Statutory interpretation in Missouri.

• Author: Davis, Matthew
• Position: NOTE

1. INTRODUCTION

   Courts often cite canons of construction when interpreting contracts, statutes, and other legal texts. The canons are useful rules of thumb, often referred to as maxims, that suggest which meaning should be ascribed to a disputed word, phrase, or provision. (1) Several canons are policy driven and apply only to certain types of legal texts, but most reflect how people intuitively understand verbal expression and apply to all legal writings. (2)

   Although countless secondary sources discuss the canons used to interpret statutory language, (3) few thoroughly focus on the canons cited by Missouri courts. (4) This four-part Note attempts to fill that void. Part II begins by organizing and concisely stating roughly thirty rules of statutory interpretation. Part III then contends that two of these principles--that the purpose of a statute should be furthered and that absurd outcomes should be avoided--often lend themselves to unpredictable results. Part IV concludes by suggesting one way this unpredictability could be minimized.

2. LEGAL BACKGROUND

   The majority of this Note is devoted to this Part. The material that follows is divided into two subparts. Subpart A discusses principles routinely cited by the Supreme Court of Missouri when it interprets statutes. To provide an overview, these rules address legislative intent, statutory purpose, ambiguity, "plain" meaning, and the application of the canons. Subpart B collects roughly thirty canons and organizes them according to their relationship to semantics, syntax, context, judicial expectations, and private and governmental rights.

   1. Basic Rules of Statutory Interpretation

      The Supreme Court of Missouri almost always cites a handful of principles when interpreting statutes. Normally, the court first explains that it must discern legislative intent from the text and interpret the statute to further that intent. (5) This rule is nearly identical to the presumption against ineffectiveness, which provides that an interpretation furthering the purpose of a statute should be favored. (6) For purposes of this Note, these rules are considered interchangeable because it is difficult to identify a situation in which both would yield different outcomes. (7)

      After the court explains that it must interpret statutory language to further legislative intent, it usually sets forth the standard for determining whether a statute is ambiguous. The court has explained that a text is unambiguous if a person of ordinary intelligence would find its meaning plain and clear. (8) On the other hand, a text is ambiguous only if its language "is subject to more than one reasonable interpretation." (9)

      The court often cites the plain meaning rule as well: "If the intent of the legislature is clear and unambiguous, by giving the language used in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction in interpreting the statute." (10) In other words, the court's conclusion that a text is unambiguous ends the inquiry and bars arguments based on anything beyond the text of the statute. (11)

      If the text is ambiguous, the canons should be used to identify the legislature's intended outcome. (12) Because different canons often support different results, (13) courts essentially apply a balancing test. Although outcome X may be supported by one canon, outcome Y may carry the day based on several other canons. At this stage, non-textual evidence such as the precise harm that inspired legislative action, the general circumstances surrounding the enactment of a statute, and legislative history may also be used to shed light on legislative intent. (14) After the court discusses these principles, it typically cites canons applicable to the statute at issue.

   2. Canons of Statutory Interpretation

      Before delving into the canons, a comment regarding their organization might be helpful. Academics often organize the canons under a variety of complex headings. (15) For purposes of this Note, I drew from a treatise written by the late Justice Scalia and Bryan Garner and separated the canons into five categories: (1) canons based on semantics (i.e., the connotation of words and phrases), (2) canons related to syntax (i.e., the arrangement of words and phrases), (3) canons concerning statutory context, (4) canons grounded in judicial expectations concerning statutory law, and (5) canons concerning private and public rights. (16)

      1. Semantic Canons

         Ordinary Meaning Canon. Words and phrases should bear their ordinary meaning unless the context suggests that they should bear a technical sense. (17) The rationale for this rule is straightforward. "[T]he principle of common sense," the court recently explained, "requires that courts shall understand [words] as other people would," (18) and other people would not assume that a word bears "a meaning radically different from that which ordinarily attaches to it [] without some explanation." (19) Normally, context supplies that explanation. Ordinary meaning should not be expected when a word relates to "any science, business, profession or sport." (20) Ordinary meaning may also be inappropriate when a word is already defined by statute, (21) bears a well-known meaning at common law, (22) or has already been interpreted by the courts or an administrative agency. (23)

         Presumption of Illustrative "Include." The word "include" sets forth examples, not an exhaustive list. (24) Although some courts have observed that the term may be "ambiguous and its meaning may vary according to the context," (25) an appellate court recently surveyed Missouri cases and found that the term "has almost universally been construed... as a term of enlargement." (26)

         Conjunctive/Disjunctive Canon. "And" ordinarily bears its conjunctive sense and means "along with or together with," (27) while "or" normally bears its disjunctive sense and denotes a choice between "either this or that." (28) But "and" may mean "or" (and vice versa) when a literal interpretation would ignore legislative intent, result in absurdity, or amount to a refusal to correct a mistake. (29)

         Mandatory/Discretionary Canon. The word "shall" normally imposes a mandatory duty, (30) while the word "may" ordinarily grants discretion. (31) But for statutes providing that public actors "shall" perform some act, the outcome turns on whether there is a sanction for noncompliance. (32) A statute is mandatory if it prescribes a sanction for noncompliance (33) but discretionary if it does not. (34)

         Subordinating/Superordinating Canon. Subordinating language such as "subject to" resolves statutory conflict by signaling that a provision "subject to" another provision will yield if conflict arises. (35) Superordinating language such as "notwithstanding" also remedies statutory conflict by indicating that a provision "notwithstanding" another will prevail if conflict arises. (36) When a statute contains a "notwithstanding" clause, conflict arises only if the provision with which it clashes also has a "notwithstanding" clause. (37)

         Omitted Case Canon. The court repeatedly explains that unambiguous statutes should be interpreted as they are written, not as they might have been written in hindsight. (38) This principle could be considered an extension of the plain meaning rule. If the task of a court is simply to apply an unambiguous text, it follows that a court should not interpret that text as if it covers other matters.

         Negative Implication Canon. The expression of one thing normally implies the exclusion of another. (39) For example, a statute taxing the sale of "meals and drinks furnished [at a] place in which... meals or drinks are regularly served to the public" does not tax the sale of meals and drinks served at private country clubs. (40) The court occasionally observes that this rule--more commonly referred to as expressio (or inclusio) unius est exclusio alterius--"must be applied with great caution." (41) Unless there is a strong and natural inference that the thing omitted was intentionally excluded, the court may conclude that the rule is inapplicable. (42)

         Gender/Number Canon. Unless the context clearly suggests otherwise, the masculine includes the feminine (and vice versa), (43) and the singular includes the plural (and vice versa). (44)

      2. Syntactic Canons

         Grammar/Punctuation Canon. Grammar and punctuation are permissible indicators of meaning when statutory language is ambiguous. (45) However, the Supreme Court of Missouri has explained that courts should be reluctant to discern meaning solely from grammar or punctuation, (46) particularly when an unreasonable or absurd result follows. (47)

         Last Antecedent Rule. Relative and qualitative words, phrases, or clauses generally apply only to the words or phrases immediately preceding them. (48) To provide an example, the court once examined a constitutional amendment defining "residential property" as "all real property improved by a structure which is used or intended to be used for residential living... and which contains not more than four dwelling units." (49) Applying the rule, the court concluded that the phrase "which contains not more than four dwelling units" modified "structure"--the nearest referent--rather than "all real property." (50) The court has explained, however, that the rule should not apply if the relative or qualitative clause is equally applicable to all terms at issue. (51) For example, the court found the rule did not apply to a statute defining the term "accounting officer" as "the county clerk, county comptroller, county auditor, accountant, or other officer or employee keeping the principal records of the county." (52) Viewing the provision as a whole, the court reasoned that the phrase "keeping the principal records of the county" was equally applicable to all positions. (53)

         Proviso Canon. A proviso (e.g., "provided") generally carves out an exception to the text...