Statutory Construction Blog

Tid Bits

Interesting Sovereign Immunity Case from Ninth Circuit. In an era privatizing government function, this Ninth Circuit California case is both interesting and thoughtful. There's an article here.

Don't Cry for me Habeas Corpus. The First Circuit has upheld the limitations placed on habeas by statute against constitutional challenge in a case you can read here. The opinion states: "Petitioner's arguments are based not so much on the statutory text of § 2254(d) as on the Supreme Court's binding interpretation of that text in Williams v. Taylor as to the meaning of three key terms in the statute: "clearly established," "contrary to," and "unreasonable application.""

Text Message is a "verbal" Communication in Criminal Statute

In State v. Ebersold, 2007 WI APP 232 (Wis. App. Oct. 25, 2007), the defendant high school teacher was accused of sending sexually explicit messages in an Internet chatroom to one his students.  He was charged with violating Wis. Stat. 948.11(2)(am), which makes it a crime to "verbally communicate[], by any means" certain accounts to someone under 18.

The court -- and I really am not making this up -- said that because "verbally" was not defined in the statute, it had to look to dictionaries.  It then relied on Black's law dictionary, a 1999 Webster's dictionary, and some articles from bar journals that pointed out that, although "verbal" has "come to mean 'oral'" it really means "consisting of words."

And so, the court held that "verbal" was at best ambiguous, and so looked to the context, history and purpose of the statute and construed "verbal" to mean "oral or written".  The court then rejected the argument that it was vague, saying that people of ordinary intelligence would have fair notice.

Hmmmm....  Now, maybe, just maybe, this is a closer question than it seems to me -- I bet if I surveyed 100 people 95 of them would say "verbal" means "oral" and excludes writing -- but even putting that tot he side, what about construing criminal statutes narrowly?

Georgia Loses Battle over Water Rights

Georgia, and particularly North Georgia, have been suffering a major drought.  If you don't believe me, read about it and see some photos of Lake Lanier here.

The case involves an earlier settlement agreement, approved by a federal district court to settle earlier litigation.  Basicallly, over objections of Florida and Alabama, the Army Corp of Engineers had reallocated water storage from hydroelectric power generation to water supply (Atlanta needs the water). The appellate court held that this was a "major" change in terms of the applicable statute, the Water Supply Act ("WSA"), and so needed Congressional approval.   There's nothing new in terms of statutory interpretation law in the case - but it's a huge case here in the Southeast.

The case, Southeastern Fed. Power Customers, Inc. v. Geren __ F.3d __ (D.C. Cir. Feb. 5, 2008) is available here.  A newspaper article from the AJC is here.