Using Legislative History as a Tool of Statutory Construction in Kansas

JurisdictionKansas,United States
CitationVol. 71 No. 5 Pg. 35-48
Pages35-48
Publication year2002
Kansas Bar Journals
Volume 71.

71 J. Kan. Bar Assn. 5, 35-48 (2002). Using legislative history as a tool of statutory construction in Kansas

Kansas Bar Journal
71 J. Kan. Bar Ass'n, May 2002, 35-48 (2002)

Using legislative history as a tool of statutory construction in Kansas

Richard E. Levy and Robert Mead, Using Legislative History as a Tool of Statutuory Construction in Kansas? J. Kan. Bar Ass'n, May 2002, 35-48

By Richard E. Levy and Robert Mead

I. Introduction: A legislative history case history

The legislative history of a statute, when available, can shape its judicial construction. More often than not, Kansas courts find sufficient ambiguity in a statute to justify consideration of legislative history that is presented to them. Thus, attorneys who are familiar with the types of legislative history, where to find them, and how to use them have advantages over attorneys who are not. Likewise, legislators can help to ensure that statutes are construed in accordance with their intent by documenting that intent in legislative materials that are readily available to practitioners, courts, and the general public.

Two recent Kansas Supreme Court decisions, In re Adoption of B.M.W.[1] and In re Adoption of K.J.B.,[2] illustrate the increasing importance of legislative history as a tool of statutory construction in Kansas. Both cases involved adoption by a stepfather under K.S.A. 59-2136(d), which permits such an adoption to go forward without the natural father's consent if he "has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption . . . ." There are two components of parental duty under Kansas law: (1) a financial duty of support; and (2) a duty of love, care, and affection. The statute also creates a rebuttable presumption that there has been a failure to assume parental duties if the father knowingly fails to provide child support required by judicial decree (when financially able to do so). Both cases presented the question whether an adoption could go forward without the consent of a father who had fulfilled his financial duty but not the duty of love, care, and affection.[3] The statute does not expressly address this question, but the presumption in favor of nonconsensual adoption upon nonpayment of child support implies that the failure of a single component of the parental duty may be sufficient, because it would constitute a failure of only the financial component of the parental duty.[4]

In the first case, K.J.B., the Kansas Supreme Court interpreted K.S.A. 59-2136(d) to permit nonconsensual adoption only when the father had failed both components of the parental duty. Under this interpretation, the adoption in K.J.B. required the father's consent notwithstanding his failure to provide love, support, and affection because he had fulfilled his financial obligation by applying for social security benefits payable to his children. The Court emphasized that parental rights are fundamental constitutional rights, and construed the statute narrowly to avoid infringing on those rights. Critically, the K.J.B. Court did not discuss the legislative history of the statute.[5]

Within two years, the issue was back before the Kansas Supreme Court in B.M.W., and this time the stepfather's attorney came armed with reports and committee minutes from K.S.A. 59- 2136(d)'s legislative history. These documents showed that the original bill as recommended by the Judicial Council was intended to make failure to provide child support a sufficient ground for nonconsensual adoptions (supporting the inference noted above) and that the bill was modeled after an Indiana statute under which the failure of either duty was sufficient to permit nonconsensual adoptions.[6] While the B.M.W. opinion recounted this history extensively, the Court ultimately declined to reconsider its initial construction of the statute, stating flatly that K.J.B. had been decided two years earlier, that the legislature had not amended the statute since then, and that the legislature could do so if dissatisfied with the Court's construction of the provision.[7]

Because the Court in B.M.W. may not have been persuaded by the legislative history, especially in light of the constitutional considerations raised in K.J.B. and repeated in B.M.W.,[8] we will never know how the Kansas Supreme Court might have construed K.S.A. 59-2136(d) as an original matter if the legislative history of the provision had been before it. Nonetheless, K.J.B. and B.M.W. offer some important lessons. First, and most important, legislative history may provide critical support for a particular construction of a statute. Second, Kansas courts, in contrast to some federal courts, will not ordinarily seek out legislative history on their own initiative; it is up to attorneys to find that history and bring it to the courts' attention.[9] Third, legislative history is especially important when a particular provision of a statute is being interpreted for the first time.

In preparation for this article we conducted a survey of Kansas cases referring to legislative history over the 20-year period from 1981 to 2000.[10] This survey clearly shows that the use of legislative history is on the rise. The total number of cases mentioning the legislative history of a statute under consideration rose from an average of just under twelve per year over the 1981-1990 period to an average of nearly 22 cases per year in the period from 1991-2000.[11] While some of the cases reflect only a brief mention of the legislative history or a general discussion of a statute's background, a substantial and growing number of cases engaged in more detailed discussion of either legislative documents that incorporate statements as to the meaning of a statute or amendments to statutory language during the consideration of a bill.[12] More significantly, perhaps, the Kansas courts rarely decline to rely on legislative history when it is presented to them.[13] In this regard, B.M.W. is the proverbial exception that proves the rule.

With the proliferation of statutes and the Kansas courts' increasing reliance on legislative history in interpreting them, it is unfortunate that legislative history in Kansas is very difficult to obtain and that most attorneys receive little training in statutory construction or in researching and using legislative history. Searching legislative history is an arduous and complex process, which is costly to the client and may ultimately be fruitless. This is especially true in Kansas, where legislative history is comparatively limited, is not compiled or published extensively, and is often available only in the State Capitol. To complicate matters further, there is no systematic index or digest for finding legislative history in Kansas.[14] The lawyer in K.J.B. thus cannot be faulted for not having looked for the legislative history in question, which had not figured in prior cases construing the statute either.[15]

Our aim in this article is to assist Kansas attorneys in breaking down the barriers to successful use of legislative history. The article first reviews the treatment of legislative history by the Kansas courts, focusing on the different types of legislative history and their uses in construing statutes. The article then describes the process for finding legislative history in Kansas, which consists of a series of steps involving a variety of sources that are at times of limited availability. The article also discusses the current debate over the legitimacy and reliability of legislative history, which has produced a highly visible dispute between "textualists" and "purposivists" on the United States Supreme Court. Although this debate has not yet affected the Kansas courts, it offers some instructive insights into how practitioners can strengthen their own arguments from legislative history and challenge the legislative history arguments of their opponents.

II. Legislative history in the Kansas courts

Most courts and commentators agree that the aim of statutory construction is to ascertain the intent of the legislature, however elusive this concept may be. Of course, the text of the statute is normally the best evidence of legislative intent, but given the inherent limits of language and of the legislative process, the text is often unclear, especially as applied to particular circumstances that may not have been anticipated by the legislature. Legislative history is one of the two main tools of statutory construction that can be used to resolve ambiguities in statutory language.[16]

A. The primacy of text and the use of legislative history

A fundamental question concerning the use of legislative history is the relationship between history and text. Most courts, including the Kansas courts, subscribe to the general rule that recourse to legislative history of a statute is permitted only when the text of the statute is not clear; i.e., when it does not have a "plain meaning." Under the traditional formulation of the plain meaning rule in Kansas, as recently stated in In re Appeal of University of Kansas School of Medicine-Wichita Practice Association,[17] "[w]hen a statute is plain and unambiguous, a court must give effect to the intention of the legislature as expressed. ... However, where the face of the statute leaves its construction uncertain, the court may properly look into the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under various constructions suggested."[18] Thus, the first step in statutory construction is to determine whether the text is "plain and unambiguous." If the statute is susceptible to more than one interpretation (i.e., the statute is ambiguous and there is no "plain meaning"), the courts may consider...

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