DICTIONARY DIVING IN THE COURTS: A SHAKY GRAB FOR ORDINARY MEANING.

• Author: Kimble, Joseph

Rummaging through dictionaries for the meaning of contested words in court cases is a bad practice. I will defend that assertion later in this article. But first I'll illustrate, using the Michigan Supreme Court as an example, how the use of dictionaries soars when textualist judges are in control. Dictionaries, after all, are "a main (perhaps the main) tool of interpretation used by textualists." (1) So I'm confident that you would see similar results for any court dominated by textualists.

In fact, I suspect that you would see steeply higher numbers in almost all courts, as less doctrinaire judges, in reaction to textualism's influence, are drawn into playing the dictionary game. (2) Regrettably but understandably, that's what happened for two decades on the Michigan Supreme Court.

I. THE HEAD-SHAKING DATA

Professed textualists began their ascent onto the Michigan Supreme Court in the late 1990s. The Republican governor, John Engler, had three successive appointments to the Court, one in 1997 and two in 1999, and a fourth justice was nominated by the Republican Party and elected in 1998. (3) As a new millennium dawned and through the next 20 years (except for a short time in 2010), Republican-appointed justices or those nominated to run by the Republican Party formed the majority. That remained true until 2020, when a fourth Democratic nominee was elected. (4)

Now for the data. I had research assistants search every Michigan case since 1845 for citations to a dictionary in both majority and minority opinions (not orders). They searched for citations to both legal and general (lay) dictionaries, but I've decided to concentrate in this article on general dictionaries. Any case that cited a general dictionary at least once is counted in the numbers below.

From 1845 through 1984, the Michigan Supreme Court decided 39,803 cases--an average of 284 a year. Interestingly, the yearly totals peaked in the decade from 1925 through 1934 and began to decline after that. Since the Michigan Court of Appeals was created in 1963, the Supreme Court has, not surprisingly, decided increasingly fewer cases.

I asked my research assistants to organize those 140 years in ten-year periods--a somewhat arbitrary scheme. In the entire 140 years, the Supreme Court cited a general dictionary in 178 cases. So given 39,803 total cases, that's about .4%, or 4 in every 1,000 cases. The highest ten-year period was 1975 through 1984, when the Court ticked up to 20 cases per 1,000, or 2 every 100. Still a small number.

Things started to change in the ten years from 1985 through 1994, as textual methods began to make themselves felt in decision-making. Justice Scalia, the preeminent textualist, was appointed to the United States Supreme Court in 1986, and scholars were writing about "the new textualism" and "Justice Scalia's textualism." (5) It's impossible, of course, to draw direct correlations with what was happening in the Michigan Supreme Court, nor is it necessary: the fact is that textualism was in the air. And in those ten years, the Court cited general dictionaries in 51 of the 679 cases, which is 7.5%, or approaching 8 per 100 cases.

As noted earlier, four self-proclaimed textualists were appointed to the Court by the Republican governor between 1996 and 2000--and the dictionary numbers took another jump. From 1995 through 2004: 779 cases were decided and 110 with a citation or citations to general dictionaries, or 14 per 100 cases. That's almost double what it was in the previous ten years.

Then the flood. In the next ten years, through 2014: 429 cases and 170 with one or more dictionary citations, or 39.6 per 100 cases. That's 40% of cases. Recall that in its first 140 years the Court totaled 4 dictionary citations per 1,000. And to point out the obvious, not every case involves statutory construction, or even the meaning of words.

In the five years from 2015 through 2019, the Court let up somewhat: 46 out of 146 cases, or just over 31%. The moderate turnaround is encouraging and perhaps bodes well for the future, but 31% is still remarkably high.

On the next page is a bar graph showing this surge.

Three last observations about the data.

First, in a search this extensive and with numbers this large, we can't be sure that the numbers are perfectly accurate. But missing a case or a dictionary reference here and there would count for little. The big picture of the link between textualism and resort to dictionaries is unmistakably clear.

Second, my research assistants collected the same information for published Michigan Court of Appeals decisions. After some reflection, I decided not to include them. But the news--good news, in my opinion--is that they have been citing general dictionaries at a dramatically lower rate. From 2005 through 2014, for instance, when the Supreme Court was citing at a 40% clip, the Court of Appeals was at only 4%.

Finally, for what it's worth, the Supreme Court's dictionary of choice has changed over time. From 1995 through 2015, it was, by far, Random House Webster's College Dictionary. (Incidentally, the word Webster's was added to the 1991 edition. (6)) It was cited 203 times in those 20 years. The next closest was The American Heritage Dictionary, at 45 citations. In fact, the total for Random House Webster's was more than the combined total for all other general dictionaries.

Was that a good choice? Maybe not. Probably the leading textualist treatise, Reading Law: The Interpretation of Legal Texts, by Justice Scalia and lexicographer Bryan Garner, lists by time periods the dictionaries that "are the most useful and authoritative for the English language generally." (7) For 2001 to the present, there are eight. Random House Webster's College Dictionary is not among them. What is among them is Merriam-Webster's Collegiate Dictionary. And guess what? After those two decades in which Random House Webster's College Dictionary was the (strongly) preferred choice, from 2015 through 2019 the Supreme Court shifted toward Merriam-Webster's Collegiate. It was cited 34 times out of 92 total, and Random House Webster's just 18 times.

Perhaps this shift is a good thing, given that Merriam-Webster's Collegiate is among the authoritative eight in Reading Law. But was this a deliberate decision? If the shift was not deliberate and happened more or less by chance, then we are reminded of the arbitrariness of all this dictionary diving. If the shift was deliberate, were attorneys made aware? And how, exactly, should they deal with it?

In the end, the same criticism that, after an exhaustive study, has been leveled at the United States Supreme Court can be leveled at the Michigan Supreme Court: it has "steadfastly refused to adhere to any set of preferences, much less announce... a principled basis for its dictionary selections." (8) So one glaring problem is disorderliness and subjectivity--the lack of any guidance on which dictionary or dictionaries to use, and why, and how, and at what point in the analytical process. In the five-year period before 2020, six different general dictionaries were each cited in four or more different cases.

Dictionaries may be minimally useful for setting out possible meanings (9)--although English speakers will often perceive on their own any differences that may be significant. In short, the part played by dictionaries in decision-making should be fairly limited.

II. THE COURT'S FREEWHEELING APPROACH

Let's look at some sample cases under different categories. Other cases could have been added under most of the categories.

The idea is to illustrate the vicissitudes of "jurisprudence by dictionary" (10)--its arbitrariness and, too often, its narrowness. In each case, the majority and minority were at odds either on definitions or on a definition's import or significance.

I will not discuss any legal arguments apart from the use of dictionaries. Obviously, the cases did not turn only on dictionary "analysis," and my "Comment" after each case reflects mainly on that analysis--not so much on which side may have been right in the end. But in general, the dictionaries in these cases served as more than a mere starting point. They were used to lend weight to one conclusion or another.

1. Cherry-Picking #1: Using Different Definitions from the Same Dictionary

   The case (decided by order): People v. LaFountain. (11) The facts: The defendant operated a methamphetamine laboratory in her home, where firearms were in plain view in one of the bedrooms. The question: Did her case fall under a sentencing provision for an offense that "involves the possession, placement, or use of a fire-arm"? (12) The majority answered yes. (13)

   The majority cited a definition of involve from The Merriam-Webster Dictionary (which is based on Merriam-Webster's Collegiate Dictionary): "to have as part of itself: INCLUDE." (14) The majority said this definition "seems to be more consistently cited in dictionaries ... and thus seems to be the most ordinary understanding of the word 'involve.'" (15) The dissent noted that The Merriam-Webster Dictionary gives many different meanings and that one of them--"to relate closely: CONNECT"--"accords with the ordinary meaning of 'involves.'" (16)

   Comment: Both sides invoke "ordinary meaning," but the majority invokes "most ordinary." The uncertainty about what "ordinary meaning" means is explored later in this article. (17)

2. Cherry-Picking #2: Seizing on One Piece of a Definition Instead of Another Piece

   The case: People v. Harris. (18) The facts: During an internal investigation, police officers made false statements about their conduct during a public encounter. The question: Did their statements fall under a statute protecting them from criminal prosecution if they gave an "involuntary statement"--defined as "information provided... under threat of dismissal"? (19) In brief, were the officers' false statements "information"? The majority said yes. (20)

   The majority...