Legislative Intent Part 2 – 1987-1995

In the last blog we learned that some of the most valuable documents in determining legislative intent are the committee hearing notes. The methods of accessing these hearing notes depend on the legislative year in question. Here is a breakdown of access methods for various legislative sessions:

Prior to 1987 – Contact the State Law Library or the Montana State Historical Society – no materials are available at the Jameson Law Library.

1987 to 1995 – Microfiche available at the Jameson Law Library (and at the Montana State Law Library).

1997 – Electronic access at the Jameson Law Library (and at the Montana State Law Library).

1999 to the present – Online.

We have already covered 1999 to the present. 1997 represents a special case where the documents are available at the law library – the best thing to do if you need committee hearing notes from 1997 is to contact a Jameson law library staff member.

Because we will no longer be dealing with documents that are available online, the following discussion will be limited to the holdings of the Jameson Law Library on the UM Campus. Other documents and other means of access are available from the State Law Library of Montana as outlined in The Montana Legislative History Research Guide.

Microfiche

Accessing committee hearings through microfiche uses many of the tools that we learned about in the last blog: committee names, hearing dates, and bill numbers. The difference is in how these items are located and how the documents are accessed. Here is an example of a law that was amended in 1987, 1995, 1997. Let’s look into the 1995 amendment.

16-2-301. Retail selling price on table wine — tax on certain table wine. (1) The retail selling price at which table wine is sold at an agency liquor store is as determined by the agent.
(2) In addition to the tax on wine assessed under 16-1-411, there is a tax of 1 cent a liter on table wine sold by a table wine distributor to an agent as described in subsection (1). This additional tax must be paid to the department by the distributor in the same manner as the tax under 16-1-411 is paid. The department shall deposit the tax paid under this section in the general fund.
(3) For the purposes of this section, “table wine” does not include hard cider.

History: En. Sec. 9, Ch. 699, L. 1979; amd. Sec. 1, Ch. 629, L. 1987; amd. Sec. 27, Ch. 530, L. 1995; amd. Sec. 3, Ch. 399, L. 1997.

The first step is to determine the bill that amended this law. To locate the bill information we consult the Legislative Review 1995 (REF KFM9015 L43 1995) and look at the “Summary of Provisions by Chapter” section. Chapters are listed in numeric order so looking at chapter 530 tells us that HB574 was the bill that amended this law in 1995.

1995 leg review

The next step is to look at the history of HB 574 located in the “House Bills and Resolutions” section of 1995 History and Final Status (REF KFM9015 A24 1995).     The History and Final Status will provide us with the committee names, and hearing dates that we need to navigate the microfiche.

1995 hist and final status

From the History and Final Status of HB 574, we learn that the bill was referred to the House Business and Labor Committee and that a hearing was held on 3/2/95. HB 574 was then referred to the Senate Committee on Business and Labor and a hearing was held on 3/21/95. A complete search for indications of legislative intent would include looking at all available testimony, exhibits, discussions, committee reports and executive actions. In practice many people limit their search to the committee hearings and executive actions (often contained in the committee report).

We now have what we need to begin navigating the microfiche. The microfiche is organized by year, then by House or Senate, then by committee name. On any given piece of microfiche, documents are arranged in chronological order and roughly grouped by bill number. The microfiche and reader at the Jameson Law Library are located on the north wall.

For example, looking at the House Business and Labor Committee fiche that covers 3/2/95, we find the following hearing notes (plus six more pages of discussion and testimony not reproduced here).

house hearing march 2

Looking at the Senate Committee on Business and Industry fiche that covers 3/21/95 we find the following hearing notes (plus nine additional pages of discussion and testimony not reproduced here).

senate hearing march 22

To see the executive actions on this bill from these committees, we would simply move through the microfiche to the Committee Report dates provided in the History and Final Status entry: March 7 for the House committee, and March 21 for the Senate committee.

In conclusion, although some people shy away from microfiche based legislative intent questions, it’s really not that bad. It takes a little longer and you have to come to the library to do a fiche based search for legislative intent but the procedure is essentially the same as a web based search.

In the Jameson Law Library the microfiche is located on the north wall. The Montana Legislative Committee Reports are in the light blue cabinet. The microfiche reader instructions are on top of the  microfiche reader.

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Legislative Intent – part 1 1999-2015

What does “legislative intent” mean? Generally it refers to what the legislature meant or  intended when they passed a law and specifically it refers to what the committee members of the House or Senate said when they discussed a bill before it became a law.

The method of accessing documents that help determine legislative intent varies depending on the year that a law was enacted or amended.   Part 1 of our series on legislative intent will cover 1999 to 2015.

In the Montana Code Annotated the history of each statute is provided at the end of the statute. We are told when the law was enacted and when, if ever, it was amended.

For example, imagine that we wanted to know about the legislative intent of  MT 39-2-904.  Here is the statute as it appears in the Montana Code Annotated:

39-2-904. Elements of wrongful discharge — presumptive probationary period. (1) A discharge is wrongful only if:
(a) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.

History: En. Sec. 4, Ch. 641, L. 1987; amd. Sec. 2, Ch. 583, L. 2001

The history is provided at the bottom of the statute. It tells us that the law was originally enacted in 1987 and amended in 2001. Specifically it was amended in Section 2, of Chapter 583 of Laws of Montana  2001. We will focus on the legislative intent of the 2001 amendment. The crucial things to catch here are the chapter number and the year. With these two items we can find the bill number, the committee name, dates of the hearing and, usually but not always, the committee meeting notes. From 1999 to the current year this information will be online. The easiest way to proceed through the next few sections is to open two browser windows: one to follow the links and one to read my instructions. Here’s how it works.

First take note of the year and chapter (2001, chapter 583). Go to the Montana legislature website .

Montana Legislature_Page_1

and click on  “Session”, then “Past Sessions”

Montana Legislature_ Sessions

Then select “2001 Regular Session”  Scroll down to and select “2001 LAWS Session Information

Now select “Look Up Bill Information”  from the very top of the page.

LAWS Current Session Home Page

At this page you can enter the chapter number that you noted earlier (chapter 583).

LAWS Look Up Bill Information Page_Page_1

The result of searching for chapter 583 is a new page that provides the history on the bill that amended the original law.   What you will need from this page are the bill name, the committee names, and the committee hearing dates. In our current example  we are looking at the history of Senate Bill 4 (SB 4).

LAWS Detailed Bill Information Page_Page_1

Although there are many links on this page, none will take you to the transcribed committee hearing notes – Although beginning in 2011, there is a link on this page that will take you to the audio/visual versions of the committee hearings. The critical items to get from this page are the bill number (SB4), the committee name (Senate  Conference Committee), and  the hearing dates (3/23/2001 and 4/19/2001). Note that there was  also a Senate Judiciary Committee hearing on January 8, 2001 and a House Judiciary Committee hearing on March 1, 2001.

We have clicked through many  screens to get these three vital facts : the names of the committees, the hearing dates, and the bill number.

Now with these three facts we can return to the 2001 Regular Session Homepage 

Montana Legislature_ Sessions57

Now we click on the link “Committee Minutes”

Montana Legislature_ Sessions57 committee minutes_Page_1

All that remains is to scroll down to “Conference Committees” and then select “Senate Conference Committees”.  Then click on “SB 4 –March 23” to access the committee meeting notes.  There is also a Senate Conference Committee hearing  entry for April 19. Lastly, check the Senate and House Judiciary Committees on the dates noted above (January 8, 2001 and March 1, 2001)  to see  how these committees dealt with SB4.

This brings part 1 to a conclusion. In part 2 we will look at accessing documents that may indicate legislative intent  from 1987-1997.

How to Eat the Elephant: Compiling a Montana Legislative History

elephant-headYou’ve been given a Montana statute and asked to compile a legislative history for it.  And you’ve heard tell that compiling a Montana legislative history is a mammoth and difficult task.  But it’s not as hard to do as you might think.  Really.  It’s like what they say about how to eat an elephant – you do it one bite at a time.  The tips below are meant to give you some background and an idea of the framework of the process and to provide you with resources that will help reduce that elephant into bite-size pieces when you are called upon to compile a Montana legislative history.

Tip 1:  Know the documents that typically make up a compiled Montana legislative history

    • Copy of the chronological history of the bill showing what happened to it as it went through the legislative process
    • Copy of the bill as originally introduced
    • Minutes of the House committee hearings,  plus minutes of committee meetings  when the bill was voted on and any exhibits there may be to these meetings
    • Minutes of the Senate committee hearings, plus minutes of committee meetings when the bill was voted on and any exhibits there may be to these meetings

 A common misconception about the committee minutes is that they will state specifically what was said.  However, the minutes are NOT verbatim transcripts.  Rather, they are summaries of the proceedings and testimony before the committees.

Exhibits, if there are any, can include items such as proposed amendments, copies of written testimony, roll call attendance, roll call votes, and visitor registers.

Tip 2:  Find out if someone has already done the work for you

Always check to see if someone has already compiled a legislative history on the law you are interested in.  The State Law Library has put together many Montana legislative histories over the years.   The Jameson Law Library also has a small collection.   These previously compiled histories are arranged by year and chapter number of the session law, so have that information in hand when you inquire.

Tip 3:  Understand where to find documents & the format they are in – it’s a bit odd in Montana

The documents you need to retrieve are found in different places and come in different formats depending on when the session law was passed.  So you might think of compiling a legislative history in terms of five time periods:

  • Before 1977
  • 1977 to 1979
  • 1981 to 1995
  • 1997
  • 1999 to date
  • Outside of legislative histories already compiled, anything before 1977 requires contacting the Montana Historical Society.  Their collection includes committee minutes back to the early 1950s.
  • For the years 1977 to 1979, the process is, admittedly, a bit convoluted.  In simplest terms, locating the bill number requires using the Laws of Montana table of contents or index, then using either the House Journal or the Senate Journal to determine which committees considered the bill, and then locating the actual committee minutes.
  • Fortunately, in 1981, the History and Final Status volumes came along, making the task of translating a chapter number into a bill number much easier.  Using these volumes you can easily look up your bill and find a list of the committees to which the bill was referred.  In the Jameson Law Library, committee minutes from 1987 to 1997 are available in microfiche.
  • For 1997, the process is the same as for 1981 to 1995, except that exhibits are not included in the print version – instead they are only available on a CD-ROM.   To locate the CD-ROM you will need the name of the committee, the day the hearing was held, and the exhibit number.  Of course, listening to these can be problematic if you don’t have the technology that may be necessary to play these older CDs.  In that case, you will need to request print copies from either the Montana Historical Society or the State Law Library.
  • The legislative history compilation process rolled into the digital age in 1999 and from then on you can access the history and final status of bills and committee minutes online at the Montana Legislature’s website.  However, there are some differences among the years as to what materials are available and how to locate them.  For example, in 1999 and 2001 only very brief summaries of committee minutes are available in print; you must listen to audio recordings for expanded information.

Tip 4:  Yes, Virginia, there is a research guide available.

When you’re ready to dig in and compile a legislative history, turn to the Montana State Law Library’s excellent Montana Legislative History Research Guide.  The guide is detailed and provides the specific information you need to compile a Montana legislative history.

Tip 5:  Gain an understanding into Montana legislative history and legislative intent.

Take time to read through Lost Legislative Intent: What Will Montanans Do When the Meaning Isn’t Plain?, a law review article written by Jameson Law Library Director, Stacey Gordon and Helia Jazayeri (70 Mont. L. Rev. 1, 2009).  The article begins with discussion on the controversy generated regarding the use of legislative history by courts and then goes on to explain what legislative history is and how both the U.S. Supreme Court and the Montana Supreme Court use legislative history in statutory interpretation.  The article argues that the Montana Legislature should ensure comprehensive access to legislative history and also describes the current barriers to accessing Montana legislative history, ending with some suggestions for a more reliable and accessible legislative record.

Tip 6:  Ask a law librarian for help.

If you have questions about what to do, run into problems (maybe with that old microfiche reader in the law library), or can’t find something you need … don’t hesitate to stop by the Ref Desk, call, or email any of us in the Jameson Law Library.   As always, we are more than happy to help out!

Photo: amolouise via photopin cc