Monday, July 6, 2020
Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit. The question--Does "and" mean "and" or does it mean "or?" At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.
The history of the case is rather complicated, but the key provision is quite simple. At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation. Paragraph two of the Proclamation stated (my emphasis):
Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.
In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department to make that clear when it accepted the Proclamation. It didn't. Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system. The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or," resting heavily on the usage of "in part" in the first line.
In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and." Unfortunately for them, the Ninth Circuit didn't agree.
There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way. It can, he says, mean "or":
Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”
Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example). Judge Nelson goes on to explain,
The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.
Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”
Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation. It seems like that would have saved everyone a lot of trouble.
Regardless, let this be a lesson for drafters of statutes and Proclamations. Have a happy Monday AND (and I do mean AND) a good week.