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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Tuesday, June 8, 2010

Presumption against implicit changes in common Law

The following presumptions made by US Court of appeal-Virginia are uniformly applied by the Courts all over. Iit is also a rule of construction that every law is supposed to have been made keeping the common law in background. This forms the basis of the presumption as well. The common form of the statement is that no alteration in common law is envisaged unless the intent is expressed clearly in unambiguous manner. [Blogger] .

1..we also apply the established principle that a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested. [ Linhart v. Lawson, 261 Va. 30, 35, 540 S.E.2d 875, 877 (2001); Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988).]  
2." .... a statutory change in the common law will be recognized only in that which is expressly stated in the words of the statute or is necessarily implied by its language."
[ Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000); Boyd, 236 Va. at 349, 374 S.E.2d at Cited from302."]
 Herndon v. St. Mary's Hospital,Inc., 266 Va. 472, 587 S.E. 567 (2003). 

[W]here a common-law principle is well established... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident." Astoria Fed. Sav. & Loan Ass'n v. Solimino, [1991] USSC 92; 501 U.S. 104

108 (1991) (internal quotation marks and citation omitted). "`Statutes which invade the common law... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.'" In re Chateaugay Corp.[1996] USCA2 783; , 94 F.3d 772, 779 (2d Cir. 1996) 1.(quoting Isbrandtsen Co. v. Johnson, [1952] USSC 79; 343 U.S. 779, 783 (1952)). "In such cases, Congress does not write upon a clean slate."

2.United States v. Texas, [1993] USSC 40; 507 U.S. 529, 534 (1993). As discussed above, there can be no question that the version of the revenue rule under which United States courts abstain from assisting foreign sovereign plaintiffs with extraterritorial tax enforcement is a well-established part of the common law and fully consistent with our broader legal, diplomatic, and institutional framework.
"In order to abrogate a common-law principle, the statute must `speak directly' to the question addressed by the common law." Id.; see also id. at 540-41 (Stevens, J., dissenting) (disagreeing as to the state of the common law, but stating that "[w]e presume that Congress understands the legal terrain in which it operates... and we therefore expect Congress to state clearly any intent to reshape that terrain"); Goodkin v. United .States, [1985] USCA2 741; 773 F.2d 19, 23 (2d Cir. 1985) (applying canon and stating that "[t]he no-fault law is a statute in derogation of the common law and, thus, must be strictly construed"). When a statute is as expansive as RICO, a court must be particularly careful to assure itself that Congress intended to abrogate the common law by enacting it. 4.Cf. Beck v. Prupis, [2000] USSC 35; 529 U.S. 494, 504 (2000) ("We presume, therefore, that when Congress established in RICO a civil cause of action..., it meant to adopt... well-established common-law civil conspiracy principles."); Neder v. United States, [1999] USSC 48; 527 U.S. 1, 21-23 (1999) (Court would interpret federal criminal statutes which are common RICO predicate offenses to include common law limitations "unless the statute otherwise dictates" (internal quotation marks omitted))
The above was observed by the US Supreme Court in the Case of ttorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., [2001] USCA2 385; 268 F.3d 103 (2d Cir.2001) ("Canada"), cert. denied, 537 U.S. 1000, 123 S.Ct. 513, 154 L.Ed.2d 394 (2002)..
This clearly 

establshes the canon or presumption that statute should not be construed so as to make changes in the principles of commin law.Yes, if there is express intent of congress the common law principle would not hold good.Thus the basic requirement is of intent that should be express.[[
See generally United States v. Bestfoods, [1998] USSC 65; 524 U.S. 51, 62-63 (1998) (Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") cannot be read to abrogate state corporation law unless it speaks directly to the issue, which it does not); Imbler v. Pachtman, 424 U.S. 409, 417-18 (1976) (federal civil rights statute did not abrogate general tort immunities; instead, it must be interpreted in light of the immunities); In re Chateaugay Corp., 94 F.3d at 779 (tax intercept statute did not abrogate common law right of set off]

Courts to Proceed with Caution in Matter of International Laws
In the above case it was also observed that:"Moreover, when an interpretation of a broad, general statute would implicate foreign relations, the Supreme Court has proceeded cautiously and looked for a clear expression of congressional intent as to the statute's scope. For example, in McCulloch v. Sociedad Nacional de Marineros de Honduras[1963] USSC 19; , 372 U.S. 10 (1963), a case about the National Labor Relations Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act in a manner that would raise a serious question of separation of powers, which would in turn implicate sensitive issues of the authority of the executive over relations with foreign nations. It stated that before approving the Board's exercise of jurisdiction "there must be present the affirmative intention of the Congress clearly expressed." Id. at 21-22 (citation omitted). 

Adherence to this principle will ensure that the courts interpret RICO consistently with international law. United States courts "`are not to read general words... without regard to the limitations customarily observed by nations upon the exercise of their powers.'"
 In re Maxwell Communication Corp.[1996] USCA2 753; , 93 F.3d 1036, 1047 (2d Cir. 1996) (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945)).

Applying these rules of construction, Canada's contention that RICO abrogates the revenue rule fails. "A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change." Green v. Bock Laundry Mach. Co., [1989] USSC 96; 490 U.S. 504, 521 (1989); see Tome v. United States, [1995] USSC 2; 513 U.S. 150, 163 (1995) (plurality opinion) (quoting Green). We respectfully conclude that Canada has not carried this burden. The language and structure of RICO and its legislative history offer no hint that Congress intended the statute to afford a civil remedy to foreign nations for the evasion of foreign taxes.

Presumption of Constitutionality-US Ckt Court of Virginia

The approach of US Courts will be amply clear from the following observations of the Circuit Courts -Virginia. Blogger believes that it appears to be the practice all over US.

1, "We review arguments regarding the constitutionality of a statute de novo.
[ Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) (citing Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003))

2.When the constitutionality of a statute is challenged, we are guided by the principle that all acts of the General Assembly are presumed to be constitutional. 
[Va. Society for Human Life v. Caldwell, 256 Va. 151, 156-57, 500 S.E.2d 814, 816 

3.(1998)...."[W]here a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation."
[ Esper Bonding Co. v. Commonwealth, 222 Va. 595, 597, 283 S.E.2d 185, 186 (1981).]

4.As a general rule, "[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.
County Court of Ulster County v. Allen, 442 U.S. 140, 154-55 (1979)

5.We conclude that appellant falls within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are unconstitutionally infringed. Accordingly, appellant lacks standing to challenge facially the constitutionality of Code § § 18.2-266 and 18.2-269. Thus, we consider the constitutionality of the statutes only as they apply to appellant in this case. 
See DePriest v. Commonwealth, 33 Va. App. 754, 761, 537 S.E.2d 1, 4 (2000) 

6.("An individual may challenge the constitutionality of a law only as it applies to him or her.").   
AS cited in Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523 (2007).

7. "However, when a court, in determining the constitutionality of a statute, departs from the express limitations of the Constitution and relies instead on implied constitutional restrictions, the legislative usurpation must be very clear and palpable to justify the court’s holding that an enactment is unconstitutional., Whitlock v. Hawkins, 105 Va. 242, 249, 53 S.E. 401, 403 (1906)."

As quoted in  
Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)

Presumption of constitutionality: When weakens

A fundamental right is one explicitly or implicitly implied guaranteed by the constitution.”
[Ballard v. Commonwealth, 228 Va. 216 (1984). See also Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)]
"As a general rule, where a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation."  
Esper Company v. Commonwealth, 222 Va. 595, 597, 283  S.E.2d 185, 186 (1981) (citation omitted)...."
We have  said that classification ordinarily will be upheld "if any state of facts  can be reasonably conceived that would support it."  

But where the  statute creates a "suspect classification" (e.g. race, sex, or religion) or  where it affects a fundamental constitutional right, the presumption  of constitutionality fades, and the "strict scrutiny" test, rather than the  more relaxed "rational relationship" test applies."  
 James Jackson v. Commonwealth __ Va. App.__ S.E.2d __ (2004).
The following observarion of US court of Appeals makes it clear that every statute is to be considered constitutional unless it is absolutely necessary
"It is an "established principle of constitutional law that a court will not rule upon the constitutionality of a statute unless such a determination is absolutely necessary to decide the merits of the case" 
Volkswagen of America, Inc. v. Smit, 266 Va. 444, 454, 587  S.E.2d 526, 532 (2003).
 See Also
"[A] statute will be construed to avoid a  constitutional question whenever this is possible."
 Yamaha Motor Corp. v. Quillian, 264 Va.  656, 665, 571 S.E.2d 122, 126-127 (2002).