INTRODUCTION

Recently two retired judges, a former justice of North Carolina's highest court and a former superior court judge of vast experience, have asserted to me that in North Carolina there is no legislative history. As I have read a number of cases from North Carolina citing bits of what I would call legislative history, I wondered whether these judges might simply be taking academic positions. So I asked each whether he had grounded his statement on principles espoused in the veritable cottage industry of law review articles[1] spawned by former Professor Scalia's grandiloquent attack on the quest for legislative intent or purpose, especially as revealed by legislative history, in construing federal statutes?[2] Neither raised that shield, though, both agreeing, I assumed, that no opinions of the North Carolina appellate courts have revealed stalwart Scalian judges. More than a few opinions, in fact, have demanded construction of statutes in light of the intent or purpose of the legislature[3] as ascertained both by intrinsic aids,[4] such as the language of the act, and extrinsic aids,[5] such as legislative history. As Justice Meyer explained for the court in 1990:

The intent of the legislature controls the interpretation of a statute. . . . . To this end, the words and phrases of a statute must be interpreted contextually, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute.
. . . .
Legislative history is a factor to consider in determining legislative intent.[6]

So, I gently pressed the retired trial judge to clarify his position. He said he meant only that the legislative process in North Carolina does not generate an extensive record, and that judicial opinions have cast doubt on the value of those few documents that are actually produced by our lawmakers during the legislative process.

Let us set aside, then, for the moment, the more glamorous academic questions, and consider only the situation of a judge who might look to the legislative history of an ambiguous statute for evidence of the intent or purpose of the legislature. What documents have the North Carolina appellate courts accepted as probative of legislative intent?

DOCUMENTS OF NORTH CAROLINA AND FEDERAL GOVERNMENT CONTRASTED

The legislative history of a North Carolina statute certainly will be less comprehensive than the history of a federal act. At the federal level one finds, among other items, extensive reports from committees of each house, congressional documents and prints, transcripts of debates on the floor of Congress, hearings conducted by congressional committees, and presidential messages issued upon approval or veto of a ratified bill. Only the last item has a clear counterpart in North Carolina, and it is of recent vintage.

Yet, while the standing committees of the General Assembly do not produce extensive reports, as do the committees of Congress, many pre-introduction reports are generated in North Carolina, typically at the request of the legislature.[7] These reports often include explanations and proposed bills. Such proposed bills may not have the authority of the relatively late edition of a bill that forms the core of a federal report,[8] but this possible deficiency is remedied by the legislature's collection of successive versions of its bills. And, while the discussion found in a pre-introduction report may not be as probative of intent as a federal report generated during the enactment process, contemporaneous explanations of North Carolina bills are often available to legislative committees, and sometimes attached to the permanent minutes of standing committees. Although the minutes of our standing committees are not verbatim transcripts of the discussion and debate of bills, and thus do not compare favorably in scope or accuracy with the information found in the CONGRESSIONAL RECORD, still these are compiled under the authority of legislative rule[9] and are collected by the legislative library. Finally, one might uncover messages of the governor that bear on the introduction of a proposed bill,[10] as well as on the veto of a ratified bill, that might compare favorably in weight with remarks by the President upon signing or vetoing a congressional enactment.

While a complete legislative history in North Carolina includes other documents, this essay will focus on what the appellate courts have said about those items mentioned above.[11]

REFERENCES TO LEGISLATIVE HISTORY IN NORTH CAROLINA APPELLATE OPINIONS

The North Carolina appellate courts have regularly relied on pre-introduction reports,[12] and, apparently, have never discounted them. The supreme court has stated that reports may be "especially pertinent [ ] in considering the intent of the Legislature,"[13] and has even cited a report by a non-governmental body as evidence of the intent of the legislature.[14]

The appellate courts have looked to reports to find the broad purpose behind the adoption of a statute. In Greene v. Town of Valdese, for example, the court noted that the reason for the adoption of the requirement that new boundaries follow natural topographic features where practical "was the legislature's concern that the full range of municipal services be available to citizens in the annexed area."[15] This premise was drawn from a report of the Municipal Government Study Commission, and was the "deciding factor . . . contributing to our opinion that the term 'natural topographic features' does not encompass tree lines."[16]

The appellate courts have weighed the recommendations of reports according to how closely the legislature has followed them. For example, in Black v. Littlejohn, the court emphasized the legislature's rejection of a commission's proposal. The court stated: "Another action on the part of the legislature that tends to reflect its intent is its rejection of the Commission's recommendation that the overall outer limit on the statutes of limitations be reduced to four years. Instead the legislature chose to maintain a ten-year outer limit for discovery of foreign objects."[17] In State v. Ferrell, on the other hand, the court stressed the legislature's acceptance of a commission's proposal. The court held that the legislature did not intend direct appeal to the supreme court from a sentence for a term of ten years to life, reasoning that "the 1967 legislation creating the appellate division meticulously follow[ed] the recommendations of the Courts Commission,"[18] and that the recommendation to the legislature would allow direct appeal to the supreme court only in a "'strictly limited category of 'important' cases'" such as where "'ultimate sentences'" had been imposed.[19]

The legislative process typically results in many versions of a bill before ratification, executive signature, and publication in the North Carolina Session Laws. Alike pre-introduction reports, which may contain proposed bills, the versions of a bill generated during the legislative process have been viewed favorably by the appellate courts in their effort to abide faithfully by the legislative will. The courts have found the omission of language,[20] the addition of language,[21] and the status quo[22] in successive drafts of a bill to be persuasive evidence of legislative intent.

So probative are the changes in language through successive drafts of a bill that the supreme court has even relied on these changes in the context of subsequent legislative history. Subsequent legislative history encompasses the legislative histories of various statutes comprising the later history of legislation on the general subject[23] of the statute under review. For example, a bill version of a pertinent law enacted after the statute under review is said to relate to the intent of the earlier legislature. Courts typically afford such subsequent legislative history less weight than the legislative history of the statute under review.[24] Nonetheless, in Burgess v. Your House of Raleigh,[25] Justice Meyer, writing for the majority, referred to bill versions of 1987 proposed amendments to the Communicable Disease Act where the court was construing the 1985 Handicapped Persons Act. The court first noted that it "may use subsequent enactments or amendments as an aid in arriving at the correct meaning of a prior statute by utilizing the natural inferences arising out of the legislative history as it continues to evolve."[26] The court proceeded to analyze the versions of the bill introduced in 1987, and found that pertinent language had been omitted from later versions. The court concluded that this "legislative history [of the 1987 Act] demonstrates that the General Assembly specifically addressed the particular question at issue here and affirmatively chose not to include persons infected with HIV virus within the scope of the [1985] Handicapped Persons Act."[27]

On at least five occasions, the court of appeals has looked to explanatory materials, or statements of purpose, attached to standing committee minutes of the legislature in order to determine legislative intent.[28] No opinion of the supreme court appears to have relied on these materials, while a number of its opinions seem to disavow such reliance.[29] A reasonable argument can be made, though, that the supreme court has left open the question of the competence and weight of attachments to committee minutes insofar at these explanations and statements comprise the legislative history of the statute under review.

The supreme court most recently touched on this issue in Kaplan v. Prolife Action League of Greensboro.[30] The court of appeals had upheld a grant of summary judgment based on its interpretation of a provision of the North Carolina RICO statute as requiring "the aggrieved party to establish a causal connection between the alleged pecuniary gain and defendant's activities . . . ."[31] While its interpretation proceeded on the "plain language of the statute,"[32] and on its "clear statutory mandate,"[33] the court bolstered its reasoning with citations to hearings conducted by a senate judiciary committee. The testimony presented to the committee had focused on protecting "legitimate business organizations" from the treble damage and attorney fee provisions associated with the private right of action under the proposed RICO statute.[34] In a per curiam decision, the supreme court affirmed and modified, approving of the court of appeals' interpretation requiring a causal nexus, but disavowing its reliance on the cited legislative history.[35] The court stated: "In discussing the North Carolina RICO Act, the Court of Appeals relied on the minutes of a legislative committee of the General Assembly in determining legislative intent. We disavow those portions of the Court of Appeals opinion."[36] While the supreme court offered no reasoning from which to gauge the scope of its disavowal, its decision may be read as rejecting those portions of the court of appeals opinion which involved the interpretation of the provision contrasting "legitimate business organizations" with "organized unlawful groups." As the court could sustain summary judgment for lack of causal connection, it may have preferred not to reach potentially more difficult questions of statutory construction.[37] And if in fact the court declined to interpret the provision to which the legislative history most closely related, no general rule should be drawn from this per curiam decision regarding the competence or weight of standing committee materials.

The court confronted the issue of the probative value of explanatory materials also in Henry v. Edmisten. In Henry the court held that the summary license revocation provision of N.C. GEN. STAT. § 20-16.5 was remedial in nature, even though commentary by the Institute of Government described the provision as punitive.[38] The court might have dismissed the commentary as post hoc, academic editorializing distinct in principle from contemporaneous materials considered by the legislature and attached to its permanent record.[39] Instead, the court chose to reach the underlying evidence to which the commentary referred: that the Governor and the proponents of the bill had viewed it as punitive. From this vantage point, the court explained that prior caselaw on the subject, which had construed revocation provisions as remedial, was stronger extrinsic evidence of the legislature's intent than was the evidence alluded to in the commentary.[40] This case, then, did not reject as incompetent any document of legislative history, but rather showed the great weight accorded prior judicial construction.

In Electric Supply Co. v. Swain Elec. Co,[41] the supreme court examined this issue in the context of subsequent legislative history. Justice Meyer, writing for the majority, refused to consider "an attachment to the minutes of a House Committee on Judiciary III meeting held on 11 June 1985 as evidence of the legislature's intent in 1971."[42] The court reasoned that to consider this explanation of legislative staff attorneys would be analogous to considering subsequent "affidavits of members of the legislature" as evidence of the statutory scheme they had participated in adopting, or to considering subsequently written "commentaries printed with the North Carolina General Statutes" in determining legislative intent.[43] These analogies would seem slightly strained if the court's discussion were read to extend to the typical staff explanation created as a matter of standard practice for committee use during consideration of a bill,[44] rather than post hoc. The court's rejection of these documents, then, arguably should be confined to their use in subsequent legislative history: this was the use confronting the court, and this is the only context in which the documents might be characterized as post hoc.[45] Many believe subsequent legislative history a hazardous method of revealing legislative intent, and it would not be against reason to suppose that Justice Meyer proceeded cautiously in this context, willing to consider bill versions[46] but not staff analysis of subsequent legislation.[47]

--COMMITTEE DELIBERATIONS

Regarding deliberations of committee members, as distinguished from memoranda and summary testimony attached to the minutes of standing committees, the courts appear to have cited them only once since the legislature began its comprehensive collection of minutes in 1977. In Formyduval v. Bunn,[48] the court of appeals noted that "several committee members did express discomfort" with limiting the term 'specialist' to physicians with board certification, and that one committee member specifically "questioned the reasoning for having to be board certified in order to be an expert witness."[49] These references were used to supplement the argument that the omission of language in a later bill version revealed legislative intent.[50]

The supreme court has once used language that might encompass a prohibition on the use of the record of deliberation. In Electric Supply Co. v. Swain,[51] Justice Meyer, writing for the majority, declared that, "[i]n determining legislative intent, this Court does not look to the record of the internal deliberations of committees of the legislature considering proposed legislation."[52] This sweeping language, although providing a clear warning, is nevertheless particularly weak dicta: the document under consideration in Electric Supply was not a record of the debates and discussions of legislators,[53] but a memorandum of staff counsel attached to the minutes; and further, as we have seen, the document was not part of the legislative history of the statute under review, but of a subsequently enacted statute.[54]

A handful of cases have dealt with the question whether pre-introduction remarks of the governor have value in construing a statute.[55] In a case from 1902, a majority opinion seemed to reject reliance on governor's remarks, stating that "it certainly would be a dangerous expedient for this Court to adopt as a rule of interpretation of a statute the consideration of a communication [by the Governor] to the Legislature on the subject-matter of the statute," and stating further that "[i]t may not be that legislative bodies always carry out, or ought to carry out, the suggestions and recommendations addressed to them in messages by the Chief Executives of States."[56] These statements, though, should not be viewed as the reasoning of the court, since only the author of the majority opinion rejected the use of governor's remarks,[57] and only he found ambiguity in the statute.[58] That is to say, on neither point did he carry a majority, and on both points his brethren vigorously attacked his position.

Five years later, the court referenced governors' recommendations yet again.[59]

In a dissent in 1971, Justice Lake voiced his strong support for the use of these remarks as aids in interpretation, stating, "The refusal of the 1969 General Assembly to accept the Governor's recommendation . . . is certainly a part of the legislative history of the very appropriation we are considering. In my opinion, it is most persuasive."[60]

Ultimately, the language of these cases may have little to do with the question of the weight to be given by the appellate courts to the governor's remarks. Due to the change in 1996 of the governor's role in the lawmaking process,[61] it would seem the court must revisit the issue. Additionally, no cases have yet considered the relevance of governor's remarks upon signing a bill into law, or of messages upon veto.

CONCLUSION

This survey reveals that the North Carolina appellate courts, when confronted with an ambiguous statute, have often construed it by reference to its legislative history. The courts have repeatedly relied on such documents as the pre-introduction reports, bill versions, and standing committee materials of statutes under review.[62] No majority opinion was uncovered that offered a reasoned argument against such reliance.[63]

This is not to say that all documents that might comprise a legislative history of a statute in North Carolina are available in all cases, abundant when available, easily uncovered, or equally accessible to all litigants and judges.[64] It is not to posit that these documents reflect adequately either the legislative will or the process of making decisions in the legislature. It is not to attempt to answer whether the court's "power of statutory construction"[65] should be used with more restraint,[66] guided still by a broad array of evidence of legislative intent or purpose, or expanded altogether beyond the confines of a faithful agent theory.[67] It is only to suggest that, for better or worse, there is legislative history in North Carolina.

REFERENCES

[*] Librarian, North Carolina Supreme Court Library. The views expressed in this essay are solely those of the author. ©2001 by author.

[1] See, e.g., William N. Eskridge, All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001); John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001); Maureen B. Cavanaugh, Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law, 79 N.C. L. REV. 577 (2001); Adrian Verneule, The Cycles of Statutory Interpretations, 68 U. CHI. L. REV. 149 (2001); Kent Greenawalt, Are Mental States Relevant for Statutory and Constitutional Interpretation?, 85 CORNELL L. REV. 1609 (2000); Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 WIS. L. REV. 205 (2000); Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369 (1999); William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509 (1998); Carlos E. Gonzalez, Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585 (1996); Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History by the Wisconsin State Courts, 80 MARQUETTE L. REV. 161 (1996); See also J. Richard Broughton, The Jurisprudence of Tradition and Justice Scalia's Unwritten Constitution, 103 W. VA. L. REV. 19 (2000); David M. Zlomick, Justice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 EMORY L.J. 1377 (1999).

[2] ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Princeton Univ. Press 1997). Scalia suggests that courts shouldn't look for subjective legislative intent, despite the typically broad description of the first principle of statutory construction, but rather for "a sort of 'objectified' intent-the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris." MATTER OF INTERPRETATION at 17. See also Eskridge, supra note 1, 96 MICH. L. REV. at 1517 ("In statutory cases, Scalia is dismissive of appeals to statutory purpose and requires parties to demonstrate a clear text on point before he will deliver the goods."); Manning, supra note 1, at 4 ("The question of text versus purpose has always troubled the law of statutory interpretation-and it always will."); see generally 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 45:09, at 50 (6th ed.).

[3] See, e.g., State v. Green, 348 N.C. 588, 596-97 (1998) (explaining that legislative intent determined by various intrinsic and extrinsic sources, including mischief to be remedied, the remedy, and the end to be accomplished); Burgess v. Your House of Raleigh, 326 N.C. 205, 209 (1990) ("The primary rule of construction of [an ambiguous] statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. This intent 'must be found from the language of the act, its legislative history and the circumstances surrounding its adoption which throw light upon the evil sought to be remedied.'"); Milk Comm'n v. Food Stores, 270 N.C. 323, 332 (1967) (focusing on the intent and purpose of the legislature, but rejecting testimony of legislators as competent evidence of this intent or purpose); Lithium Corp. v. Bessemer City, 261 N.C. 532, 536 (1964) ("In construing an ambiguous statute, . . . the history of legislation . . . may be considered in connection with the object, purpose, and language of the statute.").

[4] Intrinsic aids include the language of the act, the preamble, and the title. See SINGER, supra note 2, § 47:01.

[5] "Sources outside the text are known as extrinsic aids." SINGER, supra note 2, § 48:01, at 407. Extrinsic aids include legislative history, id., "circumstances and events existing at or after the time when a statute goes into effect," id. § 49:01, at 8, statutes in pari materia, id. § 51:01, at 170, and statutes on other subjects, id. § 53:01, at 322.

[6] Burgess v. Your House of Raleigh, 326 N.C. 205, 215, 216 (1990) (emphasis added) (citations omitted). Justice Meyer's emphasis on "contextual" interpretation and the "reason and purpose" of a statute might be read to contrast sharply with "textual" interpretation. See Victory Cab Co. v. Charlotte, 234 N.C. 572, 576 (1951) ("the language of the statute must be read not textually, but contextually . . . ."); In re Banks, 295 N.C. 236, 240 (1978) ("Finally, it is a well settled rule of statutory construction that, where a literal interpretation of the language of a statute would contravene the manifest purpose of the statute, the reason and purpose of the law will be given effect and the strict letter thereof disregarded."); c.f. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1220 (2001) (citing Blackstone's approval of the "broad remedial interpretative approach" of Heydon's Case, his restatement of its "mischief rule" such that the "reason and spirit" of a statute were the touchstone of its meaning, and his belief that "the common law remained the ordinary baseline because of its elegant coherence and overall superiority to statutory law."); WILLIAM D. POPKIN, STATUTES IN COURTS: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 19-29, 116-55 (1999) (describing Blackstone's continued acceptance of equitable interpretation, and surveying the rise of purposive interpretation in the twentieth century).

[7] Studies may be conducted for the legislature through the Legislative Research Commission, see N.C. GEN. STAT. §§ 120-30.10 to -30.23, the General Statutes Commission, see N.C. GEN. STAT. §§ 164-12 to -19, other ongoing commission, see, e.g., N.C. GEN. STAT. §§ 120-70.41 to -70.47, or by bodies established to make a one-time investigation of a matter of public policy, see, e.g., 1955 N.C. Sess. Laws ch. 542, § 4.1. Legislators often serve on the commissions and committees that produce these study reports. Suggested legislation is also developed and tracked by private associations such as the North Carolina Bar Association or the North Carolina League of Municipalities, whose working papers, draft legislation, and draft comments may shed light on legislative intent. Studies may also be conducted for the executive or judicial branches of government by bodies such as the Governor's NORTH CAROLINA COMMISSION ON BUSINESS LAWS & THE ECONOMY, or the Chief Justice's COMMISSION FOR THE FUTURE OF JUSTICE AND THE COURTS IN NORTH CAROLINA.

[8] Textualist judges and academicians have attacked the importance of bill versions of federal reports. One professor notes:

However, textualists ruled out comparison with preliminary versions depicted in the legislative history and elevated the concept of comparing the text with other, more remote enacted texts. The so-called "whole code" rule meant that although the textualists opposed comparing the final law with the initial version reported or adopted by the House or Senate, they could interpret its words from similarities with those in some other law on a totally different subject.

[9] HOUSE RULE 29.2; SENATE RULE 36.1.

[10] For example, Governor Hunt recommended the reinstatement of the death penalty to the General Assembly in his Legislative Message on Crime, January 31, 1977. The Governor stated:

With that same goal of deterrence in mind, I support the reinstatement of the death penalty for first-degree premeditated murder. Reason tells me that many people who can kill in cold blood can be deterred by the threat of death. And the existence of that threat can result in less taking of human life. But I don't think the people of North Carolina consider the death penalty an appropriate punishment for rape, and I oppose its application here. I am afraid that many rapists are acquitted because of the reluctance of jurors to apply the death penalty in those cases. Further, I believe that any death penalty law, if it is to be fairly applied, must provide for experienced criminal defense counsel.

[11] This essay focuses on items of legislative history that the North Carolina appellate courts have accepted at one time or another as probative of legislative intent. Items that might fit within a definition of legislative history but which the courts have not discussed in the context of statutory construction are excluded from the scope of this essay. One example is the minutes of the study committees or commissions that issue pre-introduction reports. Another is the memoranda and biennial reports of the General Statutes Commission. Excluded also from the scope of this essay are extrinsic sources that some may conceive of as part of legislative history but which the North Carolina appellate courts have always rejected as not probative of legislative intent. Subsequent affidavits of legislators who had served during the passage of a bill, for example, fall within this category. See, e.g., Milk Comm'n v. Food Stores, 270 N.C. 323, 332 (1967). For an argument that even this testimony should carry some weight, see HENRY CAMPBELL BLACK, HANDBOOK ON THE CONSTRUCTION AND INTERPRETATION OF THE LAWS 312-14 (2d ed. 1911).

[12] E.g., Black v. Littlejohn, 312 N.C. 626 (1985); Greene v. Town of Valdese, 306 N.C. 79 (1982); N.C. State Bar v. DuMont, 304 N.C. 627 (1982); Hunt v. Reinsurance Facility, 302 N.C. 274 (1981); State v. Ferrell, 300 N.C. 157 (1980); Smith v. State, 298 N.C. 115 (1979); State v. Club Properties, 275 N.C. 328 (1969); Little v. Stevens, 267 N.C. 328 (1966); Lithium Corp. v. Bessemer City, 261 N.C. 532 (1964); Canteen Serv. v. Johnson, 256 N.C. 155 (1962); Taylor v. Robinson, 131 N.C. App. 337 (1998); Queensboro Steel v. East Coast Machine & Iron, 82 N.C. App. 182 (1986); Lee v. Penland-Bailey Co., 50 N.C. App. 498 (1981); State v. Rogers, 49 N.C. App. 337 (1980); Desk Co. v. Clayton, 8 N.C. App. 452 (1970).

[13] Hunt, 302 N.C. at 295; see also Lithium Corp., 261 N.C. at 538 (stating that report of Municipal Government Study Commission "helpful in determining the intent of the Legislature . . .").

[14] In N.C. State Bar v. DuMont, the supreme court relied on the REPORT OF THE NORTH CAROLINA STATE CONSTITUTION STUDY COMMISSION in determining the intent of the framers and adopters of a 1970 constitutional revision. The court stated that "a comparison of the recommendations made in the Report with those finally submitted by the General Assembly and adopted by the people in 1970 reveals that our Legislature relied almost exclusively on the Report." N.C. State Bar, 304 N.C. at 635. The commission that wrote this report was "created by the Council of The North Carolina State Bar and the North Carolina Bar Association," rather than by a governmental body. REPORT OF THE NORTH CAROLINA STATE CONSTITUTION STUDY COMMISSION at i (1968). The report does note, though, that the governor had "recommended" creation of the commission. Id.

[15] Greene, 306 N.C. at 83.

[16] Id. While the court in Greene grounded its characterization of the legislature's intent by reference to the legislative history of N.C. GEN. STAT. § 160A-36(d), and proceeded to cite a report of the Municipal Government Study Commission, it seems the court might have relied on N.C. GEN. STAT. § 160A-33, which explicitly declared the legislative policy behind annexations by cities of less than 5,000 people.

[17] Black, 312 N.C. at 636.

[18] Ferrell, 300 N.C. at 161 n.1.

[19] Id. at 161 (quoting REPORT OF THE COURTS COMMISSION at 4, 17).

[20] E.g., Burgess v. Your House of Raleigh, 326 N.C. 205 (1990) (citing bill versions of subsequent legislative history); State v. Smith, 291 N.C. 505, 523-24 (1977) (explaining that provision in pre-trial discovery bill providing for "discovery of names and addresses of witnesses the State intended to call plus their criminal records" deleted before enactment); Utilities Comm'n v. Queen City Coach Co., 233 N.C. 119, 123 (1951) (stressing that final version of bill replaced "territory" with "route," undermining defendant's argument based on same territories); Rice v. Denny Roll & Panel Co., 199 N.C. 154, 158-59 (1930) (noting that final version of compensation law omitted clause found in original Senate bill); Formyduval v. Bunn, 138 N.C. App. 381, 388-89, rev. denied by 353 N.C. 262 (2000) ("By removing the more restrictive category of 'board certified' specialists from the statute, we believe the legislature expressed its intent that the term 'specialist' include a broader category of physicians than only those who are board certified."); In re Doe, 126 N.C. App. 401, 405 (1997) (relying on removal of early language allowing direct appeal to support inference that legislature did not intend for direct appellate review at the appellate division); State v. Charles, 53 N.C. App. 567, 570 (1981) (noting that original draft of speedy trial bill "was amended in Committee to provide that it would be the last, not the first, occurring of the events enumerated in G.S. 15A-701(a1)(1) which would measure the 120 days . . ."); Russel v. Taylor, 37 N.C. App. 520, 526 (1978) ("We find . . . that the original bill was rewritten by a Senate Committee and that the committee substitute was amended twice by floor amendments in the House of Representatives."); State v. Cole, 19 N.C. App. 611, 615 (1973) (intent "to limit the types of convictions for possession of heroin that qualify as prior convictions to actual violations of the Controlled Substances Act" confirmed by Legislature's rejection of comprehensive language in original House bill); c.f. Carolina Medicorp, Inc. v. Bd. of Trustees of the State Medicaid Plan, 118 N.C. App. 485, 491 (1995) (omission of word "clarifying" in title as ratified irrelevant to argument presented, as change necessary for unrelated reasons).

[21] E.g., Multimedia Pub., NC v. Henderson County, 136 N.C. App. 567, 571-72 (2000) (citing additional language of later editions to support conclusion that legislature did not intend "for the present attorney-client exception to be limited to a pending or threatened claim requirement.").

[22] E.g., Caldwell v. Realty Co., 32 N.C. App. 676, 681 (1977) ("Although the coverage was not expanded to the full extent envisioned by the original draft . . . or as envisioned by the first two redrafts . . . , the original intent to expand coverage for the two distinct classes of dependents of a deceased employee was maintained throughout the legislative action.").

[23] See Victory Cab Co. v. Charlotte, 234 N.C. 572, 576 (1951) ("And where the meaning of a statute is doubtful, the history of legislation on the general subject dealt with, including statutory changes over a period of years, may be considered in connection with the object, purpose, and language of the statute, in order to arrive at its true meaning.").

[24] E.g., Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) (Rhenquist, J.) (referring to statement in conference report of act passed after statute being interpreted as "subsequent legislative history" and as "extremely hazardous basis for inferring the meaning of a congressional enactment").

[25] 326 N.C. 205 (1990).

[26] Id. at 216.

[27] Id. at 217.

[28] Kaplan v. Prolife Action League, 123 N.C. App. 720, 724, 729 (1996) (citing testimony of attorney of private corporation before Senate Judiciary Committee which resulted in committee substitute bill to support limited scope of state RICO private right of action), modified & aff'd by Kaplan v. Prolife Action League of Greensboro, 347 N.C. 342, 344 (1997) (affirming holding but disavowing reliance on materials found in legislative minutes); Thomas v. Barnhill, 102 N.C. App. 551, 554 (1991) (quoting language from opinion letter of private law firm found in minutes of House Judiciary Committee to support holding that enactment was "intended merely to clarify the law"); In re Foreclosure of Greenleaf Corp., 99 N.C. App. 489, 495 (1990) (noting that court's interpretation of statute in accord with interpretation of legislative staff as reflected in memorandum attached to standing committee minutes); Morgan v. Polk County Bd. of Educ., 74 N.C. App. 169, 176 (1985) (affirming trial court's reliance on language in public testimony of C.D. Spangler found in minutes of joint legislative committee); Taylor v. J.P. Stevens, 57 N.C. App. 643, 645 (1982) (quoting one-sentence statement of purpose by Commissioner of industrial commission, as recorded in non-verbatim minutes of joint committee meeting, as revealing intent to provide additional benefits to persons disabled prior to 1973).

[29] Kaplan v. Prolife Action League of Greensboro, 347 N.C. 342, 344 (1997), modifying & aff'g Kaplan v. Prolife Action League, 123 N.C. App. 720, 724, 729 (1996); Electric Supply Co. v. Swain Elec. Co., 328 N.C. 651 (1991); Henry v. Edmisten, 315 N.C. 474, 495-96 (1986).

[30] 123 N.C. App. 720 (1996).

[31] Id. at 724 (interpreting N.C. GEN. STAT. § 75D-2 (1990)).

[32] Id.

[33] Id. at 725 n.1.

[34] TESTIMONY OF STEPHEN D. POE, SENATE JUDICIARY IV COMMITTEE, 1ST SESSION, at 6 (July 11, 1985) (suggesting, for example, "amendments that would clarify that only business entities having some connection to or affiliation with organized crime can be sued under RICO, and that the damages that can be recovered are those caused to the enterprise itself through racketeering activities, not those caused by the underlying wrongful acts.").

[35] 347 N.C. 342, 344 (1997).

[36] Id. at 344.

[37] The opinion of the court of appeals had focused its interpretation on the first sentence of N.C. GEN. STAT. § 75D-2 (1990), see 123 N.C. App. at 724 (emphasis on first sentence of statute), while the testimony before the senate committee focused on the second sentence. In fact, the second sentence was added by committee amendment in response to the testimony, its language pulled directly from an addendum provided by the individual who testified.

[38] 315 N.C. 474, 495-96 (1986); see also State v. Oliver, 343 N.C. 202, 208-09 (1996).

[39] See Brewer v. Kimel, __ F.3d __ (4th Cir. July 5, 2001) (suggesting that the summary of legislation reviewed in Henry may not be competent legislative history in North Carolina).

[40] Henry, 315 N.C. at 495-96 (citing State v. Carlisle, 285 N.C. 229 (1974); Joyner v. Garrett, 279 N.C. 226 (1971); Harrell v. Scheidt, 243 N.C. 735 (1956)). See generally HENRY CAMPBELL BLACK, HANDBOOK ON THE CONSTRUCTION AND INTERPRETATION OF THE LAWS 298 (2d ed. 1911) ("In interpreting the particular words and phrases used in a statute, it is to be presumed that the legislature was cognizant of a construction previously put upon them by the decisions of the courts and intended to employ them in the same signification.").

[41] 328 N.C. 651 (1991).

[42] Id. at 657.

[43] Id. The expression "commentaries printed with the North Carolina General Statutes" was used in State v. Hosey, 318 N.C. 330 (1986) to refer to the official comments accompanying the North Carolina Rules of Evidence. While Electric Supply rightly cites Hosey for the disclaimer that the commentaries are not binding, the court fails to note the assertion in Hosey that the commentaries would be given "substantial weight in our efforts to comprehend legislative intent." Id. at 338 n.2. Hosey does note that "the commentaries contain references to case law of other states and other matters subject to change without the consent or knowledge of the General Assembly." Id. Insofar as they are aptly described as subject to change, the commentaries may be characterized as subsequent to the passage of the statute under review, and analogous to a legislator's subsequent testimony.

[44] A decision of the court of appeals that relied on such a typical staff explanation was In re Foreclosure of Greenleaf Corp., 99 N.C. App. 489, 495 (1990) (noting that court's interpretation of statute in accord with interpretation of legislative staff as reflected in memorandum attached to standing committee minutes).

[45] See Electric Supply, 328 N.C. at 657 ("Even if we were willing to consider the attachment . . . , we would be unpersuaded that the memorandum, submitted nearly fourteen years after the passage of the statute under review, would be sufficiently persuasive to overturn what, prior to 1971, was a well-settled right . . . .").

[46] See supra notes 23-27 and accompanying text.

[47] Chief Justice Rhenquist has expressed similar misgivings in interpreting federal statutes. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) ("A mere statement in a conference report of such legislation as to what the committee believes an earlier statute meant is obviously less weighty [than the history of legislation on the general subject]. . . . . The less formal types of subsequent legislative history provide an extremely hazardous basis for inferring the meaning of a congressional enactment.").

[48] 138 N.C. App. 381, rev. denied by 353 N.C. 262 (2000).

[49] Id. at 389.

[50] Id. ("By removing the more restrictive category of 'board certified' specialists [in a later bill version], we believe the legislature expressed its intent that the term 'specialist' include a broader category of physicians than only those who are board certified.").

[51] 328 N.C. 651 (1991).

[52] Id. at 657.

[53] While it is true that the amicus curiae brief mentioned the minutes themselves, this is because the author of the memorandum at issue in Electric Supply was asked to explain the law, as reflected in her memorandum, verbally to the committee. Brief of Amicus Curiae, Carolinas AGC, Inc. at 8. But her testimony cannot reasonably be compared with the internal deliberations of legislators themselves. Rather, the only evidence at issue was the content of the memorandum. Compare Electric Supply, 328 N.C. at 657 (reference to minutes in brief effectively reference to attached memorandum only) with Formyduval v. Bunn, 138 N.C. App. 381, 389, rev. denied by 353 N.C. 262 (2000) ("[S]everal committee members did express discomfort with the board certification language. See 26 April 1995 Minutes of the House Select Comm.On Tort Reform. One committee member specifically 'questioned the reasoning for having to be board certified in order to be an expert witness.' Id.").

[54] See supra notes 41-47 and accompanying text.

[55] Additionally, a proclamation of Governor James B. Hunt has been mentioned by the supreme court in a discussion of the "evolving standard of decency" used to analyze whether punishment is cruel and unusual under the Constitution, rather than as an aid in the construction of a statute. State v. Green, 348 N.C. 588, 606 (1998).

[56] Jackson v. Corporation Comm'n, 130 N.C. 385, 391 (1902).

[57] The two concurring and two dissenting judges of the five-judge court disagreed with the author of the majority opinion on this point. In a vigorous denial, the concurrence wrote: "But I propose to show by high authority that its consideration [governor's remarks] is not only competent, but proper." Id. at 399.

[58] The concurring judges stated, "It seems to me that by every rule of construction, without any aid outside of the statute, it should be held that there should be no new assessment of these franchises, for the purpose of taxation, until 1903." Id. at 398 (emphasis added). The dissenters hesitated to construe the statute in light of the governor's message because "we gravely doubt the propriety of considering any outside matter when an act, viewed in all its parts, is on its face capable of intelligent construction." Id. at 427 (emphasis added). Interestingly enough, the dissent continued, "as the message is made a part of the answer and is embodied in the case on appeal, we [would] give it that courteous consideration due to the supreme executive power of the State." Id. at 428.

[59] In re Beauchamp, 146 N.C. 254, 257 (1907) (noting that recommendation by Governor Fowle that married women be removed from list of persons not barred by statutes of limitations under sections 148 & 163 of The Code of 1883 eventually adopted by legislature). For a more recent reference to governor's remarks, see In Re Filing by Fire Ins. Rating Bureau, 2 N.C. App. 10, 14 (1968) (suggesting that recommendation by Governor Craig that insurance rates should "produce a fair and reasonable profit only" was basis of former N.C. GEN. STAT. § 58-131.2).

[60] Styers v. Phillips, 277 N.C. 460, 483 (1971).

[61] The governor was given the veto power in 1996. N.C. CONST. art. II, § 22 (approved Nov. 1996).

[62] Some support is also found for the reliance on governor's remarks in determining legislative intent, though it seems the court must revisit this issue. See supra notes 55-61 and accompanying text.

[63] The supreme court has hesitated to rely on the legislative history of statutes enacted after the statute under review. In this context, Justice Meyer wrote for the court twice, approving reliance on bill versions in once case, while strongly rejecting reliance on materials attached to standing committee minutes in the other. See supra notes 23-27 & 41-47 and accompanying text. No case in North Carolina has broached the issue of the competence or weight of pre-introduction reports, or of governor's remarks, in the context of subsequent legislative history.

[64] Starting with the 2001 biennium, legislative reports, and editions of bills are available remotely by accessing the internet site of the legislature. See http://www.ncgs.com. Current press releases, speeches and proclamations of the governor are available at http://www.governor.state.nc.us.

[65] Buford v. General Motors Corp., 339 N.C. 396, 411 (1994).

[66] Although never focusing on the court's power to interpret, Chief Justice Walter Clark, in a progressive speech concerning reform in law, does hint at greater need for deference to the legislature by the court. He asserts that, "But for the help derived from legislation, the course of judicial decisions would be as petrified as the laws of the Medes and Persians, or the mummies which rest beneath the Egyptian pyramids." Address of Chief Justice Clark on Reform in Law and Legal Procedure Before the State Bar Association at Wrightsville, PROCEEDINGS OF THE SIXTEENTH ANNUAL SESSION OF THE NORTH CAROLINA BAR ASSOCIATION 46, 48 (June 30, 1914). He presumes that, "Civilization is a search for greater efficiency," and bemoans that, "Instead of seeking greater efficiency, we [the legal profession] look back as far as possible to discover some dictum of some unknown and unlearned judge of ages past." Id. "No lawyer can consult all the precedents," and therefore, "We must codify our laws." Id. at 59. Finally, Chief Justice Clark suggests that the judicial power to set aside a law as unconstitutional should be limited. Id. at 60.

[67] Although never focusing on the court's power to interpret, Chief Justice James Shepherd, in a reactionary speech condemning law reform, leans strongly toward the position of judicial supremacy. He hopes to furnish "a striking vindication of the wisdom and adaptability of that larger and greater part of our judicial system known as the unwritten, or as it is sometimes called, the Common Law." James E. Shepherd, Some Leaves From Colonial History, REPORT OF THE SECOND ANNUAL MEETING OF THE NORTH CAROLINA BAR ASSOCIATION 143, 144 (June 27-29, 1900). The common law, he says, is ethical in character and relates to the law of nature, while statutes relate "'to positive regulations of expediency, and not the great and permanent doctrines of general or universal justice or jurisprudence.'" Id. at 146. He is "quite sure that the time has not come when we should attempt an entire codification of the unwritten or common Law of our State." Id. at 162. "Such a revolution in our judicial system would necessarily obstruct that spontaneous development of the law with the progress of society . . . ." Id. "[L]et not this great heritage, the growth of centuries, and so rich in blessings to the people, be marred by the iconoclast, who generally comes in the guise of the reformer." Id. at 164.