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February 04, 2022 Appellate Issues | Winter 2022

Canons of Construction: What is Their Role, if Any, in Modern Jurisprudence?

By Matthew Foerster

Advocates know by now that to win a case about the meaning of a statute, you really ought to begin with the text of the statute. Textualism—in one form or another—is king. “Almost all statutory opinions by state and federal judges . . . situate judges as neutral interpreters, making no value judgments when they apply statutory text or purpose to generate predictable and democratically accountable answers to statutory questions.” But critics suggest this is not the tradition of our legal system—nor is it the actual practice of most courts. “Words lack intrinsic meaning,” and hard cases present two (or more) reasonable interpretations of the statute’s text. A court’s job then becomes choosing the best interpretation among them. So even the most ardent textualists, whether they admit it or not, often must examine other sources to determine what a statute means.

Canons of construction have been touted for centuries as neutral rules of thumb for reliably interpreting statutes. Canons touch nearly all available sources of statutory meaning—text, structure, history, evolution of practices and norms, and preferred or default outcomes. But do canons really point to one best answer to a statutory dilemma? A deeply experienced panel at the 2021 Appellate Judges Education Institute Summit in Austin, Texas shared its perspective on how canons are and should be used. Deftly moderated by Dallas appellate lawyer Kirsten Castañeda, panelists Steven Leben and Eric Segall took turns sharing their views and experience with the roles canons play in modern jurisprudence. Steve Leben is a former Kansas judge for 28 years (half trial and half appellate) and now a visiting professor at the University of Missouri-Kansas City School of Law. Eric Segall is the Kathy & Lawrence Ashe Professor of Law at the Georgia State University College of Law, after working in private practice and at the U.S. Department of Justice.

Canons do not reliably prescribe only one interpretation.

The panelists agreed that canons, by themselves, do not and cannot dictate only one result in hard cases. This idea is not entirely new. As Karl Llewellyn lamented in 1950, “there are two opposing canons on almost every point.” Scholars have identified 187 different canons of statutory construction in the opinions of the Supreme Court under Chief Justices Rehnquist and Roberts. By that count, Justice Antonin Scalia and Bryan Garner’s seemingly comprehensive account of 57 canons in Reading Law addresses less than a third of them. But that does not mean that arguing canons is a worthless endeavor. The reality remains that canons are where statutory cases are litigated, even if the results are indeterminate.

Professor Leben gave examples of judges earnestly analyzing text and applying canons in good faith, yet reaching opposite results. The first example came from his own experience being overturned in State v. Urban, 193 P.3d 515 (Kan. Ct. App. 2008), rev’d, 273 P.3d 837 (Kan. 2010). In that case, criminal defendant Kristie Urban had been granted a personal recognizance bond subject to the condition that she go to the county community corrections residential center. After she failed to return to the facility while on a pass to visit her family, the state charged her with aggravated escape from custody. Urban met the statute’s general definition of custody, but the statute also contained an exclusion: “custody” does not mean “general supervision of a person on probation or parole” or “constraint incidental to release on bail.” Urban argued that her placement at a residential facility was a constraint incidental to her bond, excluding her custodial situation from the definition of “custody” for purposes of the aggravated escape charge.

Then-Judge Leben, writing for a unanimous panel of the Court of Appeals, disagreed. In analyzing the text of the exclusion, the court applied two canons of construction—ejusdem generis (interpret words or phrases of the same kind or nature similarly) and noscitur a sociis (words are known by their associates)—and reasoned that “constraint incidental to release on bail” should be read in the same light as “general supervision of a person on probation or parole” to encompass defendants who were released from jail and no longer subject to confinement. Because Urban had been ordered to reside at a jail-like facility until trial (and was even given jail-time credit for her sentence), she was neither under “general supervision” nor had she been fully “release[d] on bail” or held “incidental” to release. Thus, the charge of aggravated escape from custody was supported by the statute.

The Kansas Supreme Court unanimously reversed, using a plain-language analysis. Without resorting to canons or dictionary definitions, the high court reasoned that “constraint incidental to release on bail” could broadly refer to Urban’s unique condition for her personal recognizance bond. Her required residence at the community corrections center “may not be total freedom, but it is still not jail,” so Urban’s situation was excluded from “custody” contemplated for aggravated escape. Perhaps still not convinced by his former superiors’ reasoning, Professor Leben noted that Black’s Law Dictionary defined jail to include a community correctional center, suggesting that the Kansas Supreme Court’s “plain language” interpretation was not so plain after all.

The panel then turned to another example of the battle between canons and plain language, this time from the Supreme Court. In Yates v. United States, 574 U.S. 528 (2015), a commercial fishing vessel was caught catching undersized red grouper in violation of federal conservation regulations, and the ship’s captain ordered the undersized fish thrown overboard. For that act, the captain was charged under a provision of the Sarbanes-Oxley Act, which makes it a violation punishable by fine or up to twenty years imprisonment if anyone “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. Does a fish count as a “tangible object” covered by the statute?

Justice Ginsburg wrote for a plurality in Yates that several canons, along with other legislative and structural cues, signaled that Congress was not talking about literally any tangible object but about only those objects that could be used to record or preserve information, and so the statute did not criminalize dumping fish. Justice Kagan, joined by three others, dissented: “A ‘tangible object’ is an object that’s tangible,” she reasoned, and thus unambiguously includes fish.

Urban and Yates show the trouble with canons: they come with no methodology or hierarchy for how to apply them. How does one decide whether a statute has a plain meaning or whether canons should be invoked? How many canons should be consulted? When more than one canon applies, which one prevails?

Statutory interpretation requires more than just reading and applying canons, and we should not pretend otherwise.

If canons do not mathematically produce one correct interpretation of a statute, then judging must involve more than just reading the statute. The judge brings her full experience and prior commitments to bear when deciding a case. To pretend otherwise would be misleading at best. Professor Segall posited that the answer to the undersized grouper question in Yates, or to more profound questions of discrimination against sexual orientation and gender identity in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), has less to do with canons and more to do with broader questions of morality.

Professor Leben called this judicial sense the “Holy Trinity” principle, after Church of the Holy Trinity v. United States, 143 U.S. 457 (1892): “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Of course, no current member of the Supreme Court publicly endorses this view, but Professor Segall suggested that many of the justices follow it. In his Bostock dissent, for example, Justice Kavanaugh essentially conceded that discrimination “because of . . . sex” could literally encompass sexual orientation discrimination, but he argued that “most everyone” understands those concepts differently. His reliance on public opinion and broader context, though a-textual, is not illegitimate. Judges, including committed textualists, should and do consider the entire universe of evidence relevant to answering a statutory question. The fact that jurists reach divergent conclusions has nothing to do with the correct application of the canons and everything to do with the stakes in each case.

Professor Segall also pointed out that looking beyond the text and canons to ascertain statutory meaning traces back at least to William Blackstone, who wrote: “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” including “the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.” Judges look for those signs any place they can find them, as Chief Justice John Marshall noted: “Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived[.]” And if consistency and predictability are the goals of statutory interpretation, then we should expand the pool of resources beyond simply text plus canons: “One hundred judges given the statutory text and the [legislative] committee reports are more likely to deliver the same interpretation than one hundred judges given just the statutory text.” Looking beyond the text is not a bug but a reality of our system—a methodology for interpreting statutes that should not be dismissed as illegitimate.

Professor Segall suggested that a judge’s job in a hard case is to explain, as transparently as possible, the reasons for the decision. If sources of statutory meaning are deemed illegitimate or otherwise taken off the table, then lower courts will “hide the ball” when construing statutes, leaving practitioners and litigants in the dark about how their next case will be resolved. On the other hand, concerns for collegiality or garnering a panel majority may lead an opinion’s author to do just that—understate or omit one or more reasons for a decision.

An appellate advocate’s takeaway from this entertaining panel is that you are essentially duty bound to argue the most relevant canons that support your client’s interpretation of a statute. Canons are the well-known weapons of the interpretation war. Even if canons do not prescribe one correct result, at a minimum they accurately describe approaches that judges take when resolving thorny interpretation questions. Just know that invoking a canon will not carry the day; you have to sell your preferred interpretation by appealing to broader reasoning.

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    Matthew Foerster


    Matthew Foerster is a shareholder at Arnold, Placek & Foerster P.C. in Austin. His practice includes civil appeals and business and insurance litigation, including a focus on employers’ liability and workers’ compensation issues.