In State v. Courchesne, 262 Conn. 537 (2003), the Connecticut Supreme Court abandoned the bedrock principle of statutory interpretation, the "plain meaning rule." The court placed Connecticut in the company of Texas and Alaska, juxtaposed against the other 47 states and the United States judiciary, on the approach taken to the judicial task of applying statutory law. Justice Borden’ s majority opinion in Courchesne was a work of substantial scholarship and critical legal thinking. Justice Zarella’s dissenting opinion was painstakingly thoughtful and persuasive. The Connecticut General Assembly has attempted to trump those judicial exertions, however, by enacting a statute requiring the courts to apply the plain meaning rule. The statute forbids the courts to examine extra-textual evidence of legislative intent unless statutory language is ambiguous or will produce absurd or unworkable results in the case before the court. 1 The new statute may itself require the court to resort to such extra-textual sources, a subject for another article. One thing is certain – the Courchesne decision will have a lasting impact.
Both the majority opinion and the dissenting opinion in Courchesne are laced with references shunning "intellectual dishonesty" and "result oriented" decision-making by judges. Justices Katz and Norcott provide explicit examples of intellectual honesty on the court with their separate opinions supporting a result at odds with their firm opposition to the death penalty. Notwithstanding all the searing intellect and judicial integrity, however, the legislature’s codification of the plain meaning rule means that Courchesne will not be the last battle in the war over statutory interpretation.
A variety of evasive techniques highlighted by Justice Borden in his exposé on the defects of the plain meaning rule are apparently restored by this legislative action. These techniques have, in the past, led the court to employ, in justice Borden’s words, some "dubious distinctions" to justify an examination of extra-textual evidence of legislative intent. Short of mounting a separation of powers challenge to the legislature’s asserted authority to instruct the judicial branch on how to interpret and apply statutes, something the court may unanimously agree upon, 2 lawyers and judges may wish to exploit some of these traditional techniques in order to trigger the holistic approach advocated by the Courchesne majority. The court will undoubtedly follow the approach to statutory interpretation advocated by Justice Borden and the four justices who joined him in Courchesne whenever a statute is deemed "ambiguous," "absurd," or "unworkable."
To justify the court’s abandonment of the plain meaning rule, Justice Borden sharply criticized the "thresholds of ambiguity" a court must cross in order to reach extra-textual evidence of legislative intent. Now that it appears those thresholds still must be crossed, unless the new statute is unconstitutional, it may be useful to review what they are.
There is, as Justice Borden points out, a long tradition of avoiding the application of the plain meaning of statutory language. In Rector, Etc., of Holy Trinity Church v. United States, 143 U.S. 457 (1892), the Court held that the Alien Contract Labor Bill, which prohibited the importation of aliens "to perform labor or services of any kind," did not apply to the "professional man." Our language has not changed so much in the past 111 years so as to illuminate the ambiguity in "labor or services of any kind." The Connecticut Supreme Court has also avoided the plain meaning rule and has done so in a number of ways.
First, the court can always invoke the exception to the rule and determine that applying the plain meaning of a statute would produce an absurd or unworkable result. In Courchesne, five members of the court agreed that the defendant’s interpretation of the death penalty statute was the superior textual argument, but concluded that it would produce a "bizarre" result. Significantly, what made the result "bizarre" was the fact that the majority could "conceive of no rationale" for it. Moreover, to reach that conclusion, the court considered the "context and legislative genealogy" of the statute. In prior decisions, the court has relied upon legislative history and the "purpose" of a statute to conclude that a result would be "absurd and bizarre." 3 There are no rules governing what the court may consider to determine whether the result is absurd. Conceivably, the court may bring the entire range of extra-textual evidence to bear on the question whether a result would be "absurd or unworkable." Consequently, when faced with a seemingly unambiguous statute, an arguably absurd result opens the door to the sources of legislative intent otherwise banned by the plain meaning rule.
Even if the plain meaning of statutory language does not lead to an absurd result, it might lead to an "ambiguous" result, which has also opened the door to a search for legislative intent; this occurs when a statute’s language is clear on its face, but ambiguous as to its application in various contexts. 4 Next, numerous cases applying the plain meaning rule permit the resort to extra-textual evidence of legislative intent if the statutory language is not "absolutely" clear and unambiguous. The legislature did not expressly incorporate this qualification, but considering that the legislature reacted directly to the Courchesne decision, it is reasonable to suggest that the new statute codifies the plain meaning rule, with its applications and exceptions as they have developed over hundreds of years. This may present the court with a preliminary issue of statutory interpretation when it addresses the impact of the new statute. Meanwhile, it is reasonable to assume that the multitude of cases requiring statutory language to be "absolutely clear and unambiguous" in order to preclude the resort to extra-textual evidence of legislative intent are valid expressions of the plain meaning rule.
Justice Borden’s majority opinion also lends substantial credence to the view that the threshold requirement of ambiguity is easily satisfied by the mere existence of two plausible interpretations of the statute. The rule "requires some slight but plausible degree of linguistic ambiguity…" 6 Thus, even though the State in Courchesne proposed an interpretation of the death penalty statute that was particularly implausible, the majority treated it seriously and ultimately concluded that the statute was ambiguous. 6
Even if the language itself is not linguistically ambiguous, it might nevertheless suffer from a "latent ambiguity." A "latent ambiguity… is disclosed by [the statute’s] application to the facts of the case, or by reference to its legislative history and purpose." 7 As with the absurd result exception, in order to determine whether a latent ambiguity exists, the court makes reference to extra-textual evidence. The court thus considers the very material in question in order to determine whether it should consider that material. Justice Borden, in his majority opinion in Courchesne, acknowledges that the latent ambiguity analysis "simply does not make sense." Id. He does so, however, while making reference to the rule that statutory language that is not "absolutely clear and unambiguous" is subject to a search for legislative intent. The latent ambiguity doctrine might make more sense if the new statute has eliminated the need for an "absolute" absence of ambiguity before extra-textual evidence is considered.
Finally, the legislature itself appears to have conceded some ground on the plain meaning rule by permitting a court to examine, in the first instance, a statute’s "relationship to other statutes." Under the Courchesne analysis, a statute’s relationship to existing legislation is considered extra-textual evidence of the meaning of the statute. By permitting consideration of the broader statutory scheme in the first instance, the legislature may have opened the door to the consideration of legislative "purpose" at the outset of every effort to interpret a statute. If so, the legislature has conceded the core principle conceived by the Courchesne majority as the key to statutory interpretation and the principle on which the dissent was in "fundamental disagreement" with the majority. This is, perhaps, an overstatement of the opening created by the legislature’s improvisation on the plain meaning rule. Nevertheless, it should provide useful leverage to lead a court to look beyond the plain meaning of statutory language.
The new statute, which itself is of dubious validity, revives the "dubious distinctions" abhorred by the Courchesne majority. On the other hand, despite the rigorous scholarship and intellectual honesty exhibited by the members of our Supreme Court, the plain meaning rule does operate as a restraint on the rest of the bench and the bar, a characteristic that is of more than dubious value.

The statute provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered." S.H.B. 5033, Gen. Assem., Reg. Sess. (Conn. 2003 effective Oct. 1, 2003).
Justice Zarella characterizes this issue as one concerning "judicial philosophy," not law. Certainly the legislature does not have the power to legislate judicial philosophy. The Courchesne majority, and particularly Justice Borden, must feel that the legislature is treading on judicially controlled territory, so a constitutional challenge is certainly in order.
State v. DeFrancesco, 235 Conn. 426 (1995); Conway v. Wilton, 238 Conn. 653 (1996).
Anderson v. Ludgin, 175 Conn. 545 (1978).
Courchesne, 262 Conn. at 561, 572.
Id. at 573 n.30.
Id. at 572. See Conway v. Wilton, 238 Conn. 653 (1996).