A New Approach to Statutory Interpretation in Washington
| Publication year | 2001 |
When the legislature enacts a statute, it intends to accomplish a particular purpose. Such a purpose may be shrouded in imprecise drafting, legislative jargon, or political compromise.(fn1) Nevertheless, it is the constitutional role of the courts in a particular case to implement the legislative purpose expressed in statute. It is in this practical application that the problems with the enactment arise.
In a case or controversy, the courts use a variety of principles of statutory interpretation to assess precisely what the legislature meant in enacting a statute. Unfortunately, the canons of statutory construction developed by courts across the United States, including those in Washington, are often result-driven. There are literally so many canons of statutory construction, often diametrically opposed to one another, that the courts may pick and choose those canons most favorable to the ultimate disposition the court wishes to achieve. This leaves considerable power in the hands of the judiciary to make policy as the judges deem fit without regard to the legislature's actual intent in enacting a statute.
In this article, I will first explore Washington's existing law, both statutory and judicial, on statutory interpretation. I will then evaluate the mechanisms for construing statutes derived from common law and legislative sources. Finally, I will recommend a new paradigm for statutory construction so that legislative intent may be more accurately conveyed to the courts, abandoning many of the time-encrusted canons in favor of principles of interpretation adhering more specifically to the legislature's actual statutory language.
I. WASHINGTON LAW ON STATUTORY CONSTRUCTION
Washington law on statutory construction is found in statute, court rule, and case law. However, the common law rules of construction have been the predominant analytical force for interpreting statutes. Each aspect of interpretation is treated here in turn.
A little known aspect of Washington law on statutory construction is that the legislature itself has established certain rules of construction in statute. As early as 1891, the legislature determined that the Washington Revised Code was to both be "liberally construed" and "not be limited by any rule of strict construction."(fn2) The courts have not specifically employed this statutory provision, instead choosing generally to utilize common law rules of statutory construction, applying statutes liberally or strictly.
Where statutes are amended, the legislature has adopted a general policy against implied repealers; statutory provisions substantially the same as those of a statute existing when the provisions were enacted are deemed a continuation of that statute.(fn3)
If the legislature has amended the same code section more than once in the same legislative session without internal reference, the various amendments may be given effect if they do not conflict; if they conflict, the last enacted amendment controls.(fn4) The legislature delegated authority to the code reviser to publish the Washington Revised Code section with all of the amendments incorporated into that section, as well as to decodify repealed code sections which were repealed without reference to an amendment to the section.(fn5)
References to time,(fn6) certified mail use,(fn7) and numbers and gender(fn8) are also addressed by legislative rule.
In recognition of separation of powers concerns,(fn9) the legislature adopted a statute indicating court rules in conflict with statutory provisions render the statutory enactments of "no further force or effect."(fn10) This statute has been found constitutional,(fn11) but the courts have limited its application to procedural statutes.(fn12) Wherever possible, however, the courts endeavor to harmonize conflicts between rules and statutes to give effect to both within their appropriate spheres.(fn13)
The legislative enactments on statutory construction, though not extensive in scope, are significant because they confirm a critical principle: the legislature may take an active role in directing how the courts are to interpret legislative enactments. By statute, the legislature may direct particularized expansive or restrictive interpretations of its work, or generally mandate that certain information regarding the enactment is authoritative. This is vital to the later discussion in this article of a new approach to statutory interpretation.
A second significant source of rules on statutory construction is found in court rules. In adopting procedural rules for Washington's courts, the Washington State Supreme Court has established policies for construction of statutes in a narrow band of circumstances.
By court rule, procedural statutes are superseded by the civil and criminal rules for superior court.(fn14) In certain specific instances, the judiciary has preserved a statutory enactment on what is ostensibly a procedural matter.(fn15) Whether the courts have the power to invalidate legislative enactments by judicial fiat is an open question in Washington constitutional law.(fn16)
The final and most significant source of rules in Washington on statutory construction is case law. The Washington judiciary claims the exclusive power to authoritatively interpret the acts of the legislature.(fn17) This claim rings a bit hollow in light of the legislature's power to amend a statute after the judicial interpretation of the legislature's act.(fn18) Regardless of the exclusivity of the authority, the consequences of the judicial interpretation are very significant: the judiciary's interpretation of the statute becomes a part of the enactment as if it had been there since the legislature enacted the legislation.(fn19)
The Washington courts have developed a paradigm for analyzing a statute; the centerpiece of this paradigm is that the courts analyze a statute to carry out the intent of the legislature.(fn20) If the statute is plain and unambiguous, the courts enforce the statute as written. If the statute is ambiguous, susceptible to two or more reasonable interpretations, the courts resort to an interpretive process to ascertain the legislature's meaning.(fn22) Each aspect of the paradigm is reviewed here in turn.
1. Legislative Intent
In numerous cases, Washington courts have indicated that their purpose in analyzing a statute is the implementation of legislative intent.(fn23) This purpose has been described variously as the court's "primary goal"(fn24) or "paramount duty."(fn25)
But in practical application, Washington courts have taken two distinct approaches to the intent of the legislature. On the one hand, the courts have adopted a literalist approach: take the words as the legislature stated them.(fn26) The second approach evaluates the "spirit" or "purpose" of the enactment and interprets the statute so as to avoid an absurd result compelled by the actual legislative language.(fn27) Neither approach is exclusive, as Washington courts have used both. If, on the one hand, the courts say they lack the power to insert words into a statute that the legislature did not enact, it is difficult to then reconcile case law indicating the courts will supply language to avoid absurd results and to carry out the legislature's spirit instead of the strict letter of the law. If Washington courts have been troubled by these divergent models of statutory interpretation, they have not articulated such concern in a written opinion.
The difficulty inherent in the seemingly simple exercise of ascertaining the legislative body's "intent" is striking. Of course, it is very difficult to discern precisely what 147 legislators and the governor or 535 members of Congress and the President had in mind, if anything, with regard to a piece of legislation. Not all legislators are actively involved in the enactment of a bill; not all legislators necessarily know the contents of a bill on which they voted.(fn28)
By its nature, the legislative process expects legislators will develop expertise in certain types of legislation. Legislators serve on committeas organized by subject matter and bills are directed to those committees for the critical initial work, including public hearings.(fn29) Particular legislators, by virtue of their key leadership positions as committee chairs, will have a greater say in the creation of legislation, as well as its content.(fn30) While the language of a statute expresses the collective judgment of the legislature, it is also true that this collective judgment may be the actual product of a single legislator or small group of legislators.
Many commentators contend that it is possible to discern legislative intent from a statute.(fn31) They argue that groups are capable of forming intent; in fact, collective intent is common. Examples of where collective intent commonly occurs are within the military, an orchestra, a sports team, and a large corporation.
Philosopher Gilbert Ryle addressed this question decades ago. Ryle used the example of a person who, on visiting Oxford University and being shown the various "colleges, libraries, playing fields, museurns, scientific departments and administrative...
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