How 1-2z Asks Judges To Do The ImpossiblePosted: April 21, 2014
General Statutes section 1-2z has been on my mind lately. While pondering it, the thought occured to me that, construed literally, the statute asks judges to do the impossible. Allow me to explain.
Section 1-2z states:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
I italicized the last four words of the statute because they are the cause of my pondering. The word “considered” is generally understood to mean “to think carefully about” or to “take it into account.” So, section 1-2z, construed literally, tells judges that if a statute is plain and unambiguous, they should not think carefully about, or take into account, extratextual evidence.
Here’s the problem. When an appellate advocate writes an appellate brief, s/he often will discuss the legislative history and other extratextual matters concerning a statute, whether the statute is ambiguous or not, but especially if the advocate believes the extratextual evidence supports the interpretation s/he wants the court to adopt. A judge cannot close her eyes when she gets to that part of the brief. A judge cannot help but “consider” extratextual evidence when it is discussed in a brief. In short, a literal construction of section 1-2z leads to an absurd result–a result that asks judges to do the impossible.
Of course, we all know what the legislature really intended when it enacted section 1-2z . It intended that a court should not use extratextual evidence of the meaning of a plain and unambiguous statute to vary or contradict that meaning. It is like a parol evidence rule for statutes. But we know what the legislature “really intended” only because we are familiar with the legislative history of section 1-2z.
Oh, the irony of having to resort to legislative history to interpret a statute that was passed for the specific purpose of telling judges not to consult legislative history (at least when a statute is plain and unambiguous).