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Bob Ferguson

AGLO 1970 No. 13 - Jan 28 1970
Attorney General Slade Gorton

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                                                                 January 28, 1970
Honorable Fred H. Dore
State Senator, 37th District
Legislative Building
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 13
Dear Sir:
            By letter dated January 24, 1970, you have raised several questions pertaining to the determination of legislative intent with respect to an item or items contained in an appropriation bill.  You have raised these questions against the background of our opinion to you of January 14, 1970, relative to the scope of the current 1969-71 appropriation to the department of public assistance, as set forth in § 1, chapter 282, Laws of 1969, Ex. Sess., at pages 2735-2738.
            After acknowledging your receipt of this opinion, you have in essence, questioned the basis for our resolution of the question there under consideration without making any reference to a certain letter of "legislative intent" which was written by the six members of the 1969 session's free conference committee on appropriations to the director of public assistance on May 7, 1969.  You have expressed your concern as to this issue as follows:
            ". . .  Your opinion, dated January 14, 1970, did not, however, deal specifically with the question of the evidence of legislative intent demonstrated by the letter signed by the six members of the Free Conference Committee on the Omnibus Appropriation Bill, which was included with my requested opinion on the public assistance cutbacks.  This was one of several letters sent to state agencies describing the intent of the Legislature, as discussed in each of the caucuses of the House of Representatives and each of the caucuses of the Senate prior to the vote on Substitute Senate Bill No. 151, as amended by the Free Conference Committee."
            All of your present questions deal with this facet of our previous opinion on this appropriation item; in essence, they all call, simply, for an explanation as to why the letter you have referred to, and similar letters pertaining to other items in the omnibus appropriation bill, cannot be  [[Orig. Op. Page 2]] considered in determining legislative intent.  We are happy to explain this point to you ‑ in terms designed to preclude any future misunderstanding on your part or that of any other members of the legislature with respect to the issue which you have raised.
            In seeking to ascertain legislative intent with respect to the scope and meaning of any duly enacted legislation (including legislation making an appropriation of public funds), it must be recognized at the outset that our task is always to be pursued in accordance with the applicable rules of statutory construction which have been laid down by the courts.1/   There are two such rules which may well be said to be the foundation stones for all of the others.  The first of these was most recently expressed by our own supreme court in Schneider v. Forcier, 67 Wn.2d 161, 163, 406 P.2d 935 (1965), as follows:
            "Our first resort is to the context and subject matter of the legislation, consistent with the recognized canon of statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said.  Martin v. Aleinikoff, 63 Wn.2d 842, 844, 389 P.2d 422 (1964).  . . ."
            The second of these "foundation stone" rules is set forth in the oft-stated proposition that
            ". . . if the language of the statute is plain, clear and unambiguous, there is no room for construction.  . . ."2/
             Or, as this principle was expressed by the court in Island County v. Calvin Philips & Co., 195 Wash. 265, 271, 80 P.2d 840 (1938),
            "'The legislature must be understood to mean what it has plainly expressed, and this excludes construction.  The legislative intent being plainly expressed, so that the act read by itself,  [[Orig. Op. Page 3]] or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.  Cases cannot be included or excluded merely because there is intrinsically no reason against it.  Even when a court is convinced that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity.  '2 Lewis' Sutherland Statutory Construction (2d ed.), 701, § 366."  (Emphasis supplied.)
            Within the context of your present opinion request (i.e., the use of extrinsic aids to the ascertainment of legislative intent), these two rules of construction mean, simply, that no resort at all may be made to such aids where the intention of the legislature appears clear on the face of the statute itself.  Conversely, where the intent of the legislature with respect to the statute under consideration cannot be deduced in this manner, resort may then be made to such extrinsic aids.  Accord, Lynch v. Dept. Labor & Ind., 19 Wn.2d 802, 145 P.2d 265 (1944).  And, as was indicated by this court in the Lynch case, one of these aids to which resort may be had is the history of the passage of the law under consideration.3/
             However, the critical point which must be understood whenever this stage in the process of statutory construction is reached is that a very definite and clear-cut line has been drawn by our court between those historical source materials which are acceptable as aids to construction and those which are not.  Basically speaking, in so far as statements made by individual legislators are concerned, this line has been drawn between statements which are made during legislative debates and recorded in the appropriate journals and statements which are not made in this form or forum.
             [[Orig. Op. Page 4]]
            In your letter you have made reference to ‑ and quoted from ‑ AGO 1967 No. 27 [[to Superintendent of Public Instruction on July 31, 1967]].  However, this prior opinion simply represents an example of permissible resort to statements made in debate and recorded in the legislative journals.  Accord, Ayers v. Tacoma, supra; see, also, State ex rel. Blume v. Yelle, 52 Wn.2d 158, 324 P.2d 247 (1958).
            On the other hand, the approach which is, apparently, contemplated by such written statements by individual legislators as are contained in the various letters signed by the members of the free conference committee on appropriations (1969 session) to which you have referred represents a procedure which has been squarely rejected by the Washington court in the case of Spokane v. State, 198 Wash. 682, 89 P.2d 826 (1939).  At issue in this case was the meaning to be given to a certain provision contained in chapter 180, Laws of 1935, relating to imposition of the state use tax.  In Pacific Tel. & Tel. Co. v. Henneford, 195 Wash. 553, 81 P.2d 786 (1938), the court had previously held, with respect to this statutory provision, that:
            ". . . it was the legislative intent that such tax should not be levied with respect to the use of articles not available for purchase within the state."  (Spokane v. State, 198 Wash. 683.)
            Based upon this earlier decision, the city of Spokane appealed to the superior court of Thurston county from a levy and assessment of use taxes with respect to certain articles of personal property which it had purchased and used in the maintenance and operation of its water works system.  The state tax commission countered this appeal with a contention that the supreme court, in the Henneford case, had misconstrued the legislature's true intent with respect to the scope of the 1935 use tax statute.  It attempted to support this contention by offering in evidence affidavits which had been executed by 33 senators and 68 representatives who had served in the 1935 legislative session, each containing an assertion of the individual affiant's understanding of "legislative intent" with respect to the scope of chapter 180, Laws of 1935.  In addition, the tax commission also offered the depositions of various state officers with respect to their understanding of legislative intent.
            After setting forth the full text of the form of  [[Orig. Op. Page 5]] affidavit which had been executed by each of the aforesaid senators and representatives, the supreme court affirmed the trial court's rejection of this proffered "evidence" of legislative intent, as follows:

            "The depositions of the various state officers and the affidavits of the legislators were not read into the record, but were offered as exhibits.  The city strenuously objected to their admission.  The trial judge held them inadmissible, but permitted them to be made a part of the record on the remote chance that this court might think otherwise.  They remain unread in the unbroken original package in which they were brought here; for, it is perfectly clear, both upon reason and authority, that the legislative intent in passing the statute cannot be shown or proven in any such manner.  59 C.J. 1017, 1038; Pagaud v. State, 13 Miss. 491; Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 103 A.L.R. 1208; Ex parte Goodrich, 160 Cal. 410, 117 Pac. 451, Ann. Cas. 1913A, 56; In re Lavine, 2 Cal. (2d) 324, 41 P.2d 161; Barlow v. Jones, 37 Ariz. 396, 294 Pac. 1106; Stewart v. Atlanta Beef Co., 93 Ga. 12, 18 S.E. 981, 44 Am. St. 119; Abernethy v. Board of Commissioners, 169 N.C. 631, 86 S.E. 577; Goins v. Indian Training School, 169 N.C. 736, 86 S.E. 629; Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796; Ocean Forest Co. v. Woodside, 184 S.C. 428, 192 S.E. 413."  (Emphasis supplied.)
            We have found no subsequent decisions of the Washington court evidencing any departure from this view ‑ in so far as the use of statements of intent by individual legislators are concerned.
            This is not to say that an official report of a legislative committee could not be looked to by the court for resolution of an ambiguity in a measure which was thus reported on by the committee were such report duly read and recorded in the appropriate journal.  See recent cases from other jurisdictions noted in  [[Orig. Op. Page 6]] 82 C.J.S., Statutes, § 356;4/ cf., State v. Coma, 69 Wn.2d 177, 417 P.2d 853 (1966), in which the Washington court considered an official report of the interim legislative council with respect to the purpose of a particular bill in order to resolve a patent ambiguity contained therein.  It is to say, however, that even where resort to legislative history is appropriate ‑ i.e., where the meaning of an act cannot be ascertained from a reading of the measure on its face because of an ambiguity in its language ‑ legislative intent still may not be established by such unofficial and unrecorded statements by individual legislators as are exemplified by the various letters to which you have referred ‑ written to agency heads by the members of the 1969 free conference on appropriations.5/
            We trust the foregoing will be of assistance to you.Very truly yours,
Attorney General
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Significantly, these rules of construction state principles which our own court has said the legislature is presumed to know.  See, State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 131 P.2d 943 (1942).
2/See, e.g., AGO 1967 No. 27, and cases cited therein.
3/See, also, State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120 (1912); State ex rel. N. W. Airlines v. Hoover, 200 Wash. 277, 93 P.2d 346 (1939); Shelton Hotel Co. Inc. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940); Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940); Crawford, Statutory Construction, 383 § 216; and 2 Sutherland, Statutory Construction (3rd ed.), chapter 50, page 481.
4/However, as stated in the text of this resume of recent cases, such recorded official committee reports may only be resorted to as indicative of legislative intent ". . . where the meaning of the statute is obscure . . . but not for the purpose of construing a statute contrary to its plain terms nor for the purpose of overturning well-established principles or rules of interpretation.  . . ."  (82 C.J.S. pp. 755-757.)
5/In the case of the 1969-71 public assistance appropriation item which was the subject of our earlier letter to you of January 14, 1970, we should add for purposes of clarity that we found no ambiguity in any of the language of this item; hence, even if the text of the free conference committee's letter (to the director of public assistance, dated May 7, 1969) concerning this item had been read in debate and recorded in the journal, resort to it would not have been permissible.