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Old 02-06-2020, 06:56 PM
UltraVires is offline
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Lawyer dopers, some "homework" help re judicial construction of a statute


I am writing a brief and I want a cite to a very straightforward proposition. That when the constitutionality of a statute is addressed it should include both the plain text of the statute, plus any gloss that a state Supreme Court has placed upon it.

For example, let's say that Utopia's state code has a provision (written hypothetically in 1904) that states, "No person shall operate a device on the public highways without having sufficient knowledge of how the device is used."

Suppose further that the State Supreme Court of Utopia ruled in 1958 that the "device" mentioned in the statute was not a device extraneous to the actual vehicle being operated. For example, if a person was trying to operate the radio in a car, the cigarette lighter, or if the driver had a hand-held transistor radio then the Court ruled that those "devices" were outside the intent of the statute and inapplicable as only "those devices integral to the operation of the vehicle were contemplated by the statute."

Now say that in 2020, a lawyer is arguing that the statute is unconstitutional. Let's pretend (because I am making facts up) that there is a legitimate argument that the statute as applied with the judicial gloss is unconstitutional--say a due process argument that my client's arrest for improperly using an integrated GPS is a vague application of the statute/rule of lenity as the State argued below that the connection of the device and the driver's use of it made it "integral to the operation of the vehicle."

I hope you are following this and understanding my limited argument. Don't fight the hypo. The argument is legit because I am making facts up not to give away the present case.

On appeal, the State argues that the statute is not vague because the GPS is a "device" and the statute is clear when it says "any device" and therefore the law is not vague because the defendant knew that the GPS was a "device." I want to argue that despite what the statute says, the statute assumes any judicial construction placed upon it as well. The State cannot just use the plain text when the judicial construction has somewhat caused the constitutional issue on appeal.

I would like a good cite for when construing a statute for constitutionality, you don't look only at the text, but the prior judicial construction as well. Many thanks.

Last edited by UltraVires; 02-06-2020 at 06:58 PM.
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Old 02-06-2020, 07:28 PM
Procrustus is offline
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I think what the court would have to do is overrule it's previous interpretation of the statute. Most states have a case that says something like this:

Quote:
[a] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute.”
State v. Henning, 289 Kan. 136, 145, 209 P.3d 711, 718 (2009)
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Old 02-06-2020, 09:26 PM
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Originally Posted by Procrustus View Post
I think what the court would have to do is overrule it's previous interpretation of the statute. Most states have a case that says something like this:



State v. Henning, 289 Kan. 136, 145, 209 P.3d 711, 718 (2009)
The court may very well have to do that. But what if it agrees with the state's argument that "device" is not vague, so I'm out of luck? What can I argue that says, basically, the text of the statute is not the full statute, that the judicial interpretation is also part of it?
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Old 02-06-2020, 09:34 PM
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Originally Posted by UltraVires View Post
What can I argue that says, basically, the text of the statute is not the full statute, that the judicial interpretation is also part of it?
Donít you do that by just citing to whatever case you are referring to which applied the judicial gloss you are relying upon?

ďAs with State v Jones, where the court recognized that Ďdeviceí only applies to such items integral to the operation of a vehicle, this case concerns a piece of technology extraneous to the carís primary function. As such, this court should follow the Jones holding in construing the device statute inapplicable to this case.Ē
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Old 02-06-2020, 09:39 PM
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I mean, arenít you basically invoking ďstare decisisĒ? Your argument is basically, ďa previous court made a reasoned decision about how to interpret this statute to make it constitutional, and so this court should feel constrained by that precedent, insofar as itís based on reasoned judgment.Ē

Presumably, the earlier case provided reasons for why it narrowed the plain text of the statute, so Iíd be quoting liberally from their justification.
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Old 02-06-2020, 09:48 PM
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Donít you do that by just citing to whatever case you are referring to which applied the judicial gloss you are relying upon?

ďAs with State v Jones, where the court recognized that Ďdeviceí only applies to such items integral to the operation of a vehicle, this case concerns a piece of technology extraneous to the carís primary function. As such, this court should follow the Jones holding in construing the device statute inapplicable to this case.Ē
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Originally Posted by Moriarty View Post
I mean, arenít you basically invoking ďstare decisisĒ? Your argument is basically, ďa previous court made a reasoned decision about how to interpret this statute to make it constitutional, and so this court should feel constrained by that precedent, insofar as itís based on reasoned judgment.Ē

Presumably, the earlier case provided reasons for why it narrowed the plain text of the statute, so Iíd be quoting liberally from their justification.
I agree. I very much agree. However, there is an unreasoned, unpublished opinion from the court which goes against me where the court devoted one paragraph with no analysis and applied the "any device" language.

I could just argue what you both said and argue that it was unpublished for a reason, but I'm looking for the stronger language.
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Old 02-06-2020, 09:55 PM
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IOW, the State is arguing that the statute is not vague. The statute says "device" and a GPS system is a "device." I agree that interpretation is clear and there is no constitutional problem with the statute as written.

But because the Court has previously limited the types of devices covered under the statute, then that construction IS the new statute, despite the straightforward language in the statute.

I have it on the tip of my tongue, but I've looked for hours today without luck.
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Old 02-06-2020, 09:57 PM
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Well, Iíve always been thought that you arenít supposed to rely on unpublished opinions; as you note, they are unpublished for a reason.

And, in fact, are there any local rules or ethics rules about use of unpublished opinions?

In a google search, I came across this, which I havenít read, but gets into the issue of using an unpublished opinion. (Note: pdf)
https://willamette.edu/law/resources...ne-7-17-08.pdf

Iíd be hammering the other side if they were trying to invoke some random one off case to avoid the prevailing common law.
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Old 02-06-2020, 09:58 PM
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Sorry for the triple post but...let's assume that the court will not reverse the 1958 decision because the plain text would be an absurdity.

An old man sitting in the back seat of a car fiddling, yet not understanding, his new smart phone would come under the plain text of the statute. Yes, the court could strike the whole law, but it (trust me on this) will kill little puppies to save this law at least in some cases, like where a driver of an automobile doesn't know how to drive.
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Old 02-06-2020, 10:00 PM
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Originally Posted by Moriarty View Post
Well, Iíve always been thought that you arenít supposed to rely on unpublished opinions; as you note, they are unpublished for a reason.

And, in fact, are there any local rules or ethics rules about use of unpublished opinions?

In a google search, I came across this, which I havenít read, but gets into the issue of using an unpublished opinion. (Note: pdf)
https://willamette.edu/law/resources...ne-7-17-08.pdf

Iíd be hammering the other side if they were trying to invoke some random one off case to avoid the prevailing common law.
In my state, unpublished opinions are of precedential value, but in other cases it states they are of "limited" precedential value. That's the route I'm going, but I would love the "hammer" argument to kill the state's argument that the plain text controls.
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Old 02-07-2020, 12:59 PM
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I don't think you'll find anything specific to questions of constitutionality. On *any* point of law, if there is controlling legal authority, the parties are supposed to cite it, and the court is supposed to follow it. In more practical terms, if the court hearing your argument has not been persuaded by citation to controlling legal authority, it's not likely to be persuaded by citation to legal maxims saying that it should follow controlling legal authority. Your only real remedy then is appeal.
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Old 02-07-2020, 03:38 PM
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I don't think you'll find anything specific to questions of constitutionality. On *any* point of law, if there is controlling legal authority, the parties are supposed to cite it, and the court is supposed to follow it. In more practical terms, if the court hearing your argument has not been persuaded by citation to controlling legal authority, it's not likely to be persuaded by citation to legal maxims saying that it should follow controlling legal authority. Your only real remedy then is appeal.
Yeah, I feel like I need to quote Marbury v. Madison. This is the best I've found:

Quote:
In Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973), we held that "[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation 'we must take the statute as though it read precisely as the highest court of the State has interpreted it.' Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273 [60 S.Ct. 523, 525, 84 L.Ed. 744] (1940)."
So the argument would be, look Supreme Court of Utopia, if this gets to a cert petition being granted, the Supreme Court of the United States will construct this statute with the prior case law attached. It would make little sense for you not to do the same.
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Old 02-08-2020, 09:35 AM
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So you have a statutory term ("device") where the state Supreme Court has limited the scope of that term and then in a later, unpublished decision reverted back to the broader definition of "device"? Because this seems like it could get very interesting depending on if that's the situation and which definition the lower court chooses.

Also, and I realize I'm working with very little information here, but is there no good argument that the "vague" definition is, well, Void for Vagueness? I mean apparently the state Supreme Court found it necessary to limit the scope once before. So the application of the "vague" definition must have been problematic in some way.
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Old 02-08-2020, 07:19 PM
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Are your client(s) aware that you're sourcing your legal research from randos on the interweb rather than a law library or professional legal researcher?
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Old 02-08-2020, 08:55 PM
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In the unpublished decision, did the court's opinion hinge on this issue or was it one of several?
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Old 02-08-2020, 09:16 PM
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Are your client(s) aware that you're sourcing your legal research from randos on the interweb rather than a law library or professional legal researcher?
One of the reasons I like working in a law firm with other associates, as opposed to a solo practice, is because I can sometimes walk down the hall and pick their brain, usually to get me past a mental block or because they might suggest a different line of inquiry. A few minutes of time is often invaluable for articulating an argument.

These days, research is done online (I havenít had reason to go to a law library since law school) and Iíve never met a professional legal researcher - where I live, people who do that are called ďlawyersĒ.
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Old 02-09-2020, 11:15 PM
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That's what I miss most probably about working in a firm. Sometimes it just helps to have someone say, "What about that one client we had?" Or "I heard something like that at a CLE last year. Let me find the material."
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