Interview with Justice Brian Burgess
then, of course, after the appointment I
hardly ever saw him again. Douglas was the
same way. I would know him to say hello on
the street and he knew me a little from the
legislature, but I never had any personal interactions with him except to say hello.
KK: That brings us to the Supreme
Court. You sat on the Supreme Court from
2005 to 2013. There were a few substantive workers’ compensation decisions that
came down during that time. There were
six affirmed, four reversed, and four of
them had splits in them. A lot of your workers’ compensation decisions seem to rest
upon your plain reading of the statute. Is
that a judicial philosophy you have in general or is that something particular to the
Workers’ Compensation Act?
JB: I think it is just my philosophy of statutory construction. I would not categorize
myself as an originalist, but you start with
the language and do the best you can. I
am the first to the admit, of course, with
the number of dissents I had, that everyone
does not see the meaning quite as plainly as I do. And, of course, you are asking
yourself, “How can I be so right?” But, no,
I think especially with a statute like workers’ comp, it seemed to me that if you
start to branch off from the plainest meaning that you can find, because of the insurance rates and the impact on the industry,
I think straying from the plain meaning of
the statute can be quite far reaching. So I
think my own judicial philosophy is “stick
to the statute.” If there are policy decisions
made there and if people think it ought to
be more liberal, or if people think it needs
to be more conservative, they need to go
get a political fix to this and not look to the
courts to fix what the legislature has not yet
addressed. I know not everybody agrees
with that, but that is my general approach.
KK: That sounds somewhat like the majority of opinion in Lydy [v. Trustaff, Inc.],4
one of your last workers’ compensation
cases, dealing with the average weekly
wage issue. Justice Reiber and Justice Robinson dissent from it, and Justice Skoglund
writes the majority opinion interpreting the
term “wages” in the Act.
JB: That was whether you could use the
value of the health insurance benefit as
wage.
KK: Correct.
JB: Yeah, there is a strong argument to
be made in favor of that interpretation
and my two collegues wrote that. Justice
Skoglund, Justice Dooley, and I just did
not see it that way. That would be quite a
broadening of the statute. Some jurisdictions have gone in that direction, but I think
we found that most had not.
26
KK: In part, the majority opinion was essentially looking at the fact that the department had looked at the term “wages” in
that manner for many years and the legislature had not done anything about it. What,
if any, is the deference you usually give to
an administrative agency interpretation of
the Act when the legislature may or may
not have acted on that issue in the past?
JB: Well, I guess I will not elucidate further than the opinion states, but I know
that some would argue that when the legislature specifically addresses an issue, then
it’s more fair to say the legislature has addressed it. And perhaps the obverse is that
you can rely upon inaction of the legislature
if you don’t see that it has not been raised.
Is that the same kind of endorsement? I
recognize there is some tension there. The
majority went in our direction. I guess we
relied in part upon that. I won’t comment
further than what the opinion said.
KK: Similarly in Cyr v. McDermotts,5 you
and Chief Justice Reiber dissented from
the majority opinion in that case. That decision was written by Justice Skoglund. The
main issue here was the intoxication defense, which is an affirmative defense within workers’ compensation .
JB: The statute had words to the affect
of “caused by or during intoxication.” This
was a terrible case. This guy was horribly injured, but he was injured at home. Sort of a
chain reaction kind of case, whether he was
intoxicated really had nothing to do with
him performing work. I will not go beyond
that, but I think our dissent was on having
two operative phrases—“caused by” being
one, “or during” being the other—and we
read those as two separate things. I think
the majority found the opposite, it was all
one continuum and they were satisfied that
they had a better read on the legislative attempt then the dissent.
KK: You mentioned earlier in our discussion the number of dissents that you wrote,
not just in workers’ comp, but in general
when you were on the Court. What is the
role of a dissenting justice’s opinion? You
are working very closely with a small group
of people, and dissents slow down the
workflow because we have to wait for the
dissents to come back. How do you view
the role of a dissenting Justice?
JB: I was asked this by the Senate at the
time of confirmation and my response is
something along the lines of: [