67 The Alabama Lawyer 31 (2006). Unpacking Alabama's Plain-Meaning Rule of Statutory Constrution.

• Author: BY MARC JAMES AYERS

The Alabama Lawyer

2006.

67 The Alabama Lawyer 31 (2006).

Unpacking Alabama's Plain-Meaning Rule of Statutory Constrution

Unpacking Alabama's Plain-Meaning Rule of Statutory ConstrutionBY MARC JAMES AYERS In a now-famous law review article describing the canons of statutory interpretation, Professor Karl Llewellyn opined that "there are two opposing canons on almost every point." Karl N. Llewellyn, "Remarks On the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed," 3 Vand. L. Rev. 395, 401 (1950). His conclusion is somewhat unsettling, for it suggests that the science of statutory construction is an illusion - a mere game involving competing but equally authoritative canons, by which any interpretation is justifiable. Such a scenario would be frustrating for practicing lawyers who must evaluate their cases and advise their clients. And it would invite endless manipulation on the part of the courts, which could always cite a certain canon to support a desired outcome, all the while proclaiming fidelity to "the canons."

In Alabama, while all of the various canons are certainly recognized, one has achieved "primary" status: the Plain Meaning Rule. As shown below, the Plain Meaning Rule is anchored in Alabama's strong adherence to the doctrine of separation of powers. The Rule provides a framework from which statutory construction is to begin and by which it is to be completed.

The purpose of this article is to flesh out this framework, both from a theoretical and practical standpoint. Is there a "plain meaning?" How does one know what it is? What sources can one use to find the "plain meaning" without undermining the purpose of the Rule, which is to locate meaning only in the text of the statute? Does the Rule apply to constitutional interpretation? If nothing else, the practitioner must always be mindful of the Rule's framework, because it directly affects the courts' willingness to accept his proposed interpretation. Often arguments are made regarding the "legislative intent" behind a statute, when they could and should at least initially be cast in terms of the statute's "plain meaning."

Separation of Powers, Legislative Intent and the Plain Meaning Rule

The overarching principle that guides Alabama courts - and therefore must guide the advocate - in analyzing Alabama statutes is the principle of separation of powers. This principle is not merely one of good judicial philosophy, see The Federalist No. 47 (Madison), which happens to have been adopted by Alabama judges. Instead, it is a constitutional mandate. While the United States Constitution only implicitly assumes the separation of powers, Alabama's constitution contains an explicit, strongly-worded separation of powers provision. See Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, [Ms. 1031522, May 3, 2005] ___ So. 2d ___ (Ala. 2005)("The Constitution of Alabama expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States."); Ex parte James, 836 So. 2d 813, 815 (Ala. 2002)("In Alabama, separation of powers is not merely an implicit "doctrine" but rather an express command; a command stated with a forcefulness rivaled by few, if any, similar provisions in constitutions of other sovereigns."). Article III, Section 43 of the Alabama Constitution of 1901 provides, in pertinent part, that "[i]n the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." See also Ala. Const. 1901, Art. III, § 42 ("The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."). This provision, with very minor modifications, has been included in every version of the Alabama constitution since 1819. See Rice v. English, 835 So. 2d 157, 163 (Ala. 2002).

The justices and judges on Alabama's courts must and do take this principle seriously. See, e.g., Ex parte Jenkins, 723 So. 2d 649 653-56 (Ala. 1998)(discussing in detail the historical and philosophical background of Alabama's separation of powers provision). Indeed, the Alabama Supreme Court not long ago ended, on separation-of-powers grounds, the long-running, much-publicized "Equity Funding Case" involving, essentially, court-mandated funding of Alabama's public school system. Ex parte James, 836 So. 2d at 815-19. The court stated that it could not impose any specific remedy sought by the plaintiffs without usurping the role of the legislature and thereby violating Section 43. Id. at 819.

Alabama's devotion to a proper separation of powers is reflected not only in its constitution but also in its political environment. Alabama voters have become quite interested in rooting out what they perceive as judicial activism or "legislating from the bench." Therefore, virtually every candidate for judicial office - especially for a seat on one of Alabama's appellate courts - regardless of party, puts forth great effort to claim to only follow the law as written or to be a "strict constitutionist."

It is the strong devotion to separation of powers that informs the judicial process of statutory interpretation in Alabama, and has made the Plain Meaning Rule preeminent. The importance of the Rule is reflected in the Alabama Supreme Court's opinion in DeKalb County LP Gas Co. v. Suburban Gas, 729 So. 2d 270 (Ala. 1998), one of the more systematic discussions of Alabama's approach to statutory construction. In that decision, the court set forth the Rule as follows:

In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:

"'Words used in a statute must be given their natural, plain, ordinary, and commony understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"

It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law I s, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.

DeKalb County, 729 So. 2d at 275-76 (citations omitted; emphasis added); see id. at 277 ("We should turn to extrinsic aids to determine the meaning of a piece of legislation only if we can draw no rational conclusion from a straightforward application of the terms of the statute."); see, e.g., Pitts v. Gangi, 896 So. 2d 433, 436 (Ala. 2004)(citing DeKalb County, and stating "[t]here is clearly a 'rational' way to view the words of the...