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ModernStatutory Interpretation

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Chapter 4

Beyond the Text:Absurdity & Ambiguity

What, if anything, comes after a court determines the plain meaning of the text?That central question occupies the next several chapters. First the good news: nomatter which approach to statutory interpretation a court uses, if the plain meaningof the text is absurd or ambiguous, the court will go beyond the text. Under every ap-proach, a finding of ambiguity or absurdity requires the court to look beyond the textfor meaning. It opens the door for consideration of other sources of meaning. Thatissue is the subject of this Chapter. We will see that beyond opening the door, there isdisagreement.

This Chapter focuses on the two universally recognized exceptions to the plainmeaning rule: absurdity and ambiguity. Suppose that the plain meaning of the statute isclear, but that meaning simply makes no sense — it is absurd. What, if anything, shoulda court do? Suppose instead that the plain meaning of the statute lends itself to morethan one equally plausible interpretation. What does a court do to resolve this ambigu-ity? We will explore these two somewhat related questions in this Chapter. We will seethat, when statutory language is absurd or ambiguous, courts are more willing to lookbeyond the text to determine meaning. They may disagree on what sources to considerother than the text, but they are almost all willing to go beyond the text under these cir-cumstances. Along the way, ask yourself if the question of whether a court should gobeyond the text should turn on ambiguity or absurdity — or whether it should turn onsomething else (if so, what?).

The next chapter analyzes what, if anything, comes after determining the plainmeaning if the text is not absurd or ambiguous. In those circumstances, whether a courtis willing to go beyond the text depends on the approach to statutory interpretation —textualism, intentionalism, or purposivism — it takes. Textualists are less willing to gobeyond the text than others. That is the focus of the next chapter.

Theoretical disagreements aside, you should realize what these principles mean toyou as a lawyer: if the plain meaning of the text does not favor your client’s position,then you need to be prepared to argue either that the statute is absurd or ambiguous orthat under the court’s approach, analysis does not stop with even clear text. That is thehurdle we examine principally in these two chapters, but also in those that follow. Theseimportant philosophical and jurisprudential differences have important, perhaps out-come-determinative, practical lawyering applications.

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74 4 · BEYOND THE TEXT: ABSURDITY & AMBIGUITY

A. Absurdity (The Golden Rule Exception)

Counter-intuitively, the plain meaning of a statute may be “wrong.” The so-called“Golden Rule Exception” to plain meaning recognizes that when plain meaning leads toan absurd result, then the court must go beyond the plain meaning to see if the othersources demonstrate that the absurd but plain meaning was not intended. See City ofWinder v. McDougald, 583 S.E.2d 879, 882 (Ga. 2003). For example, in Holy TrinityChurch v. U.S., 143 U.S. 457, 459 (1892), the Court looked to legislative intent because“of the absurd results which follow from giving such [plain] meaning to the words.” Thereason to go beyond the words is that it is “unreasonable to believe that the legislator in-tended” the absurd result. Id.

In addition to the fact that language is inherently imperfect, the legislative processmay lead to ambiguity or absurdity. For example, a statute “may be deliberately im-precise to accommodate political interests. . . . [C]areful draftsmanship is all too oftenabsent; perhaps it is impossible in the crush of competing interests and activities thatoccur in the final moments of legislative enactments. Mistakes are made. In addition,a case that comes before the court . . . may present an issue that was not in the mindsof . . . the legislators.” John M. Walker, Jr., Judicial Tendencies in Statutory Construc-tion: Differing Views on the Role of the Judge, 58 N.Y.U. Ann. Surv. Am. L. 203, 204(2001).

Despite its near universal acceptance, the Golden Rule Exception is not without con-troversy. If a court disregards the plain meaning of a statute for some other “non-ab-surd” meaning, isn’t the court inappropriately “legislating”? Even if it is appropriate toignore plain meaning, where should a court turn to discern meaning? Should a courtbe guided solely by one extrinsic source, such as the purpose or legislative history?Should it consider all extrinsic sources and give each the same weight? Differentweight?

Another issue is the question of what exactly do judges mean when they say that astatute is absurd? There is no universally accepted definition of absurdity. Veronica M.Dougherty, Absurdity and the Limits of Literalism: Defining the Absurd Result Principlein Statutory Interpretation, 44 Am. U.L. Rev. 127, 133 (1994). Rather, judges often at-tempt to define absurdity by simply identifying, without explaining, other cases inwhich absurdity has been found. Id. at 139; see, e.g., Pub. Citizen v. U.S. Dep’t of Jus-tice, 491 U.S. 440, 470-71 (Kennedy, J., concurring). In the case that follows, identifythe definition of absurdity the majority and dissent use. Do you agree with either def-inition? Should absurdity be relatively easy to establish (i.e., the plain meaning is in-consistent with the statutory purpose) or fairly difficult (i.e., the plain meaning iswholly irrational)? Does your answer to that question depend on your approach to in-terpretation?

A final question is how absurdity is determined. Does a court determine plainmeaning and then determine whether there is an absurdity? Assuming so, do the tex-tual canons, legislative history and purpose help resolve the absurdity? Or does acourt determine meaning by looking at all sources — including plain meaning, thetextual canons, the legislative history and purpose — and only then determine whetherthere is absurdity? The following case and the notes explore these and other issues:when is a statute absurd? When it is absurd, what sources can provide the “right”meaning?

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4 · BEYOND THE TEXT: ABSURDITY & AMBIGUITY 75

ROBBINS v. CHRONISTER402 F.3d 1047 (10th Cir. 2005)

Seymour, J.,

Plaintiff-appellee Ralph Robbins prevailed in a § 1983 civil rights suit against LarryChronister, a police officer who violated his Fourth Amendment rights. The courtawarded Mr. Robbins nominal damages of one dollar. Applying the Supreme Court’sabsurdity exception to the plain language rule of statutory construction, the court thenheld that the provision of the Prison Litigation Reform Act (PLRA) limiting attorney’sfee awards in prisoner suits to 150% of the money judgment, 42 U.S.C. § 1997e(d), doesnot apply to civil rights claims arising before the victim of the constitutional violationwas incarcerated. The court awarded Mr. Robbins reasonable attorney’s fees under 42U.S.C. § 1988 without regard to the PLRA’s fee cap. We affirm.

In December 1995, Mr. Robbins was sitting in his car at a gas station . . . waiting for agas pump to become available. . . . Officer Chronister recognized Mr. Robbins . . . andknew there were five outstanding traffic warrants for Mr. Robbins’s arrest. . . . OfficerChronister approached . . . Mr. Robbins’s car with his baton in his hand. Officer Chro-nister identified himself and ordered Mr. Robbins out of the car. Mr. Robbins engagedthe door locks of his car, put the car in reverse, and began to back towards OfficerChronister’s truck. Officer Chronister swung his baton into the driver’s side window ofMr. Robbins’s car, shattering it, and attempted to pull Mr. Robbins from the car. Mr.Robbins managed to maneuver the car away from Officer Chronister’s truck, and triedunsuccessfully to accelerate on the icy pavement. He skidded and spun around theparking lot, eventually fish-tailing toward Officer Chronister. As the car approachedhim, Officer Chronister shot at its hood and windshield. Mr. Robbins ultimately left theparking lot and wrecked the car a few blocks away. He was taken to the University ofKansas Medical Center for treatment of two gunshot wounds to the chest and one to hislower left side.

Mr. Robbins subsequently pled guilty to attempted aggravated assault on a law en-forcement officer and was incarcerated at the Federal Correctional Institution inGreenville, Illinois. While he was incarcerated, he filed a pro se civil rights complaintunder 42 U.S.C. § 1983, alleging that Officer Chronister used excessive force in theirencounter in violation of Mr. Robbins’s Fourth Amendment rights. The court ap-pointed counsel for him. After conducting a three-day bench trial, the court ruled thatOfficer Chronister’s use of deadly force in firing the shots was reasonable under theFourth Amendment, but that shattering Mr. Robbins’s driver’s side window with abaton was not. Because Mr. Robbins was not physically injured as a result of the shat-tered window, the court awarded him nominal damages of one dollar, a determinationhe does not appeal.

Mr. Robbins filed a motion for attorney’s fees pursuant to 42 U.S.C. §1988(b), whichallows the court to award a reasonable attorney’s fee to the prevailing party in a §1983 ac-tion. Officer Chronister opposed the motion, arguing the plain language of §1997e(d) ofthe PLRA caps Mr. Robbins’s attorney’s fees at 150% of his damages, or $1.50, because hewas a prisoner when he filed suit. . . . [T]he court declined to apply the PLRA cap. It heldthat applying the PLRA in these circumstances would produce an absurd result becauseCongress could not have intended the statute to apply to meritorious civil rights claimsthat arose prior to a prisoner’s confinement. . . . [T]he court awarded Mr. Robbins $9,680in fees and $915.16 in expenses. On appeal, Officer Chronister contends the court shouldhave applied the PLRA and capped Mr. Robbins’s attorney’s fees at $1.50. . . .

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We review issues of statutory construction de novo, and begin by examining the plainlanguage of the statute. The plainness or ambiguity of statutory language is determinedby reference to the language itself, the specific context in which that language is used,and the broader context of the statute as a whole.

The PLRA provides in relevant part:

(1) In any action brought by a prisoner who is confined to any jail, prison,or other correctional facility, in which attorney’s fees are authorized under sec-tion 1988 of this title, such fees shall not be awarded, except to the extentthat —

(A) the fee was directly and reasonably incurred in proving an ac-tual violation of the plaintiff ’s rights protected by a statute pursuantto which a fee may be awarded under section 1988 of this title;. . . .

(2) Whenever a monetary judgment is awarded in an action described inparagraph (1), a portion of the judgment (not to exceed 25 percent) shall beapplied to satisfy the amount of attorney’s fees awarded against the defendant.If the award of attorney’s fees is not greater than 150 percent of the judgment,the excess shall be paid by the defendant.

42 U.S.C. § 1997e(d) (footnotes omitted). . . . The statute’s plain language indicates the150% fee cap applies if (1) the plaintiff was “a prisoner” at the time he brought the ac-tion and (2) he was awarded attorney’s fees pursuant to § 1988. It is undisputed that Mr.Robbins was a prisoner when he filed his § 1983 action and that the court entered judg-ment in his favor by awarding him one dollar in nominal damages and reasonable attor-ney’s fees pursuant to § 1988(b). Under the plain language rule . . . therefore, the fee capcontained in § 1997e(d) would apply . . . limiting the award to $1.50.

If the language of a statute is clear in its application, the general rule is that we arebound by it. Nevertheless, where applying the plain language would produce an absurdand unjust result which Congress could not have intended, we need not apply the lan-guage in such a fashion. This is because interpretations of a statute which would pro-duce absurd results are to be avoided if alternative interpretations consistent with thelegislative purpose are available. This absurdity exception to the plain language rule isconsistent with the doctrine that the function of the courts . . . is to construe . . . statu-tory language so as to give effect to the intent of Congress.

Although the absurdity doctrine is “exceptional” in character, we have applied itwhere construing the plain language of a statute would produce an illogical result. . . .

Turning to application of the PLRA in this case, and as we discuss below, it is clearthat Congress intended to curb frivolous lawsuits brought by prisoners relating to theconditions and circumstances of their incarceration. Conversely, Congress gave no indi-cation of any intent to impose a fee limitation on pre-incarceration civil rights claimsbrought by plaintiffs who subsequently become prisoners and file their action while inprison. The PLRA’s legislative history is silent as to civil rights claims arising prior to in-carceration, and Congress could have addressed this issue expressly had it so intended.

The PLRA was attached as a rider to an omnibus appropriations act and apparentlywas not subjected to committee markup or extensive hearings. Cases have noted thepaucity of information available in the PLRA’s legislative history for divining Congress’sintent, but the unmistakable purpose of the legislation was to limit the rapidly increas-ing number of frivolous prisoner claims arising from alleged prison-related civil rightsviolations. . . . As one court has explained:

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Although the legislative history regarding the PLRA is sparse, Congress’s gen-eral purpose in passing the act is relatively clear. According to Senator Hatch,the PLRA “will help bring relief to a civil justice system overburdened by frivo-lous prisoner lawsuits. . . . Our legislation will also help restore balance to prisonconditions litigation and will ensure that Federal court orders are limited toremedying actual violations of prisoners’ rights. . . .” 141 Cong. Rec. S14408-01,*S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch). See also 141Cong. Rec. S7498-01, *S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl)(PLRA “will deter frivolous inmate lawsuits. Statistics compiled by the Admin-istrative Office of the U.S. Courts show that inmate suits are clogging thecourts and draining precious judicial resources”); id., at *S7524 (statement ofSen. Dole) (“Frivolous lawsuits filed by prisoners tie up the courts, waste valu-able judicial and legal resources, and affect the quality of justice enjoyed by thelaw-abiding population.”).

Zehner v. Trigg, 952 F.Supp. 1318, 1324-25 (S.D.Ind.1997) (emphasis added). TheSupreme Court has cautioned against construing a statute literally where the clause inquestion was added on the Senate floor and the legislative history gave no indicationthat Congress intended the broad reading the plain language would indicate.

We, of course, do not quibble with Congress’s legislative judgment that too manyfrivolous lawsuits and appeals are filed by prisoners; indeed, our own docket is heavywith prison litigation. . . .

Our society has long recognized the importance of preventing and deterring civilrights violations. . . . Moreover, because the law recognizes the importance to organizedsociety that those rights be scrupulously observed and every individual’s civil rights areequally valuable regardless of ability to hire an attorney to pursue their vindication,Congress intended for attorney’s fees to be awarded in civil rights cases regardless of theamount of damages. . . .

Constitutional claims arising before the events causing the plaintiff ’s incarcerationare unrelated to prison confinement. Nor does a pre-existing constitutional claim fallinto the category of “frivolous prisoner litigation” that Congress was trying to discour-age by its passage of the PLRA. As evidenced by the statute’s limited legislative history, itwas frivolous confinement cases Congress was attempting to deter . . .

We apply the Supreme Court’s absurdity exception to the PLRA’s plain languagebecause there is no indication Congress intended to limit an award of attorney’s feesto a civil rights plaintiff simply because he crossed the threshold of a prison beforefiling his lawsuit. Failing to distinguish between pre-incarceration cases and post-in-carceration cases would lead to absurd results we are not persuaded Congress in-tended when it passed the PLRA. This narrow absurdity exception will not undercutCongress’s purpose of curbing frivolous prison litigation. The PLRA fee cap will stillfully apply to cases “brought by a prisoner who is confined to any jail, prison, orother correctional facility,” § 1997e(d)(1), where the claims are based on violationsthat arise during a prisoner’s incarceration. By distinguishing temporally betweenthese cases and those concerning constitutional violations that occurred prior to anindividual’s period of imprisonment, we give effect to Congress’s intent withoutbeing overinclusive.

In sum, we hold that it would be absurd to limit Mr. Robbins’s attorney’s fees merelybecause he happened to file his pre-existing constitutional claim while he was in prison.We therefore affirm.

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Hartz, C. J., dissenting,. . . .

What I cannot agree with . . . is the majority’s view that it would be absurd to thinkCongress wished to apply § 1997e(d) to suits alleging preconfinement misconduct.

We have said that an interpretation of a statute is absurd if it leads to results so grossas to shock the general moral or common sense. Applying § 1997e(d) here does notcome close to meeting that standard.

It is worth remembering that 42 U.S.C. § 1988, which provides for attorney-feeawards in civil-rights litigation, is a departure from the American Rule, under which thelosing party is not required to reimburse the prevailing party’s attorney fees. Concernedthat the prospect of attorney-fee awards was encouraging the high volume of frivolousprisoner litigation burdening the courts and defendants, Congress reduced the incen-tive, restricting recovery of attorney fees to no more than 150% of the damagesawarded, thereby encouraging only suits likely to recover substantial damages. Accord-ing to the majority opinion it would be absurd to reduce the incentives for prisoners tofile suits alleging preconfinement civil-rights violations. But it seems to me eminentlyreasonable.

The likely reason why prisoners file so many groundless suits is that they have somuch time, time to file suits alleging preconfinement misconduct as well as suits con-cerning prison conditions. This explains why § 1997e(d) looks to the status of the plain-tiff when suit is filed (is the plaintiff a prisoner?) not the nature of the civil-rights claim.Not only is the provision inapplicable to suits filed before incarceration that allege pre-confinement misconduct, but it also is inapplicable to suits filed after release that allegeunlawful prison conditions. If it makes sense to try to reduce the volume of frivolousprisoner litigation regarding prison conditions by restricting attorney-fee awards, it alsomakes sense to use the same means to try to reduce the volume of frivolous prisoner lit-igation alleging preconfinement misconduct.

The majority opinion’s reliance on congressional floor debate is unpersuasive. Theperils of relying on that source for interpreting statutory language are well-known. Buteven when relied upon, floor debate has been used only to indicate what Congressmeant by certain language. I do not see how floor debate could show that a particularinterpretation of statutory language would be absurd; it would, at most, show that theinterpretation was not the intended one. The absurdity doctrine, however, requiresmore than a showing that the statutory language does not mean what Congress in-tended; it requires a showing that it would have been absurd for Congress to have in-tended what the statute says. . . .

I would reverse the judgment below and remand with instructions to award an attor-ney fee of $1.50. I can certainly sympathize with an attorney appointed by the courtwho is not compensated for the services rendered. But this could occur even under themajority’s rule, as when the prisoner loses entirely or the appointment is for a prison-conditions lawsuit. The remedy, however, would be to have the attorney paid with courtfunds, not to impose an obligation on the defendant contrary to an unambiguous, non-absurd statute.

Notes and Questions

(1) Is Legislative History Relevant to a Finding of Absurdity? Was the absurdity apparentsolely from the text of the statute? The question of whether a court should look beyondthe text as part of determining absurdity is a critical philosophical and practical ques-

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tion. How might textualists address that issue? Would purposivists or intentionalistsdisagree?

(2) Absurd or Not? Does the question of whether the statute was absurd in the case turnon what the judge thought the purpose of the statute was? Look at the statute carefully.Was the purpose to limit lawsuits brought by people in prison, to limit lawsuits broughtby people challenging prison conditions, or something else? What did the majoritythink the purpose of this statute was? The dissent? If you believe the dissent’s version ofthe purpose of the statute, then is it absurd? Who was right? In answering that question,consider this: whether a person’s attorneys’ fees are capped turns on whether they are injail when they bring the suit, not on whether they bring suit because of the conditionsof their incarceration. If you conclude that purpose should be considered in determin-ing absurdity, then what does that mean for a textualist?

(3) Purpose from Legislative History? The plain meaning of the statute clearly barred re-covery of more than $1.50 in attorney’s fees in this case. The dissent took the majorityto task for defining the purpose of the statute as to deter litigation over prison condi-tions as opposed to suits by prisoners. Look at the language quoted by the majority forits support. Isn’t that language, at best, ambiguous with respect to whether the purposewas only to limit suits about prison conditions?

(4) Doesn’t the Majority Just Disagree with Congress’s Language? Normally, courts saythat a statute is not “absurd” simply because the court thinks the statute reflects a poorpolicy choice. E.g., Mayor of City of Lansing v. Mich. Pub. Serv. Comm’n, 680 N.W.2d840 (Mich. 2004). Isn’t that precisely what the majority did here?

(5) Supreme Court’s Use of the Absurdity Doctrine. In recent years, the Supreme Courthas relied on the absurdity doctrine at least five times to depart from a plain reading ofthe text. Clinton v. City of N.Y., 524 U.S. 417, 428-29 (1998) (invoking doctrine to ex-pand meaning of “individuals” to include corporations as those who could seek expe-dited review under Line Item Veto Act); U.S. v. X-Citement Video, Inc., 513 U.S. 64, 69(1994) (holding it would be absurd to apply term “knowingly” only to relevant verbs incriminal statute and not to elements of the crime concerning minor age of participantand sexually explicit nature of material); Burns v. U.S., 501 U.S. 129, 135-37 (1991) (re-lying on absurdity to hold that district courts may not depart upward from sentencingrange established by Sentencing Guidelines without first notifying parties of court’s in-tent to depart); Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 454-55 (1989) (in partrelying on absurdity to interpret Federal Advisory Committee Act, which had broadlydefined “federal advisory committee” more narrowly); Green v. Bock Laundry Mach.Co., 490 U.S. 504, 509-11 (1989) (some justices reasoned that it would be absurd not toapply Fed. R. Evid. 609(a)(1) to civil as well as criminal defendants). As we noted, afinding of absurdity is necessary before a textualist-oriented court will go beyond thetext. Do five recent cases from the U.S. Supreme Court sound like the doctrine is expan-sive or narrow?

(6) Textualism. Consider the tension between the Golden Rule Exception and textual-ism. The Golden Rule Exception allows courts to rely on extrinsic sources when the textleads to absurd results. Under that circumstance, courts may ignore the text and peruseextratextual sources for the meaning of the statute. Does the Golden Rule Exceptionundermine textualism?

(7) Purposivism. As part of the process of interpretation, purposivists analyze the textand also ask what evil or mischief the statute was designed to remedy, and they seek togive a meaning to the text that furthers that goal. Thus, right from the start and without

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need to rely on the Golden Rule Exception to do so, purposivists look to extratextualsources along with the text. Similarly, intentionalists look to the legislative history alongwith the text right from the start and without a threshold requirement of ambiguity.Does the existence of the Golden Rule Exception suggest that purposivism and inten-tionalism are “better” than textualism?

B. Ambiguity

Often, the statute at issue is not absurd, but it is not clear, either. Statutory lan-guage can be ambiguous. Defining “ambiguity” is somewhat difficult. This issue is farfrom academic. How a court defines ambiguity will directly impact you and yourclients.

Let’s start out by what it isn’t: “Ambiguous” does not mean “vague” or “broad” or“general.” “Vehicles” is a very broad, vague, and general word. Its meaning is not, in theabstract, ambiguous, however.

Instead, ambiguity means that a statute can be read in two ways when applied to par-ticular facts. For example, under one reading of a statute, there is liability, but underanother reading, there is no liability. While some language theorists would no doubtcontend that all language is ambiguous, the courts do not go so far.

We think that most courts articulate definitions of “ambiguity” that do not quitereflect what they do. Most courts state that statutes are ambiguous when two or morereasonable people disagree as to its meaning. (See State ex rel Kalal below.) It soundsright, doesn’t it? But, think about that for a moment: any time there is a lawsuit overthe meaning of a statute, unless the court finds that one party’s interpretation is un-reasonable, a court using that definition would have to find the statute was ambigu-ous. What would that mean for the importance of text? Similarly, if “two reasonablepeople disagree” is the test, then won’t every statutory interpretation decision wherethere is a dissent mean that the statute is ambiguous? In this regard, consider the factthat often the cases that the Supreme Court decides arise from circumstances wherethe appellate judges split not only over the application of the statute, but the meaningof the text as well. A finding of ambiguity requires, like every judicial finding, that amajority of the judges believe that the statute is ambiguous. Thus, if only four of ninejudges believe a statute is ambiguous, four is not enough to warrant a finding of am-biguity. Similarly, the fact that circuits split on the meaning, is not enough for a courtto hold that there is ambiguity. Thus, ambiguity is a narrower exception than it mayappear.

Although “reasonable people disagree” is often stated as the test, we think that mostcourts are actually applying a higher standard. Some courts expressly require a higherthreshold saying that simply because two litigants or two judges disagree about what astatute means does not lead to a finding that the statute is ambiguous. We believe theyare correct. Ambiguity in application means more than just that “two reasonable peopledisagree.” Instead, it probably means that there is more than one equally plausible mean-ing. In other words, it has to be more than just two reasonable interpretations — it hasto be two equally plausible interpretations or some narrower standard.

The Michigan Supreme Court explained why “that reasonable minds can differ”should not be the test for “ambiguity:”

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Especially in the context of the types of cases and controversies consideredby this Court-those in which the parties have been the most determined andpersistent, the most persuaded by the merits of their own respective argu-ments-it is extraordinarily difficult to conclude that reasonable minds cannotdiffer on the correct outcome. That is not, and has never been, the standard ei-ther for resolving cases or for ascertaining the existence of an ambiguity in thelaw. The law is not ambiguous whenever a dissenting (and presumably reason-able) justice would interpret such law in a manner contrary to a majority.Where a majority finds the law to mean one thing and a dissenter finds it tomean another, neither may have concluded that the law is “ambiguous,” andtheir disagreement by itself does not transform that which is unambiguousinto that which is ambiguous. Rather, a provision of the law is ambiguous onlyif it irreconcilably conflicts with another provision, or when it is equally sus-ceptible to more than a single meaning. In lieu of the traditional approach todiscerning “ambiguity” - one in which only a few provisions are truly ambigu-ous and in which a diligent application of the rules of interpretation will nor-mally yield a “better,” albeit perhaps imperfect, interpretation of the law — thedissent would create a judicial regime in which courts would be quick to de-clare ambiguity and quick therefore to resolve cases and controversies on thebasis of something other than the words of the law.

Mayor of City of Lansing v. Mich. Pub. Serv. Comm’n, 680 N.W.2d 840, 847 (Mich. 2004).

Is it possible that a judge’s desire to look beyond the text might affect the breadth ofthat judge’s definition of ambiguity? There may also be a contraction of “ambiguity”that is happening by design, and whose importance you should ponder. One reason forsome courts’ hesitancy to broadly define “ambiguity” - and perhaps a growing trend tonarrow the circumstances in which a statute can be found ambiguous — is that a findingof ambiguity opens the door to consideration of other sources, such as the purpose orlegislative history, which some courts view dimly: “A finding of ambiguity, of course,enables an appellate judge to bypass traditional approaches to interpretation and eithersubstitute presumptive rules of policy, or else to engage in a largely subjective and per-ambulatory reading of legislative history.” Id. at 846.

The following opinion and notes explore the different approaches to ambiguity andthe propriety of reliance on extratextual sources. Some judges believe reliance on extra-textual sources is required; others believe it is improper. See if you can identify the ap-proach to statutory interpretation used by the majority and concurrence. How doestheir choice affect their willingness to resort to extratextual sources to resolve ambigu-ity? Why do some approaches hold it improper to rely on extratextual sources, whileothers believe doing so is required?

STATE ex rel. KALAL v. CIRCUIT COURT681 N.W.2d 110 (Wis. 2004)

Sykes, J.,

In Wisconsin, the district attorney is primarily responsible for the decision whetherto charge a person with a crime. . . .

There are exceptions to this rule, however, and this case arises from one of them.Subsection (3) of Wis. Stat. § 968.02 provides that “[i]f a district attorney refuses or isunavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if

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the judge finds there is probable cause to believe that the person to be charged has com-mitted an offense.” Wis. Stat. § 968.02(3)(2001-02)(emphasis added.)

This case involves an effort by a Madison attorney to invoke this procedure againsther former employer and his wife for allegedly stealing funds earmarked for her retire-ment account. The attorney, Michele Tjader, first complained to the Madison PoliceDepartment and the Dane County District Attorney about the alleged theft by Ralphand Jackie Kalal. Several months later, after receiving word from the district attorneythat she “was free to proceed legally in whatever manner she believed necessary,”Tjader filed a motion pursuant to Wis. Stat. § 968.02(3) for the issuance of a criminalcomplaint against the Kalals. A circuit judge authorized the filing of the proposedcomplaint.

The Kalals moved for reconsideration, arguing that . . . the district attorney had [not]“refused” to issue a complaint as required by Wis. Stat. § 968.02(3). The circuit judge . . .denied [the motion]. . . .

By its terms, Wis. Stat. § 968.02(3) requires the circuit judge to make two determina-tions prior to authorizing the issuance of a complaint: 1) that “the district attorney re-fuses or is unavailable to issue a complaint;” and 2) that “there is probable cause to be-lieve that the person to be charged has committed an offense.” . . .

Probable cause is not at issue here, nor is there a challenge to the judge’s exercise ofdiscretion to permit the filing of the complaint. We are confronted only with a questionabout the meaning of the term “refuses” in the statute. . . .

Wisconsin’s statutory interpretation case law has evolved in something of a combina-tion fashion, generating some analytical confusion. The typical statutory interpretationcase will declare that the purpose of statutory interpretation is to discern and give effectto the intent of the legislature, but will proceed to recite principles of interpretation thatare more readily associated with a determination of statutory meaning rather than leg-islative intent-most notably, the plain-meaning rule. Although ascertainment of legisla-tive intent is the frequently-stated goal of statutory interpretation, our cases generallyadhere to a methodology that relies primarily on intrinsic sources of statutory meaningand confines resort to extratextual sources of legislative intent to cases in which thestatutory language is ambiguous.

Accordingly, we now conclude that the general framework for statutory interpreta-tion in Wisconsin requires some clarification. It is, of course, a solemn obligation of thejudiciary to faithfully give effect to the laws enacted by the legislature, and to do so re-quires a determination of statutory meaning. Judicial deference to the policy choicesenacted into law by the legislature requires that statutory interpretation focus primarilyon the language of the statute. We assume that the legislature’s intent is expressed in thestatutory language. Extrinsic evidence of legislative intent may become relevant tostatutory interpretation in some circumstances, but is not the primary focus of inquiry.It is the enacted law, not unenacted intent, that is binding on the public. Therefore, thepurpose of statutory interpretation is to determine what the statute means so that itmay be given its full, proper, and intended effect.

Thus, we have repeatedly held that statutory interpretation begins with the languageof the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.Statutory language is given its common, ordinary, and accepted meaning, except thattechnical or specially-defined words or phrases are given their technical or special defin-itional meaning. . . .

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8. In her concurrence the chief justice represents that “[t]his opinion correctly concludes that acourt resorts to the scope, context, and purpose of the statute without having to declare an ambigu-ity in the statute.” This somewhat overstates our holding. We have noted that a statute’s scope, con-text, and purpose are often apparent from the statutory text itself. A plain meaning, text-based ap-proach to statutory interpretation certainly does not prohibit the interpretation of a statute in lightof its textually manifest scope, context, or purpose. We do not by this conclusion endorse themethodology advanced by the chief justice in her concurrence that calls for consultation of extrin-sic, non-textual sources of interpretation in every case, regardless of whether the language of thestatute is clear. Such an approach subordinates the statutory text and renders the analysis more vul-nerable to subjectivity. . . .

If this process of analysis yields a plain, clear statutory meaning, then there is no am-biguity, and the statute is applied according to this ascertainment of its meaning. Wherestatutory language is unambiguous, there is no need to consult extrinsic sources of in-terpretation, such as legislative history. In construing or interpreting a statute the courtis not at liberty to disregard the plain, clear words of the statute.

The test for ambiguity generally keeps the focus on the statutory language: a statuteis ambiguous if it is capable of being understood by reasonably well-informed personsin two or more senses. It is not enough that there is a disagreement about the statutorymeaning; the test for ambiguity examines the language of the statute to determinewhether well-informed persons should have become confused, that is, whether thestatutory . . . language reasonably gives rise to different meanings. . . .

At this point in the interpretive analysis the cases will often recite the following: If astatute is ambiguous, the reviewing court turns to the scope, history, context, and pur-pose of the statute. . . . [T]his common formulation is somewhat misleading: scope, con-text, and purpose are perfectly relevant to a plain-meaning interpretation of an unam-biguous statute as long as the scope, context, and purpose are ascertainable from thetext and structure of the statute itself, rather than extratextual sources, such as legisla-tive history.

Some statutes contain explicit statements of legislative purpose or scope. . . . Accord-ingly, it cannot be correct to suggest, for example, that an examination of a statute’spurpose or scope or context is completely off-limits unless there is ambiguity. It is cer-tainly not inconsistent with the plain-meaning rule to consider the intrinsic context inwhich statutory language is used; a plain-meaning interpretation cannot contravene atextually or contextually manifest statutory purpose8. . . .

Wisconsin courts ordinarily do not consult extratextual sources of statutory interpre-tation unless the language of the statute is ambiguous. By “extrinsic sources” we meaninterpretive resources outside the statutory text-typically items of legislative history.

We have repeatedly emphasized that traditionally, resort to legislative history is notappropriate in the absence of a finding of ambiguity. This rule generally prevents courtsfrom tapping legislative history to show that an unambiguous statute is ambiguous.That is, the rule prevents the use of extratextual sources of interpretation to vary orcontradict the plain meaning of a statute, ascertained by application of the foregoingprinciples of interpretation. Thus, as a general matter, legislative history need not beand is not consulted except to resolve an ambiguity in the statutory language, althoughlegislative history is sometimes consulted to confirm or verify a plain-meaning interpre-tation. . . .

An interpretive method that focuses on textual, intrinsic sources of statutory mean-ing and cabins the use of extratextual sources of legislative intent is grounded in more

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* Authors’ footnote: We have moved this portion of the case for clarity; hence, it is in brackets.

than a mistrust of legislative history or cynicism about the capacity of the legislative orjudicial processes to be manipulated. The principles of statutory interpretation that wehave restated here are rooted in and fundamental to the rule of law. Ours is a govern-ment of laws not men, and it is simply incompatible with democratic government, orindeed, even with fair government, to have the meaning of a law determined by whatthe lawgiver meant, rather than by what the lawgiver promulgated. It is the law thatgoverns, not the intent of the lawgiver. . . . Men may intend what they will; but it is onlythe laws that they enact which bind us. . . .

[W]e conclude that the language . . . is clear and unambiguous. More particularly,the term “refuse” (as in “the district attorney refuses”) has a common and acceptedmeaning, ascertainable by reference to the dictionary definition.

To refuse is “[t]o indicate unwillingness to do, accept, give, or allow.” The AmericanHeritage Dictionary of the English Language 1519 (3d ed. 1992). As the term is ordi-narily understood, a “refusal” involves a decision to reject a certain choice or course ofaction. This definition is reasonable in the statutory context and consistent with themanifest statutory purpose. Accordingly, the statute’s meaning is plain, there is noambiguity to clarify, and no need to consult extrinsic sources such as legislative his-tory. . . .

[The Kalals “argue, however, that the statutory term ‘refuses’ must be accorded a strictand literal interpretation, to require a direct and explicit statement of refusal from thedistrict attorney, in order to avoid conflict between the branches in this area of sharedpower. While we recognize the constitutional tension inherent in this statute, we see noreason to depart from a straightforward, plain-meaning interpretation of the statutoryterm ‘refuses.’ We therefore reject the Kalals’ argument that only a direct and unequivocalstatement from the district attorney—e.g., ‘I refuse to issue a complaint’—can satisfythe statute. Such a literal reading would nullify the statute by permitting the district at-torney to defeat the statutory procedure by responding to the complainant in equivocalor vague terms. On the other hand, to equate refusal with mere inaction runs contrary tothe accepted meaning of the term and could undermine the district attorney’s exercise ofprosecutorial discretion or interfere with ongoing criminal investigations.”]*

The decision of the court of appeals is affirmed.

Abramson, C. J., concurring,

I join the mandate, but I return once again to this court’s approach(es) to statutoryinterpretation. It is important, as I have written before, that litigants, lawyers, legisla-tors, courts, and the people of Wisconsin know and understand our approach. . . .

This opinion makes what I consider a significant advance in explaining what thecourt is actually doing in statutory interpretation. I think, however, it will be difficult tounderstand and apply parts of this opinion because it works at cross purposes in severalrespects. For example, the opinion strongly emphasizes textualism but broadens textu-alism to include many matters the plain meaning folk (including those on this court)have rejected. It recognizes that the purposes of the legislation should be considered ininterpretation but refuses to consider the consequences of different interpretations as anaid to interpretation. . . .

The most significant advance is that the court at long last abandons its too-oftquoted but erroneous aphorism that to determine the intent of the legislature “if a

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statute is ambiguous, the reviewing court turns to the scope, history, context, and pur-pose of the statute.”

This opinion correctly concludes that a court resorts to the scope, context, and pur-pose of the statute without having to declare an ambiguity in the statute. The majorityopinion states: “[S]cope, context, and purpose are perfectly relevant to a plain-meaninginterpretation of an unambiguous statute as long as the scope, context, and purpose areascertainable from the text and structure of the statute itself, rather than extrinsicsources, such as legislative history.” The trick in understanding and applying this sen-tence is to give meaning to the phrase “ascertainable from the text and structure of thestatute itself.” “Ascertainable,” “text,” and “structure of the statute itself” have elasticity.From my perspective that is a saving grace.

Our cases have been inconsistent in stating whether an ambiguity must be declaredbefore a court examines the terms of a statute in relation to the scope, history, context,and subject matter of the legislation, the spirit or nature of the act, the evil intended tobe remedied, the general object sought to be accomplished, and the consequences. Themajority opinion now separates “history” from the other listed sources of legislative in-tent, without defining history, and discusses only legislative history. Before a court useslegislative history, a court must declare the statute ambiguous, according to the major-ity opinion.

I part company with the majority opinion when it declares that extrinsic sources(not defined) such as legislative history may be used only when the statutory languageis ambiguous or when the legislative history supports (but does not contradict) theplain meaning of the statute. I have criticized this approach to plain meaning, ambigu-ity, and legislative history before. Language is often ambiguous; the distinction be-tween “plain” and “ambiguous” is in the eye of the beholder; and both words too oftenare conclusory labels a court pins on a statute, making its decision appear result-ori-ented.

I have argued that a court may examine history without declaring an ambiguity andthat a court “must engage in an analysis of both the evidence that supports a given in-terpretation as well as the evidence that contradicts a given interpretation.” . . .

My view is that “proper statutory interpretation requires that a court take a compre-hensive view toward determining legislative intent.” . . .

Without this comprehensive approach, this court risks usurping the legislative roleand substituting its judgment for the legislature’s intent. It is only through completeanalysis and weighing of available materials that we can ascertain the meaning of astatute and effectuate legislative intent. . . .

Bradley, J., concurring,

I agree with the majority . . . that the district attorney’s actions constituted a “refusal”under Wis. Stat. § 968.02(3). . . . Although I commend both the majority and concur-rence for their endeavors, I ultimately join neither.

Notes and Questions

(1) The Different Views. How did the approaches of the majority and the first concur-rence differ? How would the first concurrence have used legislative history differentlythan the majority? As a lawyer in Wisconsin, what argument must you make to ensureconsideration of and that weight be given to extratextual sources?

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(2) Which Approach Appeals to You? When would the majority review the “scope, con-text, and purpose of a statute”? How did the first concurrence’s approach differ? Ifnothing else, these three opinions should make it clear that there is no uniform ap-proach to interpretation. Hence, as an attorney, you must be ready to use all the statu-tory sources of construction to make your arguments.

(3) A Workable Approach? The first concurrence argued that the majority “strongly em-phasizes textualism but broadens textualism to include many matters the plain meaningfolk . . . have rejected. It recognizes that the purposes of the legislation should be consid-ered in interpretation but refuses to consider the consequences of different interpreta-tions as an aid to interpretation. . . .” How would the majority respond?

(4) What to Consider in Determining Whether a Statute is Ambiguous. As noted above,there is some disagreement as to whether ambiguity is determined solely on the basis ofthe plain meaning or whether other sources can be examined first. Compare State v.Stenklyft, 697 N.W.2d 769, 774 (Wis. 2005) (“To this end, absent ambiguity in a statute,we do not resort to extrinsic aids of interpretation and instead apply the plain meaning ofthe words of a statute in light of its textually manifest scope, context, and purpose.”), withSmith v. Yurkovsky, 830 A.2d 743, 748 (Conn. 2003) (“In seeking to determine that mean-ing, we look to the words of the statute itself, to the legislative history and circumstancessurrounding its enactment, to the legislative policy it was designed to implement, and toits relationship to existing legislation and common law principles governing the same gen-eral subject matter. . . . Thus, this process requires us to consider all relevant sources of themeaning of the language at issue, without having to cross any threshold or thresholds ofambiguity.”) Indeed, courts disagree even on what is “intrinsic” and what is “extratextual.”

This issue can be critical, of course. If legislative history may be considered in deter-mining whether a statute is ambiguous, then statements from the legislature are appro-priately considered, at least for the purpose of determining ambiguity. On the otherhand, if only the plain meaning matters, then the legislative history is irrelevant. Whatapproach would a textualist more likely take? An intentionalist? A purposivist?

(5) Later Reexamination. Not long after Kalal, the same majority revisited the properapproach to statutory interpretation. Reiterating the “common” and “misleading for-mulation” it eschewed in Kalal, the majority explained:

If the statute is unambiguous, we must give effect to the words within thestatute according to their common meanings. As a general rule, we do not re-view extrinsic sources, unless there is ambiguity. If the statutory language isambiguous, however, we then may use the scope, history, context, and subjectmatter of the statute in order to ascertain legislative intent.

Keup v. Wis. Dept. Health & Family Serv., 675 N.W.2d 755, 763 (Wis. 2004) (emphasisadded). How does this approach differ from the majority’s approach in Kalal? Why doyou think the majority ignored the formulation it took great pains to articulate in Kalal?

C. Absurd or Ambiguous and Does It Matter?

The following case is frequently cited, as holding the statute was absurd and as illus-trating the absurdity doctrine. Is that correct, or was ambiguity found, or did the ma-jority find neither?

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GREEN v. BOCK LAUNDRY MACH. CO.490 U.S. 504 (1989)

Stevens, J., . . .

This case presents the question whether Rule 609(a)(1) of the Federal Rules of Evi-dence requires a judge to let a civil litigant impeach an adversary’s credibility with evi-dence of the adversary’s prior felony convictions. . . .

While in custody at a county prison, petitioner Paul Green obtained work-releaseemployment at a car wash. On his sixth day at work, Green reached inside a large dryerto try to stop it. A heavy rotating drum caught and tore off his right arm. Greenbrought this product liability action against respondent Bock Laundry Co. (Bock),manufacturer of the machine. At trial Green testified that he had been instructed inade-quately concerning the machine’s operation and dangerous character. Bock impeachedGreen’s testimony by eliciting admissions that he had been convicted of conspiracy tocommit burglary and burglary, both felonies. The jury returned a verdict for Bock. Onappeal Green argued that the . . . impeaching evidence [should have been excluded]. TheCourt of Appeals . . . affirmed. . . .

[C]riticism of [cases that have admitted impeachment evidence] is longstanding andwidespread. Our task in deciding this case, however, is not to fashion the rule we deemdesirable but to identify the rule that Congress fashioned. We begin by considering theextent to which the text of Rule 609 answers the question before us. Concluding that thetext is ambiguous with respect to civil cases, we then seek guidance from legislative his-tory and from the Rules’ overall structure.

Federal Rule of Evidence 609(a) provides:

General Rule. For the purpose of attacking the credibility of a witness, evi-dence that the witness has been convicted of a crime shall be admitted ifelicited from the witness or established by public record during cross- exami-nation but only if the crime (1) was punishable by death or imprisonment inexcess of one year under the law under which the witness was convicted, andthe court determines that the probative value of admitting this evidence out-weighs its prejudicial effect to the defendant. . . .

By its terms the Rule requires a judge to allow impeachment of any witness withprior convictions for felonies not involving dishonesty “only if” the probativeness of theevidence is greater than its prejudice “to the defendant.” It follows that impeaching evi-dence detrimental to the prosecution in a criminal case “shall be admitted” without anysuch balancing.

The Rule’s plain language commands weighing of prejudice to a defendant in a civiltrial as well as in a criminal trial. But that literal reading would compel an odd result ina case like this. Assuming that all impeaching evidence has at least minimal probativevalue, and given that the evidence of plaintiff Green’s convictions had some prejudicialeffect on his case-but surely none on defendant Bock’s-balancing according to the strictlanguage of Rule 609(a)(1) inevitably leads to the conclusion that the evidence was ad-missible. In fact, under this construction of the Rule, impeachment detrimental to acivil plaintiff always would have to be admitted.

No matter how plain the text of the Rule may be, we cannot accept an interpretationthat would deny a civil plaintiff the same right to impeach an adversary’s testimony thatit grants to a civil defendant. The Sixth Amendment . . . guarantees a criminal defendant

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certain fair trial rights not enjoyed by the prosecution. . . . In contrast, civil litigants infederal court share equally the protections of the Fifth Amendment’s Due ProcessClause. Given liberal federal discovery rules, the inapplicability of the Fifth Amend-ment’s protection against self-incrimination, and the need to prove their case, civil liti-gants almost always must testify in depositions or at trial. Denomination as a civil de-fendant or plaintiff, moreover, is often happenstance based on which party filed first oron the nature of the suit. Evidence that a litigant or his witness is a convicted felontends to shift a jury’s focus from the worthiness of the litigant’s position to the moralworth of the litigant himself. It is unfathomable why a civil plaintiff-but not a civil de-fendant should be subjected to this risk. Thus . . . as far as civil trials are concerned, Rule609(a)(1) “can’t mean what it says.”

Out of this agreement flow divergent courses, each turning on the meaning of “de-fendant.” The word might be interpreted to encompass all witnesses, civil and criminal,parties or not. It might be read to connote any party offering a witness, in which eventRule 609(a)(1)’s balance would apply to civil, as well as criminal, cases. Finally, “defen-dant” may refer only to the defendant in a criminal case. These choices spawn a corol-lary question: must a judge allow prior felony impeachment of all civil witnesses as wellas all criminal prosecution witnesses, or is Rule 609(a)(1) inapplicable to civil cases, inwhich event Rule 403 would authorize a judge to balance in such cases? Because theplain text does not resolve these issues, we must examine the history leading to enact-ment of Rule 609 as law. . . .

[The Court analyzed the legislative history in some detail and concluded that “a de-fendant” in Rule 609 should be interpreted to mean “a criminal defendant.” Thus, itheld that the rule does not apply in civil litigation.]

In summary, we hold that Federal Rule of Evidence 609(a)(1) requires a judge topermit impeachment of a civil witness with evidence of prior felony convictions regard-less of ensuant unfair prejudice to the witness or the party offering the testimony. Thusno error occurred when the jury in this product liability suit learned through impeach-ing cross-examination that plaintiff Green was a convicted felon. The judgment of theCourt of Appeals is

Affirmed.

Scalia, J., concurring in the judgment,

We are confronted here with a statute which, if interpreted literally, produces an ab-surd, and perhaps unconstitutional, result. Our task is to give some alternative meaningto the word “defendant” in Federal Rule of Evidence 609(a)(1) that avoids this conse-quence. . . .

I think it entirely appropriate to consult all public materials, including the back-ground of Rule 609(a)(1) and the legislative history of its adoption, to verify that whatseems to us an unthinkable disposition (civil defendants but not civil plaintiffs receivethe benefit of weighing prejudice) was indeed unthought of, and thus to justify a depar-ture from the ordinary meaning of the word “defendant” in the Rule. For that purpose,however, it would suffice to observe that counsel have not provided, nor have we dis-covered, a shred of evidence that anyone has ever proposed or assumed such a bizarredisposition. . . .

The meaning of terms on the statute books ought to be determined, not on the basisof which meaning can be shown to have been understood by a larger handful of theMembers of Congress; but rather on the basis of which meaning is (1) most in accord

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with context and ordinary usage, and thus most likely to have been understood by thewhole Congress which voted on the words of the statute (not to mention the citizenssubject to it), and (2) most compatible with the surrounding body of law into which theprovision must be integrated-a compatibility which, by a benign fiction, we assumeCongress always has in mind. I would not permit any of the historical and legislativematerial discussed by the Court, or all of it combined, to lead me to a result differentfrom the one that these factors suggest.

I would analyze this case, in brief, as follows:

(1) The word “defendant” in Rule 609(a)(1) cannot rationally (or perhaps even con-stitutionally) mean to provide the benefit of prejudice-weighing to civil defendants andnot civil plaintiffs. Since petitioner has not produced, and we have not ourselves discov-ered, even a snippet of support for this absurd result, we may confidently assume thatthe word was not used (as it normally would be) to refer to all defendants and only alldefendants.

(2) The available alternatives are to interpret “defendant” to mean (a) “civil plaintiff,civil defendant, prosecutor, and criminal defendant,” (b) “civil plaintiff and defendantand criminal defendant,” or (c) “criminal defendant.” Quite obviously, the last does leastviolence to the text. It adds a qualification that the word “defendant” does not containbut, unlike the others, does not give the word a meaning (“plaintiff” or “prosecutor”) itsimply will not bear. The qualification it adds, moreover, is one that could understand-ably have been omitted by inadvertence-and sometimes is omitted in normal conversa-tion (“I believe strongly in defendants’ rights”). Finally, this last interpretation is consis-tent with the policy of the law in general and the Rules of Evidence in particular ofproviding special protection to defendants in criminal cases. . . .

I am frankly not sure that, despite its lengthy discussion of ideological evolution andlegislative history, the Court’s reasons for both aspects of its decision are much differentfrom mine. I respectfully decline to join that discussion, however, because it is naturalfor the bar to believe that the juridical importance of such material matches its promi-nence in our opinions-thus producing a legal culture in which, when counsel arguingbefore us assert that “Congress has said” something, they now frequently mean, by“Congress,” a committee report; and in which it was not beyond the pale for a recentbrief to say the following: “Unfortunately, the legislative debates are not helpful. Thus,we turn to the other guidepost in this difficult area, statutory language.”

For the reasons stated, I concur. . . .

Blackmun, J., with whom Brennan, J., and Marshall, J., join, dissenting,

Federal Rule of Evidence 609(a) has attracted much attention during its relativelyshort life. This is due in no small part to its poor and inartful drafting. As noted by themajority, the Rule’s use of the word “defendant” creates inescapable ambiguity. The ma-jority concludes that Rule 609(a)(1) cannot mean what it says on its face. I fully agree.

I fail to see, however, why we are required to solve this riddle of statutory interpreta-tion by reading the inadvertent word “defendant” to mean “criminal defendant.” I ampersuaded that a better interpretation of the Rule would allow the trial court to considerthe risk of prejudice faced by any party, not just a criminal defendant. Applying the bal-ancing provisions of Rule 609(a)(1) to all parties would have prevented the admissionof unnecessary and inflammatory evidence in this case and would prevent other similarunjust results until Rule 609(a) is repaired, as it must be. The result the Court reachestoday, in contrast, endorses “the irrationality and unfairness,” of denying the trial court

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the ability to weigh the risk of prejudice to any party before admitting evidence of aprior felony for purposes of impeachment. . . .

It may be correct, as Justice Scalia notes in his opinion concurring in the judgment,that interpreting “prejudicial effect to the defendant” to include only “prejudicial effectto [a] criminal defendant,” and not prejudicial effect to other categories of litigants aswell, does the “least violence to the text,” if what we mean by “violence” is the interpo-lation of excess words or the deletion of existing words. But the reading endorsed byJustice Scalia and the majority does violence to the logic of the only rationale Membersof Congress offered [in the legislative history] for the Rule they adopted. . . .

As I see it, therefore, our choice is between two interpretations of Rule 609(a)(1),neither of which is completely consistent with the Rule’s plain language. The majority’sinterpretation takes protection away from litigants-i.e., civil defendants-who wouldhave every reason to believe themselves entitled to the judicial balancing offered by theRule. The alternative interpretation-which I favor-also departs somewhat from the plainlanguage, but does so by extending the protection of judicial supervision to a largerclass of litigants-i.e., to all parties. Neither result is compelled by the statutory languageor the legislative history, but for me the choice between them is an easy one. I find itproper, as a general matter and under the dictates of Rule 102, to construe the Rule soas to avoid “unnecessary hardship.” . . .

This case should have been decided on the basis of whether the Bock Laundry Ma-chine Company designed and sold a dangerously defective machine without providingadequate warnings. The fact that Paul Green was a convicted felon, in a work-releaseprogram at a county prison, has little, if anything, to do with these issues. We cannotknow precisely why the jury refused to compensate him for the sad and excruciatingloss of his arm, but there is a very real possibility that it was influenced improperly byhis criminal record. I believe that this is not a result Congress conceivably could haveintended, and it is not a result this Court should endorse.

As the majority concludes otherwise, my hope is that Rule 609(a)(1) will be cor-rected without delay, preferably into a form that allows judicial oversight over, at theleast, the use of any felony conviction that does not bear directly on a witness’ honesty.It is encouraging that some efforts in this direction appear to be underway and that thedamage Congress caused by its poor draftsmanship soon may be undone.

I respectfully dissent.

Notes and Questions

(1) Ambiguity or Absurdity? This case is frequently cited as illustrating absurdity. WhichJustices found it absurd? Why was the ordinary meaning “absurd” to the concurring jus-tice but “ambiguous” and “odd” to the majority and dissenting justice? Given the factthat the majority looked at legislative history without first finding ambiguity or absur-dity, do you think the majority used a textualist approach?

(2) Disagreement over Meaning. What sources did the majority then use to resolve thestatute’s meaning? The concurrence? The dissent? The concurrence agreed with theconclusion reached by the majority, but disagreed in its rationale. Explain why this dis-agreement was important.

(3) The Choices. The majority interpreted (is “rewrote” the right word?) the statute toallow conviction evidence only if a court determined that the probative value of admit-

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ting the evidence outweighed its prejudicial effect to a criminal defendant; the dissent,in contrast, to a party. The majority’s interpretation makes no sense in a civil case,where there are no criminal defendants. Does the dissent’s interpretation make moresense?

(4) Another Approach. Judge Frank Easterbrook has suggested another option: “Whatmakes us think that Rule 609 applies to civil cases?” Frank H. Easterbrook, What DoesLegislative History Tell Us? 66 Chi.-Kent L. Rev. 441, 443 (1991). He suggested that the“jarring reference” to “the defendant” in the rule suggests that the rule was only meantto apply in criminal cases. He then pointed to evidence in the legislative history to sup-port his interpretation. Id. Thus, even Judge Easterbrook, a strong advocate of textual-ism, finds a role for legislative history when the plain meaning of a statute is absurd (orambiguous).

(5) What if? Suppose the legislative history in Bock Laundry showed that every draft ofRule 609, except for the last one, had contained “criminal” before “defendant” and, fur-ther, that every committee report and other reference in the legislative history reflectedthe appropriateness of weighing prejudice in criminal, but not civil, cases. Would it stillmake sense to reject legislative history? See John M. Walker, Jr., Judicial Tendencies inStatutory Construction: Differing Views on the Role of the Judge, 58 N.Y.U. Ann. Surv.Am. L. 203, 232 (2001) (concluding that this constitutes a proper use of legislative his-tory). What would the concurrence have said about it?

(6) Pending Amendment. At the time Bock Laundry was before the Court, a proposedamendment to Rule 609(a) was pending. After the decision, the amendment wasadopted: the relevant portion of Rule 609(a), as amended, now provides:

a. General Rule. - For purposes of attacking the creditability of a witness,

(1) evidence that a witness other than an accused has been convicted ofa crime shall be admitted, subject to Rule 403 . . . and evidence that anaccused has been convicted of such a crime shall be admitted if the courtdetermines that the probative value of admitting this evidence outweighsits prejudicial effect to the accused. . . .

Fed. R. Evid. 609(a). Should the Court have considered the pending amendment as rel-evant to its decision? Does this amendment show that the majority, dissent, or JudgeEasterbrook was right after all? Or does it show nothing about who was correct?

Problem 4-1

In late August 2005, while answering a disturbance call, police officers went to thehome of Lillian Sands. Upon entering, they found five people including Ms. Sands anda juvenile, Anthony Baker. There was a bench warrant for the arrest of Baker for failingto appear at trial on burglary charges. Burglary is a felony. Ms. Sands knew about theburglary charge; Baker had lived at the Sands’ residence for some time. Police officershad gone to the Sands’ house looking for Baker on several occasions between May andAugust, and Ms. Sands stated that she did not know Baker’s whereabouts. The investi-gation also revealed that Baker’s mother reported him as a runaway and that Ms. Sandsis not related to Baker.

Analyze whether Ms. Sands can be prosecuted for harboring a felon under MercerRev. Stat. § 30-22-4. Note that juveniles who commit “delinquent acts” are “delinquentoffenders.” “Felon” is not defined in § 30-22-4. What are Ms. Sands’ strongest argu-

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ment(s) that the statute does not apply to her? What theory of statutory interpretationbest supports her position? What are the State’s strongest argument(s) that the statuteapplies? What theory of statutory interpretation best supports the state’s position? Ig-nore the Rule of Lenity.

Problem Materials

Mercer Rev. Stat. § 30-22-1: Findings

Harboring anyone who has committed a crime is not in the state’s interest.And harboring will likely be more successful if the felon knows that someoneintends to help him or her. The consequences of harboring rest on society,which has strong interest in enforcement of its laws.

Mercer Rev. Stat. § 30-22-4: Harboring a Felon

Harboring or aiding a felon consists of any person who knowingly concealsany felon or gives such person any other aid, knowing that he or she has com-mitted a felony, with the intent that he or she escape or avoid arrest, trial, con-viction, or punishment. In a prosecution under this section it shall not be nec-essary to aver, nor on the trial to prove, that the principal felon has been eitherarrested, prosecuted, or tried. Whoever commits harboring or aiding a felon isguilty of a fourth degree felony.

Mercer Rev. Stat. § 32A-2-3. Definitions: As used in the Child Delinquency Act:

A. “Delinquent act” means an act committed by a child that would be desig-nated as a crime under the law if committed by an adult;

B. “Delinquent offender” means a child who has committed a delinquent act;

C. “Felony” means an act committed by an adult that has been designated as acrime under the laws of this state;

D. “Felon” means anyone who has committed a felony;

E. “Child” for purposes of this code section only includes people between theages of 7 and 17, unless found after hearing to be triable as an adult.

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