statements – By bill draftsmanBy bill draftsman

» some say yes, some say no!some say yes, some say no!

– By committee person in charge of shepherding the By committee person in charge of shepherding the legislation legislation

» maybe!maybe!

– By other committee personsBy other committee persons» Not usually unless there appears to be consensusNot usually unless there appears to be consensus

– Sponsor of the billSponsor of the bill» Be somewhat skepticalBe somewhat skeptical!!

Extrinsic Aids VExtrinsic Aids V

More StatementsMore Statements– Debates on the floor Debates on the floor

» As a general rule, too speculativeAs a general rule, too speculative

» Court doesn’t want to rule on credibility of membersCourt doesn’t want to rule on credibility of members

» But, if committee person in charge of the bill, But, if committee person in charge of the bill, explains it, might have some weight.explains it, might have some weight.

– The Feds will sometimes take debate as a whole The Feds will sometimes take debate as a whole if statements all tend to show common if statements all tend to show common agreement. agreement.

Extrinsic Aids VIExtrinsic Aids VI

Motives of the members of the legislatureMotives of the members of the legislature– disregarded, unless expressed in the statute disregarded, unless expressed in the statute

itselfitself Initiative and Referendum ExplanationsInitiative and Referendum Explanations

– ballot pamphlets favoredballot pamphlets favored Executive MessagesExecutive Messages

– As part of state’s special session; but not As part of state’s special session; but not considered if part of signing ceremonyconsidered if part of signing ceremony

Extrinsic Aids VII Extrinsic Aids VII aka Any Port In a Stormaka Any Port In a Storm

Pre enactment historyPre enactment history

– economic conditionseconomic conditions

– prevailing business practicesprevailing business practices

– prior state of the lawsprior state of the laws

– activities of pressure groupsactivities of pressure groups

When to Research and Compile When to Research and Compile

Time is $$$Time is $$$ Will depend uponWill depend upon

– age of statute under reviewage of statute under review– number of amendments to researchnumber of amendments to research– what is available and wherewhat is available and where– whether some research has already been put whether some research has already been put

togethertogether– how badly does the lawyer need it?how badly does the lawyer need it?

Fantasy vs RealityFantasy vs Reality

Lawyers often have unrealistic expectations Lawyers often have unrealistic expectations of what you will find, and how muchof what you will find, and how much

What you find might itself be ambiguous or What you find might itself be ambiguous or inconclusiveinconclusive

There might not be much to find! There might not be much to find! Experience will help you build realistic Experience will help you build realistic

budgets - from 30 minutes to 4+ hours, plus budgets - from 30 minutes to 4+ hours, plus your hard costsyour hard costs

How Lawyers Use ThemHow Lawyers Use Them

To buttress a position, but not as primary To buttress a position, but not as primary argumentargument

The statute is ambiguous as applied to the case at The statute is ambiguous as applied to the case at hand, and/or no case law existshand, and/or no case law exists

Some practice areas rely more heavily on Some practice areas rely more heavily on legislative histories: tax, securities, food and drug legislative histories: tax, securities, food and drug lawslaws

Risk averse might want one done as a matter of Risk averse might want one done as a matter of routineroutine

Administrative LawAdministrative Law

A Brief Introduction and Basic A Brief Introduction and Basic SourcesSources

Administrative Law: The Administrative Law: The Executive BranchExecutive Branch

Chaos! Then, FR & CFR Acts of 1936-7; Chaos! Then, FR & CFR Acts of 1936-7;

Administrative Procedures Act of 1946Administrative Procedures Act of 1946

Enabling StatutesEnabling Statutes

Quasi-legislative:Quasi-legislative:– rules, regulations (EPA)rules, regulations (EPA)

Quasi-judicialQuasi-judicial– decisions, orders (NLRB)decisions, orders (NLRB)

Administrative Rules and Administrative Rules and RegulationsRegulations

Proposed federal regulations published in Proposed federal regulations published in the Federal Register; state in Administrative the Federal Register; state in Administrative Register/DigestRegister/Digest

Notice Period 30 - 90 daysNotice Period 30 - 90 days Final regulation reprinted when adoptedFinal regulation reprinted when adopted In Arizona, some agencies blow off this In Arizona, some agencies blow off this

requirement (can you believe it?)requirement (can you believe it?)

Administrative Rules and RegsAdministrative Rules and Regs

Codified at the Federal level in Codified at the Federal level in Code ofCode of Federal Regulation Federal Regulation

Codified at the State level in Codified at the State level in Arizona Arizona Administrative CodeAdministrative Code

Neither is annotatedNeither is annotated Indexing ranges from poor (CFR) to non-Indexing ranges from poor (CFR) to non-

existent (AAC)existent (AAC) But! Tables from statutes to regulations! But! Tables from statutes to regulations!

Updating Administrative RegsUpdating Administrative Regs

CFR - quarterly recompiling and re-issuing CFR - quarterly recompiling and re-issuing of 25% of the entire codeof 25% of the entire code

CFR updated by List of Sections Affected CFR updated by List of Sections Affected (LSA) pamphlets. Points to Federal Register (LSA) pamphlets. Points to Federal Register texttext

Arizona - quarterly updating (looseleaf Arizona - quarterly updating (looseleaf interfiling). If you are lucky, first appears in interfiling). If you are lucky, first appears in Arizona Administrative Register.Arizona Administrative Register.

Administrative Regs OnLineAdministrative Regs OnLine

Lexis/Nexis and Westlaw Lexis/Nexis and Westlaw – CFRCFR– Federal RegisterFederal Register

InternetInternet– CFRCFR– Federal RegisterFederal Register– Email daily FR table of contents!Email daily FR table of contents!– Arizona Secretary of State - AAC Supplements and Arizona Secretary of State - AAC Supplements and

Register (1998)Register (1998)

Administrative Decisions and Administrative Decisions and OrdersOrders

Quasi-judicial functionQuasi-judicial function Major administrative agencies have their Major administrative agencies have their

own judicial processown judicial process Some are published; some aren’tSome are published; some aren’t Federal courts will reviewFederal courts will review ““Exhaustion of Administrative Remedies”Exhaustion of Administrative Remedies” In Arizona - Lots of Luck!!!In Arizona - Lots of Luck!!!

Research OptionsResearch Options

Davis, Davis, Administrative LawAdministrative Law Annotations of State/Federal statutory code Annotations of State/Federal statutory code

compilationscompilations Loose-leaf services *Loose-leaf services * Specialty NewslettersSpecialty Newsletters Online services will have decisions and orders Online services will have decisions and orders

of major agenciesof major agencies Internet, tooInternet, too