To the quipster go the spoils

Today’s Supreme Judicial Court decision in Massachusetts Electric Company v. Dept. of Public Utilities caught my eye not so much for its conclusion as for its citation to one particular source as authority, namely State House News. This seems to be somewhat of a trend, and not one that I welcome.

One issue in the case was the standard that the Department of Public Utilities (DPU) used in deciding whether three electricity providers had restored power promptly enough after the 2011 storms. In 2009 the Legislature enacted a statute that gave the DPU power to levy fines against companies that fell short of its “standards for acceptable performance emergency preparation and restoration of service.” The companies argued that the DPU should have applied the prudence standard, i.e. did their performance conform to “fair and prevailing utility practice,” rather than a mere reasonableness standard.

The SJC disagreed, pointing to the fact that if the Legislature had intended to establish a prudence standard it would have done so (“the Legislature is familiar with the prudence standard and knows how to direct the department to apply it in the regulation of public utilities”). But then, to bolster the point with legislative history, the Court went on to quote comments that State House News had included in its reports of the debate in the House of Representatives. One of the statements was from Representative Robert Rice, who said, according to State House News, that the bill would “put a knife over the heads of the utilities” and give the DPU “the muscle and teeth that was previously lacking.”

Lurid language of this caliber has a way of making it into news stories; that is one reason why politicians employ it. If you have ever been in politics you will know that memorable and quotable phrases help maintain your public profile and increase your chances of reelection. There is absolutely nothing wrong with striving for eloquence, or even just the occasional bon mot that will look good in ink. After all, persuading colleagues to support your bill and the qualified and registered residents of your district to vote for you is part of your job. But when judges use your quips to help discern the meaning of statutes, greater glory beckons, and herein lies an unfortunate incentive.

Construing an ambiguous statute entails divining the intent of the Legislature, and most judges (or rather all judges, I hope) would agree that the place to start is the statute itself. If other statutes use the same word or phrase, or if there are binding precedents in which appellate courts have construed it consistently, there is little danger that the judge will misunderstand the intent of the Legislature. But If the judge proceeds to look to extraneous sources for meaning, such as the words of individual legislators, as reported in the press, we face the risk that politicians will engage in “legislation by soundbite.”

Quoting politicians in judicial decisions encourages them to make misleading statements (as if they needed any encouragement) regarding the meaning of a given piece of legislation or a phrase therein. If your preferred definition fails to make it into the final version of the bill that both chambers enact and present to the Governor for signature, you are still in with a shot of influencing how the courts will construe it: Simply read a pithy phrase on the floor of the House in the hope that it will end up in the news.

Temptation of this nature is hard to resist, and who could fault a doughty advocate for succumbing to it. But that does not alter the fact that there are only two ways to legislate in Massachusetts: the ballot initiative and the Legislature. Under our Constitution legislating via the Great and General Court involves passage through the House and Senate followed by gubernatorial signature (or veto and override). Nowhere does the Constitution grant special privileges to the legislator with the catchiest quip.