Rules of Construction & Interpretation

1. Generally
a. Louisiana Civil Code Article 11 guides us as to the
[m]eaning of words[.] **5 It states: Words of art and
technical terms must be given their technical meaning
when the law involves a technical matter. In re Succession
of Brown, 2010-1394 (La. App. 3 Cir. 6/29/11), 69 So. 3d
1211, 1214.
b. The word shall is mandatory and the word may is
permissive. see Ogea v. Merritt, 2013-1085 (La. 12/10/13),
--- So.3d ---- ; also Babineaux v. PernieBailey Drilling Co.,
261 La. 1080, 109596, 262 So.2d 328, 33334 (1972)
c.
2. Of Constitutions
a. In seeking to ascertain constitutional intent, the same
general rules used in interpreting laws and written
instruments are followed. CaddoShreveport Sales & Use
Tax Comm'n. v. Office of Motor Vehicles, 972233, p. 6
(La.4/14/98), 710 So.2d 776, 780; Radiofone, Inc. v. City of
New Orleans, 930962, p. 6 (La.1/14/94), 630 So.2d 694,
698.
b. In re Office of Chief Justice, Louisiana Supreme Court,
2012-1342 (La. 10/16/12), 101 So. 3d 9, 15
c.
3. of contracts
a. of LLC Operating Agreements
i. 1An operating agreement is contractual in nature;
thus, it binds the members of the LLC as written and
is interpreted pursuant to contract law. Kinkle v.
R.D.C., LLC, 889 So.2d 405, 409 (La. App. 3d. Cir.
2004).
4. of testaments

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a. If a will is not ambiguous, it must be carried out according

to its written terms, without reference to the external
information. In re Succession of Collett, 2009-70 (La.App. 3
Cir. 6/3/09), 11 So.3d 724, writ denied, 2009-1485 (La.
10/2/09), 18 So.3d 112
b. Interpretation of a will's language is a question of law that
the Court of Appeal reviews to determine whether the trial
court was legally correct. In re Succession of Collett, 200970 (La.App. 3 Cir. 6/3/09), 11 So.3d 724, writ denied, 20091485 (La. 10/2/09), 18 So.3d 112
c.
5. of statutes
a. No Section of the Revised Statutes is retroactive unless it is
expressly so stated. La. Rev. Stat. Ann. 1:2
b. Words and phrases shall be read with their context and
shall be construed according to the common and approved
usage of the language. Technical words and phrases, and
such others as may have acquired a peculiar and
appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate
meaning.
The word shall is mandatory and the word may is
permissive.
La. Rev. Stat. Ann. 1:3
c. When a law is clear and unambiguous and its application
does not lead to absurd consequences, the law must be
applied as written, and no further interpretation may be
made in search of the legislative intent. La. C.C. art. 9; La.
R.S. 1:4.
d. Clerical and typographical errors in the Revised Statutes
shall be disregarded when the meaning of the legislature is
clear. La. Rev. Stat. Ann. 1:5
e. Whenever there is a conflict between a number expressed
both by figures and written words, the latter shall prevail
unless such words obviously are contrary to the legislative
intent. La. Rev. Stat. Ann. 1:6
f. Unless it is otherwise clearly indicated by the context,
whenever the term or is used in the Revised Statutes, it
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is used in the disjunctive and does not mean and/or. La.

Rev. Stat. Ann. 1:9
g. Further, laws on the same subject matter are to be
interpreted in reference to each other. See Ogea v. Merritt,
2013-1085 (La. 12/10/13), --- So.3d ---- , citing La. C.C. art.
13.
h. [t]his Court must assume the Legislature was aware of
existing laws on the same subject. See Ogea v. Merritt,
2013-1085 (La. 12/10/13), --- So.3d ---- , citing Foti v.
Holliday, 090093, p. 6 (La.10/30/09), 27 So.3d 813, 817
i. Civil Procedure
i. Louisiana's discovery provisions are derived from
federal discovery rules and consequently federal
jurisprudence may be relied upon in construing
Louisiana discovery provisions. Cargill, Inc. v.
Cementation Co. of Am., Inc., 377 So. 2d 1334, 1337
(La. Ct. App. 1979) rev'd, 379 So. 2d 254 (La. 1979),
citing, Ogea v. Jacobs, 344 So.2d 953 (La.1977).
ii. Louisiana's discovery law is derived from the federal
discovery rules. See, Preliminary Statement, Book 2,
Title 3, Chapter 3, Louisiana Code of Civil Procedure
of 1960. Likewise, most of the 1976 amendments to
Louisiana's discovery provisions were patterned after
the 1970 revision of the federal rules of discovery.
Maraist, Recent Changes in Louisiana, Discovery Law:
An Analysis of Act No. 574 of 1976, XXIV La.B.J. 161
(December, 1976). Consequently, Louisiana courts
construing the Louisiana discovery provisions have
frequently relied on federal jurisprudence under
analogous federal provisions as persuasive authority
on questions involving the discoverability of
documents. Madison v. Travelers Insurance Co., 308
So.2d 784 (La.1975); Cousins v. State Farm Mutual
Automobile Insurance Co., 258 So.2d 629 (La.App.1st
Cir. 1972); American Mark Distributing Corp. v.
Louisville & Nashville R.R. Co., supra; Geolograph
Service Corp. v. Southern Pacific Co., supra; Self v.
Employers Mutual Liability Insurance Co. of
Wisconsin, 90 So.2d 547 (La.App.2d Cir. 1956).
Ogea v. Jacobs, 344 So. 2d 953, 957 (La. 1977)
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j. Unequivocal provisions are not subject to judicial

construction and should be applied by giving the words
their generally prevailing meaning. La. C.C. art. 11; La.R.S.
1:3; Oubre v. Louisiana Citizens Fair Plan, 110097, p. 12
(La.12/16/11), 79 So.3d 987, 997.
k. The public policy of this state is embodied in that statute
and as we have recently reiterated, courts do not
substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to pass
laws. See Ogea v. Merritt, 2013-1085 (La. 12/10/13), --So.3d ---- ; citing Retired State Employees Association v.
State, 130499, p. 7 (La.6/28/13), 119 So.3d 568, 573,
quoting Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct.
1028, 10 L.Ed.2d 93 (1963).
1.
Ogea v. Merritt, 2012-1028 (La. App. 3 Cir. 2/6/13), citing Duckworth v.
La. Farm Bureau Mut. Ins. Co., 112835, p. 6 (La.11/2/12), So.3d
, .
Reading Law quotes approvingly S.Ct. Justice Joseph Storys analysis of
preamblesthe preamble of a statute is a key to open the mind of the
makers, as to the mischiefs, which are to be remedied, and the objects,
which are to be accomplished by the provisions of the statute
2.

The law does not require one to do a vain and useless thing.

Ogea v. Merritt, 2012-1028 (La. App. 3 Cir. 2/6/13), citing Tarver v.

Martin, 322 So.2d 829 (La.App. 3 Cir.); writ denied, 323 So.2d 468
(La.1975); Kern v. River City Ford, Inc., 98407 (La.App. 1 Cir. 2/19/99),
754 So.2d 978.
3.

Rules of statutory construction provide that where two

statutes deal with the same subject matter, they should be
harmonized if possible; however, if there is a conflict, the
statute specifically directed to the matter at issue must
prevail as an exception to the statute more general in
character. LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So. 2d
1226, 1229, citing State ex rel. Bickman v. Dees, 367 So.2d
283 (La.1978); Esteve v. Allstate Ins. Co., 351 So.2d 117
(La.1977).

4.

When the words of a contract are clear and explicit and lead
to no absurd consequences, no further interpretation may be
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made in search of the parties' intent. Id., citing, La. C.C.

art.2046.
5.

The common intent of the parties is used to interpret a

contract. Id., citing, La. C.C. art.2045. See McGuffy v. Weil,
240 La. 758, 125 So. 2d 154 (1960); Ham v. Strenzke Realty
Co., 218 La. 499, 50 So. 2d 11 (1950); Rock Island, A. & L. R.
Co. v. Gournay, 205 La. 125, 17 So. 2d 8 (1943); Texas & Pac.
Ry. Co. v. Ellerbe, 199 La. 489, 6 So. 2d 556 (1942); Parish of
Jefferson v. Texas Co., 192 La. 934, 189 So. 580 (1939);
Arkansas Imp. Co. v. Kansas City Southern Ry. Co., 189 La.
921, 181 So. 445 (1938); Bond v. Texas & P.R. Co., 181 La.
763, 160 So. 406 (1935); Ducournau v. Marigny, 4 Martin 708,
1817 WL 1279 (La. 1817); Robert Inv. Co., Inc. v. Eastbank,
Inc., 496 So. 2d 465 (La. Ct. App. 1st Cir. 1986). This intention
must be determined from the stipulations in the entire
instrument, with a view to giving effect to all of the provisions
therein contained and thereby avoid neutralizing or ignoring
any of them as surplusage. Rock Island, A. & L. R. Co. v.
Gournay, 205 La. 125, 17 So. 2d 8, 9 (1943).

6.

According to La. C.C. art. 1611 concerning testaments:

a. A. The intent of the testator controls the interpretation of
his testament. If the language of the testament is clear, its
letter is not to be disregarded under the pretext of
pursuing its spirit. The following rules for interpretation
apply only when the testator's intent cannot be
ascertained from the language of the testament. In
applying these rules, the court may be aided by any
competent evidence.
b. When a testament uses a term the legal effect of which has
been changed after the date of execution of the testament,
the court may consider the law in effect at the time the
testament was executed to ascertain the testator's intent
in the interpretation of a legacy or other testamentary
provision.

7.

La. C.C. art. 1612 states: A disposition should be interpreted

in a sense in which it can have effect, rather than in one in
which it can have none. It is also important to note that the
cardinal principle of the interpretation of acts of last will is to
ascertain and honor the intent of the testator ascribing
meaning to the disposition so that it can have effect. Derouen
v. Derouen, 2003623 (La.App. 3 Cir. 1/28/04), 865 So.2d 940.
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8.

Construe every provision in a meaningful way, and eschew

any construction that would render any part meaningless.

9.

Construe every provision in a manner that is harmonious and

cohesive with every other provision of the whole.

10.

Observe the equal dignity rule.

11.

An obligor is in bad faith if he intentionally and maliciously

fails to perform his obligation. La. C.C. art.1997, Revision
Comment (b). The term bad faith means more than mere bad
judgment or negligence; it implies the conscious doing of a
wrong for dishonest or morally questionable motives. citing
Bond v. Broadway, 607 So.2d 865 (La.App.2d Cir.1992), writ
denied, 612 So.2d 88 (La .1993).
Benton v. Clay, 48,245 (La. App. 2 Cir. 8/7/13)

6.
We note, however, that legislative intent is not the appropriate starting
point for statutory interpretation. See Touchard v. Williams, 617 So.2d
885, 888 (La.1993) (quoting Zeringue v. State, Dep't of Pub. Safety,
467 So.2d 1358 (La.App. 5 th Cir.1985)). Rather the appropriate starting
point is the language of the statute itself. Id. When a statute is clear
and unambiguous and its application does not lead to absurd
consequences, the statute is applied as written, and no further
interpretation may be made in search of legislative intent. See La.
Civ.Code art. 9. However, when the language of a statute is susceptible
of different meanings, it must be interpreted as having the meaning
that *616 best conforms to the purpose of the law, and the meaning of
ambiguous words must be sought by examining the context in which
they occur and the text of the law as a whole. See La. Civ.Code arts.
10, 12. Where a statute is ambiguous or susceptible of two reasonable
interpretations, statutory interpretation is necessary. Touchard, 617
So.2d at 887. **11 The construction to be given to legislative acts
rests with the judicial branch of government. Touchard, 617 So.2d at
885 (citing State v. Sissons, 292 So.2d 523 (La.1974); Ethyl Corp. v.
Collector of Revenue, 351 So.2d 1290 (La.App. 1 st Cir.1977)).
In re Louisiana Health Serv. & Indem. Co., 98-3034 (La. 10/19/99), 749
So. 2d 610, 615-16
Pursuant to La.Civ.Code art. 13, [l]aws on the same subject matter
must be interpreted in reference to each other. In explaining the
meaning of former Civil Code Article 17, the supreme court stated:
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*315 Statutes in pari materia are those which relate to the same
person or things, or to the same class of persons or things, or which
have a common purpose; and although an act may incidentally refer to
the same subject as another act, it is not in pari materia if its scope
and aim are distinct and unconnected. It is a well established rule that
in the construction of a particular statute, or in the interpretation of its
provisions, all statutes relating to the same subject, or having the
same general purpose, should be read in connection with it, as
together constituting one law, although they were enacted at different
times, and contain no reference to one another, The endeavor should
be made, by tracing the history of legislation on the subject, to
ascertain the uniform and consistent purpose of the legislature, or to
discover how the policy of the legislature with reference to the subject
matter has been changed or modified from time to time. In other
words, in determining the meaning of a particular statute, resort may
be had to the established policy of the legislature as disclosed by a
general course of legislation. * * *
1.

Malone v. Cannon, 215 La. 939, 957-58, 41 So.2d 837, 843

(1949) (quoting 59 Corpus Juris verbo Statutes, 620).

2.

We also note that All laws should receive a sensible

construction. General terms should be so limited in their
application as not to lead to injustice, oppression, or an
absurd consequence, and it will always be presumed that the
legislature intended exceptions to its language, which would
avoid results of this character. Grier v. Kennan, 64 F.2d 605,
607 (8th Cir.1933) (quoting United States v. Kirby, 7 Wall. 482,
74 U.S. 482, 483, 19 L.Ed. 278 (1868)).

3.

The starting point in the interpretation of any statute is the

language of the statute itself. Graves, 120232 at 4, 105
So.3d at 685. Words and phrases shall be read in their context
and shall be construed according to the common and
approved usage of the language. Id.; La. R.S. 1:3. Technical
words and phrases, and such others as may have acquired a
peculiar and appropriate meaning in the law, shall be
construed and understood according to such peculiar and
appropriate meaning. Id. When the wording of a section is
clear and free of ambiguity, the letter of it shall not be
disregarded under the pretext of pursuing its spirit. Id.; La.
R.S. 1:4.

4.

When the meaning of a statute cannot be ascertained by the

application of La. R.S. 1:3, et seq., the court shall consider the
intent of the legislature as best evidenced by the text of a law.
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Id.; See La. R.S. 24:177(A) and (B)(1). The occasion and
necessity for the law, the circumstances under which it was
enacted, concepts of reasonableness, and contemporaneous
legislative history may also be considered in determining
legislative intent. Graves, 120232 at 45, 105 So.3d at 685;
La. R.S. 24:177(B)(2)(a). The legislature is presumed to have
enacted an article or statute in light of the preceding law
involving the same subject matter and court decisions
construing those articles or statutes. Id.; La. R.S. 24:177(C).
5.

The statute must, therefore, be applied and interpreted in a

manner that is logical and consistent with the presumed fair
purpose and intention the legislature had in enacting it.
Champagne v. American Alternative Insurance Corporation,
121697, p. 6 (La.3/19/13), 112 So.3d 179, 183. Courts should
give effect to all parts *16 of a statute and should not adopt a
statutory construction that makes any part superfluous or
meaningless, if that result can be avoided. Id.

6.
7.

Rebel Distributors Corp., Inc. v. LUBA Workers' Comp., 20130749 (La. 10/15/13)

8.

OFFER means:
Bach then argues that the contents of KD Gretna's email do
not constitute an offer under Louisiana law. Specifically, Bach
argues that in order to constitute an offer to lease, KD
Gretna's email would have to contain the essential elements
of the lease, including both a precise reference to the thing to
be leased and the exact rent to be paid. See La. Civ.Code art
2676 (noting that rent must be fixed in a sum either certain
or determinable). Furthermore, Bach argues that an offer
must give the other party the right to assent to the contract,
or in other words, an offer must declare[ ] the offeror's intent
to be bound. Reynolds v. Conger, No. 952643, 1995 WL
686878, at *5 (E.D.La. Nov. 17, 1995). Otherwise, the overture
is merely an invitation to negotiate or an expression of
willingness to receive offers. Delta Testing & Inspection, Inc.
v. Ernest N. Morial New Orleans Exhibit Hall Auth., 962340
(La.App. 4 Cir. 8/20/97), 699 So.2d 122, 124, writ denied, 97
2350 (La.12/12/97), 704 So.2d 1194.

Mootness:
From Lions Gate Films, Inc. v. Jonesfilm
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Court of Appeal of Louisiana, Fourth Circuit.March 27, 2013113 So.3d

3662012-1452 (La.App. 4 Cir. 3/27/13)
An issue is moot when a judgment or decree on that issue has been
deprived of practical significance or made abstract or purely
academic. Id.; City of Hammond v. Parish of Tangipahoa, 20070574,
p. 7 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 178 (citing Cat's Meow,
Inc. v. City of New Orleans Through Department of Finance, 980601,
pp. 89 (La.10/20/98), 720 So.2d 1186, 1193). A case may become
moot for several reasons. Some examples are that: (1) there has been
a change in the law, (2) the defendant paid the monies owed, (3) the
wrongful behavior has passed and is not likely to recur, or (4) a party
has died. Id.

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20 La. Civ. L. Treatise, Legis. Law & Proc. 7:5 (2015 ed.)
Louisiana Civil Law Treatise
Legislative Law And Procedure
Database updated November 2015
P. Raymond Lamonicaa0, Jerry G. Jonesa1
Chapter 7. Statutory Construction: Procedure and Process
7:5. Plain meaningText ItselfDiscussion and commentary
La. Civil Code Article 9s statement that when a law is clear
and unambiguous and does not lead to absurd
consequences it shall be applied as written provides the
basis for a plain meaning rule of statutory construction.
Indeed, the Court in Louisiana Municipal Association v. State of
Louisiana1 declared, La. Civ. Code art. 9 is the Louisiana
enactment of the plain meaning rule. State v. Freeman 2
illustrates the Louisiana Supreme Courts application of this
principle of statutory construction. The defendants challenged
their conviction of unlawful hunting of deer. They contended
that the word deer was not proceeded by an a, an, or
the therefore it was not limited to the singular but included
its plural form. Because the word deer included its plural
form, the defendants argued they were improperly charged
with multiple counts. The defendants also argued that one of
the statutes upon which they were charged required that the
hunting be from a moving vehicle and that the state had failed
to prove that the vehicle was moving at the time of the offense.
The Supreme Court agreed. It rejected the lower courts
conclusion that the vehicle only needed to be capable of
moving. It also rejected the multiple counts on the basis that
the legislature did not clearly write in the statute words which
made the hunting of individual deer illegal (thus allowing
multiple counts) and which did not address other than shooting
from a vehicle that was actually moving. Simply stated: the
words of the statute were controlling. In reaching that
purportedly direct conclusion, however, the court felt
compelled to address (1) a provision of the Code of Criminal
Procedure analogous to La. R.S. 1:7 regarding the flexibility of
the use of the plural and singular; (2) the rule of lenity in
construing criminal statutes; and (3) the principles of in pari
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materia.3
Another example of the plain meaning method of textual
interpretation is evident in Roche v. Big Moose Oil Field Truck
Service. The issue was whether children who were not yet
finally adopted could recover in a wrongful death action when
their soon-to-be adoptive father died in a work-related accident.
The court looked at the La. Civil Code article 2315 beneficiary
categories and found that it included only adopted children.
Again, the language of the statute controlled when the words
were clear.
Additional examples of Louisiana courts use of the plain
language method of interpretation are noted below. 4
As discussed above in connection with this method of plain
language or plain meaning construction, Louisiana courts
consistently observe that when interpreting a statute, they are
bound, if possible, to give effect to all its parts and not construe
any sentence, clause, or word as unmeaning and surplusage if
a construction can be legitimately found which will afford force
to and preserve all the words of the statute.5
The above interpretation principles are also applicable to
constitutional interpretation.6 In determining whether the
language would lead to results that are absurd, one considers
in addition to the legal conclusion posited by the principle that
the legislature would not intend such absurdity, that the
electorate similarly would not intend such. In the theoretical
situation where one might find a disagreement between the
two, the electorate should control, as the final actor in the
adoption process.7
Commentary. The principle of interpretation generally
described as the plain meaning rule is similar in other
jurisdictions.
The meaning of the statute must be sought in the
language in which the act is framed and if thats
plain the sole function of the court is to
enforce it according to its terms.8
But even within the supposedly strict confines of the plain
meaning rule, there is an inherent question. Sometimes it is
quite apparent that more than a simple reading of the text is
required to determine whether such text is clear,
unambiguous, and does or does not lead to absurd
consequences. These determinations call for the use of reason
and logic, especially in distinguishing between a literal
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application that produces absurd consequences and one that

does not.
Sanders v. Hisaw9 provides an example. The law required that a
driver passing another vehicle give an audible warning of his
intention to pass. The driver failed to do so on a four-lane
highway. The court determined that requiring a literal
interpretation would lead to absurd results in light of the
modern four-lane highway and refused to apply the literal or
plain meaning of the statute.
Other courts have likewise avoided a hypertechnical
construction of a statutes text in favor of what has been
deemed a more reasonable interpretation that honors both the
plain language and legislative intent.10 But courts have also
declined to vary from the literal wording of law, concluding that
the text was clear and unambiguous, and any resulting
inequities in policy could be addressed only through further
action by the legislative branch. 11 As with most rules of
statutory construction, strict consistency in application of the
plain meaning rule is lacking.
In a strict textual approach, the benign fiction of the Golden
Rule (or Baron Parkes Rule) which holds that the legislature
does not intend absurd results or consequences, both
recognizes and restrains the courts ability to deviate from the
plain meaning of legislation. Even a cursory review of court
rulings indicates the potential confusion and apparent
inconsistency inherent in suggesting that a textual approach
includes a built-in principle justifying inquiry (based upon logic,
reason and common sense) into meaning beyond the text, even
though the language of the statute is otherwise plain and clear.
In an early and often-cited leading case, the United States
Supreme Court was called upon to determine if non-commercial
vice was included within the White Slave Traffic Act. 12 While it
was clear that the history of the act, as well as its title, was
directed toward commercialized vice, the court found
coverage of private acts of vice without need to resort to other
than the words of the statute. If the words are plain, they give
meaning to the act, and it is neither the duty nor the privilege
of the courts to enter speculative fields in search of a different
meaning.13
The court emphasized, Where the language is plain and
admits of no more than one meaning, the duty of interpretation
does not arise, and the rules which are to aid doubtful
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meanings need no discussion.14

The civilian tradition emphasizes the appropriate and clear role
of legislation, and many in the common-law tradition also
purport to follow this initial step of textual statutory
construction. But even such a simple proposition as plain
meaning should not be seen as universal.
Hart and Sacks have concluded that American courts have no
intelligible generally accepted and consistently applied theory
of statutory construction.15 The commentary to the Uniform
Statute and Rule Construction Act (Uniform Construction Act)
amplifies:
Most state courts claim that they follow the Plain
Meaning Rule, although it has many formulations
and is often stated differently in opinions of the
same court. Most commentators have criticized
its use for various reasons, including that it has
often been used to frustrate the apparent intent
of the legislature. Thus a court may find, or not
find, an ambiguity, depending on the result it
desires (Citations omitted) . Another criticism
is that the strict plain meaning rule requires a
court to make a threshold finding of the existence
of an ambiguity before all the information that
the court needs to make an informed judgment is
presented to it.16
A commentator has further noted:
Although at one time said to be the mandated
approach to legislative history, the plain meaning
rule was never as widely practiced as preached.
American courts never followed the British
practice of forbidding any resort to legislative
history, and even under the plain meaning rule
there were many ways in which a court could
look at legislative history, if it wantedby
characterizing the words as ambiguous, by
finding their plain meaning led to absurd
results, or by using extrinsic aids to confirm the
plain meaning.17
a0

J.B. Nachman Professor Of Law, Paul M. Herbert Law Center, Louisiana State University.

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a1

Member Louisiana, Texas and District Of Columbia Bars, Chief Legislative Counsel, Louisiana Senate.

Westlaw. 2015 Thomson Reuters. No Claim to Orig. U.S. Govt.

Works.
Footnotes
1

Louisiana Mun. Assn v. State, 773 So. 2d 663, 669 (La. 2000).

State v. Freeman, 411 So. 2d 1068 (La. 1982).

State v. Freeman, 411 So. 2d 1068, 1072 (La. 1982). The opinion specifically cites prior case law
supporting the rule of lenity for interpretation of criminal statutes: State v. Boniface, 369 So. 2d 115
(La. 1979) and State v. Cox, 344 So. 2d 1024 (La. 1977). See also La. R.S. 14:3: The articles of this
Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order
to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine
construction according to the fair import of their words, taken in their usual sense, in connection with
the context, and with reference to the purpose of the provision.

Walker v. Vicksburg, S. & P. Ry. Co., 110 La. 718, 34 So. 749 (1903) (Noting that where the language is
clear and unambiguous, a statute must be held to mean what it plainly expresses, and no room is left
for construction, the court concluded that the statute providing for a right of action against a person
who causes damage to another in case of death shall survive in favor of the minor children of the
deceased (Act. No. 71, p. 94, of 1884) does not include grandchildren or any other descendants);
Northwest Louisiana Production Credit Assn v. State, Dept. of Revenue and Taxation, 746 So. 2d 280
(La. Ct. App. 1st Cir. 1999) (Observing that in order for federal instrumentalities to be subject to state
taxation, Congress must clearly provide for such, the court held that the NLPCA is designated as a
federally chartered instrumentality, and because the clear and plain language of 12 U.S.C.A. Section
2071 or 2077 does not permit such taxation, the State may not tax the NLPCA); Broussard v. F.A. Richard
& Associates, Inc., 732 So. 2d 578 (La. Ct. App. 3d Cir. 1999) (Reasoning that when a statute is clear, the
court must give credence to the mandate expressed by the legislature by interpreting the statute based
upon the plain wording of the law, the court determined, inter alia, that the limitation period for the
legal malpractice action provided under La. R.S. 9:5605 did not apply to the plaintiffs action because
her action did not arise out of an engagement to provide legal services as clearly stated in the
statute.).

State v. Fontenot, 112 La. 628, 36 So. 630 (1904); Dore v. Tugwell, 228 La. 807, 84 So. 2d 199 (1955); In
re Succession of Boyter, 756 So. 2d 1122 (La. 2000).

East Baton Rouge Parish School Bd. v. Foster, 851 So. 2d 985 (La. 2003).

East Baton Rouge Parish School Bd. v. Foster, 851 So. 2d 985 (La. 2003).

Norman J. Singer, Sutherland Statutory Construction, 2A Section 46.01, 8191 (5th Ed CBC 1992); State
Through Dept. of Highways v. Bradford, 242 La. 1095, 141 So. 2d 378 (1961).
District of Columbia v. Heller, 552 U.S. 1254, 128 S. Ct. 1695, 170 L. Ed. 2d 351 (2008) , demonstrates
that plain language may not be clearly evident from the language itself. In the first comprehensive
interpretation of the scope of the U.S. Const. Amend. II right to bear arms, Justice Scalia, an ardent
supporter of the plain (and original at time of enactment) meaning rule, writing for the majority
showed how plain does not mean literal. After recognizing the need for and interrelation of both
historical and language analysis he states the issue:
2016 Thomson Reuters. No claim to original U.S. Government Works.

Does the preface [a well- regulated militia] fit with an operative clause [right of the
people to keep and bear arms] that creates an individual right to keep and bear arms?
It fits perfectly, once one knows the history that the founding generation knew
and that we have described above. (brackets and emphasis added). Slip opinion at
p.25.
Scalia argues that a purposive qualifying phrase that contradicts the word or phrase it modifies is
unknown this side of the looking glass [i]f bear arms means, as we think, simply the carrying of
arms, a modifier can limit the purpose of the carriage (for the purpose of self-defense or to make war
against the King). But, if bear arms means, as the petitioners and the dissent think, the carrying of
arms only for military purposes, one simply cannot add for the purpose of killing game. The right to
carry arms in the militia for the purpose of killing game is worthy of the mad hatter (slip opinion at
pp. 1516). This statutory interpretation technique addresses both language and historical issues.
Another such situation where the word analysis requires more than literal exposition is presented in
Abramski v. U.S., 134 S. Ct. 2259 (2014) in which the 5-4 decision is based upon whether there is a need
to look at the statutes context, structure, and purpose, (majority) versus whether the plain
language (even though in statutory context) minimizes such need unlike Heller (dissent by Justice
Scalia). These cases illustrate the illusion that plain language is a simplistic, fundamentalist approach.
The determination of the meaning known to the ordinary citizen at the time of enactment is not always
straight forward or simple as the Heller case remarkably demonstrates. It involves analysis of the
language and the meaning of the language, which may need to be determined from sources outside of
the language, i.e., history. This approach is consistent with the proper approach in Louisiana of
determining legislative intent. See 7:4 and 7:9 to 7:11.
See also, King v. Burwell, 135 S. Ct. 2480 (2015), involving the Patient Protection and Affordable Care
Act, in which the robust discussion between the majority and dissents illustrate the competing interests
of a pragmatic approach versus an insular doctrinaire approach governed by statutory construction
rules or canons, and also the related difficult and reasonably debatable choices involved in both
approaches. See also, generally, discussion at 7:3, supra.
9

Sanders v. Hisaw, 94 So. 2d 486 (La. Ct. App. 1st Cir. 1957).

10

Breaux v. Hoffpauir, 674 So. 2d 234 (La. 1996); U.S. Pollution Control, Inc. v. National American Ins. Co.,
663 So. 2d 119 (La. Ct. App. 3d Cir. 1995).

11

See e.g., Caminetti v. U.S., 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917); King v. Town of Pineville, 16
So. 2d 364 (La. Ct. App. 2d Cir. 1944).

12

Caminetti v. U.S., 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917).

13

Caminetti v. U.S., 242 U.S. 470, 490, 37 S. Ct. 192, 61 L. Ed. 442 (1917).
District of Columbia v. Heller, 552 U.S. 1254, 128 S. Ct. 1695, 170 L. Ed. 2d 351 (2008) , demonstrates
that plain language may not be clearly evident from the language itself. In the first comprehensive
interpretation of the scope of the U.S. Const. Amend. II right to bear arms, Justice Scalia, an ardent
supporter of the plain (and original at time of enactment) meaning rule, writing for the majority
showed how plain does not mean literal. After recognizing the need for and interrelation of both
historical and language analysis he states the issue:
Does the preface [a well- regulated militia] fit with an operative
clause [right of the people to keep and bear arms] that creates an
individual right to keep and bear arms? It fits perfectly once one
knows the history that the founding generation knew and that
we have described above. (brackets and emphasis added). Slip
opinion at p.25.
Scalia argues that a purposive qualifying phrase that contradicts the word or phrase it modifies is
unknown this side of the looking glass [i]f bear arms means, as we think, simply the carrying of
arms, a modifier can limit the purpose of the carriage (for the purpose of self-defense or to make war
against the King). But, if bear arms means, as the petitioners and the dissent think, the carrying of
arms only for military purposes, one simply cannot add for the purpose of killing game. The right to
carry arms in the militia for the purpose of killing game is worthy of the mad hatter (slip opinion at
pp. 1516). This statutory interpretation technique addresses both language and historical issues.
2016 Thomson Reuters. No claim to original U.S. Government Works.

The determination of the meaning known to the ordinary citizen at the time of enactment is not always
straight forward or simple as the Heller case remarkably demonstrates. It involves analysis of the
language and the meaning of the language, which may need to be determined from sources outside of
the language, i.e., history. This approach is consistent with the proper approach in Louisiana of
determining legislative intent. See 7:4 and 7:9 to 7:11.
14

Caminetti v. U.S., 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917).

15

Hart and Sacks, The Legal Process; Basic Problems in Making Application of Law, 1169, reproduced in
Eskridge and Frickey, eds., Foundation Press, 1996, and cited by the Comment to Section 18 of the
Uniform Statute and Rules Construction Act (Uniform Construction Act) (National Conference of
Commissioners on Uniform State Laws (1995)). As of this writing, the Uniform Act has not been
adopted by any legislature. This may be evidence of the general lack of concern with developing
systematic approaches to statutory constructionor the difficulty of doing so.

16

Uniform Construction Act, Section 18.

17

Otto J. Hetzel, Michael E. Libonati, and Robert F. Williams, Legislative Law and Statutory Interpretation:
Cases and Materials, 3rd ed. (New York: Lexis Publishing, 2001), 482. See also La. Civil Code art. 11.

End of Document

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7:1.OverviewScope
Louisiana Civil Law Treatise | Legislative Law And Procedure

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20 La. Civ. L. Treatise, Legis. Law & Proc. 7:1 (2015 ed.)
Louisiana Civil Law Treatise
Legislative Law And Procedure
Database updated November 2015
P. Raymond Lamonicaa0, Jerry G. Jonesa1
Chapter 7. Statutory Construction: Procedure and Process
7:1. OverviewScope
Statutory construction is most often thought of as part of the
judicial process. However, construction issues begin before
and continue beyondthe traditional judicial process which
involves primarily the application of legislation to facts as a
part of dispute resolution.
While there is often widespread skepticism of the political
process, there remains a fundamental belief in seeking
solutions to problems through the enactment of legislation.
Through
the
enactment
process,
concepts
become
authoritative policies expressed (whether poorly or well) by the
specific text of statutory law. It is through such textual
expression, and its implementation, interpretation, and
enforcement, that most formal authoritative public policy is
reflected.
The political dynamics of the legislative process and its
participants are beyond the focus of this volume. The initial
adoption, amendment or defeat of legislation may ultimately be
more a matter of political interests than strictly legal concerns.
But when adopted, legislation becomes lawthe authoritative
policy reflected by specific legislative text (and in some cases
by the lack of such text).
The prior comments are a prelude to emphasize two points.
First, since the words of a law may be chosen and approved in a
less-than-ideal deliberative process, an understanding of the
fundamentals of statutory construction, briefly reviewed here,
can be of critical importance during the initial law-creation
process. The drafting of legislation is the preparation of a legal
document. The ultimate purpose of legislative text to be given
the effect of law is not simply to communicate ideas or
information but to regulate behavior. As law, the wording of
legislation can carry enormous consequences. To properly
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perform their function, drafters of legislation (whose job has

been aptly described as one of the most difficult forms of legal
drafting)1 must be aware of principles guiding courts in the
construction and interpretation of wording, and how the
provisions of legislation interact with other laws. 2 Unintended
consequences of wording, with attendant legal and political
issues, ideally are to be avoided.
Second, questions of statutory construction are inextricably
intertwined with the creation and consideration of legislation by
the legislative branch. Principled advocates and policymakers
who seek or oppose legislation during the enactment process
must be aware of both the legal constraints on that process and
of the potential interpretive concerns and legal issues in the
precise statutory language at issue, since it is this actual
wordingand not concepts or public declarations of what the
legislation seeks to accomplishthat is enacted into law as
authoritative public policy.
Arguments for or against legislation during consideration may
be based upon legal or constitutional grounds arising from its
wording. Questions may be raised during consideration about
how the wording of legislation is to be applied and interpreted
in actual practice. Compromise and consensusfundamental
aspects of representative democracyare often effected by
agreement over the wording of legislation (including,
sometimes, intentional silence or ambiguity). Amendments to
legislation (changing, deleting, or adding wording) are the rule,
not the exception. Moreover, new legislation often arises due to
the failings of existing legislation (and the words thereof), or
disagreement over how previously enacted legislation has been
interpreted and applied.
Consideration of the legislative process is helpful in statutory
construction. Elements of the legislative process play a
recurring role in the application of legislation by the judicial
branch. In performing its constitutional duty of interpreting the
law, the judicial branch considers legislative procedure and
records on a regular basis.
Every search for legislative intent, and every resort to
legislative history or other indicia of intent or purpose
involves review of the records and mechanisms of the
legislative process. For courts and for advocates, an
understanding of the elements of the legislative process can be
of central importance when judicial decisions may be
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predicated upon a determination of what was intended by the

legislature in the wording of an enactment.
The process of statutory construction further includes a body of
interpretive presumptions (more properly understood as
guidelines) recognized by courts regarding legislative text.
Finally, of course, the constitutional strictures upon the process,
including mandatory procedural requirements for the adoption
of legislation, may become primary judicial issues when proper
adherence to such requirements is disputed.
In examining traditional principles of statutory construction it
may be helpful to divide the considerations into three basic
functional aspects: First, methods of examining the text itself;
second, methods of examining other relevant texts when
appropriate; and third, methods of examining matters beyond
any text of legislation when appropriate. While there are
numerous and varied conceptual approaches to statutory
construction these fundamentals provide helpful guidance for
all such approaches.
a0

J.B. Nachman Professor Of Law, Paul M. Herbert Law Center, Louisiana State University.

a1

Member Louisiana, Texas and District Of Columbia Bars, Chief Legislative Counsel, Louisiana Senate.

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Works.
Footnotes
1

One reason why it is hard to teach people how to draft is that like all writing it looks easy. There is one
thing upon which almost everyone prides himself, and that is his writing. This is especially true of
lawyers. Not only do they underestimate the difficulties of writing but they tend to think of themselves
as individually accomplished. It is hard to sell a man a new suit when he considers himself already well
accoutered. I think that it isaccurate to say that legislative drafting is the most difficult form of legal
drafting. The basic problems are the same, but legislative problems are technically more complicated
and socially more important. Dickerson, How to Write A Law, 31 Notre Dame Law. 14 (1955), quoted in
Charles B. Nutting & Reed Dickerson, Cases and Materials on Legislation, (5th ed. 1978) at page 671.
See also, Reed Dickerson, The Fundamentals of Legal Drafting (2d ed. 1986); Jack Stark, The Art of the
Statute (1996); Revell, Enhancing the Legislative Process: The Value of the Legislative Drafter, 32
Statute L. Rev. 149 (2011).

Such knowledge is especially useful when time for drafting is very limited, as during committee
meetings or consideration of floor amendments.

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End of Document

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7:2.Louisiana laws related generally to statutory

construction
Louisiana Civil Law Treatise | Legislative Law And Procedure

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Query:

Louisiana Civil Law Treatise | Chapter 7.

Statutory Construction: Procedure and
Process

Jurisdiction: Louisiana
Delivery Details

Date:

October 19, 2016 at 10:20 AM

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 7:2.Louisiana laws related generally to statutory construction, 20 La. Civ. L. Treatise,...

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20 La. Civ. L. Treatise, Legis. Law & Proc. 7:2 (2015 ed.)
Louisiana Civil Law Treatise
Legislative Law And Procedure
Database updated November 2015
P. Raymond Lamonicaa0, Jerry G. Jonesa1
Chapter 7. Statutory Construction: Procedure and Process
7:2. Louisiana laws related generally to statutory construction
Statutory construction is not a simplistic, mechanical or
unthoughtful enterprise. Rather it is as difficult as any aspect of
principled lawyering, perhaps more difficult than most because
of the multifaceted aspects that seldom receive comprehensive
examination.
The starting point for statutory interpretation and construction
is the language of the law itself.1
Listed below for convenience and initial perspective are express
statutory provisions that the legislature itself has determined
are basic to the interpretation process. Some of these
provisions relate to simple mechanical issues (e.g. La. R.S. 1:7,
1:8, 1:10), while others involve important broad concepts
relating to the nature and source of law itself (e.g. La. C.C. arts.
1, 5, 6), and others relate directly to methods of interpretation
(e.g. La. C.C. arts. 9, 10, 11, 12, 13).
La. Civil Code Article 1The sources of law are legislation and
custom.
La. Civil Code Article 2Legislation is a solemn expression of
legislative will.
La. Civil Code Article 3Custom results from practice repeated
for a long time and generally accepted as having acquired the
force of law. Custom may not abrogate legislation.
La. Civil Code Article 4When no rule for a particular situation
can be derived from legislation or custom, the court is bound to
proceed according to equity. To decide equitably, resort is made
to justice, reason, and prevailing usages.
La. Civil Code Article 5No one may avail himself of ignorance
of the law.
La. Civil Code Article 9When a law is clear and unambiguous
and its application does not lead to absurd consequences, the
law shall be applied as written and no further interpretation

may be made in search of the intent of the legislature.

La. Civil Code Article 10When the language of the law is
susceptible of different meanings, it must be interpreted as
having the meaning that best conforms to the purpose of the
law.
La. Civil Code Article 11The words of a law must be given
their generally prevailing meaning. Words of art and technical
terms must be given their technical meaning when the law
involves a technical matter.
La. Civil Code Article 12When the words of a law are
ambiguous, their meaning must be sought by examining the
context in which they occur and the text of the law as a whole.
La. Civil Code Article 13Laws on the same subject matter
must be interpreted in reference to each other.
La. R.S. 1:3Words and phrases shall be read with their
context and shall be construed according to the common and
approved usage of the language. Technical words and phrases,
and such others as may have acquired a peculiar and
appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate
meaning. The word shall is mandatory and the word may is
permissive.
La. R.S. 1:4When the wording of a Section is clear and free
of ambiguity, the letter of it shall not be disregarded under the
pretext of pursuing its spirit.
La. R.S. 1:5Clerical and typographical errors in the Revised
Statutes shall be disregarded when the meaning of the
legislature is clear.
La. R.S. 1:6Whenever there is a conflict between a number
expressed both by figures and written words, the latter shall
prevail unless such words obviously are contrary to the
legislative intent.
La. R.S. 1:7Words used in the singular number include the
plural and the plural includes the singular.
La. R.S. 1:8Words used in one gender apply also to the other
genders, except as otherwise clearly indicated by the context.
La. R.S. 1:9Unless it is otherwise clearly indicated by the
context, whenever the term or is used in the Revised Statutes,
it is used in the disjunctive and does not mean and/or.
La. R.S. 1:10Unless it is otherwise clearly indicated, the word
person includes a body of persons, whether incorporated or
not.

La. R.S. 1:11Except as otherwise provided, the number of

inhabitants of a political subdivision is that shown by the latest
regular or special federal census.
La. R.S. 1:12The classification and organization of the
sections of the Revised Statutes is made for the purpose of
convenience, reference, and orderly arrangement, and no
implication or presumption of a legislative construction shall be
drawn therefrom.
La. R.S. 1:14Unless otherwise indicated in the context,
references in the Revised Statutes to Titles, Sub-titles,
Chapters, Parts, Sub-parts, or Sections shall mean Titles, Subtitles, Chapters, Parts, Sub-parts, or Sections of the Revised
Statutes. Whenever any reference is made to any portion of the
Revised Statutes or to any other law, the reference applies to
all amendments thereto hereafter made.
La. R.S. 1:17Wherever in the Revised Statutes a reference is
made to any department, agency or office, or officer thereof,
the functions of which department, agency, office or officer
have been legally transferred to another department, agency,
office or officer, the provision of law wherein the reference is
made shall be applicable to the department, agency, office or
officer, to which such functions have been transferred.
Many of these, as well as other provisions, are discussed below.
Provisions regarding interpretation are also found in specific
statutes and codes, such as the La. Code of Civil Procedure
(arts. 5051 et seq.) and the La. Code of Criminal Procedure
(arts. 2 et seq.)
Through enactment of provisions regarding interpretation, the
legislative branch provides its guidance in assessing the
expressed language of legislation. Review of such guidance
should be appropriately considered not as rigidly providing
answers to statutory construction issues but rather as
providing a process to begin addressing statutory construction
in an articulated and principled fashion. Such process should be
systematic and foster articulation of the values that are
properly considered in legislative interpretation, while still
affording opportunity for opposing views to be expressedall,
hopefully, leading to a greater chance of reaching the justunder-law result. In considering legislative interpretative
direction, sight should not be lost of the fundamental notion
that separation of powers relegates the function of interpreting
to the courtsnot the legislature.

Act 826 of 2006. Acts 2006 No. 826, effective August 15, 2006,
amended La. R.S. 1:13 and La. R.S. 13:3712(A), and enacted La.
R.S. 13:3711 and La. R.S. 24:177, to read as follows:
La. R.S. 1:13:
13. Headings and ancillary information, not part of law
A. Headings to sections, source notes, and cross references
are given for the purpose of convenient reference and do not
constitute part of the law.
B. The keyword, one-liner, summary and adjoining
information, abstract, digest, and other words and phrases
not contained in the section or sections of the bill following
the enacting clause do not constitute part of the law.
La. R.S. 13:3711:
3711. Legislative journals; conclusively presumptive
The official journals of legislative proceedings, which are selfauthenticating under Chapter 9 of the Louisiana Code of
Evidence, shall be conclusively presumptive of the existence
and contents of the originals and of any act, transactions, or
occurrence of which said journals were made.
La. R.S. 13:3712(A):
3712. Copies as prima facie proof; judicial notice of
municipal and parochial ordinance
A.
(1) Certified copies of books, records, papers, or other
documents of the state of Louisiana and its departments,
boards, and agencies, and of its political subdivisions and
their departments, boards, and agencies, and which are
made self-authenticating under Chapter 9 of the Louisiana
Code of Evidence, shall be prima facie proof of the
existence and contents of the originals and of any act,
transactions, or occurrence or event as a memorandum of
which said books, records, papers, or documents were kept
or made.
(2) Audio or video recordings or electronic images of the
proceedings of either house of the Louisiana Legislature or

one of its committees which are made self-authenticating

under Chapter 9 of the Louisiana Code of Evidence shall be
prima facie proof of the existence and contents of the
respective proceeding contained on the recording or image.
La. R.S. 24:177:
177. Legislative intent; text, history, and other indices
of intent
A. When the meaning of a law cannot be ascertained by the
application of the provisions of Chapter 2 of the Preliminary
Title of the Louisiana Civil Code and Chapter 1 of Title 1 of the
Louisiana Revised Statutes of 1950, the court shall consider
the intent of the legislature.
B.
(1) The text of a law is the best evidence of legislative
intent.
(2)
(a) The occasion and necessity for the law, the
circumstances under which it was enacted, concepts of
reasonableness, and contemporaneous legislative history
may also be considered in determining legislative intent.
(b) The legislature may express the intended meaning of
a law in a duly adopted concurrent resolution, by the
same vote and, except for gubernatorial veto and time
limitations for introduction, according to the same
procedures and formalities required for enactment of that
law.
C. The legislature is presumed to have enacted an article or
statute in light of the preceding law involving the same
subject matter and court decisions construing those articles
or statutes, and where the new article or statute is worded
differently from the preceding law, the legislature is
presumed to have intended to change the law.
D. A bill introduced but which does not become law is not
competent evidence of legislative intent. Any action by the
legislature other than enactment of law or adoption of a
resolution as provided in Subparagraph (B)(2)(b) of this
Section shall not constitute a confession as to the meaning of
the law extant.
E.
(1) The keyword, one-liner, summary and adjoining

information, abstract, digest, and other words and phrases

contained outside the sections of a bill following the
enacting clause are solely to provide the members of the
legislature with general indicia of the content of the bill and
are not subject to amendment by the legislature or any
committee of the legislature and shall not constitute proof
or indicia of legislative intent.
(2) Fiscal and actuarial notes provide the legislature with an
analysis of the potential fiscal impact of a bill based on
presumptions made by the legislative fiscal officer, actuary,
economist, or analyst preparing the note and shall not
constitute proof or indicia of legislative intent.
(3) Committee minutes are summary reports of committee
proceedings and shall not constitute proof or indicia of
legislative intent.
(4) Words and phrases not constituting the substance of an
amendment or the recommendations of a conference
committee report, and any other legislative staff
documents which are not subject to amendment by the
legislature or any committee of the legislature, shall not
constitute proof or indicia of legislative intent.
The previous use of legislative committee minutes by courts as
indicia of legislative intent now appears prohibited under
Subsection (E)(3) of La. R.S. 24:177. Similarly prohibited is the
use of digests, one-liners, fiscal and actuarial notes, and
other staff materials (see Subsections (E)(1),(2), and (4)).
Reference to legislation that failed to pass is declared
inappropriate for determining legislative intent under
Subsection (D) of the same statute.
The enactment of these statutory prohibitions appears to
reflect the legislative view, based upon its more intimate
knowledge of the legislative process, that courts in their
determinations of legislative intent should avoid use of
secondary staff materials and summaries as primary or
supporting indicia. Instead, the analytical focus should be upon
changes in the actual wording of enacted text, and the
appropriate use of official journals, and recordings and archived
broadcasts of legislative proceedings. See the discussion in
7:10, infra. However, it is uncertain what other materials may
or may not be considered under La. R.S. 24:177(B)(2)(a), which
states that the occasion and necessity for the law, the
circumstances under which it was enacted, concepts of

reasonableness, and contemporaneous legislative history may

also be considered in determining legislative intent.
The language in La. R.S. 24:177(B)(2)(b) and La. R.S. 24:177(D)
authorizing expression of legislative intent by concurrent
resolution is new and problematic. The constitutional functions
of the judicial branch to interpret law and apply it to specific
cases appears intruded upon by this provision. Additional
constitutional and relevancy issues related to the attempted
use of post-enactment materials in determinations of legislative
intent are also implicated.2
A potential question involving retroactive application of law is
also presented by the language in La. R.S. 24:177(C), by stating
that where a new article or statute is worded differently from
the preceding law, the legislature is presumed to have intended
to change the law. As discussed in 6:4, supra, act language
determined by the courts to be interpretative is given
retroactive application because it establishes the meaning of
prior law rather than creating new law. The presumption now in
subsection (C) does not expressly consider context of the new
language as an exception to its requirement, and the effect, if
any, upon questions of retroactive application is uncertain.
The implications of the new statutory language may be greater
than appear upon initial consideration. The legislature knows
better than courts what aspects of its own internal procedures
and materials (of which it has direct knowledge) are not in fact
sufficiently reliable to accurately reflect the intent of the
entire body. Given the advances in recording/archiving of most
legislative proceedings, there is no need to resort to secondary
staff materials in determinations of intent. Separation of
powers does not appear to clearly prohibit the legislature from
telling courts that some legislative materials (e.g. digests, oneliners, summary minutes of committee meetings, etc.) lack
sufficient characteristics of accuracy or reliability to be relied
upon as part of legislative history for statutory construction
purposes. While the question of whether courts must totally
ignore certain legislative activity is problematic, at a minimum,
deference to the legislatures determination of what is reliable
and accurate indicia seems appropriate.
Greater scrutiny is required when statutory interpretative
mandates go beyond the nature of the internal legislative
process. The long-standing existence of codified canons of
interpretation through which the legislature seeks to guide

interpretation of law by the courts (e.g. Civil Code Arts. 9 to 13,

La. R.S. 1 to 17, see section 7:2, supra) must be evaluated in
historical and functional context. The legislature properly may
enact such canons as legislative principles of statutory
interpretationcausing no pause to the courtsbecause such
principles originated in the courts through the courts
constitutional interpretive process. When the legislature goes
beyond codification of general judicial interpretation principles,
and by statutory enactment seeks to instruct courts on how
they should interpret law, serious questions of separation of
powers arise (including whether the legislature is seeking
through such statutory language to impermissibly assume or
control constitutional judicial functions).3
Additional constitutional questions may also arise in the
application of La. R.S. 13:3711:
3711. Legislative journals; conclusively presumptive
The official journals of legislative proceedings, which are selfauthenticating under Chapter 9 of the Louisiana Code of
Evidence, shall be conclusively presumptive of the existence
and contents of the originals and of any act, transactions, or
occurrence of which said journals were made.
If such language is urged to make the journals conclusively
presumptive of the constitutional validity of the process by
which legislation was passed, a fundamental constitutional
question is presented. The assertion that the legislature can
by statute shield its own constitutionally required functions
from review by the courts is without support and a
fundamental deviation from principles of separation of
powers.
La. R.S. 24:653. In addition to other statutory powers and
duties of the Joint Legislative Committee on the Budget (see
Chapter 11, infra), La. R.S. 24:653 states in part that such
committee shall interpret the legislative intent respecting all
fiscal and budgetary matters of the state and conduct general
oversight and review of the budget execution processes of the
various budget units and other agencies of the state when
necessary. As discussed earlier concerning Act 826 of 2006
(see p. 182) such statutory language potentially raises
separation of powers issues concerning the constitutional
functions of the judicial branch to interpret law and apply it to
specific cases, together with additional constitutional and

relevancy issues related to the attempted use of postenactment materials in determinations of legislative intent.
a0

J.B. Nachman Professor Of Law, Paul M. Herbert Law Center, Louisiana State University.

a1

Member Louisiana, Texas and District Of Columbia Bars, Chief Legislative Counsel, Louisiana Senate.

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Works.
Footnotes
1

Touchard v. Williams, 617 So. 2d 885 (La. 1993).

See the discussions and cases cited in 2:2, note 41, supra; 6:4, supra; and 7:10 and 7:11, infra.

See, e.g., Reed Dickerson, The Interpretation and Application of Statutes 270276 (1975); Romero,
Interpretive Directions in Statutes, 31 Harv. J. on Legis. 211, 223225 (1994).

End of Document

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