recognizing as “legally cognizable” the “difference between an individual legislator’s testifying in explanation of his or her own motive for voting in a particular way and the same person’s explanation of why a piece of legislation was enacted”
How later courts described this case
- recognizing as “legally cognizable” the “difference between an individual legislator’s testifying in explanation of his or her own motive for voting in a particular way and the same person’s explanation of why a piece of legislation was enacted”
Written by the judges who cited it.
The opinion
FAIRCHILD, Senior Circuit Judge,
concurring.
I agree that if it was error under Wisconsin law to admit the county board members’ testimony, the error was harmless. I want to point out, however, that it may not have been error. Our case can be distinguished from the Wisconsin cases announcing the rules which might proscribe such testimony.
Where a county sues persons who negligently advised it and seeks to recover loss suffered under a contract entered into by reason of the faulty advice, the Wisconsin courts might well permit the county to prove by the testimony of county board members the significance of the defendants’ mistake in causing the board to authorize the contract. The Wisconsin cases of which I am aware do not deal with that situation.
One rule stated in Wisconsin cases is that evidence aliunde the official record is not admissible where the effect thereof will be to vary or contradict the record, but may otherwise be received for the purpose of showing occurrences which, through oversight or some other cause, were not recorded. Chippewa Bridge Co. v. Durand, 122 Wis. 85, 103 , 99 N.W. 603 (1904); Grimm v. Bayfield County, 174 Wis. 43, 46 , 182 N.W. 466, 467 (1921); Bartlett v. Eau Claire County, 112 Wis. 237, 242 , 88 N.W. 61, 62 (1901). Chippewa Bridge rejected evidence showing, contrary to the record, the date of an adjournment, Grimm permitted evidence of the adoption of a motion where the record failed to show that, and of the date of a meeting where the record showed on its face that there had been an error, and Bartlett rejected evidence that the resolution adopted was different from the one recorded.
The first “whereas” clause indicates that the board decided that the cost of the method being contracted for was reasonable. The members’ testimony was that they believed this method would be cheaper than landfill over the long run. I agree that this testimony was not the kind of direct and frontal contradiction of the public record forbidden by the rule just discussed.
A second rule stated in Wisconsin cases is that a legislator cannot testify as to the intent of the legislature in passing a particular statute. Labor & Farm Party v. Elections Board, 117 Wis.2d 351, 356 , 344 N.W.2d 177 (1984); State v. Consolidated Freightways Corp., 72 Wis.2d 727, 738 , 242 N.W.2d 192, 198 (1976); Wisconsin Southern Gas Co., Inc. v. Public Service Comm., 51 Wis.2d 643, 652 , 205 N.W.2d 403 (1973); Cartwright v. Sharpe, 40 Wis.2d 494, 508 , 162 N.W.2d 5 (1968); Northern Trust Co. v. Snyder, 113 Wis. 516, 530 , 89 N.W. 460 (1902). These are all cases where rights or duties will be governed by the meaning of a statute, order, or resolution, and testimony as to the intended meaning of the legislation was deemed inadmissible. Our case does not involve a similar question.
A third rule is that the validity and effect of legislative acts are not to be determined by the inducements or motive that led to their enactment. Peterson v. Natural Resources Board, 94 Wis.2d 587, 599 , 288 N.W.2d 845 (1980); Rosenberg v. Whitefish Bay, 199 Wis. 214, 218 , 225 N.W. 838 (1929); Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 10 , 98 N.W. 969 (1904); Ballenger v. Door County, 131 Wis.2d 422, 432 , 388 N.W.2d 624 (Ct.App.), review denied 130 Wis.2d 545 , 391 N.W.2d 210 (1986). These cases involved a challenge to the validity of a rule or ordinance on the ground of improper motivation, an issue not present here. It has been pointed out that this rule cannot be all encompassing. South Car *1178 olina Educ. Ass’n v. Campbell, 883 F.2d 1251, 1259 (4th Cir.1989) (there are limited exceptions to the principle that judicial inquiry into legislative motive is to be avoided, where motive is a substantive element of the test of constitutionality).
None of the eases cited involved the type of issue in the case before us. There is room to hold that Wisconsin courts would not apply any of these rules to the testimony in this case.