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H.B. 49: Firearms Revisions, Rep. Paul Ray

December 26, 2011 by 6 Comments
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Well folks, it’s just about that time of year again — Utah’s legislative session kicks off in less than a month, and I want to get a head start on some commentary, as I have a couple of very big mediations scheduled for the week before the session begins that are going to take basically all of my time for those preceding two or three weeks.

There are a few 2012 general session bills are already posted on the Utah legislature’s website, and while browsing through them this morning, I found some that are bound to generate some interest.  I’ve decided to kick of my coverage of the 2012 legislative session with H.B. 49, proposed by Representative Paul Ray of Roy, which is titled “Firearms Revisions” and is the latest chapter in the ongoing saga in the battle over guns at the University of Utah.  Representative Ray’s legislation would prohibit state governmental entities from using other provisions of Utah’s criminal laws to prevent individuals authorized to carry a firearm from openly carrying on government property.

Some Background

At this point, the battle over concealed weapons at the University of Utah is into its eleventh year, and the resulting collateral damage is significant.  Taxpayers and students are out hundreds of thousands, if not millions, of dollars in legal fees and costs at this point (paying for both sides of the fight), and Utah lost the services of perhaps its ablest trial (and aspiring appellate) judge, Robert K. Hilder, due to legislative vindictiveness toward the judiciary that would make Newt Gingrich proud.  Furthermore, in yet another ironic twist for a body professing committment to local control, educational choice, and government close to the people, the Utah legislature, in its crusade to bring the University of Utah in line, has completely centralized gun policy at the state level.  See Utah Code Ann. § 53-5a-102.

Representative Ray’s proposed legislation was almost certainly prompted by an article from the Salt Lake Tribune that appeared earlier this year revealing the University of Utah’s internal strategy to deal with individuals openly carrying firearms on campus.  The online version of the Tribune’s article contained a link to an electronic copy of a leaked internal University memo outlining how police officers were to use various provisions of Utah’s criminal laws to cite individuals who were the subject of complaints from fellow students for “openly carrying or displaying a firearm on campus.”  Here’s a screenshot from the leaked memo:

Internal U of U Memo

In a letter accompanying the memo, then-President Michael Young explained the rationale for the policy:

As you know, concealed weapons permit holders may carry a concealed weapon on this campus. However, Utah statutes do not permit anyone to open carry on campus, regardless of whether the person has a concealed carry permit.

The law permits me (and those I designate) to address conduct on campus that interferes with or obstructs the educational process and the peaceful conduct of activities on the campus. You should apply this law to any individual who is observed with a weapon on campus. Please instruct the individual that revealing his or her weapon creates an intimidating environment and interferes with the peaceful activities of the cainpu.s. In the first instance, you should seek voluntary compliance by asking the individual to conceal his or her weapon.  However, if the individual will not voluntarily conceal his or her weapon, you should take whatever action is necessary and appropriate to remove the individual from the campus.

Analysis

There is no indication from the leaked memo that the University of Utah intends to go after a person not carrying openly who has a concealed carry permit.  In fact, there is an express indication to the contrary.  The policy is designed to minimize disruptions to the educational environment by those rare people who, for whatever reason, may decide to openly carry a firearm around a college campus in this post-Columbine and Virginia Tech world.  And the University adopted what seems to be an extraordinarily common sense way of dealing with the problem, given the restrictions currently imposed.

But H.B. 49 would prevent the University of Utah, or any Utah governmental authority, from adopting these kind of common sense policies that balance the rights of gun owners with concerns for public order and perception of safety.

It would prohibit charging an individual with any of the following crimes for openly carrying a firearm or other dangerous weapon absent some undefined level of  ”additional threatening behavior”:

  • Utah Code Ann. § 10-8-47 (powers of municipalities).   Intoxication — Fights — Disorderly conduct — Assault and battery — Petit larceny — Riots and disorderly assemblies — Firearms and fireworks — False pretenses and embezzlement — Sale of liquor, narcotics or tobacco to minors — Possession of controlled substances — Treatment of alcoholics and narcotics or drug addicts.
  • Utah Code Ann. § 10-8-50 (powers of municipalities).   Disturbing the peace — Public intoxication — Fighting — Obscene language — Disorderly conduct — Lewd behavior — Interference with officers — Trespass.
  • Utah Code Ann. § 76-6-206.   Criminal trespass.
  • Utah Code Ann. § 76-8-703.   Interfering or intending to interfere with activities — Failure to leave when ordered.
  • Utah Code Ann. § 76-8-704.   Violation of rule or regulation of institution — Failure to leave when ordered.
  • Utah Code Ann. § 76-8-705.   Willful interference with lawful activities of students or faculty.
  • Utah Code Ann. § 76-9-102.   Disorderly conduct.
  • Utah Code Ann. § 76-9-103.   Disrupting a meeting or procession.
  • Utah Code Ann. § 76-9-104.   Failure to disperse.
  • Utah Code Ann. § 76-9-106.   Disrupting the operation of a school.
  • Utah Code Ann. § 76-10-506.  Threatening with or using dangerous weapon in fight or quarrel.
  • Utah Code Ann. § 76-10-507.  Possession of deadly weapon with intent to assault.

H.B. 49 would also require prior legislative approval for any governmental authority’s regulation of firearms — including any attempt to prohibit or penalize open carrying of firearms — and would automatically void any “firearm or dangerous weapon law, ordinance, rule, regulation, code of conduct, or contractual obligation enacted, made, adopted, or entered into” without prior legislative permission and which does not specifically cite to the statutory section containing legislative authorization.  In short, to the extent there was any doubt about whether open (as well as concealed) carrying prohibitions had been centralized under state authority, H.B. 49 would remove that doubt.

H.B. 49 amounts to a declaration that legally, openly carrying a firearm (or any other dangerous weapon) does not amount to “disrupting the operation of a school,” “disorderly conduct,” “interfering with activities,” or “willful interference with the lawful activities of students or faculty.”  By logical implication, it declares that revealing your weapon on government property is not “additional threatening behavior” and therefore is not citable under Utah’s criminal laws (at least those catalogued above; if there are others, I’m not aware of them).  Even if, in most instances, this law makes sense, H.B. 49 reduces the options a police officer has to deal with disorder that might result due to an open carry  situation.  Independent of whether one can imagine a case where revealing, or openly carrying your weapon, could be deemed threatening to others (and I can), you can certainly imagine cases where such an act would be extraordinarily disruptive to the educational goals of a premier research university.  But H.B. 49 would remove that fact from consideration.  Under this law, it wouldn’t matter if openly carrying were extraordinarily disruptive in specific context.  H.B. 49 would place the focus exclusively on danger and threatening actions, not the public response.

This seems, to me, to be a misguided, and unnecessary, approach to the problem of openly carrying a deadly weapon on the campus of an educational institution.  My recommendation:  leave the laws as they are, and allow enforcers the flexibility to respond as situations dictate.

Filed Under: Bill Summaries, Law, News Tagged With: , , , , , , , , , ,

Utah Supreme Court — “Minor Child” Includes Unborn for Purposes of Wrongful Death Statute

December 22, 2011 by 2 Comments
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Yesterday, the Utah Supreme Court made news when, in a 4-1 decision in the case of Carranza v. United States, it ruled that Utah’s wrongful death statute allowed parents to bring a wrongful death claim on behalf of an unborn child.

Although the Court reached its result 4-1, with only Justice Nehring dissenting, the decision spawned three separate opinions — the “majority” opinion by Chief Justice Durham, joined by Justice Parrish; a concurring opinion by Justice Lee, joined by Justice Durrant; and Justice Nehring’s dissent.  The opinions couldn’t be more different in the way they approach a difficult question of statutory interpretation.

Before I jump into some brief summaries of the various opinions (followed by a few of my own thoughts), a caveat about the impact of the Court’s decision:

It’s important to note right up front that, in its decision, the Court was interpreting a version of Utah’s minor wrongful death/injury statute that is no longer in effect.  In 2009, the Utah legislature amended the statute so that it only grants parents a cause of action for injury to minor children; not for wrongful death.  Thus, despite the Court’s ruling, parents cannot sue for wrongful death of their unborn children because Utah no longer has a statutory cause of action.  The court’s ruling does seem to mean, however, that parents can sue for prenatal injury to an unborn child that survives birth.  

For Non-Legal Types: A Primer on Statutory Interpretation

Statutory interpretation is all about intent.  When it interprets a statute, a court’s goal is to find out what the legislature intended to accomplish when it passed a law and to interpret the law in a way that gives effect to that intent.

But the court has a very specific rules about how it can discern legislative intent.  First, the court is going to look at the language of the statute itself. If the court decides the language is clear, it won’t look at anything else, and will make it’s interpretation based on the plain meaning of the statutory language.  This is a judge developed approach that accomplishes a couple things.  First, it holds the legislature’s feet to the fire a little bit, making clear that the courts are not going to bail them out and reinterpret laws contrary to the way they are written.  It encourages legislators to draft laws using words that clearly communicate how they want the law to be applied. It also (theoretically, anyway) makes it more likely that a legislature will enact laws that can be read and understood by the citizens against whom they will be applied.

While assessing legislative intent from the statutory language is the goal, language that has a plain meaning under most circumstances can become ambiguous in certain situations. When a court, in a specific situation, can’t clearly discern how the legislature intended a law to apply based on the text of the law alone, it will look to other sources to determine legislative intent. In particular, courts will look to legislative debates and committee reports, context within the statute and other statutes, and whether the statute was enacted in response to a specific event, among others.

But it’s important to remember that even thought the court looks to other sources, the question is still the same:  What did the legislature intend to accomplish when enacting this law?  Thus, the one thing a court must not do — even when a statute is drafted so ambiguously that legislative intent may be fairly described as “clear as mud” — is interpret the statute in accordance with the preferences of the judges as to what the law should be.  Respect for the separation of powers requires that a court make its best efforts to interpret the law in accordance with the legislature’s intent.

Of course, in the event the court gets it wrong, the legislature can always overrule them by passing another law. But that’s neither here nor there.

With that out of the way, on to the opinions.

Chief Justice Durham 

Chief Justice Durham’s opinion is the most surprising of the three, and not in a good way.

The case hinged on whether the use of the term “minor child” in the wrongful death statute referred only to minor children who survived birth, or to minor children, whether born or unborn.

The Chief Justice, seemingly unwilling to acknowledge the ambiguities in the term “minor child,” tosses aside competing interpretations with a matter-of-fact assertion — supported exclusively by a dictionary definition and cases from other states — that the term “child” is usually used to refer to both born and unborn children.  The Chief Justice then reasoned that the addition of the word “minor”  in front of child was meant to set an upper limit on the parental cause of action (i.e., parents lose the right to sue on their child’s behalf when their child reaches the age of majority)  and didn’t speak to the question of whether the term “child” encompassed the unborn as well as born children.

In support of her conclusions the Chief Justice also quoted language from Utah’s judicial statutes emphasizing that the “public policy” of Utah is to protect the rights of all persons, including “unborn persons” (note the inclusion of the modifier “unborn” in this instance), and the following reasoning from an Ohio court:

Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth.  Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.

While the Chief Justice’s logic may be persuasive as a matter of policy, it doesn’t tell us much of anything about legislative intent.  It’s entirely possible that the Utah legislature intended the interpretation of the law articulated by Chief Justice Durham, but dictionaries and citations to other jurisdictions don’t tell us whether they did or whether they didn’t.  And therein lies the problem.

Justice Lee

While Justice Lee reached the same result as Chief Justice Durham, his legal analysis was, in my opinion, much more robust — though not without its issues.  Acknowledging the ambiguities in the term “minor child,” Justice Lee eschewed any reliance on the statute’s “plain language.”  To him, the language was anything but plain, and he pointed out the reasons he though Justice Durham’s plain language analysis was wrong:

Where both parties’ interpretations fall within the range of meanings identified in dictionaries, it is unhelpful for the court to rest on the unelaborated assertion that our chosen construction is dictated by the “plain language.” Too often, a court’s conclusion that statutory language is “plain” is a substitute for careful analysis. At best, such unexplained conclusions are based on a judge’s gestalt sense of the best meaning of the words in question. At worst, the bare insistence that statutory language is “plain” is cover (perhaps subconscious) for judicial policymaking.

Any appearance of the latter is unacceptable. And the former is insufficient, as it gives no guidance to the drafters or targets of legislation as to how this court will interpret statutory language (beyond the unhelpful assurance that we will do what seems best and label it “plain language”). In my view, then, we need to identify the linguistic and statutory cues that persuade us that one interpretation or the other is appropriate.

Failing to find a clear indication of legislative intent in the statute’s plain language, Justice Lee looked elsewhere to determine what the legislature intended with respect to unborn children when it used to the term “minor child.”

Justice Lee took as his starting point what he described as a “universal” and “undisputed” rule that “prenatal injuries are actionable when a child survives” a tortious act (i.e., injury) inflicted in utero (It is notable that, while Justice Lee cites to numerous decisions from other jurisdictions in support of his claim, he does not cite to any Utah cases adopting the universal rule).  From the premise of the rule that parents can sue, on behalf of their surviving children, for prenatal injuries, Justice Lee concludes that it would be anomalous to think that the legislature intended that parents of children who died from the same prenatal injuries lacked any remedy at law:

[G]iven that minor children have tort claims when they survive a tortious act in utero, it would be absurd to read the statute to foreclose such claim when the fetus is so battered that he dies in the womb. If a “minor child” includes a fetus who suffers tortious injury, surely that same term encompasses the same kind of being that suffers an even more horrific tortious act.

A contrary view would yield perverse incentives that the wrongful death statute cannot reasonably be read to countenance.  If “minor child” did not extend to a fetus, tortfeasors would be better off killing a fetus in the womb (in which case they would escape liability) than to merely injure it (in which case they would be liable for the injuries or post-birth death of a fetus if it happens to be born alive, however fleeting its sojourn outside the womb). “It would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant.”

Although Justice Lee assumed that it would be bizarre “to hold that the greater the harm inflicted the better the opportunity for exoneration,” I’m not certain that is so self-evident.  For example, the legislature could have reasonably (i.e., not bizarrely) concluded that, while it made sense to compensate parents of surviving children for medical expenses that would be incurred as a result of a prenatal injury, it made less sense to provide a means of compensation for parents when the child on whom a prenatal injury was inflicted did not survive the injury.  By creating a cause of action for prenatal injuries, the legislature could have been focused on ensuring that compensation was available to families who would have to incur the ongoing medical expenses in caring for an injured, but surviving, child.

The legislature could have further intended that any punishment meted out to a person causing such a prenatal injury would be through the criminal, rather than the civil, law and that the criminal sanctions would serve as a sufficient deterrent.  Or, distasteful as such a viewpoint is to me personally, the legislature could have concluded that a fetus is not a child and therefore totally outside of the protections of civil law unless and until it survived birth.  Finally, one could quite easily question Justice Lee’s implicit assumption that the Utah legislature enacted the wrongful death statute with the background knowledge that the “universal” rule provided for recovery for prenatal injuries, especially given that Justice Lee provided no evidence that this rule had been adopted in Utah as part of the statutory or common law.

None of this is to say that Justice Lee’s interpretation is incorrect.  But it does help show just how tricky this process of statutory interpretation can be.  Sometimes, when there are no definitive clues as to legislative intent in a specific situation, judges have to take their best shot at things amidst a lot of conflicting signals.  Because they are engaged in statutory interpretation, they aren’t free to just say, “Well, it might be this and it might be that, so I’m going for the one I like best.” (though this may sometimes happen, despite best efforts to the contrary).

Justice Nehring

Justice Nehring was the lone dissenter in this case and set out three reasons for his contrary interpretation of the wrongful death statute:

  1. The plain language of the statute referred only to children that survive birth.
  2. A cause of action for wrongful death requires clear direction from the legislature.
  3. Interpreting the wrongful death statute to apply to unborn children would lead to absurd results.

Points 1 and 3 of Justice Nehring’s opinion are unpersuasive.  His plain language argument suffers from the same fatal flaw as Chief Justice Durham’s — the statutory language is ambiguous, not plain.  His third point misses the mark because the absurd results he identifies only ensue if the majority definition of minor child is extrapolated to other largely unrelated statutes.

So, when I began to read Justice Nehring’s dissent, I brushed over points 1 and 3 and immediately latched on to point number 2 — which seems to have great potential to resolve this whole matter.  If this indeed is the judicial rule in Utah — that the courts have required the legislature to make a clear statement when creating a cause of action for wrongful death — the legislature hardly provided “clear direction” in its wrongful death statute.

Unfortunately, Justice Nehring’s opinion doesn’t live up the promising billing.  He cites to no judicial precedent requiring a clear statement from the legislature before courts will recognize a cause of action for wrongful death.  Rather, he simply offers his opinion that, had the legislature intended to create a cause of action for injuries to unborn children, it would have said so explicitly.

Even though he under delivers (never a good idea in legal argument, much less a judicial opinion), Justice Nehring makes an important point.  The Utah legislature has shown a tendency to use the modifier “unborn” to distinguish living persons/children from unborn persons/children.  Although Justice Nehring (inexplicably) does not cite to any specific examples of this usage, Justice Durham does the citing for him (see paragraphs 11 and 12 of the majority opinion).  All other things being equal, one could reasonably rely on this usage tendency as indirect evidence of legislative intent that the wrongful death cause of action is only available to parents of surviving children.

Some Thoughts

Ultimately, this is a case where it seems as though it may be impossible to conclusively determine legislative intent.  When confronted these types of cases, judges — although they speak with great certainty — are really just taking their best guess.  Ultimately, I come down with the majority in this case for two reasons.  First, Justice Lee’s reasoning regarding the asymmetry of treatment created by defining a “minor child” as a living child, though not decisive, is nonetheless forceful given the current language and common law backdrop.  Second, Justice Lee’s structural reasoning is strengthened by the statutory provisions cited by Chief Justice Durham stating that the legislative public policy of Utah is to protect the rights of all persons, even the unborn. In my opinion, these two points, taken together, outweigh Justice Nehring’s one strong counterpoint.

Regardless of your views on the merits of court’s opinion, this statute should be clarified in the upcoming legislative session.

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Google’s Interpretation of In Re Baby E.Z.

July 27, 2011 by Leave a Comment

See the screenshot below for how Google titles the official In re Baby E.Z. Utah Supreme Court opinion in its search results listing — hint: it’s the last result :) (click on the image for full-size). I wonder how Justice Lee feels?

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Utah Supreme Court Justices Confront Subject Matter Jurisdiction and Legislative Intent in In re: Baby E.Z.

July 19, 2011 by 8 Comments

I originally posted this on my law firm’s website, http://www.bentleybriggs.com, but am cross-posting it here because, although it’s more legal than political, it crosses over (plus, I get more readers on this blog).  Enjoy, and comment, please!

The Utah Supreme Court released a very interesting opinion this morning, one that deserves careful consideration from attorneys who practice before Utah’s courts — In re: Baby E.Z, 2011 UT 38 __ P.3d ___.  The case involved yet another unwed father’s challenge to his former partner’s decision to adopt his biological child without his consent.  Forgive me if I largely ignore the merits of this case and focus instead on issues more interesting to legal-nerd types:  the Court’s treatment of subject matter jurisdiction and the legitimacy of electronic lexicons in the search for ordinary meaning and legislative intent.

I will take a brief moment to note that the Utah Supreme Court unanimously rejected the unwed biological father’s challenge to the adoption.  If you’re more interested in the merits of the case, Nate Burdsal of Avery Burdsal & Fale, maintains an Adoption Law Blog where he comments on these types of decisions.

Now, on to the stuff likely only interesting to hard core legal nerds :)

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Subject Matter Jurisdiction

The primary issue in the case was the extent to which a federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2006), (“PKPA”) denied Utah’s state courts subject matter jurisdiction over the adoption proceeding and required enforcement of an out-of-state custody determination.  The PKPA was enacted primarily to ensure that states were required to give full faith and credit to the custody determinations of other states.  As part of accomplishing this goal, the PKPA contains the following provision, which was at the center of this appeal:

A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.

28 U.S.C. § 1738A(g) (2006).

On its face, this provision seems to be unusually clear, especially for a federal statute.  A state court is supposed to refrain from prosecuting a “custody . . . determination” proceeding if another state is already in the midst of a custody determination proceeding.  But, as is the case with so many legal issues, things immediately begin to get fuzzy.

The unwed biological father in this case argued that this provision divested Utah court of subject matter jurisdiction over the Utah adoption proceeding, because he had previously initiated a custody determination proceeding in Virginia.  In essence, he said that Utah courts had no authority to proceed with the adoption and were required, pursuant to federal law, to leave the case to Virginia to decide, and to give effect to the result reached by the Virginia courts.

The fact that the unwed biological father framed his challenge to the Utah court’s authority as a challenge to the district court’s subject-matter jurisdiction is especially significant, given that he did not challenge the district court’s jurisdiction over the case until the case was up on appeal.  Ordinarily, appellate courts will not rule on arguments that were not made before the district court.  There are a number of reasons for this rule, and it’s well justified.  ”Just trust me,” as Jimmy Carter would say.

But there are also exceptions, the most significant of which is a challenge to the subject-matter jurisdiction over the court over the dispute, which can be raised at any time, even (as was the case here) for the first time on appeal.  So, to be much more concise, the only way the unwed biological father was going to get the Utah Supreme Court to consider his argument was to frame it as a challenge to subject-matter jurisdiction, which his attorney did.

Here’s where things get interesting.  The first question the court had to decide was whether an adoption case was a “custody . . . determination.”  This is one area where Justice Lee split with the majority.  The majority opinion, authored by Justice Parrish, had little trouble determining that an adoption — which involved the permanent placing of a child with a set of parents — was also a determination of custody.  But this conclusion put Justice Parrish in a bit of a difficult position in relation to the result she eventually reached.  She had to explain why, even though the PKPA applied, Utah courts could exercise jurisdiction despite the seemingly clear bar of the PKPA.

Justice Parrish reasoned as follows.  She determined that the PKPA was not about stripping subject-matter jurisdiction at all.  Instead, it was about refraining from “exercising” subject-matter jurisdiction.  In order for a court to refrain from exercising jurisdiction, it has to have jurisdiction in the first place, right?.  In effect, she viewed the statutory language as a command for state courts to abstain from exercising jurisdiction when a court of one of their sister states is already doing so.  Because this was not an issue of lack of subject matter jurisdiction (which, again, can be raised at any time, even for the first time on appeal), she simply determined that the unwed biological father had waived his right to challenge the jurisdiction of Utah’s courts by not arguing the issue to the district court before he appealed.

In making her decision, Justice Parrish referenced another interesting recent Utah Supreme Court decision: Johnson v. Johnson, 2010 UT 28.  In the Johnson case, the Court dealt with a subject-matter jurisdiction challenge to a divorce decree.  Although the case has a very interesting backstory, suffice it to say that it involved a couple who pretended to be married for 30 plus years (without ever being married, either officially, or at common law) and then, despite never having married, proceeded to file for divorce.  In their divorce proceeding, both parties represented to the district court that they were, in fact, married, and the court accordingly entered the divorce decree.  Based on what appears to be buyer’s remorse regarding the property settlement terms of the decree, the ex-non-husband(?) immediately began a 10-year battle to have the decree voided based on lack of subject matter jurisdiction.  His argument?  A district court has no subject-matter jurisdiction to enter a divorce for parties who aren’t actually married.  The Utah Supreme Court responded as follows:

Because parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction.  For this reason, most of our cases that have addressed subject matter jurisdiction have considered the authority of the court to adjudicate a class of cases, rather than the specifics of an individual case.

Johnson v. Johnson, 2010 UT 28, ¶ 10 (emphasis added).

According to the Court, because the district court clearly had authority to adjudicate divorce cases, it had subject matter jurisdiction over the Johnson case — which, despite ultimately being meritless, was nonetheless in the general “class” of divorce cases over which the district court indisputably had jurisdiction.  The Court acknowledged that, had the district court known the parties were not married, it should not have granted a divorce, but said that this fact did not affect the authority of the district court over the dispute.  As a result, it is possible, in Utah, for someone to essentially waive their right to contest a non-married divorce on the grounds that they were never married.  Contemplate that one for a while (P.S. — I think it’s the correct result).

Likewise, in In re: Baby E.Z., Justice Parrish reasoned that,  even though, had the unwed biological father timely raised the PKPA before the district court, the court would have had to refrain from exercising jurisdiction, this does not mean that the Court lacked jurisdiction over the case.

Justice Lee disagreed with the majority’s reasoning, though he concurred in the result.  He contended that the Johnson decision did not control this case.  The Johnson case involved a determination of whether Utah’s own statutory grant of jurisdiction to district courts reached so far as to allow them to adjudicate cases that the facts ultimately didn’t merit the relief sought.  In re: Baby E.Z., in contrast, was not about defining the extent to the statute’s own grant of subject matter jurisdiction, but involved interpretation of a federal statute — supreme over state law pursuant to the Supremacy Clause.  The ultimate question was not whether Utah’s district courts had jurisdiction over the general “class” of adoption cases, but what does the federal law say about the ability of the district court to entertain this particular case:

I do not believe that the court’s construction of the PKPA follows from our holding Johnson v. Johnson, or similar cases.  Nor can I agree that athe question in this case is “whether the district court has authority to adjudicate the general class of cases to which this case belongs.”  The dispositive question with respect to forfeiture is not whether the district court has subject-matter jurisdiction over the class of cases governed by the PKPA.  Instead, we must determine what the PKPA means when it directs the state courts not to “exercise jurisdiction in any proceeding for a custody of visitation determination commenced during the pendency of a proceeding in a court of another state.”  The resolution of that question necessarily involves a determination the type of jurisdiction implicated by this “exercise” formulation — specifically, whether the PKPA’s prohibition goes to the competency of the court to hear a class of cases (subject-matter jurisdiction) or to the propriety of the court’s exercise of its powers based on the parties’ contacts and connections with the forum (personal or territorial jurisdiction).

Justice Lee is absolutely correct on this point and has made an important contribution to the Utah Supreme Court’s jurisdictional jurisprudence.  Justice Lee’s opinion, even though only a concurrence, draws a clear line between how to treat cases dealing solely with a state’s own grant of subject matter jurisdiction to its courts and federal statutes that may speak in terms of jurisdiction.  It also provides a helpful reminder that attorneys should go beyond the word “jurisdiction” and consider (as they should in every statutory construction case) the precise nature of the legislature’s intent — even if the legislature may have used words that seem to have acquired a single, ordinarily accepted meaning.  Attorneys take note, and use the case law and argue appropriately.

Justice Lee finished his analysis, ultimately determining that the statutory language of the PKPA — even though it spoke in terms of “jurisdiction” — strongly suggested that it was not intended to divest state courts of subject-matter jurisdiction in certain adoption cases, but was instead a practical rule of comity and efficiency — similar to venue provisions or abstention doctrines.  Accordingly, Justice Lee reached the same endpoint as the majority on this issue — determining that the unwed biological father had waived his right to contest the adoption.

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Means of Ascertaining Legislative Intent

The second interesting thing that comes out of In re: Baby E.Z. is how the Court divided on the question of the legitimacy of a means of searching for legislative intent.  Justice Lee, in addition to determining that the PKPA did not speak to the question of subject-matter jurisdiction, also determined (and argued the point very persuasively, in my opinion) that it did not even apply to this case because an adoption was not a “custody . . . determination.”  In reaching this conclusion, Justice Lee use a somewhat unusual tool in service of his quest for legislative intent:

Granted, there are dictionary definitions of the term “custody” that are broad enough to encompass the notion of adoption.  But the definitions sweep in uses of “custody” that cannot conceivably by encompassed by the PKPA, such as the total public funds in the custody of the state treasurer; a trustee’s “custody” of the res of a trust; or the state’s “custody” of unclaimed property.  Other dictionaries define the family-law term “custody” more narrowly, with reference to custody determinations made pursuant to a divorce.  Thus, though dictionary definitions may be helpful in determining the range of possible meanings of the term “custody,” they cannot identify which of those meaning is intended or more likely to be understood in a particular linguistic or statutory context.  A proper interpretation of meaning in the midst of a range of definitions requires a consideration of the use of the term in its relevant context.

In the context of contemporary usage, by far the most common family-law sense of the word “custody” occurs in the setting of a divorce.  The word “custody” is some ten times more likely to collocate with the word “divorce” than with the word “adoption” in contemporary usage.  A similar lresult holds for the use of “custody” by this Court and the Utah Court of Appeals.  From the passage of the PKPA in 1980, the court’s of this state used the term “custody” most often in its divorce context.  Even in those cases in which the terms “custody” and “adoption” co-occur, they typically are used distinctly to refer to different legal proceedings.  Consequently, if the interpretation of the PKPA is “a contest between probabilities of meaning,” I would find that the custody proceedings covered by the Act are limited to proceedings resulting in the modifiable custody orders of a divorce.  We need not assume that the legislature intends to use statutory terms consistent with their most common meaning.  But evidence tha a given meaning of a term is the most common in a given context undermines the contention that a contrary interpretations must be inferred from the statute’s “plain language.”

This is really interesting stuff.  Certainly, quantitative analysis regarding word pairings doesn’t generally make (has it ever made?) appearances in Utah Supreme Court opinions.  Indeed, both Justice Parrish (in an unusually forceful manner) and Justice Durrant expressed concern about Justice Lee’s approach to ascertaining legislative intent.

This prompted Justice Lee to respond with a spirited defense of his tactic (even this abridged version is long, but well worth reading):

Both the majority and Justice Durrant in his separate concurrence object to my reliance on liguistic data from an electronic corpus in analyzing the comparative usage of different possible meanins of the term custody in the PKPA, contending that such analysis is “of little analytical or persuasive value.”

. . .

As noted above, I share the view that we should not blindly attribute to every statutory term its most frequent meaning.  Such an approach would be arbitrary and would lead to statutory incoherence.  This is not the approach I have articulated, and not the one I have followed in my consideration of corpus linguistic data.

Still, I cannot imagine how we can have a meaningful conversation about the “ordinary” meaning of a statutory terms without asking how a given term is most commonly used in a given context.  This, after all, is what the term “ordinary” meaning when used in a linguistic setting.  I do not suggest that the question of comparative frequency of different sense is necessarily a dispositive one (even when, as above, that comparison examines the use of two competing senses in the relevant context).  But I think the question of comparative usage is at least relevant, particularly where the inquiry into the statute’s meaning is probabilistic.

When faced with an undefined statutory term, judges have traditionally looked to dictionaries to determine ordinary meaning.  Where the dictionary presents more than one possible meaning, as is often the case, judges seldom provide a rationale for selecting among the alternatives; nor do they explain why one dictionary definition is more “ordinary” than the other.  This suggests that such determinations are intuitive rather than principled.  But dictionaries and our own intuition may not tell us how words are ordinarily used. and out reliance on both to determine the ordinary meaning of a statutory term in a particular context is problematic.

. . .

By trusting in dictionaries and out intuitions to reveal ordinary meaning, we are setting both to tasks they are ill-suited to perform.  Dictionaries, while revealing a range of possible meaning of a word, can never tell us how a word is commonly or ordinarily used in a given context.  I recognize that determining the ordinary meaning of statutory terms using data from an electronic corpus presents its own set of problems.  But the alternative is opacity — an intuitive judgment that is justified on the basis of sources that do not stand for the proposition for which they are cited.  In this respect “citing to dictionaries creates a sort of optical illusion, conveying the existence of certainty — or ‘plainness’ — when appearance may be all there is.”

Some Thoughts

I’d love to get others thoughts on this, but here are some of my own (ill-formulated as they are at this point).  First, on Justice Lee’s remarks regarding dictionaries.  When it comes to the “ordinary meaning” of words or phrases, I don’t think that judges make decisions based on dictionary definitions.  Of course, Justice Lee is a judge, so what do I know? :)  Instead, they make decisions on based on their intuition (to use Justice Lee’s word) and experience (to use something a bit more charitable) regarding a word’s ordinary meaning.  After all, a word’s ordinary meaning should be something you just know, right?  I mean, do we even need to cite to a dictionary when we’re talking about an “ordinary” meaning?

Why, then, do judges cite dictionaries so much?  As Justice Lee correctly notes, even though dictionary definitions are numbered, there’s no definition specifically marked “O,” for “ordinary.”  Although it’s nothing more than my own personal opinion, I think judges cite dictionaries primarily because they feel like they’ve always got to cite something — even when they’re talking about ordinary meanings.  It’s ingrained in the legal culture, and is generally not a bad thing.  But it can get ridiculous.  For example, if, in a piece of legal writing, you’re making a claim that Utah winters are cold, you cite to weather data.  Need to establish the proposition that a full-grown oak tree is tall?  Better cite to a arborist’s publication.  This is drilled into you from the very beginning of law school, from the very first time you submit a paper lacking a cite for what seems to you to be a completely obvious assertion — and someone reviewing your paper tells you, “Consider adding a cite for the proposition that Wilt Chamberlain is tall.”

Ultimately, what I’m saying is that, in my opinion, judges don’t rely on dictionaries to determine ordinary meaning.  The rely on dictionaries for the necessary citation in support of their own conception about a word’s ordinary meaning, or even its meaning in a specific context.  Is this sense, dictionaries can perform the function of eliminating some proposed ordinary meanings — if you can’t find a dictionary definition to support your intuition as to ordinary meaning, then you’ve probably got it wrong.  But other than that, dictionaries just provide some basic level of support for the intuitive or experiential conclusions, which is really what the judge is basing their conclusion on.  Let me be clear:  I’m not saying this is an illegitimate way of making decisions.  After all, “the life of the law has not been logic, but experience” right?  It’s just the way I think it is.

Justice Lee is asking for judges to at least consider an alternative approach — resort to empirical measurements of word usage in specific contexts.  He would emphasize that it’s designed to just be one approach among many, but one that trades the opacity of intuition and personal experience for the transparency of replicable empirical analysis.  It’s an interesting, and potentially valuable suggestion.  But it’s also one fraught with some risk.

When we’re talking about ordinary meaning, what is a person’s (even a judge’s) “intuition” or “personal experience” when compared with statistical data having a 95 percent confidence interval?  Can Justice Lee’s approach just really be one more approach among many, or, if it gains acceptance, is it destined to become the one and only valid or legitimate means of determining ordinary meaning in context?  In this case, the other Justices weren’t convinced and Justice Lee used other sources of legislative intent to reach his conclusion.  But one still has to wonder . . . .  Furthermore, is the more quantitative approach really that much more accurate or transparent when compared to intuition to justify that kind of potential primacy, intended or not?  Do legislatures expect that their statutes will be interpreted this way?  Are we simply searching for certainty that’s not there?

It seems as though there’s a real risk that this type of quantitative analysis can overrun the more intuitive or experiential conclusions, even if it’s not intended to.  So, ultimately, I don’t think it’s a case of trading dictionaries for contextual lexicons.  I think moving this way potentially involves a fundamental change in approach.  It may be merited, or maybe not.  It’s something that deserve careful consideration.

What are your thoughts?

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