Statutory Interpretation & Administrative Law

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Textual Canons

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Plain Meaning Rule
In Pari Materia
Indentical Words
Rule Against Surplusage
Noscitur a Sociis
Ejusdem Generis
Expressio Unius
Provisos

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Rule of Lenity

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If two reasonable interpretations exist, the court should adopt the defendant’s interpretation.

In interpreting an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.

Canon used only with criminal statutes; construed narrowly.

Policy Based Source

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In Pari Materia

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“part of the same material"

Statutory language should not be looked at in isolation, rather the entire textual context is relevant.

When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

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Rule Against Surplusage

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Each word has a meaning and purpose, nothing is redundant or meaningless.

No two words have the same meaning. If two words have the same meaning, that would be surplusage, or surplus.

This canon compliments the Identical Words canon.

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Noscitur a Sociis

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“it is known from its associates”

When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

A word or a phrase is defined by its context; most often used with lists of words grouped together.

Noscitur a sociis conflicts with the rule of surplusage. Noscitur a sociis presumes that words share meaning, while the rule against surplusage states that words have independent meanings.

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Ejusdem Generis

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“of the same kind, class, or nature”

Narrows a meaning of a general term (catch-all phrase) that precedes or follows a list of specific items.

This canon narrows not broadens the catch all phrase.

Presumes that had the legislature wanted to have a broad application it would not have listed the specific items.

When the list is not sufficiently similar, then ejusdem generis does not apply.

Subset or type of Noscitur a Sociis.

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Expressio Unius

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"The inclusion of one thing excludes the other"

By the legislature including some things, the legislature intentionally left things out.

If the legislature wanted to include other circumstances it would have listed them or included a catch-all phrase.

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Identical Words Presumption

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When the legislature uses the same words in different parts of the same statute or act, the legislature intended those words to have the same meaning (consistent usage).

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Constitutional Avoidance Doctrine

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If statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems.

Avoid interpretations that raise a constitutional conflict or doubt.

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Plain Meaning Rule

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When words are not defined by statute, the courts presume that words in a statute have their “plain” or “ordinary” meaning.

The law is to be read word for word and should not divert from its ordinary meaning.

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Ambiguous

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a word that can legitimately have more than one meaning. The test for ambiguity is if it is capable of being understood by reasonably well-informed persons in two or more senses.

Does not mean vague, broad, or general.

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Absuridty

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Broad View - Plain meaning of statute results in an odd, unjust, or illogical result; used by non-texualist judges.

Narrow View - Plain meaning of statute leads to results so great as to shock the general moral or common sense.

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Golden Rule

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An exception to the plain meaning rule that allows judges to go beyond the ordinary meaning of the text if the ordinary meaning would lead to an absurd result.

Courts can consider extrinsic sources to determine legislaure's intent.

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Scrivener’s Error

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An exception to the plain meaning rule that permits judges to correct obvious clerical or typographical errors.

This could include incorrect punctuation or a cross reference to the wrong subsection of an act.

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The General Rule
(for Punctuation)

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An act should be read as punctuated unless there is some reason to do otherwise.

Legislature is presumed to know and apply the ordinary meaning of words and the common rules of grammar and punctuation.

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Serial Comma Rule

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In a series of three or more items, if each is set off by a comma, then each item should be viewed as independent of the others items.

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The Last Antecedent Rule

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When a modifier is not set off from an antecedent by a comma, then the modifier should be interpreted to apply to only that antecedent.

Example: birds, dogs, and cats that are white. The modifier "that are white" only applies to cats.

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The Last Enacted Rule

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Later enacted (newer) statutes control earlier enacted (older) statutes, unless the earlier (older) enacted statute is more specific.

The more recently enacted statute is viewed as the clearest and most recent expression of the legislature’s intent.

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Specific vs. General Statutory Language

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Specific statutory language controls general statutory language;

The presumption is that the legislature intended the more specific statute to be an exception to the general provision.

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Implied Repeal Canon

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When two statutes cannot be reconciled by the last enacted rule, the judge may consider that the later statute repealed the earlier statute, either explicitly or implicitly.

It is presumed that new statutes will modify existing laws, but not outright repeal one. In the absence of an express repeal, it is likely the legislature did not intend any repeal.

Repeals should not be implied unless the new statute is comprehensive on the subject matter or is completely incompatible with the earlier statute

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Intrinsic Sources

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Materials that are part of the act being interpreted, which include:

Text of Statute
Syntax
Punctuation
Grammar
Related Statutes
Components (Title, Preamble, Headings)
Textual Cannons

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Extrinsic Sources

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Materials that are outside of the act (“beyond the enacted text”) being interpreted, which include:

Legislative History
Subsequent Legislative History (Silence, Amendment, Repeal)
Purpose
Conflicting Statutes
Agency Interpretations

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Policy Based Sources

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Policies that are extrinsic to both the statute being interpreted and the legislative process. They reflect important social and legal choices derived from the Constitution and common law.

They include:

Rule of Lenity
Constitutional Avoidance Doctrine

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Supremacy Clause

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The U.S. Constitution, Federal Statutes, and U.S. Treaties are "the supreme law of the land."

Mandates that state judges must follow federal law when a conflict arises between federal law and state law.

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Contextualism

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The process of using context to determine why the legislature acted or to determine what a statute means. Context includes: social and historical events, the legal and political climate, and
economic factors.

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Textualism

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Approach to statutory interpretation where the statutory language directs interpretation.

Textualists focus on textual and linguistic context to understand how the legislature used words or phrases. Examine the fewest sources.

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Intentionalism

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Approach to statutory interpretation where legislative intent guides interpretation.

Start with the statutory language but also seek to discern meaning from the author’s intent.

Does not require a reason (i.e. ambiguity or absurdity) to consider sources beyond the text.

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Purposivism

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Approach to statutory interpretation where statute’s purposes explains meaning.

Focuses on the broad goals of a statute and the problems the legislature meant to address by passing the statute.
Allows courts to seek meaning from the broadest number of sources.

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Sliding Scale Approach (Alaska’s Approach)

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A “sliding scale” approach for considering a statute’s meaning. The plainer the statutory language, the more convincing the evidence of a contrary legislative purpose or intent must be.

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4 Steps for determining Purpose
(Heydon’s Case)

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1. Identify the law as it existed prior to the enacted statute.
2. Identify the mischief that the legislature wished to remedy.
3. Identify the remedy that the legislature devised to correct the mischief.
4. Interpret the statute to further that remedy and minimize the mischief.

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What are the primary reasons for using Legislative History?

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Two primary reasons:
1) To understand the specific intent of the enacting legislature; or
2) To identify the statutory purpose.

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How can Legislative History be used to intrepret a statute?

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- confirm the meaning of clear text;
- explain the meaning of ambiguous or absurd text; or
- defeat the meaning of clear text.

Fewer judges are willing to review legislative history to confirm clear text and even fewer judges are willing to review legislative history to defeat plain text.

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How can the purpose of a statute be used to interpret a statute?

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Finding the purpose of a statute may:
- Resolve ambiguity
- Provide guidance with respect to absurdity
- Confirm ordinary meaning
- Trump ordinary meaning

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How does a court handle a stare decisis of interpretation of a statute?

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Judges are reluctant to overrule a prior statutory interpretation case, even if the interpretation is wrong or the context has changed.

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Legislative Acquiescence

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Doctrine that presumes that legislature's silence after the court’s interpretation of a statute means they agree with the court’s interpretation. If the legislature does no amend, repeal or change the statute that the court rule on equates to agreeing with the court.

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Engrossed Bill

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bill that passes one chamber

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Enrolled Bill

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bill that passes both chambers and ready to be presented to the President for signature or veto.

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Enrolled Bill Doctrine

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Courts assume that all rules of procedure in the enactment process were properly followed in the enactment of a bill by the legislative body.

"[i]f a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted. This is a principle of judicial interpretation of rules of procedure in legislative bodies."

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Authority Statutes

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Statutes that authorize agencies to make law; create a broad legal framework and call upon an agency to fill in the details.

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Administrative agencies operate within what branch of the government?

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The executive branch, either under the President at the federal level or the governor at the state level.

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Federal Register

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Regulations are published in the Federal Register as they become final, so they are arranged chronologically. and not by subject order. Published every business day.

Contains many documents other than final regulations, including proposed regulations, expired regulations, meeting notices, and announcements.

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Code of Federal Regulations (C.F.R.)

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The second official source of federal regulations is an annual publication in which the regulations are arranged by subject.

The process of compiling the regulations into a subject arrangement is called codification. There are 50 numbered titles in the C.F.R., each representing one broad topical area of federal regulation.

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Rulemaking Process for Agencies:

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1. Publish a proposed regulation in the Federal Register.
2. Request public comments on possible revisions.
3. Review comments from interested parties.
4. Holds hearings to allow interest parties to testify about possible impact of the proposed regulation. (not necessarily required
5. Rvise the proposed regulation, publish it again, and call for additional comments.
6. Continue the cycle of notice and comment until a regulation is finalized. (may repeat several times)
7. Publish the final, revised regulation in the Federal Register.

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Final Rule
(for regulations)

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No federal regulation can become effective until it is published in its final form in the Federal Register.
The "final rule" notice in the Federal Register may specify a later effective date, but not an earlier one.

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Sunset Provision

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Provision passed by the legislative branch to bring finality to an agency or a particular regulation.

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What can Agencies do?

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Draft administrative laws similar to the legislative branch.
Interpret administrative laws similar to the judicial branch.
Enforce administrative laws similar to the executive branch.

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Revised Rule
(of regulations)

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If the new rule is substantially different, it needs to go through the rule making process again (notice and comment).

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Why is it important to distinguish between Legislative Rules and Interpretive Rules?

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Deference courts given to the agency's interpretation of a statute

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Exceptions to the Plain Meaning Rule

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Golden Rule (absurdity)
Scrivener’s Error (obvious clerical or typographical error)
Constitutional Avoidance Doctrine (constituional conflict or doubt)