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February 10, 2009

Speaking of the Wisconsin Supreme Court

They just issued County of Dane v. Labor and Industry Review Comm'n, __ N.W.2d ___ (Wis. Jan. 23, 2009), a workers comp case addressing whether a worker is "disfigured" only when the damage is visible in normal life, or if it instead covers disfigurements that are not normally visible. The case is interesting for a couple reasons, one relating to the lack of deference the court found it needed to owe to the state's workers' comp commission's interpretation, and the other for its somewhat distinct views on the plain meaning of the statute.

The court, interestingly enough, views a historical analysis of statutory language as part of the plain meaning analysis. The court explained:

"A review of statutory history is part of a plain meaning analysis" because it is part of the context in which we
interpret statutory terms. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581; see also Kalal, 271 Wis. 2d 633, ¶52 n.9 (citing Cass R. Sunstein,
Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 430 (1989)). The materials reviewed when considering statutory history consist of "the previously enacted and repealed provisions of a statute." Richards, 309 Wis. 2d 541, ¶22. "By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute." Id.

I find this somewhat interesting and wonder if the converse can be used: can you rely on statutory history to show that the ostensible plain meaning is ambiguous, and so allow in extrinsic sources?

February 10, 2009 | Permalink


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