Legislative History in Washington

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 3SPRING 1984

Legislative History in Washington

I. Introduction

Federal(fn1) and state(fn2) courts increasingly use legislative history(fn3) as an aid in construing statutes to determine the intent or purpose(fn4) behind the legislation. In order to provide the courts with useful information, legal practitioners need to know what legislative materials are available, how to obtain them, and what materials courts are likely to consider relevant. In contrast to congressional materials,(fn5) state legislative history remains largely untapped by lawyers.(fn6)

While legislative history may have been largely unavailable in many states in the past,(fn7) much is now available in Washington State. However, three problems contribute to the failure to fully utilize available legislative history. First, Washington courts have failed to articulate consistent theories or standards for determining how to apply evidence of legislative history. In many cases, the courts fail to explain adequately why they consider certain historical records to be appropriate or what weight they give to different types of legislative materials. Second, many lawyers do not know how to research Washington State legislative materials,(fn8) or they assume that state legislative history is unavailable. Yet, it is the obligation of attorneys to use evidence of legislative history in a creative and effective manner and to bring it to the attention of the courts. Third, access to legislative history is more difficult than necessary because of the limitations of the published Journals of the Washington State Senate and House of Representatives and the failure of the legislature to improve access to other documents. Nonetheless, it is in the legislature's interest to enhance the accuracy of judicial interpretations of legislative intent by improving access to records documenting that intent.

This Comment begins with an examination of court usage of Washington State legislative history and illustrates the lack of consistent judicial standards for acceptance of evidence of legislative intent. It then describes a systematic process that lawyers may use to identify and obtain relevant legislative history in Washington, and at the same time, points out defects in the current record-keeping system. It concludes with recommendations to the Washington State Legislature to improve the accessibility and usefulness of state legislative history. Adoption of these recommendations would not only aid the legal researcher, but also provide the legislature with a better means to convey intent and would provide the the courts with reliable information to make more accurate judicial readings of legislative intent.

II. Judicial Usage

A. Background and Scope

Washington State courts have consistently relied on legislative history to determine legislative intent when construing an ambiguous statute.(fn9) As early as 1897, the Washington Supreme Court turned to the history of sequential drafts in an amended bill in order to determine the intent of the legislature.(fn10) In 1903, the court directly addressed the issue of "to what extent the courts may examine into the history of legislation or resort to extrinsic circumstances when attempting to construe the legislative intent in a statute containing ambiguities."(fn11) The court concluded that it was appropriate to consider "the history of the statute in question in order to determine the legislative intent,"(fn12) and decided that the omission of a word in the statute was due to a clerical error at the time the bill was enrolled.(fn13)

In subsequent decisions, courts consistently followed this rule.(fn14) By 1965, the court considered it "an elementary principle of statutory interpretation that legislative intention may be inferred from extrinsic evidence" such as legislative history.(fn15) The language of the statute is the starting point for consideration,(fn16) but ambiguity is often inherent in even the most precisely drafted statutes because of the difficulties in translating an idea into written words.(fn17) When faced with ambiguity, the court relies heavily on the history of the statute as the "most compelling indication of the legislature's intent."(fn18) The court has even found that "resort to legislative history is not only permissible but necessary"(fn19) to determine the purpose behind an ambiguous statute.

As a corollary to the rule permitting examination of legislative history in the case of ambiguity, Washington courts have found it inappropriate to consider the legislative history of an unambiguous statute.(fn20) Because legislative history is not relevant in every case of statutory construction, courts may simply fail to consider legislative history without enunciating this rule. In a 1978 case, the Washington Supreme Court refused to consider legislative history in interpreting the repeal of a statute, insisting that an amendatory act was necessary instead of a repealing act.(fn21)

In recent years, the rule denying consideration of legislative history appears to be cited primarily in dissenting opinions, in which the minority criticizes the majority for unnecessarily resorting to legislative history to construe what the minority perceives is an unambiguous statute.(fn22) In at least one case, the court majority elaborately discussed legislative history, only to conclude that a statute was unambiguous and the legislative history was irrelevant.(fn23)

Courts distinguish between questions based on procedural history and questions of intent based on the history of the substantive content of an act.(fn24) Even when the court finds ambiguity in the manner in which the statute was enacted, it will not turn to the history of how passage complied with internal procedures of the legislature,(fn25) nor will it consider the internal rules of legislative bodies to be relevant to legislative intent.(fn26)

The initial inquiry is whether legislative history should be considered at all and whether it should be scrutinized liberally or restrictively.(fn27) Once a Washington court has determined that extrinsic evidence of legislative history is appropriate in construing a statute, a wide variety of legislative documents are acceptable. However, Washington courts(fn28) have never specified the permissible scope of legislative evidence which should be considered, or weighed its relative value except in the most general terms. Generally, appropriate extrinsic evidence includes the legislative history of prior and related statutes and the administrative interpretation of a statute, as well as the legislative history of the statute itself.(fn29)

The recent decision in State v. Turner(fn30) implies that Washington courts may consider almost any aspect of legislative history as potentially relevant. In a unanimous decision(fn31) regarding a state truancy law, the court initially compared sequential drafts of the bill as originally introduced and the substitute bill as reported out by committee.(fn32) It also contrasted the ultimately passed House bill to its companion Senate bill(fn33) and to other bills on the same subject.(fn34) Moreover, the court included in its discussion of legislative history three separate committee staff memoranda to the committee chairmen and to individual committee members in both the House and Senate,(fn35) two committee staff analyses of the bill as enacted (prepared after final passage by the legislature),(fn36) and tape-recorded testimony at a committee hearing both from committee staff and from four outside witnesses.(fn37) Turner appears to open the door significantly for consideration of legislative history without indicating any limits to credibility and relevance and without indicating the relative weight that should be given to any particular legislative materials. The court did not appear to take notice of its expansive treatment of legislative history, perhaps because all of the legislative evidence was consistent.

Two months later, at the trial court level, Turner was applied to encompass an even broader scope of legislative history. In his oral opinion in Seattle School District v. State(fn38) (School Funding II), Judge Doran recognized a variety of extrinsic evidence: (1) numerous quotations from legislative floor colloquies,(fn39) floor debates,(fn40) and standing and joint committee discussions;(fn41) (2) the failure to amend an act by a subsequent legislature;(fn42) (3) the absence of evidence of intent from the legislative history of one statute in comparison with others;(fn43) (4) the failure to amend a bill which was the precursor to the bill ultimately enacted;(fn44) (5) an amendment to an early version of the bill;(fn45) (6) a section ultimately vetoed by the Governor;(fn46) (7) a law which never became effective because of the failure of a proposed constitutional amendment;(fn47) (8) a citizens' group proposal for the legislation ultimately enacted;(fn48) (9) an oral opinion of the Attorney General;(fn49) (10) a law ultimately declared unconstitutional;(fn50) and (11) the failure of the legislature to correct an unconstitutional law.(fn51)

Despite the abundance of relevant legislative materials considered in Turner and School Funding II, Washington courts have frequently commented on the scarcity, ambiguity, or absence of legislative history.(fn52) The shortcomings...