April 19, 2007
Washington State Opinion
The lone dissent in Anderson v. State of Wa. Dep't of Corrections, 154 P.3d 220 (Wa. 2007) begins: "This case presents a simple issue of statutory construction where the majority erroneously ignores and renders meaningless the specific, express controlling statutory provisions. The majority instead construes and rewrites the statutes to find a general power not found in the detailed statutory scheme."
The issue was pretty narrow, but it struck me as interesting how great a disparity between (seemingly) reasonable people can arise over the "plain" meaning of words. We all know that point, but the emphasis with which the dissent gave it struck a chord, reminding me that what is plain to one of us may be plain, but mean precisely the opposite, to someone else. Wittgenstein was right! :-)
April 18, 2007
Interesting New Article on Implied Rights of Action
Timothy J. Famulare, HAS SANDOVAL DOOMED THE PRIVATE RIGHT OF ACTION UNDER THE NATIONAL
HISTORIC PRESERVATION ACT?, 16 B.U. Pub. Int. L.J. 73 (2007). This relates to something I wrote about here, long ago, about whether a statute should be interpreted in light of the judiical approach to interpretation extent at the time of enactment, or now. Particularly with respect to implied rights of action, the Supreme Court has demonstrably changed its approach to interpretation: text that once created an implied right no longer will. Seems to me that the courts ought to look, particulalry in this context, at the approach to implied rights taken at the time the statute was enacted, not later developed, if text and intent and purpose, rather than judicial philosophy, matter.
I couldn't find the piece on the journal's website, bu hope to finish reading it.
April 16, 2007
Arizona Court of Appeals Issues First Impression Interpretation of Its Version of FRCP 54(b)
In Kim v. Mansoori, 153 P.3d 1086 (Ariz. App. 2007), an Arizona appellate court issued an interpretation of first impression of Arizona Rule of Civil Procedure 54(b), which permits entry of a final judgmetn as to one or more but fewer than all claims if the district court makes certain certifications. The statute, therefore, presents a narrow exception to the final judgment rule. Unlike the federal rule, Arizona's rule was amended to include this phrase: "For purposes of this subsection, a claim for attorneys’ fees may be considered a separate claim from the related judgment regarding the merits of a cause."
Despite the plainn language, which would seem to suggest that a claim for attorneys' fees was a "claim" for purposes of Arizona's Rule 54(b), the court applied an intentionalist approach and, without finding ambiguity, examined extra-textual sources, including the legislative history:
But that sentence, read in its entirety and in the context of the committee note and other provisions of Rule 54, provides a trial court discretion to treat a claim for attorney fees as a separate claim, subject to Rule 54(b) certification, only in the context of a “related judgment regarding the merits of a cause.” Id. Here, the trial court granted judgment on the Kims’ claim for attorney fees without entering a related judgment on the merits of the cause. The State Bar Committee Notes to the 1999 amendments explain the rationale for the
pertinent provision as follows:[T]here may be good reasons to entertain an immediate judgment on the merits of a cause, while leaving attorneys’ fees issues to be addressed later. Rule 54(b) was amended in 1999 to permit that approach. Under the amended rule, the trial judge may certify the “merits” judgment for immediate entry and appeal before such judge renders a decision on the attorneys’ fees issues. The trial court will retain jurisdiction to address the attorneys’ fee issue after the appeal of a Rule 54(b) certified judgment on the merits.
Ariz. R. Civ. P. 54(b) bar committee note. Thus, the framers intended to permit a trial court to characterize a claim for attorney fees as a separate claim so it would have the discretion to enter an immediate, appealable judgment on the merits—notwithstanding lingering and unresolved attorney fees issues.