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A Text on Textualism, Part 2: Garner and Scalia Offer More Outtakes from Their Latest Collaboration

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Bryan Garner on Words

A Text on Textualism, Part 2: Garner and Scalia Offer More Outtakes from Their Latest Collaboration

Nov 1, 2012, 02:50 am CDT

In the previous column, I gave you questions 1–12 of the “Selected Exercises” that Justice Antonin Scalia and I prepared for (but omitted from) our book Reading Law: The Interpretation of Legal Texts. Now you have the remainder of the quiz: questions 13–25. The idea isn’t to suggest that all questions of statutory or contractual interpretation have a straightforward, easily findable answer. Rather, we seek to show that it’s often possible to isolate the germane textual facts that should, in the hands of a skilled textualist, predictably result in consistent answers. As with any skill, practice leads to improved interpretive reasoning. As you try answering each question, identify not just the outcome but also the canons of construction that must be considered.

Our answers are normative rather than descriptive. The answers at the end are those of a textualist. Someone who decides such questions by resort to extratextual factors might reach different (and variable) results.

SELECTED EXERCISES (THE REST)

13. A cryptic 1920 state statute requires all “nimrods” to have licenses from the Wildlife Board. Oddly, this brief statute has no further context. A would-be claimant seeks to invalidate the statute as violating equal protection on the grounds that a statute cannot single out people with low IQs for a licensing requirement. The claimant cites current desktop dictionaries showing that the prevailing meaning of the word nimrod is “simpleton, moron” and points to polls showing that people under the age of 45 uniformly understand this to be the only meaning of the word. In a motion to dismiss, the state attorney general points out that Nimrod was a famous hunter in the Old Testament and that nimrod has traditionally been understood to denote a hunter. It was the only meaning the word bore through the mid-20th century. Soon after the advent of Looney Tunes, the popular Bugs Bunny began calling his would-be nemesis—the dim-witted hunter Elmer Fudd—Nimrod, always in a derogatory tone. An audience more familiar with Bugs Bunny than with the Old Testament took the word to describe a dimwit. Descriptivist dictionaries have duly recorded this new sense, so that nimrod will doubtless continue to mean dimwit long after Elmer Fudd is less well-remembered than Nimrod himself. The state’s motion to dismiss is now before you, a state judge. Do you allow the lawsuit to proceed, gauging the contemporary meaning of nimrod, or do you dismiss?

14. A 30-page employment contract contains two provisions regarding termination. Paragraph 22, titled “Voluntary Termination,” contains four brief sentences about what is to happen if the employee leaves the company voluntarily. But it concludes with this sentence: “Notwithstanding anything herein to the contrary, this ¶ 22 contains the employee’s sole remedy in the event of involuntary [sic] termination.” Then, ¶ 23, “Involuntary Termination,” consists of two pages of detailed provisions dealing with what is to happen if the executive is fired. In the end, he is fired and sues for the generous severance payments under ¶ 23. The employer claims that ¶ 23 is voided by ¶ 22, and that the executive has no remedy for being fired. The case is referred to arbitration, and you are the sole arbitrator. What is your award, and why?

15. The Hawaii legislature enacted a statute irrevocably dedicating 25 percent of all gasoline excise taxes to a special fund for paying off notes subsidizing the construction of roads and bridges. A later legislature diverts those tax receipts in the future to a different purpose. Is the later statute effective?

16. A state statute makes it criminal mischief “to throw a rock, stone, clod or other hard lump of material into a building.” Two men are charged under the statute. The first threw five rocks at a factory, and each one hit the outside wall and fell to the ground outside. The second was inside the factory when he gathered lumps of clay and threw them from one room into another, in one case breaking a window as the clod landed in the street. Are both men properly chargeable? What is the determinative statutory word?

17. A businessman walking into a downtown Dallas skyscraper has been arrested and charged with possessing a pair of pliers in his pocket—an act that an old statute made a misdemeanor. When the statute was passed in the mid-19th century, there was a serious problem of cattle rustlers who used pliers to cut barbed-wire fences. A police officer unusually well-versed in the law made the arrest, and criminal charges ensued. At trial, the defendant moves to dismiss the charges, arguing that no prosecution of this offense has been recorded since 1888. The statute, he says, is obsolete by reason of long disuse (desuetude). You, the judge, have already confirmed that the law is still on the books—unrepealed. What should you do?

18. A state statute allows a tax deduction to any business that uses a building where “material objects are subjected to a process.” The owner of a crematorium claims the deduction, reasoning that the incineration of human bodies is the subjection of material objects to a process. You suspect that the purpose of the provision was to benefit manufacturers. Does the crematorium owner qualify for the tax deduction?

19. You are the president at a university whose 1925 charter states: “Men and women are eligible to become members of fraternities and sororities.” Several women have petitioned for eligibility for membership in fraternities, and several men have petitioned for eligibility for membership in sororities. Never in the 20th century did this question arise. How should you rule?

20. An anti-adulteration act provides: “No person may, by his servant or agent, or as the servant or agent of another, sell goods” that have been treated or altered in certain ways. Squibb has been charged with selling prohibited goods as principal, not as agent. Is he properly chargeable under the statute?

21. A statute punishes “the fraudulent removal of assets by employees of any bank that receives on deposit the money of such persons.” Frankford, a bank employee, has been convicted of fraudulently removing $10 million in bank assets. On appeal, he contends that (1) because he acted alone, the statute (using the plural employees) does not apply and (2) because the prosecution introduced no evidence that any employees deposited their money with the bank, the proof against him must fail. The prosecution answers that the court should correct the scrivener’s error of such persons to any persons or other persons, or simply to persons. How should the court rule?

22. A housing statute requires all rented properties to be “fit for human habitation.” A tenant has sued his landlord under this statute and proves, as the most serious violation, that one of the two windows in his apartment had a broken sash-cord, so that he cannot open one of the two windows. Does he have a claim?

23. Under state law, a person is guilty of first-degree robbery when he “is armed with a deadly weapon.” The phrase deadly weapon is defined as “any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged.” Wilburn was convicted of first-degree burglary because he was carrying an unloaded handgun. On appeal, he contends that the gun was not a deadly weapon since, at the time of the offense, it was incapable of discharging a shot. Is he right?

24. A state statute mandates that a person’s driving privileges be permanently revoked if the person “is convicted of misdemeanor driving while under the influence of intoxicants for a third time.” The trial court permanently revoked Renfro’s driving privileges after his fourth DUI conviction. On appeal, he argues that the reference to a third conviction limits the statute’s applicability to people with two, and only two, prior convictions. He also claims that if the statute is ambiguous, lenity applies. Either way, his driving privileges can never be revoked under this statute, since the third conviction passed without revocation. Is he right?

25. A statute prohibits “driving a motor vehicle while using a wireless telephone.” While Nelson was stopped at a red light for 90 seconds, he used his wireless telephone, was cited by the police and was convicted under the statute. On appeal, he claims not to have been “driving,” but only “operating” his vehicle—since driving denotes movement. Is he right?

ANSWERS TO EXERCISES

The section numbers cited are to the text of Reading Law: The Interpretation of Legal Texts.

13. Answer: You dismiss. The only relevant meaning of the word nimrod is the sense it bore in 1920, when the statute was enacted: a hunter. There is no colorable claim that the statute is discriminating against people with low IQs. See § 7.

14. Answer: You should reform the scrivener’s error in ¶ 22 and hold that voluntary was a misprint for involuntary (see § 37). The other canons militating in favor of your decision are (1) the title-and-headings canon (§ 35); (2) as to ¶ 23 of the contract, the presumption of validity (§ 5); (3) again as to ¶ 23, the surplusage canon (§ 26); (4) the harmonious-reading canon (§ 27); and (5) if there is evidence that the company drafted the contract, the contra proferentem rule. The superordinating-clause canon, potentially applicable because of the word notwithstanding, has no bearing because the overwhelming textual evidence is that the presence of the negative prefix in- was a typographical error in ¶ 22.

15. Answer: Yes. The earlier statute’s prescription of irrevocability is invalid under the nonentrenchment canon: A legislature cannot bind its successors. The Oklahoma Supreme Court properly held such a statute unconstitutional in Boswell v. State, 1937.

16. Answer: Neither defendant is properly chargeable under the statute. The rock or clod must be thrown “into a building,” the ordinary meaning of which is from outside to inside. The ordinary-meaning canon controls (see § 6).

17. Answer: You must proceed. An unrepealed statute does not become defunct by reason of desuetude (see § 57). Doubtless you will impose the least harsh sentence possible—preferably nominal.

18. Answer: Yes, the crematorium owner is entitled to the tax deduction under the statute as worded—under the plain-meaning rule. But the wording is crucial: Corpses are not materiel (meaning “equipment, apparatus and supplies”), and they probably are not even materials (which suggests parts, goods, stock or implements), but they are material objects. The connotation changes as material functions either as an adjective (material objects) or as a noun (materials). In the actual case on which this problem was based, the critical wording was not material objects but instead materials. The British judge in the 1967 case of Bourne v. Norwich Crematorium Ltd., Justice Stamp, in his own words, recoiled “as much by the description of the bodies of the dead as ‘goods or materials’ as ... from the idea that what is done in that crematorium can be described as ‘the subjection of’ the human corpse to a ‘process.’ ” So he disallowed the deduction because he thought the context suggested manufacture. But we have changed the phrase goods or materials to material objects to result in what we think, for purposes of this exercise, should be a different outcome.

19. Answer: Deny the petitions. They are not meritorious under (1) the fixed-meaning canon (§ 7) and (2) the distributive-phrasing canon (§ 33).

20. Answer: No. The court cannot change such a statute to provide that a person who sells as principal can be charged. (See State v. Squibb, a 1908 case in the Indiana Supreme Court, though facts in the problem have been slightly altered.) The absurdity doctrine (§ 37) does not come into play because the “fix” requires a major insertion of words, and the problem does not involve the omission of standard phraseology. If there were really an ambiguity—and there is not—the rule of lenity (§ 49) would militate in Squibb’s favor.

21. Answer: The conviction should be overturned based on Frankford’s second appellate point. As to the first point, in this instance the plural includes the singular (§ 14). As to the second point, the only possible antecedent of such persons is employees of any bank that receives. The prosecution has asked the court either to delete such or to replace it with any or other—in short, to treat the phrase such persons as a scrivener’s error (§ 37). But the doctrine of scrivener’s error is not available to broaden or narrow language when the result is to create criminal liability. Even if there were an ambiguity, the rule of lenity (§ 49) would tip the scales in Frankford’s favor. Reverse and render (see the 1911 Mississippi Supreme Court decision in State v. Traylor, the case on which this problem is based).

22. Answer: No. To say that an apartment in which only one of two windows will open is “not fit for human habitation” defies most of human history. The ordinary-meaning canon (§ 6) controls. One British judge in the 1927 case, Morgan v. Liverpool Corp., called the claim “fantastic,” although another nontextualist judge shortly after allowed an identical claim.

23. Answer: No. Although this problem might seem to involve the rule of lenity—since there is an ambiguity about whether may be discharged refers to capability in general or capability on a particular occasion—other canons defeat the claim of ambiguity. First, the presumption against ineffectiveness militates against a result that would allow burglars to point actual pistols at their victims but then evade first-degree murder charges by removing firing pins or emptying the guns’ chambers. Second, the absurdity doctrine points the same way. (See Wilburn v. Commonwealth, a 2010 case in the Supreme Court of Kentucky.)

24. Answer: No. The statute says “for a third time,” not “for the third time.” Therefore, the statute may be read as meaning “for a third or subsequent conviction.” The statute could choose which conviction to use as the first for counting purposes. The presumption against ineffectiveness and the absurdity doctrine defeat Renfro’s hyperliteral arguments.

25. Answer: No. By common understanding—and therefore under the ordinary-meaning canon—one is driving a vehicle as long as one is in transit, including temporary stops at traffic signals. Because there is no real ambiguity, the rule of lenity has no application. In a nontextualist opinion that needlessly invoked legislative history because of a perceived ambiguity, the California Court of Appeals reached the correct result—although, if the statute had truly been ambiguous, the rule of lenity would have absolved Nelson (People v. Nelson, 2011).

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