Omaha Public Power District v. Nebraska Department of Revenue

Caporale, J.,

concurring.

While I agree with the majority’s judgment, and agree as well that State, ex rel. Spillman, v. Interstate Power Co., 118 *531 Neb. 756 , 226 N.W. 427 (1929), does not apply, I respectfully disagree with the remainder of the majority’s analysis; thus, I write separately.

The adjudication of this case rests on a far simpler rationale than that employed by the majority. Given the rule that absent anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning, Dillard Dept. Stores v. Polinsky, 247 Neb. 821 , 530 N.W.2d 637 (1995), there is no ambiguity in the definition of the phrase “tangible personal property” contained in Neb. Rev. Stat. § 77-105 (Cum. Supp. 1994).

In the ordinary sense, the phrase “tangible property” describes objects having a physical substance apparent to the senses. Webster’s Third New International Dictionary, Unabridged 2337 (1981). Electricity, that is to say, electrical energy, has no such physical substance in the sense that those two words are commonly understood in everyday parlance. While under certain circumstances one can feel the presence of electricity, and it can be stored and measured, it has no readily discernible physical form in the sense that do items such as axes, books, cloth, desks, elevators, fiddles, gavels, and the like. To paraphrase a justice of the U.S. Supreme Court,

[Ojur job is not to scavenge the world of English usage to discover whether there is any possible meaning of “[tangible personal property]” which . . . includes [electricity]; our job is to determine whether the ordinary meaning includes [it], and if it does not, to ask whether there is any solid indication in the text or structure of the statute that something other than ordinary meaning was intended.

(Emphasis in original.) Chisom v. Roemer, 501 U.S. 380, 410 , 111 S. Ct. 2354 , 115 L. Ed. 2d 348 (1991) (Scalia, J., dissenting).

The ludicrous results obtainable by relying upon legislative sources to examine the meaning of unambiguous statutory language are illustrated by one writer thusly:

Consider, for example, whether a statute providing for the leashing of “dogs” also requires the leashing of cats (because the statute really covers the category “animals”) *532 or wolves (because the statute really covers the category “canines”) or lions (“dangerous animals”). Most people would say that the statute does not go beyond dogs, because after all the verbal torturing of the words has been completed it is still too plain for argument what the statute means. Perhaps it is a quibble, but in my terminology this becomes a decision that the statute “applies” only to dogs. For rules about the rest of the animal kingdom we must look elsewhere.

Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 , 535 (1983).

In this case, there is no statutory indication that anything other than the ordinary meaning of tangible personal property was intended. That being so, the majority’s analysis should have ended with the determination that electricity is not tangible personal property as such is defined in § 77-105. See State v. Chambers, 242 Neb. 124 , 493 N.W.2d 328 (1992) (when words of statute not ambiguous, interpretation not only not necessary but will not be indulged).

However, because the majority elected to refer to what it characterizes as the “legislative history” in order to ascertain the meaning of the words used in § 77-105, more must be written about the nature of legislative sources and their use by courts in the process of construing ambiguous statutory language.

I agree that changes made in statutory wording and the treatment afforded a topic in related enactments constitute a legislative history which provides reliable insights as to the intended meaning of ambiguous legislation. However, I respectfully submit that the situation is otherwise with respect to the remaining general record made by a legislature in the process of enacting a statute. Other than amendments actually made to the proposed statutory language during the process of its enactment and the enacted language itself, the general legislative record provides no such reliable insights.

For example, the majority’s reliance upon the general legislative record includes a citation to a committee hearing report and a comment made during the floor debate of the statute. Neither is a reliable source for determining the intent of *533 the Legislature as a body. As for committee reports, to again paraphrase the same U.S. Supreme Court justice referred to previously:

Assuming that all the members of the . . . committees in question . . . actually adverted to the interpretive point at issue here — which is probably an unrealistic assumption— and assuming further that they were in unanimous agreement on the point, they would still represent [a vast minority]. It is most unlikely that many [legislators] read the pertinent portions of the Committee Reports before voting on the bill — assuming (we cannot be sure) that the Reports were available before the vote.

(Emphasis in original.) Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 620 , 111 S. Ct. 2476 , 115 L. Ed. 2d 532 (1991) (Scalia, J., concurring in the judgment). As it is doubtful that the details set forth in a committee report come to the attention of the entire Legislature, it is even more doubtful that they are approved by it. Hirschey v. F.E.R.C., 111 F.2d 1 (D.C. Cir. 1985) (Scalia, J., concurring).

Far less reliable, as sources of statutory meaning,

are remarks made during floor debate — even “authoritative” explanations offered by a bill’s sponsors. While a sponsor’s statements may reveal his understanding and intentions, they hardly provide definitive insights into [the legislative body’s] understanding of the meaning of a particular provision. New of his fellow legislators will have been on hand to hear the gloss the sponsor may have placed on a particular provision. Thus members of [the body], in voting on a measure, must be presumed to have relied on the meaning of the words read in context on a printed page. Moreover, a statute’s sponsor may well be pursuing a political agenda in his floor discussion that judges are ill-equipped to detect.

(Emphasis in original.) Overseas Educ. Ass’n, Inc. v. FLRA, 876 F.2d 960, 975 (D.C. Cir. 1989) (Buckley, J., concurring). See W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 Stan. L. Rev. 383 (1992). In the words of one jurist, “To single out a senator’s statement in the legislative chamber and then *534 transform that statement into the collective voice of the Legislature is unquestionably farfetched.” Bahensky v. State, 241 Neb. 147, 151 , 486 N.W.2d 883, 886 (1992) (Shanahan, J., dissenting).

As a consequence, I have come to understand and agree with the observation that “[i]f one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history.” (Emphasis in original.) Conroy v. Aniskoff, 507 U.S. 511 , 113 S. Ct. 1562, 1567 , 123 L. Ed. 2d 229 (1993) (Scalia, J., concurring in the judgment).

Equally bothersome is that the use of the general legislative record provides an incentive for legislators to distort it. It allows for the injection of their own desired interpretations on the meaning of a particular statute while evading the normal democratic process. Int. Broth, of Elec. Wkrs., Loc. U. 474 v. NLRB, 814 F.2d 697 (D.C. Cir. 1987) (Buckley, J., concurring); Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (Kozinski, J., concurring in the judgment). Once legislators and lobbyists know that the general legislative record will be used in construing statutes, they have great incentives to make comments or statements in the record solely to influence the judicial process. Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005 (1992). See, also, Kenneth W. Starr, Observations About the Use of Legislative History, 1987 Duke L.J. 371 , 377 (“It is well known that technocrats, lobbyists and attorneys have created a virtual cottage industry in fashioning legislative history so that [a legislature] will appear to embrace their particular view in a given statute”). Thus, the harm that results from reliance on the general legislative record is not undone by the fact that the same result can be reached without such reliance.

Even more troubling is that reference by the judiciary to the general legislative record provides a corrupting influence not only on the legislative process but on the judicial process as well, for the general legislative record can be manipulated to support almost any proposition. It has been likened to entering a crowded cocktail party and looking over the heads of the guests for one’s friends. Conroy v. Aniskoff, supra. See William *535 N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621 (1990). One court put it this way:

Often there is so much legislative history that a court can manipulate the meaning of a law by choosing which snippets to emphasize and by putting hypothetical questions — questions to be answered by inferences from speeches rather than by reference to the text, so that great discretion devolves on the (judicial) questioner. Sponsors of opinion polls know that a small change in the text of a question can lead to large differences in the answer. Legislative history offers wilful judges an opportunity to pose questions and devise answers, with predictable divergence in results.

Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989). Indeed, in condemning our use of a discussion between three legislators to ascertain the meaning of statutory language, it was written:

The action of the majority in this case is . . . the most dangerous precedent in statutory construction ever rendered by this court. If the precedent is followed in the future, any isolated phrase uttered by one legislator can be used as a scalpel to excise a provision this court deems unwise, unjust, or simply undesirable, or to change what, in this court’s opinion, ought to have been done some other way.

Wang v. Board of Education, 199 Neb. 564, 572 , 260 N.W.2d 475, 480 (1977) (Clinton, J., dissenting; C. Thomas White, J., joins).

The regrettable fact is that through the years, we have become sloppy and moved from reliance upon what our Legislature as a body did in the course of enacting ambiguous statutory language, State, ex rel. Winnett, v. Omaha & C. B. Street R. Co., 96 Neb. 725, 148 N.W. 946 (1914) (change in wording during course of enactment), to reliance upon what a selected legislator or fractional group of such said during that process, e.g., Chrysler Motors Corp. v. Lee Janssen Motor Co., ante p. 322, 534 N.W.2d 309 (1995); George Rose & Sons v. Nebraska Dept. of Revenue, ante p. 92, 532 N.W.2d 18 (1995); Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452 , *536 528 N.W.2d 285 (1995); Iverson v. City of North Platte, 243 Neb. 506 , 500 N.W.2d 574 (1993); Coleman v. Chadron State College, 237 Neb. 491 , 466 N.W.2d 526 (1991); Rodriquez v. Prime Meat Processors, 228 Neb. 55 , 421 N.W.2d 32 (1988); County of Lancaster v. Maser, 224 Neb. 566 , 400 N.W.2d 238 (1987).

The former and tighter practice was reliable, the current and looser practice is not; we should therefore abandon the current practice and confine ourselves to studying what the Legislature as a whole did and ignore what any one legislator or fractional group of them said. See Landgraf v. USI Film Products, _ U.S. _, 114 S. Ct. 1483 , 128 L. Ed. 2d 229 (1994) (in declaring statute not retroactive, Court relied not upon congressional statements, but upon removal of retroactivity language during course of enactment).

Fahrnbruch and Lanphier, JL, join in this concurrence.