When I called my friend in Naples
last November, he was thoroughly disgusted with the Florida Supreme
Court. The Court had just reversed Katherine Harris and authorized
a full, manual recount of votes in four protesting counties.1 My friend, a retired professional person,
not a lawyer, had been closely following the breaking news on
CNN. He said the Court had ignored the plain meaning of the law;
it had ignored what the legislature had intended; and it had
rewritten the election laws to its own liking.
Much of the dissatisfaction with the Florida Supreme Court's
opinion has been, of course, attributable to partisan passions.
But not all. The legal issues in the case were issues of statutory
interpretation, ordinarily a dull subject, but here these judicial
tools-of-the-trade -- the principles and rules governing statutory
construction -- were themselves being questioned. Now that the
dust has settled, the Florida Supreme Court's opinion deserves
a second look, not to revisit the politics involved, but to better
appreciate how legal rules, in particular rules of statutory
construction, play their part in judicial reasoning.
There were two issues in the Florida Election Case: (1) when
do the election laws authorize a county-wide, manual recount
and (2) what is the deadline for receiving the recount returns?
Florida's election law provides that a candidate can protest
to the county canvassing board that the returns in the county
were erroneous and ask for a sample, manual recount. If the sample
recount (checking at least 1% of the ballots from at least three
precincts) indicates "an error in the vote tabulation which
would affect the outcome of the election," the county canvassing
board then orders a manual recount of all ballots in the county.
But what constitutes "an error in the vote tabulation?"
The Florida Division of Elections had issued an advisory opinion
concluding that the phrase referred to an error in the vote tabulating
software, but not to a discrepancy between the machine-counted
vote and the sample manual recount. Relying on this opinion,
Secretary of State Harris, finding no malfunction in the tabulation
system, ruled that a full, county-wide, manual recount was unauthorized.
The Florida Supreme Court reversed, stating the Division of Election's
opinion "contravenes the plain meaning" of the statute.
The Court went on to say, "The plain language of [the statute]
refers to an error in the vote tabulation rather than the vote
tabulation system," noting the statute on its face had no
words of limitation. Then, after pointing out how other sections
of the election law supported this view, the Court concluded,
"Thus, we find that the Division's opinion ... is contrary
to the plain language of the statute."
What bothered my friend from Naples was not so much the Court's
interpretation of the statutory phrase on vote tabulation as
the Court's seemingly cavalier pronouncement that this reading
was quite plain -- when the meaning was not plain at all, at
least not to my friend nor to the Florida Division of Elections;
and yet the Court had declared not just once -- but three times
in its opinion -- that the meaning of the statute was as plain
as the nose on your face.
As every attorney knows who tries to reduce an agreement to writing
or to pin down an evasive deponent or to draft interrogatories
that will elicit meaningful answers, words can be elusive. As
Justice Holmes once commented, "A word generally has several
meanings, even in the dictionary." The plain meaning rule
must be understood in this context. The rule is nicely-stated
in Minn Stat. ¤ 645.16: "... [I]f words of a law
in their application to an existing situation are clear and free
from all ambiguity, the letter of the law shall not be disregarded
under the pretext of pursuing the spirit."
But note the catch -- if the words are clear in their application
to the existing situation. In other words, when a court says
a statute speaks plainly, it is saying the meaning is plain in
the situation before the court, and it is in that sense that
the Florida Supreme Court spoke. Courts do not construe statutes
in the abstract. This is why law students study law in casebooks
and why, as Chief Justice Arthur Vanderbilt once said, lawyers
never believe a statute means what it says until a court says
it means what it says.
If the meaning is clear, then, says Minn. Stat. ¤ 645.16,
"the letter of the law shall not be disregarded under the
pretext of pursuing the spirit." But even this admonition
at times must bend. There is the account of the immigration official
and the newborn child. Years ago, a Chinese woman, who had a
permit to come to this country, landed in San Francisco with
a child born on the voyage over. The law was explicit; immigration
was to be denied to anyone without a permit. The immigration
official wired his superiors in Washington, asking, since the
child had no permit, if he had to send the baby back to China.
Back came the reply from Washington: "Don't be a damned
The plain language rule is a reminder that while the meaning
of words is not always plain, neither need the law always be
technical. There is room in the law for common sense. If any
caveat were to be added, it might be that it is not necessary
for courts in their decisions to keep repeating that the meaning
of a statute is plain, even if it is, because, as my friend from
Naples observed, one then suspects the court doth protest too
The fundamental principle of statutory construction, the principle
from which all other rules of construction draw sustenance, is
the doctrine that courts shall construe legislative enactments
in accordance with the intent of the legislature. This principle
played an important role in the Florida Election Case, especially
in the second issue on the deadline for amended returns.
One section of the Florida election laws said that if the county
returns were not received by the Department of State by 5:00
p.m. of the seventh day following an election, "... all
missing counties shall be ignored." Secretary of State Harris
read this provision as mandatory. She had no choice, she said,
but to ignore all returns submitted after the deadline.
However, another subsequently enacted section of the election
law provided: "If the county returns are not received by
the time specified, such returns may be ignored and the results
on file at that time may be certified by the department."
Which language controls --the mandatory shall or the permissive
may? The Florida Supreme Court started out this way: "Legislative
intent ... as always ... is the polestar that guides a court's
inquiry into the provisions of the Florida Election Code."
Minnesota is in accord. "The object of all interpretation
and construction of laws is to ascertain and effectuate the intent
of the legislature." Minn. Stat. ¤ 645.16.
Every statute is enacted for a purpose, so it is not difficult
for a court to state that purpose and equate it with legislative
intent. So, in this case, the Florida Supreme Court found the
intent of the legislature in enacting the election code was "to
facilitate the right of suffrage." From this finding of
general intent -- with which no one would disagree -- the Court,
noting "[t]echnical statutory requirements must not be exalted
over the substance of this right," then proceeded to apply
several well-known rules of statutory construction. The Court
pointed out the word "may" occurred in the more specific
and more recently enacted section of the election code. Also
significant was the fact that if county returns were not challenged
until, say, the sixth day after the election there would not
be enough time for a full, manual recount by the seventh day
deadline; and the legislature could not have intended this result,
thought the Court, noting a similar timing complication affected
absentee ballots. Eventually, the Court concluded that the word
"may" trumped the word "shall," so that the
deadline in the statute for filing amended returns was discretionary,
not mandatory, and, consequently, amended returns could be filed
after the seventh day.
What is interesting about the principle of legislative intent
is that it assumes, even in the most obscure statute, that there
lies hidden in the text, in some grammatical crevice, the real
intent of the legislature; and that if a court will only look
long enough and hard enough, this intent will be found. But is
If a statute is unclear, most likely it is because the legislature
never thought about (or thought enough about) the problem giving
rise to the lack of clarity; if it had, it would have done something
about it. Or the legislature may have deliberately left the language
vague, passing the buck to the courts.
When courts look beyond the general purpose of the statute for
a more specific legislative intent, chances are they are looking
for an intent that never was. Even looking up the legislative
history of a statute is rarely productive, for the history is
often contradictory and self-serving. Researching legislative
history, says Judge Patricia Wald, is like looking over a crowd
for your friends, and Justice Felix Frankfurter said he tried
to avoid using the term "legislative intent."
When a court engages in statutory construction, what it is really
doing is deciding what it believes the legislature would have
done or (a very different question) should have done, or (to
muddy the waters a little more) what the current legislative
body might do. It is understandable, therefore, why my friend
in Naples should say it is disingenuous for a court to pretend
it is ascertaining the legislature's intent when it is really
"inventing" its own version of that intent. The criticism
is not without merit. Compare the approach taken by federal courts
in a diversity case, when a federal court, confronted with an
undecided issue of state law, says quite frankly that it will
use its best judgment as to what it believes the state's highest
court would do.
The reason why courts insist they are only implementing the intent
of the legislature is, of course, to pay homage to the doctrine
of separation of powers. This is no idle exercise. Even though,
in order to resolve a statutory ambiguity, courts necessarily
must legislate interstitially, it is important for the judicial
branch to reaffirm its role in government is to judge, not legislate.
Recognition of this principle was never more critical than in
the Florida Election Case where, as the media constantly reminded
everyone, the Florida Supreme Court consisted of Democratic appointees,
the Florida legislature was Republican-controlled, the Florida
Secretary of State was Republican, and at issue was the presidency
of the United States.
There was still one, loose end facing the Florida Supreme
Court. The Court had concluded that November 14 -- the seventh
day after the election -- was not a mandatory deadline and that
more time for filing amended returns was available. But how much
time? While the Court's answer to this question brought forth
both rejoicing and consternation from the parties, it was the
manner in which the Court arrived at its answer that my friend
from Naples found puzzling, even disturbing.
Time, of course, was crucial. In Miami-Dade County alone there
were 10,644 undervotes (ballots with no machine-readable vote
for president) that had to be inspected, a time-consuming task.
Yet the Florida election law said nothing about any extension
of the filing deadline. No rule of statutory interpretation could
help the Court because there was nothing to interpret.
The Court appeared to have painted itself into a corner. Fortunately,
it was a fast-drying paint. The Court proceeded thusly:
Because of the unique circumstances and extraordinary importance
of the present case . . . and because of our reluctance to re-write
the Florida election code, we conclude that we must invoke the
equitable powers of the Court to fashion a remedy. . .
It is generally recognized that courts have equitable powers
which may be exercised when necessary to implement their decisions.3 This was such a case, thought the Court,
and it went on to say --
... accordingly ... amended returns must be filed ... by 5
p.m. on Sunday, November 26, 2000 . . .
The Court then closed the last loophole. If the Secretary
of State's Office was not going to be open on Sunday, then, said
the Court, the amended returns shall be accepted until
9 a.m., Monday, November 27, 2000.
SEVERAL CORRECT ANSWERS
Having come this far and decided the law authorized a full manual
recount, the Court apparently had asked itself if it had to ignore
the recount results because they were not received by November
14. Having asked itself this question, the Court, perhaps having
in mind the immigration official's dilemma, said to itself, "Don't
be a damned fool."
In 1950, Karl Llewellyn wrote a famous article on statutory
interpretation in which he showed that for every canon of statutory
construction -- he listed 28 -- there was another canon stating
just the opposite.4 For example, "A
statute cannot go beyond its text", but at the same time,
"To effect its purpose a statute may be implemented beyond
its text." This kind of predicament, where two equally reasonable
principles or laws are in opposition, is called an antimony.
The law is full of antimonies. This is why Llewellyn was wont
to say that for every legal issue there is not one, but several,
Knowing the purpose of a statute is essential to its interpretation,
but knowing that purpose is not enough, for a purpose can be
implemented in several different ways which are all reasonable
yet at odds with each other, as the Florida Election Case illustrates.
Justice Holmes once observed, "I always say in conference
that no case can be settled by general propositions, that I will
admit any general proposition you like and decide the case either
I should not want my friend in Naples to think Justice Holmes
was being cynical, nor the Florida Supreme Court. Holmes was
simply pointing out that judicial reasoning is not a syllogistic
exercise, that there are competing interests to balance. In deciding
a case, a court must first grasp "the good sense of the
situation" -- the phrase is Llewellyn's -- and then, if
the meaning of a statute is at issue, apply those interpretative
canons that are appropriate to the situation to arrive at a meaning
that is reasonable, honest with the language, and true to the
When the case reached the United States Supreme Court, Justice
O'Connor, at oral argument, observed that, "The legislature
had very clearly said ... seven days after [election day], that's
the date [for certifying election returns] ... and it looks like
a very dramatic change made by the Florida Supreme Court."
Counsel disagreed, replying, "It was a routine exercise
in statutory construction." On the other hand, when Justice
Stevens asked opposing counsel, "Is it not arguable, at
least, that all they did was fill in gaps that had not been addressed
before?" counsel replied, "I don't think that's even
Mindful that construction of Florida's election statutes was
a state law question, but in view of possible federal implications,
the High Court remanded the case to the Florida Supreme Court
for further consideration. The state supreme court reaffirmed
its statutory interpretation on December 11, but by this time
other proceedings had overtaken the statutory issues, so that
the United States Supreme Court, on December 12, expressing equal
protection concerns and observing that time had run out, stopped
the recount. My friend in Naples says he is glad it is over.
1. Palm Beach County Canvassing Bd. v. Harris, 772 So.2d
1220 (Fla. Nov. 21, 2000), certiorari granted in part, 121
S. Ct. 510 (U.S. Nov. 24, 2000), and vacated by 121 S.
Ct. 471 (U.S. Dec. 4, 2000), on remand 772 So.2d 1273
(Fla. Dec. 11, 2000).
2. Lowell, Conflicts of Principle 82 (1932), quoted
in Curtis, "A Better Theory of Legal Interpretation,"
3 Vanderbilt L. Rev. 407 (1950).
3. In Minnesota Odd Fellows Home v. Pogue, 73 N.W.2d
615, 619-20 (Minn. 1955), the Minnesota Supreme Court solved
a legalistic dilemma by applying estoppel to one of the horns
explaining, "Since the code abolished separate courts of
chancery and made relief available in both equity and law in
a single action, the courts of this jurisdiction have, however,
been free to supplement rigid and inadequate legal remedies by
applying equitable principles to accomplish justice according
to the facts of the particular case."
4. Llewellyn, "Remarks on the Theory of Appellate Decision
and the Rules or Canons about how Statutes are to be Construed,"
3 Vanderbilt Law Review395 (1950).
5. Holmes-Laski Letters, p. 243 (Howe Ed. 1953).
6. "[C]anons of construction are never the masters of
the courts but merely their servants, to aid them in ascertaining
the legislative intent." Ott v. Great Northern Ry. Co.,
72 N.W. 833, 834 (Minn. 1897) (dissenting opinion of Justice