By Lisa Mecklenberg Jackson
Legislative Staff Attorney

When you’re an Elvis Presley fan, you can manage to tie Elvis, his music, his movies, his moves, to almost anything – parties, food, wardrobe, etc. But legislative history and legislative intent – isn’t that a bit of a stretch?

Au contraire, says the biggest Elvis fan in the Montana Legislative Branch and the individual writing this article. So, don’t be a hound dog. Read on to see the importance of legislative intent by way of the music of The King himself, Mr. Elvis Aron Presley.

Good Luck Charm: Purpose of Legislative History

In Montana, the term “legislative history” means the various documents created as a bill moves through the legislative process. Legislative histories provide a historical context for lawmakers focused on enacting new laws or amending existing ones. They also help state agencies understand the laws they are responsible for implementing. Montana legislators, lobbyists, attorneys, and judges often need to research the legislative history of the applicable statute to make a reasoned argument on the intention of the legislative body that passed a particular law.¹ When a statute’s language is ambiguous in a particular context, one would examine case law for court interpretations of the language. But if there is no controlling case law on point, researchers, legislators, and lawyers may decide to research the legislative history of the law and cite it as persuasive authority to support their position.

If a statute is not clear on its face, the primary sources for determining legislative intent in Montana are the minutes(2) of the meetings of the legislative committees (including the committee of the whole) that considered the bill, the exhibits(3) to the hearings, and the various versions of the bill that were proposed throughout the legislative process,(4) as well as any drafting records called “junque.”(5)

It’s Now or Never: Clear Intent

It is not unusual that legislation passes all the procedural hurdles but does not accomplish what the sponsors, or others, thought it would. As legislative staff, we sometimes hear, “but that’s not what I intended” when questioned about the particular workings of a certain bill.(6)

For example, if a legislator wants Silver Bow County to be exempt from a particular statewide county program, then the legislator needs to explicitly state that in the legislation. “With the exception of Silver Bow County, this program applies....” Each sponsoring legislator should make sure that the bill reads exactly as the legislator wants it, including any amendments that may have altered the bill from its original state. That way, the legislator’s intent will be clear on its face and not subject to multiple interpretations.(7)

But what happens if the legislator thought the intent of the bill was clear, but others think it is not. Then the matter may be brought before Montana’s courts for statutory interpretation.

Return to Sender: Meaning of Law

A court will not look to the legislative history of a statute if the plain meaning of the law is clear.(8) In Montana, the rules of statutory construction require the language of a statute to be construed according to its plain meaning, and there is an abundance of case law illustrating that point. If the language is clear and unambiguous, no further interpretation is required.(9) The courts will resort to legislative history only if legislative intent cannot be determined from the plain meaning of the statute.(10)

In construing a statute, the court must find legislative intent from the plain meaning by reasonably and logically interpreting the statute as a whole without omitting or inserting anything or determining intent from a reading of only a part of the statute.(11) In construing a statute, the court must ascertain and declare what is the substance of the statute and may not insert what has been omitted or omit what has been inserted; the court may not indulge in judicial legislation.(12)

The Montana Supreme Court has even looked to a bill’s title to determine what the Legislature meant. In a 1982 case, Dept. of Natural Resources and Conservation v. Clark Fork Logging Co.,(13) the logging company and the logger were sued by the state for the cost of putting out a forest fire that was accidentally ignited when a chainsaw backfired. The state sought to hold the logging company and the logger absolutely liable for the fire under 50-63-103, MCA.(14) The trial court granted summary judgment to the logging company and the logger on this count, and the state appealed. The Supreme Court held that 50-63-103, MCA, applied only to situations where the fire was deliberately set. “It is clear from the title of the Act that its purpose is to control the burning of forest material through the issuance of permits. Thus, ‘setting a fire’ in the context of this Act and statute refers to an intentional setting of a fire.”(15) The Court stated that the statute did not apply to this situation because the fire was accidentally started when a spark from the chainsaw ignited a slash pile. The court concluded that under these facts, summary judgment was properly granted.

Devil in Disguise: Ambiguous Statutes

Montana courts are required by statute to determine legislative intent.(16) Legislative histories are used when the language of a statute is ambiguous and more detail(17) about the legislative intent is needed.(18) The court presumes the Legislature would not pass a meaningless statute, and the court must harmonize statutes relating to the same subject so as to give each effect.(19) In harmonizing statutes, the court can look to the legislative history of the statute to determine legislative intent. In addition, great deference and respect must be given to interpretation of the statute by agencies charged with its administration.(20)

This concept is reflected in a 1996 Montana Supreme Court case, St. v. Smaage.(21) Smaage had a history of seven DUI arrests when he was arrested again while driving with a blood alcohol level of 0.250. After review of his record of drinking and driving, Smaage was charged with criminal endangerment, which Smaage contended was improper, rather than with driving under the influence. Smaage also asserted that the criminal endangerment statute was unconstitutionally vague as applied to him because he was not given fair notice that driving after drinking was a felony crime.

The Supreme Court found that the statutes were not conflicting but rather were alternative charging statutes. The legislative history of the criminal endangerment statute indicated legislative intent in allowing use of that statute in prosecutions for DUI. Because the elements of criminal endangerment were present in this case due to Smaage’s mental state of acting “knowingly,” the conviction was affirmed.

Love Me Tender: If Constitution’s Involved

Montana courts also examine legislative intent to resolve conflicting constitutional provisions. To determine the meaning of a constitutional provision, a court applies the same rules of construction used to construe statutes. When there are several constitutional provisions that would otherwise be inconsistent, a construction should be adopted, if possible, that will give effect to all of them.

A conflict between statutory law and constitutional provisions should be reconciled, if possible.(22) However, a legislative act is void in its entirety despite the presence of a severability clause when core provisions of the act are unconstitutional.(23)

Although a statute may be ambiguous because of a wide variety of possible situations that are covered by the statute, a court is not required under due process standards to find vagueness in the terms used in a statute so as to destroy an act; rather, it is the court’s duty to construe a statute so as to be consistent with the will of the Legislature and to comport with constitutional limitations.(24) A statute will not be interpreted to defeat its object or purpose, and the object sought to be achieved by the Legislature is of prime consideration in interpreting it.(25)

Don’t Be Cruel: Absurdity of End Result

Courts have a duty to be reasonable in examining legislative history to determine legislative intent of particular legislation. One of the end results the court looks at is the absurdity of the end result.

In Mont. Shooting Sports Assoc. (MSSA) v. State,(26) the plaintiffs, a sports association and its president, sought a declaration that defendant, the Montana Department of Fish, Wildlife, and Parks (FWP), could not lobby the Legislature as a proponent or opponent of proposed legislation or otherwise influence decisions. The district court denied the plaintiffs’ motion for summary judgment and in effect granted summary judgment to FWP. Plaintiffs appealed. The parties disagreed over the proper interpretation of the term “political actions” under 87-1-204, MCA.

In examining the legislative intent behind the enactment of 87-1-204, MCA, the Montana Supreme Court found the plaintiffs’ broad interpretation of construing the term “political” to connote all activities “of or relating to the conduct of government,” including lobbying and testifying before the Legislature as well as attempts to influence individual legislators, conflicted directly with the numerous statutory obligations imposed on FWP to appear before and report to the Legislature. The interpretation would have prevented FWP and its employees from fulfilling the agency’s obligations to cooperate and make agreements with other governmental entities. In other words, to enforce the plaintiff’s interpretation of 87-1-204, MCA in light of the legislative history would have been absurd.(27)

Treat Me Nice: Committee Minutes Essential

Montana courts look at minutes of committee meetings(28) to determine legislative intent if the meaning of the legislation is not clear on its face.(29) For example, an examination of the Senate Judiciary Committee minutes revealed that the Legislature envisioned including drivers of cars within the purview of the criminal endangerment statute.(30)

In determining if a distinction existed between livestock and business inventory for property tax purposes, the Montana Supreme Court looked to the Senate Taxation Committee minutes to determine that the Legislature intended different tax treatment of these types of property.(31)

In determining whether costs incurred by a claimant included attorney fees, the Supreme Court relied on a statement by the administrator of the workers’ compensation division as reflected in the Labor and Employment Relations Committee minutes to determine that costs included attorney fees.(32)

Heartbreak Hotel: Not Perfect, but Essential

In instances where interpretation of legislation is necessary, the court will look to the plain meaning. If the meaning is ambiguous, a court will attempt to ascertain the meaning in whatever way it can. That may involve an examination of the legislative history of the legislation. In all instances involving statutory interpretation, committee minutes and other legislative history materials are essential in understanding the intent of the legislation.

This article has discussed the importance of legislative history in determining legislative intent. Even if the legislative history is not perfect, it’s the best we have.(33) Legislators, lobbyists, state agencies, and the courts rely on the legislative record, so it is critical to know what’s going in the record and how to access and use it.

Nothing much is ever completely new in the legislative process. Most major pieces of legislation may take about ten years to become law. A body as large and diverse as a state legislature takes about that long to absorb a new concept, refine it, and finally adopt it. Examining the legislative history for all iterations of the legislation can be an enlightening pursuit.

Whether you’re an Elvis fan or not, you would be hard pressed to deny his impact on world music, much as you would be hard pressed to deny the importance of legislative history in finding legislative intent. And who knew that one day Elvis would be singin’ the legislative intent blues on behalf of one legislative attorney in Helena, Montana, whose office bears his likeness? Elvis may have left the building, but his legacy lives on… in more ways than he, or anyone else, could have possibly imagined.

Are You Lonesome Tonight? Want to Compile a Legislative History?

Following each section of the Montana Code Annotated (MCA), there is a “history” section that lists each of the session laws that either enacted (“En”) or amended (“amd.”) the section. Example: En. Sec. 295, Ch, 560, L. 1999; amd. Sec. 3, Ch, 201, L. 2003.

This means the MCA section was originally enacted by section 295 of Chapter 580 from the 1999 legislative session and was amended by section 3 of Chapter 201 from the 2003 legislative session. There will be separate legislative histories for the original enactment of a statute and each of the subsequent amendments to it.

1. Find the appropriate bill number from the chapter number by using either the table of contents in the first volume of the session laws for the particular legislative session or the chapter index in the last volume of the session laws.
2. Look up the bill number in the History and Final Status volume for the year in which you are interested.(34) Here you will find the list of committees to which the bill was referred, as well as the dates the bill was heard in committee and the day executive action was taken – days on which there may be committee discussion of the bill.(35)
3. You may also wish to check out any exhibits accompanying the bill in the committee hearing.(36)
4. Beginning in 1999, the Legislature began putting committee minutes online at leg.mt.gov.(37) In the left-hand navigation bar, click on “Sessions.” Choose the appropriate session. Click on the LAWS link at the top of the page.(38) Click on the “Look Up Bill Information” link and enter your bill information. You will now get a list that tells you in what committee and when your bill was heard in committee and on the floor.
5. Use the back button to go back to the Session page of the year you are interested in. Click on the “Committee Minutes” link. Pick the appropriate House or Senate committee and the date of hearing or executive action. You will want to look at the minutes for both. Since 2005, you will see links to the minutes for each date and for most committees, a link to a Real Audio file recording of the hearing accompanied by a tape log giving you the time stamp in which discussion of your bill began and ended.

Sources of Legislative History

Completing a legislative history in Montana may be difficult because resources for the history may be in a variety of places. Several facilities contain the same resources, but some are available only in certain places. For example, legislative histories compiled before 1977 are available only from the Montana Historical Society.

Committee Minutes

Print: Since 1977, committee minutes are in paper form in bound books at the State Law Library. The Montana Historical Society has a complete set of printed committee minutes back to the early 1950s and some before then. This is the only source for committee minutes from before 1977.

Online: Since 1999, minutes are available on the legislative branch webpage at leg.mt.gov/css/Sessions/default.asp. In 2003, the Legislature began making recordings of committee hearings available online. Also in 2003, the Legislature began recording the floor debate in each house of the Legislature.

Other: For the period between 1987 and 1995, committee minutes are available on microfiche at the State Law Library and the Legislative Reference Center. The Montana Historical Society has audio tapes of committee meetings since 1997. 

Bills

Print: The Montana Legislature has paper copies of bills from 1991 to the present. Since 1977, bills are also in paper form in bound books at the State Law Library. The Montana Historical Society has a complete set of printed committee bills back to the earliest sessions.

Online: Since 1997, bills are available from the legislative website at leg.mt.gov/css/Sessions/default.asp.

Other: The Montana Legislature has a CD with all bills on it from 1991 to 1997 prior to the bills going online.

Committee Exhibits

Print: The Montana Historical Society has exhibits back to the earliest sessions.

Online: Since 2005, exhibits are available from the legislative website at leg.mt.gov/css/Sessions/default.asp.

Other: The Montana Legislature has produced a CD with exhibits on it every session since 1997.   (Back to top) 

Footnotes

1. Comments made by Montana Supreme Court Justice Jim Rice and Montana First Judicial District Judge Jeffrey Sherlock during their presentation on “The Role of the Courts” at the Law School for Legislators event, Jan. 6, 2009, Montana State Capitol.

2. In Montana currently, “minutes” are a written tape time log that consists of a summary of the proceedings and the testimony before each committee. In 1997, the Legislature began making audiotapes of its committee hearings. In 2003, the Legislature began making committee hearings available on the legislative website at leg.mt.gov. The time log refers the user to the audiotapes or, later, to the audio file of the hearings available. Verbatim transcripts of the legislative committee hearings do not exist. Beginning with the 2003 session, the Legislature started recording the floor debate in each house. Prior to that time, no transcript, summary, or recording of these floor debates was made beyond the short notations in the daily Journal for each house. In 2009, floor sessions were video streamed and archived.

3. Exhibits include such items as proposed amendments, copies of written testimony, roll call attendance, roll call votes, and visitor registers.

4. Sometimes there is no legislative discussion of the “intent” of a particular bill, so compiling a legislative history (see sidebar at the end of this article) can sometimes be a fruitless effort.

5. In Montana, any drafting notes that accompany the bill draft request are public record and available for viewing. The Legislative Services Division keeps the previous two sessions of junque files.

6. In the words of the Montana Legislative Code Commissioner, “I only care what the law says, not what you intended.”

7. Legislative intent must be determined from the plain meaning of the words used, and if the interpretation of a statute can be so determined, a court may not apply any other means of interpretation; plain, unambiguous, direct, and certain language leaves nothing for the court to construe. White v. White, 195 M 470, 636 P2d 844 (1981).

8. Where the intention of the Legislature can be determined from the plain meaning of words used in a statute, the courts may not go further and apply any other means of interpretation. Tongue River Elec. Co-op, Inc. v. Mont. Power Co., 195 M 511, 636 P2d 862 (1981).

9. The Montana Supreme Court’s function in construing legislation is to ascertain and state what, in terms or substance, is contained within the legislation; and if the language is plain, unambiguous, direct, and certain, the statute speaks for itself. It is the court’s duty to construe the law as it finds it. State ex rel. Palmer v. Hart, 201 M 526, 655 P2d 965 (1982). See also Estate of Langendorf, 262 M 123, 863 P2d 434 (1993).

10. Lovell v. St. Comp. Mut. Ins. Fund, 260 M 279, 860 P2d 95 (1993). See also St. v. Zabawa, 279 M 307, 928 P2d 151 (1996).

11. Gaub v. Milbank Ins. Co., 220 M 424, 715 P2d 443 (1986).

12. Taylor v. Rann, 106 M 588, 80 P2d 376 (1938). In the construction of a statute, it is not permissible to read something into or out of it to make it understandable or workable. In re Baxter’s Estate, 101 M 504, 54 P2d 869 (1936).

13. 198 M 494, 646 P2d 1207 (1982).

14. 50-63-103, MCA. Liability of offender for damages and costs.

15. 198 M 494 at 496.

16. Section 1-2-102, MCA. In the construction of a statute, the intention of the Legislature is to be pursued if possible. When a general and a particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.

17. A single word cannot be used to find intent. A statute’s intent cannot be derived from the definition of one word; a statute derives its meaning from the entire body of words taken together. Wyse v. District Court, 195 M 434, 636 P2d 865 (1981).

18. Generally, a court will look to the legislative history for guidance when the enacted text was capable of two reasonable readings or when no one path of meaning was clearly indicated. Norman J. Singer, 2A Statutes and Statutory Construction, section 46.01 (6th Ed. 2000).

19. Defendant’s contention based on a strict interpretation of one section of the Dangerous Drug Act would totally defeat the legislative intent behind the Act. Statutes must be read and considered in their entirety, and legislative intent may not be gained from the wording of one particular section or sentence but only from a consideration of the whole. The court’s duty is to interpret individual sections of the Act in such a manner as to insure coordination with the other sections of the Act. St. v. Meader, 184 M 32, 601 P2d 386 (1979).

20. When a statute is ambiguous and its legislative history provides no clarification, a court will often defer to an agency’s interpretation of a statute in ascertaining how a statute should be construed. Christenot v. Dept. of Commerce, 272 M 396, 901 P2d 545 (1995). Agency interpretation primarily consists of: (1) agency rules; and (2) the history of the agency’s implementation of those rules.

21. 276 M 94, 915 P2d 192 (1996), following U.S. v. Mazurie, 419 US 544, 42 L Ed 2d 706, 95 S Ct 710 (1975).

22. State ex rel. Nelson v. District Court, 262 M 70, 863 P2d 1027 (1993).

23. White v. St., 233 M 81, 759 P2d 971 (1988). The requirement that a statute that contains several provisions will be construed to give effect to all does not mean that if it is not possible to give effect to all, the court gives effect to none. It means that as many as possible are given effect and not that they all stand or fall together. State ex rel. St. Bd. of Equalization v. Glacier Park Co., 118 M 205, 164 P2d 366 (1945).

24. In re Mont. Pac. Oil & Gas Co., 189 M 11, 614 P2d 1045 (1980), citing CSC v. Letter Carriers, 413 US 548, 37 L Ed 2d 796, 93.

25. Dover Ranch v. Yellowstone County, 187 M 276, 609 P2d 711 (1980). The cardinal principle of statutory construction is that the intent of the Legislature is controlling. St. v. Meader, 184 M 32, 601 P2d 386 (1979), following Baker Nat’l Ins. Agency v. Dept. of Revenue, 175 M 9, 571 P2d 1156 (1977).

26. 2008 MT 190, 344 Mont. 1, 185 P.3d 1003 (2008).

27. Statutory construction should not lead to absurd results if a reasonable interpretation can avoid it. 2008 MT 344 1 at 6.

28. Committee minutes vary to some degree and may be scant in detail (for example, “a discussion period followed”), or they might be quite detailed, including questions asked of and answers given by a sponsor, lobbyist, or legislative staff.

29. While recognizing that a legislator’s thoughts on a statute are not binding on the court, the court looked to the House Judiciary Committee minutes to determine that parking lots were intended to be included in the area covered by the phrase “ways of the state open to the public.” City of Billings v. Peete, 224 M 158, 729 P.2d 1268 (1987).

30. St. v. Bell, 277 M 482, 923 P.2d 524 (1996).

31. Montana Stockgrowers v. Department of Revenue, 238 M 113 777 P2d 285 (1989).

32. N.A. Van Lines v. Evans Transfer and Storage, 234 M 209, 766 P.2d 220 (1988).

33. Legislation arises from a political process laced with a diversity of opinion, conflicting influences, and struggles to effect public policy. As a result, the record left behind may be a rich but contradictory legislative history. Further complicating matters is the fact that the record may contain the expressions of two different legislative bodies and the concurrence of the executive. David, Kelly, and Ford, Use of Legislative History: Willow Witching for Legislative Intent, 43 Idaho L. Rev. 585 (2007).

34. History and Final Status volumes were first published in 1981. Before then, House and Senate Journals must be used to determine which committees heard the legislation you are interested in.

35. Other than possible floor discussion regarding your bill, the hearing and executive action of the bill in committee is the only situation in an entire legislative session in which a bill is talked about such that one might get the “intent” of the legislation and what the sponsor hopes to accomplish with the bill or amendment.

36. In 2005, the Legislature began posting committee exhibits online. They are accessible through links in the committee minutes. Before then, the exhibits are available on a CD (since 1997) or in paper format.

37. For locations of pre-1999 minutes, bills, and exhibits, please see accompanying sidebar.

38. LAWS is the electronic equivalent of the History and Final Status.