05 April 2006

Legislating Away Legislative Intent

Okay, after Tom pointed out that the Virginia General Assembly had changed the location of the "we still have the common law" statute I looked at the old sections and compared them to the new sections. While I'm certain that the old sections were changed primarily as a way to try to make me look foolish, I think a secondary reason for the repeal and readoption was to clean the chapter up and provide better section numbers.

I was looking around to see how much had been changed and stumbled across Va. Code § 1-247
Summaries of legislation.

Any legislative summary associated with a bill, joint resolution or resolution, including any summary appearing on the face of such legislation, shall not constitute a part of the legislation considered, agreed to, or enacted, and shall not be used to indicate or infer legislative intent.
Now, as I read that it's pretty much a death blow to legislative intent. If the explanatory language included in the official legislative history is not a valid indicator as to legislative intent then nothing is. How can anything be a valid indicator of intent if the delegates' and senators' official statements as to the intent are not valid?

Now we are faced with the question: if the legislature passes a statute which clearly implies that legislative intent arguments are not valid, do we follow the legislature's intent that we not follow the legislature's intent?

But wait, there's more.
Va. Code § 1-202. General rule of construction.

The rules and definitions set forth in this chapter shall be used in the construction of this Code and the acts of the General Assembly, unless the construction would be inconsistent with the manifest intention of the General Assembly.
Ah! We follow the legislature's "manifest" intent. So, if the General Assembly really, really meant it then we follow the legislative intent. We just can't use the official written intent attached to the legislation to determine if they really, really meant it.

But wait, manifest means "easily understood or recognized by the mind." So basically the General Assembly has called for plain meaning analysis as the primary means of construing a statute, banished legislative history, and (by implication) legislative intent.

You read it here first folks. The Virginia General Assembly has over-ruled by statute the 9 million criminal decisions from the Virginia Supreme Court and Court of Appeals which rely on legislative intent. It's all gone. Let the games begin!

BTW: Don't forget to cite this post in the multitude of appeals which will use this reasoning in the courts appellate Virginian - or, on second thought, maybe you'd best not cite me.

1 comment:

Steve Minor said...

The legislators don't write the summaries, or so I have always understood. The legislators don't want the Legislative Services' attempt to state what they think the legislators think to have any weight.