These posts return to an outline suggested by Wilson R.Huhn’s book, The Five Types of Legal Argument. Huhn identifies five sources of legal arguments, including arguments based on text and those based on the drafters’ intent.
South Carolina largely treats the two the same in that text is the best evidence of intent. Grier v. AMISUB of South Carolina, Inc., 397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012). Earlier posts explored this and other South Carolina canons of textual construction. The summary is available here.
Huhn identifies other evidence of intent from the text’s 1) earlier versions, 2) history, 3) official commentary, and 4) contemporaneous commentary. South Carolina courts use most of these tools — if a statute is ambiguous.
SC Considers Prior Versions of the Text
Michau v. Georgetown County, 396 S.C. 589, 595 n. 4, 723 S.E.2d 805, 808 n. 4 (2012), is an example where the Court relied on a statute’s earlier version. The statute at issue defined “medial evidence” as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.” The employer argued that the “medical certainty” clause modified “documents, records, or other material . . ..” The Court disagreed, in part because the Senate version of the bill read that way yet failed to pass the legislature.
The Court will likewise look to an enacted statute’s earlier version if its revision is ambiguous. “[I]f the revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining the intent of the Legislature.” Town of Forest Acres v. Seigler, 224 S.C. 166, 179-180, 77 S.E.2d 900, 906 (1953).
SC Considers Some Types of History
South Carolina courts may also look to the history of the times. In re Hospital Pricing Litig., 377 S.C. 48, 54, 659 S.E.2d 131, 134 (2008)(“The history of the period in which the statute was passed may be considered in interpreting the statute.”). They will not, however, consider a drafter’s or legislator’s views on legislative intent. Catawba Indian Tribe of South Carolina v. South Carolina, 372 S.C. 519, 527 n. 5, 642 S.E.2d 751, 755 n. 5 (2007).
SC Considers Official Commentary
South Carolina courts may look to a uniform statute’s official commentary and reporter’s notes. Atlanta Skin & Cancer Clinic, P.C. v. Hallmark General Partners, Inc., 320 S.C. 113, 120 and n. 7, 463 S.E.2d 600, 604 and n. 7 (1995).
SC Considers Contemporaneous Commentary
When South Carolina adopts a statute from another jurisdiction, South Carolina courts may also consider that jurisdiction’s judicial gloss on the statute. Orr v. Clyburn, 277 S.C. 536, 540, 290 S.E.2d 804, 806 (1982). And the court may consult the contemporaneous construction placed on a statute by those authorized to administer it. Craig v. Bell, 211 S.C. 473, 477, 46 S.E.2d 52, 54 (1948).
Has anyone effectively used any of these sources to argue legislative intent? Please leave a reply or reach me at www.attorneyroberthill.com.