Using Legislative History as a Tool of Statutory Construction in Kansas

Abstract

The legislative history of a statute, when available, can shape its judicial construction. More often than not, Kansas courts find sufficient ambiguity in a statute to justify consideration of legislative history that is presented to them. Thus, attorneys who are familiar with the types of legislative history, where to find them, and how to use them have advantages over attorneys who are not. Likewise, legislators can help to ensure that statutes are construed in accordance with their intent by documenting that intent in legislative materials that are readily available to practitioners, courts, and the general public.

In preparation for this article we conducted a survey of Kansas cases referring to legislative history over the twenty year period from 1981 to 2000. This survey clearly shows that the use of legislative history is on the rise. The total number of cases mentioning the legislative history of a statute under consideration rose from an average of just under twelve per year over the 1981-1990 period to an average of nearly 22 cases per year in the period from 1991-2000. While some of the cases reflect only a brief mention of the legislative history or a general discussion of a statute’s background, a substantial and growing number of cases engaged in more detailed discussion of either legislative documents that incorporate statements as to the meaning of a statute or amendments to statutory language during the consideration of a bill. More significantly, perhaps, the Kansas courts rarely decline to rely on legislative history when it is presented to them.

With the proliferation of statutes and the Kansas courts’ increasing reliance on legislative history in interpreting them, it is unfortunate that legislative history in Kansas is very difficult to obtain and that most attorneys receive little training in statutory construction or in researching and using legislative history. Searching legislative history is an arduous and complex process which is costly to the client and may ultimately be fruitless. This is especially true in Kansas, where legislative history is comparatively limited, is not compiled or published extensively, and is often available only in the State Capitol. To complicate matters further, there is no systematic index or digest for finding legislative history in Kansas.

Our aim in this article is to assist Kansas attorneys in breaking down the barriers to successful use of legislative history. The article first reviews the treatment of legislative history by the Kansas courts, focusing on the different types of legislative history and their uses in construing statutes. The article then describes the process for finding legislative history in Kansas, which consists of a series of steps involving a variety of sources that are at times of limited availability. The article also discusses the current debate over the legitimacy and reliability of legislative history, which has produced a highly visible dispute between “textualists” and “purposivists” on the United States Supreme Court. Although this debate has not yet affected the Kansas courts, it offers some instructive insights into how practitioners can strengthen their own arguments from legislative history and challenge the legislative history arguments of their opponents.