The starting point in statutory construction is the language of the statute itself. The Supreme Court often recites the “plain meaning rule,” that, if the language of the statute is clear, there is no need to look outside the statute to its legislative history in order to ascertain the statute’s meaning.It was once axiomatic that this “rule” was honored more in the breach than in the observance. However, the Court has begun to place more emphasis on statutory text and less emphasis on legislative history and other sources “extrinsic” to that text. More often than before, statutory text is the ending point as well as the starting point for interpretation.
3.06.2010
Friday, May 28, 2010
Cannons....Contd...II
Avoidance of abrogation of state sovereignty
See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006); see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)
Deference
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.
Deference to Administrative Interpretations (US Chevron deference)
If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated in the US by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Avoidance Canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.[4]
Avoiding Absurdity
When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.
Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")
When two statutes conflict, the one enacted last prevails.
Criticism
Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislator, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process. In a classic article, Karl Llewellyn argued that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.[7]
However, it could be argued that the fundamental nature of language is to blame for the problem of "for every canon, a counter." Interpreting whether a statute applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of language necessarily means that there will often be good (or equally unconvincing) arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. Canons of statutory construction give judges the ability to decide questions of statutory interpretation that necessarily rely on an element of judicial discretion.
Philosophies
Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods are:
Go Back to Site Index
Cannon Of Construction
Cannon of Construction
Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.
Textual
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.
Plain Meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning
"[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."
Ejusdem generis (Of the same kinds, class, or nature)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
Expressio unius est exclusio alterius' (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."
In pari materia (Upon the same matter or subject)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
Noscitur a sociis (A word is known by the company it keeps)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
Reddendo singula singulis (Refers only to the last)
When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.
Generalia specialibus non derogant
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially - but not necessarily - in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.
Substantive
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.
"Charming Betsy" Canon
National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."
Interpretation in Light of Fundamental Values
Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892).
Rule of Lenity
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).
Statutory Interpretation: An Introduction
What is Statutory Interpretation
Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations.
Meaning
The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:
Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.
Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by performing the construction the court can make sweeping changes in the operation of the law.
Conflicts between sources of law
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149(1992). Indeed,
"when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'"
"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);
Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, there are areas of law where provincial governments and the federal government have concurrent jurisdiction. In these cases the federal law is held to be paramount. However, in areas where the Canadian constitution is silent, the federal government does not necessarily have superior jurisdiction. Rather, an area of law that is not expressly mentioned in Canada's Constitution will have to be interpreted to fall under either the federal residual jurisdiction found in s. 91 -- known as the Peace, Order and Good Government clause -- or the provinces residual jurisdiction of "Property and Civil Rights" under s. 92(10) of the 1867 Constitution Act. This contrasts with other federal jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions.
Internal and external consistency
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. Here, the term "dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.
A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.
Statements of the legislature
Legislative bodies themselves may try to influence or assist the courts in interpreting their laws by placing into the legislation itself statements to that effect. These provisions have many different names, but are typically noted as:
Findings;
Declarations, sometimes suffixed with of Policy or of Intent; or
Sense of Congress, or of either house in multi-chamber bodies.
These provisions of the bill simply give the legislature's goals and desired effects of the law, and are considered nonsubstantive and non-enforcable in and of themselves.Go back to Rules of Interpretation
Golden Rule of Interpretation/Construction
Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is someambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. Incommon law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations.
Golden Rule of Interpretation/Construction of Statute
In law, the Golden rule, or British rule, is a form of statutory interpretation that allows a judge to depart from a word's normal meaning in order to avoid an absurd result. It is a compromise between the plain meaning (or literal) rule and the mischief rule. Like the plain meaning rule, it gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.
Basis of Rule
The rule is usually based on part of Becke v Smith (1836) 2 M&W 195 per Parke B (who became Lord Wensleydale), which states:
It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.
This is supported by Lord Wensleydale in Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234, who said:
[I]n construing (sic) statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther.
Application of the Rule
This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves.
For example, imagine there may be a sign saying "Do not use lifts in case of fire." Under the literal interpretation of this sign, people must never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of the person who made the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.
The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. Section 46 of the Administration of Estates Act 1925, required that the court should "issue" someone's inheritance in certain circumstances. In Sigsworth, Re, Bedford v Bedford (1935; Ch 89) the court held that no one should profit from a crime, and so used the Golden rule to prevent an undesirable result, even though there was only one meaning of the word "issue". The facts of this case are often misreported; a son murdered his mother and committed suicide. The courts were required to rule on who then inherited the estate, the mother's family, or the son's descendants. There was never a question of the son profiting from his crime, but as the outcome would have been binding on lower courts in the future, the court found in favour of the mother's family.
Go Back to Approaches to Construction Index page
Subscribe to:
Posts (Atom)