How to interpret statutes - or not: plain meaning and other phantoms.

AuthorWisotsky, Steven
  1. INTRODUCTION

    In 1926 the Government alleged that Timothy McBoyle hired a pilot to steal an airplane and fly it from Illinois to Oklahoma. Although McBoyle denied the charge, the jury convicted him of interstate transportation of a stolen motor vehicle in violation of a federal statute. The operative language of the National Motor Vehicle Theft Act of 1919 defined "motor vehicle" to include "an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails." (1)

    On appeal, the Tenth Circuit affirmed the conviction, rejecting McBoyle's contentions that

    the word "vehicle" includes only conveyances that travel on the ground; that an airplane is not a vehicle but a ship; and that, under the doctrine of ejusdem generis, the phrase "any other self-propelled vehicle" cannot be construed to include an airplane. (2) Canvassing several dictionaries, the court of appeals determined that "vehicle" means "[a]ny receptacle, or means of transport, in which something is carried or conveyed, or travels." (3) It concluded that

    the derivation and the definition of the word "vehicle" indicate that it is sufficiently broad to include any means or device by which persons or things are carried or transported, and it is not limited to instrumentalities used for traveling on land. (4) The court acknowledged ambiguity in the statute insofar as a land-based vehicle "may be the limited or special meaning of the word." (5) But the court noted by way of example that "[w]e do not think it would be inaccurate to say that a ship or vessel is a vehicle of commerce." (6) Indeed, as the court pointed out,

    [a]n airplane is self-propelled, by means of a gasoline motor. It is designed to carry passengers and freight from place to place.... It furnishes a rapid means for transportation of persons and comparatively light articles of freight and express. It therefore serves the same general purpose as an automobile, automobile truck, or motorcycle. It is of the same general kind or class as the motor vehicles specifically enumerated in the statutory definition and, therefore, construing an airplane to come within the general term, "any other self-propelled vehicle," does not offend against the maxim of ejusdem generis. (7) The Supreme Court granted certiorari and reversed the court of appeals. (8) Justice Holmes, writing for a unanimous Court, held that the statute making it a federal crime to move a stolen "motor vehicle" in interstate commerce did not apply to a stolen airplane, although he acknowledged that "[n]o doubt etymologically it is possible to use the word [vehicle] to signify a conveyance working on land, water or air." (9) But the Supreme Court was otherwise persuaded:

    It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. (10) The Court alluded to but did not explicitly invoke familiar maxims or canons of construction that were seemingly applicable. It did not, for example, directly apply the doctrine of ejusdem generis to narrow the broad language "any other self-propelled vehicle" to the grouping of ground-based vehicles enumerated by the statute. (11) And it did not explicitly invoke the tool of judicial resort to legislative history to interpret ambiguous statutes; there is only a passing observation that airplanes "were not mentioned in the reports or in the debates in Congress." (12) Nor did it explicitly invoke the familiar rule of lenity to resolve a statutory ambiguity against the Government in a criminal prosecution, although the dissenting judge on the court of appeals had done so. (13)

    The Supreme Court chose the rationale that contemporary usage had effectively narrowed the plain meaning of "motor vehicle" in the dictionary sense to land-based vehicles: "But in everyday speech 'vehicle' calls up the picture of a thing moving on land." (14) Building on that linguistic premise, the Court relied additionally upon the principle of fair play:

    [I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. (15) This analysis, based on unfairness to McBoyle as an individual, is dubious because he clearly knew that he was conspiring to commit and was committing (as an aider and abettor) the ancient common law crime of larceny. Every sane person knows that it is wrong to steal. (16) The only colorable claim of lack of fair warning was whether a reasonable person would know that he was committing a crime against the United States in addition to the crime(s) against state law. Analogy from other (albeit later) cases suggests that knowledge of the federal character of the offense is not an element for which mens rea is required. (17)

    The only solid basis for the Court's decision in McBoyle is a rejection of a foolish literalism based on the apparent congressional intent in 1926, when aviation was in its infancy and "motor vehicle" would have conjured up only images of ground-based vehicles. Inevitably, reaching that conclusion involves some consideration of the maxim ejusdem generis. The frustrating thing for judges and lawyers is that the Tenth Circuit had considered and rejected precisely that factor in affirming the conviction, leaving later courts to puzzle over the push and pull between the court of appeals and the Supreme Court.

    There are several lessons to be drawn from this opinion. The first is that superficially clear statutory language may upon concentrated analysis prove ambiguous, so that even a term as simple, familiar, and concrete as "motor vehicle" becomes subject to interpretation. The second is that in the search for statutory meaning, context trumps literalism. In other words, there is no plain meaning without context. This latter point helps to make sense out of what is otherwise the dialectical inconclusiveness of the primary canons of statutory interpretation. (18) By way of example, a few familiar dueling maxims are adduced below.

  2. THE OSTENSIBLE RULES

    A. The Plain Meaning of a Statute Controls--Or Not

    This familiar canon is widely accepted in both state and federal courts, along with an exception. Thus, the plain meaning of a statute controls "unless this leads to an unreasonable result or a result contrary to legislative intent." (19) A more detailed statement of the rule and counter-rule is this:

    Under some circumstances ... a court may look beyond the language of a statute. If a literal reading of a statute produces an outcome that is demonstrably at odds with clearly expressed congressional intent to the contrary, or results in an outcome that can truly be characterized as absurd, i.e., that is so gross as to shock the general moral or common sense, then we can look beyond an unambiguous statute and consult legislative history to divine its meaning." (20) B. "Shall" is Mandatory, "May" is Permissive--Or Not

    This is a convention in both state and federal courts arising from ordinary English usage. The plain meaning of "may" denotes a permissive term, but

    if reading "may" as permissive leads to an unreasonable result or one contrary to legislative intent, courts may look to the context in which "may" is used and the legislature's intent to determine whether "may" should be read as a mandatory term. (21) And the Supreme Court itself has held that

    [t]he word "may," when used in a statute, usually implies some degree of discretion. This common-sense principle of statutory construction is by no means invariable, however, ... and can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute. (22) C. "And" is Conjunctive, "Or" is Disjunctive--Or Not

    This canon is, again, a function of conventional English usage and is widely followed in state and federal courts. "In its elementary sense the word 'or' is a disjunctive particle that marks an alternative, generally corresponding to 'either,' as 'either this or that.'" (23) But there are also some exceptions, situations "in which the conjunction 'or' is held equivalent in meaning to the copulative conjunction 'and.'" (24) As the D.C. Circuit has opined,

    [n]ormally, of course, "or" is to be accepted for its disjunctive connotation, and not as a word interchangeable with "and." But this canon is not inexorable, for sometimes a strict grammatical construction will frustrate legislative intent. That, we are convinced, is precisely what will occur here unless "or" is read as "and." (25) This dichotomy has long been recognized. In 1866, the Supreme Court stated that a statutory use of the word "and" could express the ordinary, conjunctive meaning but could also signify the disjunctive "or": "In the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to construe 'or' as meaning 'and,' and again 'and' as meaning 'or.'" (26) The Court continued by noting that "[a]s is often the case in statutes, though the intention is clear, the words used to express it may be ill chosen," (27) and the Court held that "and" meant "or" in this case. (28)

    In De Sylva v. Ballentine, (29) the Court interpreted a section of the Copyright Act, which stated "or if such author, widow, widower or children be not living, then the author's executors" were the affected parties. (30) The Court's analysis started "with the proposition that the word 'or' is often used as a careless substitute for the word 'and'; that is, it is often used in phrases where 'and' would express the thought with greater clarity." (31) The Court then held that although "[t]he clause would be more...

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