Our State Supreme Court issues a lot of unanimous opinions. But this month’s batch of opinions contained two interesting examples of an area in which the justices may disagree: statutory interpretation.
In State v. Fletcher, the Supreme Court was interpreting the scope of the phrase “oral intercourse” in a criminal statute. Not surprisingly, the Court “look[ed] first to the plain meaning of the words of the statute itself.” But because the justices found that the phrase “lacks an unambiguous plain and definite meaning,” they turned to other sources. That is where the divergence occurred.
The majority said that consulting dictionaries would be “of no avail in this case” because common print and online dictionaries do not define the phrase. Because there is no “generally accepted understanding,” the majority turned to its analysis of the General Assembly’s intent. Viewed through that lens, the majority concluded that the statutory phrase should be “construed broadly in order to provide minors with the maximum reasonably available protection from sexual exploitation.” This broad construction led to a different definition of the word “intercourse” than what has been used in and applied to other statutory provisions that use the same term. The majority also relied on a series of decisions from other jurisdictions that have reached a similar conclusion.
In a separate concurring opinion, Justice Morgan took a slightly different approach. In his view, “proper application of principles of statutory interpretation” dictated a narrower view of the statutory phrase. Justice Morgan would have relied on “a construction of terminology that is harmonious throughout the spectrum of statutory enactments which address a given area of the criminal law.” The rationale was that the General Assembly’s use of the word “intercourse” should be interpreted in the same way as other types of “intercourse” described in criminal statutes. This is “a word with a well-known, long-standing meaning.” Looking at legislative intent, the concurrence could “discern no evidence that the General Assembly intended to ‘limit’ or alter the meaning of the term ‘intercourse’ when it drafted the sexual exploitation laws in 1985.” Justice Morgan’s concurring opinion also relied on dictionary definitions.
The second case was State v. Moore, in which the Court was interpreting the word “violations” in the context of a statute that requires a “statement of the violations alleged” before probation can be revoked. The Court’s majority opinion looked to the plain language of the statute and cited several dictionary definitions of the term “violation.” The majority said its “straightforward” interpretation of the statute was “consistent with both the language of the statute and its purpose.” In discerning the purpose of the statute, the majority looked to various secondary sources and publications. But “[e]ven more fundamental than purpose, of course, is text.” Thus, the majority relied on what it deemed a “straightforward meaning” of the statute. According to the majority, the defendant was advocating for a new requirement to be inserted into the statute: notice of the specific condition of probation that was violated.
In a separate concurring opinion, Justice Ervin (joined by Justice Hudson) said he was “inclined to refrain from parsing the relevant statutory language that finely.” The concurrence opined that the statutory phrase “refers to both the specific conduct in which a defendant allegedly engaged and the likely effect of that conduct upon the continuation of the defendant’s conditional liberty.” Justice Ervin also said that his interpretation was “reinforced” by another probation statute.
In dissent, Justice Beasley focused on the due process aspect of adequate notice. She discussed the history of the statute as well as a 2009 report that led to legislative action affecting the relevant statutes. She criticized the majority’s decision for failing to consider “the context of the remainder of the statutory framework for probation.” She opined that “[t]he majority’s effort to define the word ‘violation’ by using its dictionary definition and its belief that a description of the defendant’s behavior is all that is legally required completely fails to reflect the specificity required for proper notice.”
So what do these cases teach us? Do they raise more questions than answers?
All the justices appear to agree that the text of the statute controls. But what exactly does that mean? Should judges parse each word of the statute and analyze it separately? Or should they consider a specific statutory provision in the context of surrounding provisions? Should statutory interpretation be guided by other statutes in separate chapters that use the same or similar language? Do dictionaries always (or even usually) provide the appropriate definitions for statutory terms?
And if the language of the statute is unclear, what is the next most important consideration? The purpose of the statute? Legislative history (as far as it can be discovered)? How other jurisdictions have analyzed similar statutes? What secondary sources have said about the issue?
These are just some of the issues that make statutory interpretation so difficult. And as these cases demonstrate, this difficulty often prevents consensus and unanimity among judges. But it is precisely because of this difficulty that statutory interpretation can be fertile ground for the skilled advocate, and it is an area of the law that all appellate practitioners should seek to master.