ALL MIXED UP ABOUT STATUTES: DISTINGUISHING INTERPRETATION FROM APPLICATION.

AuthorWarner, Randall H.
  1. INTRODUCTION

    There's been a lot of talk about statutory interpretation. Maybe too much talk. (1) While most of it is about how to interpret statutes--what methods to use, what authorities to consult, how to discern meaning--the question that weighs on me is: Who? Who decides whether a statute applies to the circumstances of a particular case, the judge or the trier of fact? The question matters because, as a trial judge, I must decide which questions go to the jury and which I will rule on. And it mattered in my prior life as an appellate lawyer because the answer to that question determines the standard of review.

    The textbook answer is that statutory interpretation is always a question of law. True enough, but it ducks the question: When does applying a statute to facts constitute statutory interpretation? Some courts routinely say the application of a statute to facts is always a question of law. (2) Others say it is a mixed question of law and fact reviewed de novo. (3) But there are many cases in which the trier of fact applies a statutory term or definition to unique circumstances without interpreting the statute, and the decision is reviewed on appeal with deference. (4)

    This happens, for example, every time a jury is instructed on the statutory elements of a crime and decides whether they are proven. Sometimes a statute requires something concrete, like whether the defendant's blood alcohol level was .08 or above. (5) Sometimes a jury must make a value judgment, like whether a defendant claiming self-defense had a reasonable fear of bodily harm. (6) Sometimes a jury must apply a statutory term, like whether an implement was a "deadly weapon" as defined in the statute. (7)

    It happens in bench trials too. In a juvenile dependency case, for example, the judge might have to decide whether a parent "neglected" their child within the meaning of that statutory term. The judge hears the evidence, decides what the facts are, and applies those facts to the statutory definition of "neglect." (8)

    Yet sometimes deciding whether a statute applies to the facts clarifies or refines the statute in way that will apply to other cases. (9) That is statutory interpretation. Professor De Sloovere described the distinction almost a century ago: "Interpretation may be defined as the process of reducing the statute applicable to a single, sensible meaning--the making of a choice from several possible meanings. Application, on the other hand, is the process of determining whether the facts of the case come within the meaning so chosen." (10)

    In some cases, "Does the statute apply here?" is effectively, "What does the statute mean?" In others, it is case specific and says nothing about what the statute means for other cases.

    The thesis of this article is that applying a statute to facts can be one of two things. One is statutory interpretation because it involves defining or refining a statutory term. The other is more properly called statutory application because it involves deciding whether the statute so defined applies on the facts of a particular case. That usually is and ought to be a question for the trier of fact. Distinguishing the two is not always easy, and this article proposes a standard for doing so: Can the statute can be further refined in a way that is generally applicable to other cases?

    This is no theoretical question. It matters to appellate lawyers arguing about the standard of review, and to appellate judges who decide it. And it matters to trial judges deciding motions, settling jury instructions, and ruling on bench trials.

    This article builds on my prior article about the law-fact distinction: All Mixed Up About Mixed Questions. (11) There I argued that what courts call "mixed questions of law and fact" are actually several different kinds of questions and that determining who decides the issue (and the appropriate standard of review) requires understanding the differences. This article explores a similar question: When is the application of a statute to facts a legal question of statutory interpretation, and when is a question for the trier of fact?

  2. STATUTORY APPLICATION--LAW OR FACT?

    1. What Courts Say

      Before looking at how courts treat statutory application, let's look at what they say. Because when it comes to standard of review, what courts do and what they say are not always the same.

      Many, many cases recite as black letter law that the application of a statute to facts is a legal question reviewed de novo. For example:

      * "We review de novo the interpretation and application of a statute." (12)

      * "The proper interpretation of a statute and its application to the facts present questions of law reviewed de novo." (13)

      * "We have long recognized that the application of a statute to undisputed facts is a question of law." (14)

      * "We independently review the application of the statute to undisputed facts." (15)

      * "The standard of review applicable here is that we defer to factual findings made by the trial court, if they are supported by competent substantial evidence, but we review de novo the trial court's application of the statute to those facts." (16)

      Contrast those with the following:

      * "[W]e review the court's findings of fact for clear error and its application of the statute to those findings for abuse of discretion ...." (17)

      * "[W]hen it is the circuit court's application of a statute to the facts before it, our standard of review is clearly erroneous." (18)

      * "[W]e review the court's application of the statute to the facts for clear error." (19)

      * "[T]his court has held that the issue of whether Smith was stabilized as defined by the statute is a question of fact to be decided by the factfinders. (20)

      * "[W]e must first determine whether section 474.150.1 applies to IRA accounts before determining whether the trial court's application of the statute to Husband's IRA was supported by substantial evidence." (21)

      Still other cases label statutory application a "mixed question of law and fact." And of these, some say it is a mixed question reviewed de novo while others say it is a mixed question reviewed with deference:

      * "Application of these statutes to the facts here presents mixed questions of law and fact.... We elect to review these mixed questions of law and fact de novo." (22)

      * "[The bankruptcy court's] application of the statute to the particular facts of this case poses a mixed question of law and fact, subject to the clearly erroneous standard, unless the bankruptcy court's analysis was 'infected by legal error.'" (23)

      * "[W]e are presented with a mixed question of law and fact--the application of the IDEA's statutory and regulatory definitions to the particular facts of Treena's medical and educational history. Accordingly, our review of the district court's conclusions is de novo." (24)

      * "The application of Labor Code section 3352, subdivision (f) to the stipulated facts is a mixed question of law and fact, which is predominantly factual and 'requires application of experience with human affairs;' therefore, it is governed by the substantial evidence test." (25)

      What are we to make of these differences? How do we explain the fact that some cases say statutory application is a question of law while others say it is a question of fact?

      One possibility is that there a split of authority. Maybe over time, a substantive disagreement developed among jurisdictions about how to treat statutory application. But there are two problems with this hypothesis. First, there is no evidence of any substantive disagreement in the case law. There is no discussion about why some courts pick one approach while others pick the opposite, as you see when there is a real disagreement about what the law should be.

      Second, there are lots of instances within the same jurisdiction in which some cases say statutory application is reviewed de novo while others say it is reviewed deferentially. (26) Pennsylvania's Supreme Court, for example, recently cited the "well-settled" principle that "determining whether an activity, entity, or object falls within the meaning of a statutory definition is a matter of statutory interpretation, and thus is a question of law for the court to decide." (27) Yet it said exactly the opposite just a few years earlier:

      A question involving whether a petitioner fits the definition of mental retardation is fact intensive as it will primarily be based upon the testimony of experts and involve multiple credibility determinations. Accordingly, our standard of review is whether the factual findings are supported by substantial evidence and whether the legal conclusion drawn therefrom is clearly erroneous. (28) Did the Pennsylvania Supreme Court change its mind from one case to the other about the proper standard of review for statutory application? No. It was talking about two different things. (29)

    2. Application of Statutory Terms as a Fact Question

      The most common example of statutory application by the trier of fact happens in criminal cases. The prosecution charges the defendant with specified crimes, the elements of which are prescribed by statute. The judge instructs the jury on the statutory elements of each charge. And the jury decides based on the evidence whether the elements are proven. The jury is applying law to facts. As my own standard jury instruction says: "You will hear the evidence, decide the facts, and then apply the law I will give you to those facts." (30)

      People v. Curtis, an Illinois case, is a good example. (31) The defendant there was convicted of stalking, which the statute defined to include placing a person "under surveillance." (32) The statute further defined "under surveillance" as "remaining present outside the person's school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant." (33) So we have a statutory term, a definition of that term, and the trier of fact...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT