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July 2001 


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Essay Headline
Rules of Statutory Construction
and the Florida Election Law

By John E. Simonett

 

 


This article is based on a talk given at the joint Spring meeting of Minnesota's Inns of Court held at St. John's University in April 2001. Minnesota has three Inns of Court: the Warren E. Burger Inn in St. Paul, the Douglas K. Amdahl Inn headquartered in Minneapolis, and the John E. Simonett Inn of St. Cloud and Central Minnesota, which with its president, L. Michael Hall of St. Cloud, hosted the joint meeting JOHN E. SIMONETT is a member of the law firm of Greene Espel PLLP. He served as an associate justice of the Minnesota Supreme Court from 1980 to 1994.

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?

PLAIN LANGUAGE

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 fool."2

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 much.

LEGISLATIVE INTENT

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 this true?

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.

 

 

 

EQUITABLE POWERS

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.

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."

SEVERAL CORRECT ANSWERS

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, correct answers.

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 way."5

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 statute's purpose.6

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 remotely possible."
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.

NOTES

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 Mitchell).