May 2007
News from the Trenches in the War of the Words
by Robert C. Cumbow
Some time back, I discussed two cases that turned on the distinction between "which" and "that." That distinction is all too often ignored, usually with no worse result than the roughening of prose that could have been smoother, but occasionally with more dramatic impact. In the cases I cited in that earlier column, the courts' analysis of the use of "which" in a corporation's bylaws and in a criminal sentencing statute led, respectively, to a board member's failure to retain his position and a felon's spending a longer time in prison — a sobering reminder that, in our profession, word choices and grammatical usage can have serious consequences.
Attorneys, judges, and legal commentators have begun paying greater attention to this fact, resulting in some interesting linguistic dust storms that have blown up in the last few months. One of these involved our own Ninth Circuit's decision to "fix" an obvious error. The issue was whether an appeal of a remand order under the 2005 Class Action Fairness Act had been timely filed. The plain language of the Act provides that a federal appellate court may accept an appeal from a remand order "if application is made to the court of appeals not less than seven days after entry of the order."
Now if you breezed through that sentence the way Congress, counsel, and lower-court judges apparently did, you probably assumed it meant that a party has seven days in which to file an appeal from a remand order. However, it actually says the opposite: The appeal is timely only if it is filed "not less than seven days" after the order was issued. Thus, the judges observed, "the statute as written creates a waiting period of seven days before which an appeal is too early, with no upper limit to when an appeal ultimately may be filed."
It is indeed unusual for a law to require seven days' delay in the filing of an appeal, followed by an open-ended period in which the appeal may be filed at any time, presumably up to and including Doomsday. The 9th Circuit, therefore, decided to correct the obvious error, and interpreted it to mean the opposite of what it says, namely "not more than seven days" rather than "not less than seven days." Never was the adage "less is more" taken so literally.
To date, not only the 9th but also the 3rd, 10th, and 11th Circuits have held that the statute means the opposite of what it says. The 3rd Circuit opinion by Judge D. Brooks Smith states, "This court does not need to step into a statutory interpretation debate over the role of legislative history and congressional intent to conclude that [the statute] needs common sense revision that accurately reflects the uncontested intent of Congress." But while the result may be just (particularly in light of the fact that the appeal in question was ultimately found to have been timely filed in any case), the courts' approach raises serious questions.
The 9th Circuit justified its decision to read "not more" for "not less" by stating that the word "less" was an obvious "typographical error." That does not, in fact, seem likely. Even the worst typist or typesetter would hardly key in l-e-s-s when what he meant was m-o-r-e. More likely, the drafters were thinking "not later than" and wrote "not less than" — after all, both words start with "l" and both connote measurement. The error would more properly have been described as a drafting error than a typo; but the 9th Circuit was evidently unwilling to suggest that Congress can make a stupid mistake just as easily as the rest of us can, and so soft-pedaled the issue by calling it a typo.
But Judge Jay Bybee dissented, raising the issue that is really at the heart of this matter. Judge Bybee observed that the judges' job was to interpret the law as written, not to substitute its own judgment for that of Congress, no matter how obvious the error. "The only thing we have to enforce our judgments is the power of our words," Bybee wrote. "When those words lose their ordinary meaning — when they become so elastic that they may mean the opposite of what they appear to mean — we cede our right to be taken seriously."
Judge Bybee raises a troubling point. If a court can interpret a law to mean the opposite of what it says in a case where the intended meaning is admittedly obvious, then presumably courts and judges could do so in situations where the error is perhaps not so obvious — and, ultimately, where it is perhaps not an error at all.
So what should the 3rd, 9th, 10th, and 11th Circuits have done when this issue came before them? Not being a litigator myself, I don't recall civil procedure nor applicable separation-of-powers principles well enough to say. But it seems to me that neither the justice system nor the legislative order of things would have crumbled if one or more of these courts had referred the error to Congress for immediate correction, and suspended the case while emergency action was taken. That would have better preserved the balance of powers and the integrity of the bench.
Stating the Possessive of the State
Commentators have also recently buzzed about the possessive "s," in two very public contexts. The state of Arkansas is currently working its way to a formal decision on how to write the possessive form of the state's name: "Arkansas's" or "Arkansas'." This question has been well settled since as early as 1959, when the First Edition of Strunk and White's Elements of Style was published. In Section I, "Elementary Rules of Usage," the very first rule is: "Form the possessive singular of nouns by adding 's." Under this rule, regardless of the fact that the "s" at the end of the word "Arkansas" is silent, the possessive form is correctly rendered "Arkansas's." If that leads someone, somewhere to try to pronounce the words as "Arkansases," so be it.
Actually, the silent "s" at the end of "Arkansas" should make this one an easy call. Somewhat tougher is the case of Kansas, whose final "s" is not silent. Under Strunk and White's Rule #1, the possessive form of "Kansas" should be "Kansas's." But in last year's U.S. Supreme Court decision in Kansas v. Marsh, the authors of the majority and minority opinions were in sharp disagreement. Justice Clarence Thomas consistently wrote "Kansas' law" and "Kansas' statute," while dissenting Justice Antonin Scalia emphatically wrote "Kansas's" throughout his opinion. Connecticut attorney Jonathan M. Starble noticed this, and wrote an illuminating article in Legal Times. One of Mr. Starble's observations was that Justice Thomas himself has a surname that ends in "s," and this may make the issue more personal to him than to Justice Scalia. In any event, Messrs. Strunk, White, Scalia, and Starble are unanimous in adhering to Rule #1, whose use, in this case, makes the written form of the possessive reflect the way the word is actually pronounced: We say "Kansases law," not "Kansas law" (though a careful speaker or writer might prefer to avoid the issue by using the phrase "the law of Kansas"). Ironically, in publishing Mr. Starble's article, the Legal Times owned up to its own use of a style guide that advises precisely the opposite.
The Adventure Continues
Last summer, an incorrectly placed comma cost Canadian communications giant Rogers Communications Inc. at risk of damages in the low millions. The term and termination clause of a contract that was under dispute provided that the agreement would "continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party." The second comma in that phrase, the one following the word "terms," has the effect of enclosing the phrase "and thereafter for successive five year terms" in a grammatical bracket, causing the final phrase (the "unless and until …" phrase) to refer to both the first clause ("continue in force for five years") and the second ("and thereafter for successive five year terms"). As a result, the entire provision meant that either party could terminate with one year's written notice at any time. Had the second comma been left out, the provision would mean instead that the agreement could not terminate until after the first five-year period had expired. The potential consequences were as devastating as those in the previously-noted "which-that" cases.
And Now This…
A missing tilde was the subject of an unsuccessful motion to dismiss a DUI charge on the grounds that the Spanish-speaking defendant's rights had not been properly read to him. In discovery, the defendant's attorney obtained a copy of the card to which the police in that (unnamed) jurisdiction referred when reading Spanish-speaking arrestees their rights. One of the standard questions was "Are you 21 or older?" which in Spanish is "¿Tiene veintiuno años?"—literally, "Do you have 21 years?" Problem was, the question was printed on the card as "¿Tiene veintiuno anos?", and if the arresting officer pronounced the words as spelled on the card, saying "ahnos" rather than "anyos," he was asking the arrestee not if he had 21 years but if he had 21 of a body part that everyone else has only one of. Of course, the motion might have succeeded had the defendant scratched his head in bewilderment at the question; instead he replied "¡Si!", which the court took as evidence that he had understood the question perfectly well. Nevertheless, the motion was not a frivolous one, since the presence or absence of a diacritical mark changes not only the look but the pronunciation and the meaning of a non-English word.
In Other News…
Some time ago I argued in these pages that the phrase "including without limitation" is redundant, because "including" is by definition a word that introduces a series of examples, not an exhaustive catalogue. If I say "the attendees at the event included David, Jane, and Mike," I don't have to say "without limitation" to clarify that there were more than three people at the event; the word "including" tells my reader that I am listing some, not all, of the attendees.
I got back a lot of argument on that point, and have had to concede that, while the plain meaning of the word "include" should eliminate any need to say "without limitation," I suppose it doesn't hurt to add a couple of extra words in this case. That reluctant conclusion came as a result of a reader's educating me on ejusdem generis, a principle of interpretation according to which, if a particular item alleged to be covered by an "including" provision is not actually listed and is not highly similar to those that are listed, it risks being considered to have been excluded.
Suppose a contract says, "Neither party will be liable for failure to perform if performance is made impracticable due to circumstances beyond the parties' reasonable control, including flood, fire, famine, accident, sabotage, or war." The word "including" introduces a string of six examples of circumstances beyond the parties' control, but the phrase does not purport to list all possible such circumstances. If a party later claims that it should not be liable for non-performance due to earthquake, chances are the party will be excused, because an earthquake is enough like a flood, fire, famine, or war to be reasonably held to have been included. If, on the other hand, a party claims its non-performance should be excused because the buses were running late that day, the principle of ejusdem generis is likely to cause a court to hold that such a circumstance was not reasonably intended to be included.
Calamari and Perillo's The Law of Contracts states that "There is some authority that the rule of ejusdem generis may be avoided by using the phrase 'including but not limited to' rather than simply 'including.'" Even so, I don't think adding "without limitation" automatically lets everything else in, any more than using the word "including" alone should automatically leave everything else out. Nevertheless, good contract drafting, in addition to being readable and clear, needs to be as safe as possible for the parties. So to those who were troubled by my attack on "without limitation," I repent — but I still dissent.
Robert C. Cumbow is a shareholder at the Seattle firm of Graham & Dunn PC. He gratefully acknowledges the contributions of Aaron Caplan of the ACLU and Dave King of Stokes Lawrence, without which this column would have been much shorter.
