May 19, 2007
Michigan Supreme Court at it Again
Two recent cases from the Michigan Supreme Court are of note.
In People v. Thompson, 2007 WL 1266053 (Mich. May 1 2007), a statute made it a crime to "keep or maintain" a vehicle for drug sales. A prior panel had held that a vehicle had to be kept or maintained for an "appreciable period of time" before it was "kept or maintained" under the statute -- simply sitting in a car while a drug deal went down didn't make the car one that was "kept or maintained." In reaching a slightly different conclusions, the majority in Thompson held that "keep" meant the same thing as "maintain" (missing the point that such construction rendered language superfluous, a cardinal sin of statutory construction), and that as a result all that was required was some degree of continuity of use of the vehicle, which it reasoned was less than an "appreciable period of time," but more than one incident.
One judge concurred, and another concurred in part and dissented in part. He chastised the majority for picking the one dictionary definition of both "keep" and "maintain" that rendered them synonyms, and argued that they in fact had separate meanings and that, under "keep," one isolated incident was enough.
You oughta read the opinion with the thought in mind that this is a criminal statute that's supposed to give fair warning. I have a hard time in normal parlance of thinking that if I drive somewhere and sell drugs, I've "kept and maintained" a vehicle for drug sales. I think both majority and dissent were wrong and that the appreciable period test is probably the correct one for this criminal statute, but no one on the Michigan Supreme Court agreed with me.
In the other case, sent by a reader, Apsey v. Memorial Hosp. __ N.W.2d. __ (Mich. May 1, 2007), the court tackled rather intricate circumstance that I've not had enough coffee to summarize. It's got about 8 different opinions, and is worth reading, but not without more coffee...
May 17, 2007
Cert Sought in Eleventh Circuit Case Upholding Alabama Anti-Sex Toy Statute. You can read the article here. I could even make some of this stuff up. Do we really need a statute banning these things?
Maryland Bans Smoking in All Public Places. No sex toys in Alabama, no nicoteine (sp) in Maryland. What's the world coming to?
Immigration Compromise Supposedly Reached in Senate. Maybe once all the foreigners find out about the Maryland and Alabama statutes, they won't want to come here anyway! I doubt this will be the final iteration, but you can read about the now-existing compromise here.
May 16, 2007
A Simplicity Canon of Construction?
I am, I am glad to say, in the final edits of my newest book, Mastering Civil Procedure. It was by far the hardest thing I've ever done.
Along the way, and most particularly while writing the chapters on subject matter jurisdiction, it struck me how interpretations have made civil litigation more expensive than it could have been, and studying law much harder than it could be, too.
A simple example that will dredge back up awful memories from when you were a 1L: Article III's phrases "arising under" and "Citizens of different States" mean different things than the statutes that use exactly the same words. "Arising under" requires merely that federal law be an ingredient of the claim under Article III, but requires that the plaintiff's claim turn on a substantial question of federal law under the statute; "Citizens of different States" means minimal diversity under Article III, but complete diversity under the statute. The statutes, as you know, were written within a few years of the Constitution.
If a court were construing those statutes today, with no precedent except the constitutional interpretations, I cannot believe that different meanings would have been ascribed to the statutes. The plain text along with the timing of the statutes' enactment would lead to one conclusion: they extend to the limits of Article III.
Had the court done so, litigation would have been much less expensive. In diversity, for instance, if one plaintiff was a citizen of a different state from one defendant, then there would be federal jurisdiction; no need to analyze the hundreds of other parties' citizenship.
Don't misunderstand my point: I'm not saying that the interpretation given to either statute doesn't further important public policies; obviously it does. But both interpretations, from what I've read, can be justified only on that basis, and that is "activism."
Think about the social cost of learning this has created. There are books where dozens of pages are devoted to this distinction and understanding it, complete like mine with diagrams and charts.
Should there be a basic tenet of statutory interpretation that the simplest construction is always preferred over the more complex?