Statutory Construction Blog

Slaughtering Hogs; Slaughtering Statutes?

There's an interesting decision, not yet posted on the judge's web page, styled In re Knudsen, 2008 WL 2413155 (N.D. Iowa 2008). It presents a question of first impression under BAPCPA, and specifically the meaning of the 2005 amendment to 11 U.S.C. § 1222(a)(2)(A). The opinion begins:

Can family farmers, who liquidated their slaughter hogs to convert their farming operation from a farrow-to-finish hog operation to a custom hog-raising operation, obtain the benefits of an amendment to 11 U.S.C. § 1222(a)(2) under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23, that would allow the taxes generated by the sale of their slaughter hogs to be treated as an unsecured claim against their bankruptcy estate subject to discharge? This and other questions are raised on cross-appeals by the family farmers and the United States, on behalf of the Internal Revenue Service, from an order of the bankruptcy court denying confirmation of the family farmers' Chapter 12 plan for reorganization. Few-or no-courts have passed on the questions presented here, so that the court finds itself writing on a nearly clean slate, guided by statutory language, legislative history, and bankruptcy policy.

A Tax Statute Construed by Supremes in Split

As a matter of policy, I don't have the faintest idea what this case is about: Florida Dept. of Rev. v. Piccadilly Cafeterias, Inc., 2008 WL 2404077 (June 16, 2008). But the statutory interpretation issues are cool. I'll write more about it later, below...

Circuit Split on Meaning of 21 USC 843(b)

21 USC 843(b), entitled "Communication facility," relates to drug trafficking and provides:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term “communication facility” means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.

Does this language apply to using a telephone to acquire drugs for personal use? On that question, the courts split. A recent Fourth Circuit decision, U.S. v. Abuelhawa, 523 F.3d 415 (4th Cir. 2008 , available here, explained the split:

Because there is no dispute that Abuelhawa used a communication facility (a cell phone) to arrange the drug transactions, we believe this case can be decided by focusing only on whether Abuelhawa facilitated the commission of a felony. We begin with the recognition that our sister circuits are divided on the issue facing us; some find that when a communication facility is used to facilitate a drug sale for personal use, § 843(b) is not violated. See United States v. Baggett, 890 F.2d 1095, 1098 (10th Cir.1990); United States v. Martin, 599 F.2d 880, 888-89 (9th Cir.1979) overruled on other grounds by United States v. DeBright, 730 F.2d 1255 (9th Cir.1984). FN6 These circuits take the position that “a mere customer's contribution to the business he patronizes does not constitute the facilitation envisioned by Congress.” Martin, 599 F.2d at 889. In contrast, other circuits have concluded that distributions for personal use are covered by § 843(b). See United States v. Binkley, 903 F.2d 1130, 1135-36 (7th Cir.1990); United States v. McLernon, 746 F.2d 1098, 1106 (6th Cir.1984); United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B Dec.1981) overruled on other grounds by United States v. Huntress, 956 F.2d 1309 (5th Cir.1992).FN7 The Seventh Circuit, in Binkley, noted the term “facilitate” “should be given its ordinary meaning, which is, simply, ‘to make easier.’ ” Binkley, 903 F.2d at 1135 (quoting Phillips, 664 F.2d at 1032). See also McLernon, 746 F.2d at 1106 (same). And, by placing the focus on the use of a communications device to make a distribution easier, a defendant's “subsequent treatment of the cocaine cannot retroactively diminish [the defendant's] previous facilitation of ... [a] cocaine sale.” Binkley, 903 F.2d at 1136.

It's an interesting split, that seems to mostly turn on purposivist views, and little else. Stay tuned. Any thoughts?

In Case You're Living Under a Rock Part 2

Judge Kozinski, chief judge of the 9th Circuit, revealed that he had a porn stash as he was presiding, as visiting judge, over the first obscenity trial in many years in Los Angeles. He declared a mistrial due to recusal after the trial began - that could constitute a double jeopardy bar, I've read -- and is having to deal with a lot of, um, questions. A recent piece on the whole mess is here. The porn apparently involved portrayals of women nude painted as cows and men cavorting with aroused animals.

No, it doesn't have a whole lot to do with statutory interpretation, but it's just amazingly poor judgment at minimum and hypocrisy and a due process problem at worst. Stay tuned through other channels on this one.

At least we know if a judge prefers one form of statutory interpretation over another! (There, I figured out a tenuous link).

Tid Bits and Follow-ups

Florida Supreme Court Balancing Whistle Blower Rights and Religious Freedoms. Interesting oral argument just took place Thursday in a case involving the alleged firing of a secretary from a Catholic school for complaining that her supervisor assaulted her. An article on it is here.

The CAFA "not less than 7 days" Appellate Rule Split Continues. Section 1453(c)(1) provides that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.” As written, it requires appellants to wait 7 days, then gives them forever to appeal. The courts split with some holding "less" is "more" while others saying "less" means "less." The Seventh Circuit noted the split but in Spivey v. Vertrue is here, held "less" means "less." Easterbrook wrote in part:

That Congress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. So the Supreme Court held in Dodd v. United States, 545 U.S. 353 (2005), and United States v. Locke, 471 U.S. 84 (1985). See also, e.g., Lamie v. United States Trustee, 540 U.S. 526, 533–39 (2004). Turning “less” into “more” would be a feat more closely associated with the mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation. (Ludwig Mies van der Rohe, the architect who designed the courthouse in which the Seventh Circuit sits, adopted “less is more” as his motto, but this credo of Bauhaus design did no violence to any enacted text.)

Gitmo - In Case You're Living in a Cave

The Boumediene case is here. An article about its possible impact on other areas is here.