Editorial: What Were They Thinking!

The Connecticut Law Tribune

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A common refrain heard after a legislative session finishes and its work product (laws adopted) is reviewed is, "What were they thinking?" Sometimes this question is asked by someone challenging the wisdom of the law even though the language is clear on its face. And sometimes the question is asked because the law is unclear and ambiguous. When that is the case, the courts may, in interpreting a statute, look at the legislative intent.

When determining legislative intent, the courts look at transcripts of testimony given at public hearings on bills, as well as transcripts of the House and Senate debates. The problem with this approach is that many bills are rewritten in a legislative committee after the public hearing. The committee, in adopting a bill, can either file a substitute bill or adopt amendments to the bill, and report it out as amended, often after extensive debate. The legislature keeps transcripts of committee hearings but no transcripts of committee meetings. There have been many examples of bills being completely changed after a lengthy debate in the committee meeting on what the changes are intended to do. But that debate is not preserved in transcripts.

One example of such change involved a bill the legislature considered a number of years ago that would have abolished the death penalty. While the titling of a bill is done by the Legislative Commissioner's Office, it is not used by the courts to determine legislative intent. The bill was changed in the committee meeting to become one in which the death penalty was strengthened. The bill was voted out of committee and retained its title, "A Bill Abolishing the Death Penalty," even though it did just the opposite. The title of the bill was unchanged and, as a result, everybody who voted for the bill was recorded as voting against the death penalty while everybody who voted against the bill was recorded as voting for the death penalty. In fact, the reverse was true. There are no transcripts of that committee discussion.

In some cases, a committee meeting is recorded in its entirety on the Connecticut Television Network (CT-N) and copies of such recordings can be obtained from the network. The problem is that not all committee meetings are covered and it is not clear how easy it will be to access archived television coverage of meetings.

If the courts rely on a reference to a televised meeting and that meeting is no longer accessible we might end up with the same problem the U.S. Supreme Court has had with opinions incorporating links to websites.

A recent study by Harvard University looked at more than 500 links to online material contained in U.S. Supreme Court opinions. According to the study, more than half of the URLs embedded in the opinions no longer work. This has been called "link rot" to reflect that many links become inactive over time. To address this issue, the authors of the study have suggested a permalink solution. They are developing a site, perma.cc, that allows users, including Supreme Court clerks, to archive a website and access it with a new, everlasting URL.

In Connecticut, it might be possible to develop a permanent site to access the television records of all legislative meetings, but until such a site is developed and all meetings are actually televised, we urge the legislature to have transcripts made of all legislative committee meetings so that in those few cases where finding legislative intent is necessary to interpret the legislation, the courts and all parties will have the ability to access that material. •

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