7.4.2 ARGUMENTS RELATED TO SENTENCE STRUCTURE AND WORD CHOICE
As indicated above, a plain language argument is an argument about how the words in a sentence relate to one another. Sometimes those relationships are obvious; at other times, the way the sentence is structured creates a controversy as to how subjects relate to verbs, how verbs relate to objects, and how modifiers relate to the words they modify.
As with all statutory construction arguments, there are many more arguments available than we have time for. Three arguments, however, are common enough that you should consider whether any might be relevant to the statute you are arguing about.a. Arguments of Grammatical Logic
This type of argument argues that the grammatical pieces fit together in a way that requires a certain result. In Ohio, for example, a dog bite liability statute formerly provided that dog owners could not be held liable if the victim of a dog bite was, at the time of the bite, “committing a trespass or other criminal offense” on the property of the dog owner. As tort fans know, there are two kinds of trespass: civil (generally, any entrance onto property without the owner’s permission) and criminal (generally, trespassing with criminal intent). If your client had been attacked by a dog after the client mistakenly chased a ball into the owner’s yard, you might argue that the dog owner could be held liable because the language “another criminal offense” is a signal that the legislature meant to exempt dog owners from liability only when their dogs attacked those committing criminal trespass. If the legislature meant “criminal trespass,” then the phrase “another criminal offense” makes sense. An interpretation that included civil and criminal trespass would mean that the legislature’s use of “another” is illogical; if the legislature had wanted to include both civil and criminal trespass in the exception, it should have said that the victim could not recover if he or she was “committing a trespass or a criminal offense.”
Likewise, in 2017, the Fifth Circuit held that the word “harboring” in a Texas antismuggling statute must be read not only with the object of the word “harboring,” but also with the words that modified that object:
We begin with the plain meaning of the statutory text.
It is obvious from the structure that “harboring” and “from detection” must be read together. As used in the statute, “harboring” is a transitive verb—it requires an object, and its object is “that person.” The phrase “from detection” modifies “that person.” Therefore, “from detection” modifies and is an element of the offense of “harboring that person.” Although the definition of “harbor” may be ambiguous in isolation, when paired with “from detection” it requires some level of covertnesswell beyond merely renting or providing a place to live.13
Accordingly, your first stop in making a plain language argument is simply to understand how the words in the statute relate to each other.
b. Expressio Unius Est Exclusio Alterius (The Specific Mention of One Thing Excludes Others) This canon is used in two ways. First, it is used to note that courts should be reluctant to interpret a statute in a way that seemingly adds language to a statute by implying language not included – for example, by implying new items on a list of examples or exceptions. In 2017, the Wisconsin Supreme Court determined that a fair dealership law applied to a city because cities were not on the statute’s list of those organizations to which the law did not apply. The court noted the canon in its interpretation of the controversial language:
[c]ities are not among those listed. Clearly the legislature recognized the need to circumscribe the [fair dealership law] in certain circumstances, and we cannot conclude that the possibility that the [statute] might apply to cities is so far-fetched as to have escaped its consideration. Under the well-established canon of expressio unius est exclusio alterius (the expression of one thing excludes another), where the legislature specifically enumerates certain exceptions to a statute, we conclude, based on that rule, that the legislature intended to exclude any other exception.14
The canon is also used to interpret the significance of differences in language in provisions in the same statute. A Kentucky appellate court noted the difference between two provisions of a statute that addressed “wine at retail” and “wine by the drink,” observing the “general rule of statutory construction” that where “particular language is used in one section of a statute, but omitted in another section of the same statute” courts presume that “the legislature acted intentionally and purposefully in the disparate inclusion or exclusion.”15
As noted earlier, courts prefer consistency in statutory interpretation.
This canon allows you to argue against interpretations that would be inconsistent with other language in the statute. It also allows you to argue that a difference in language should result in a different interpretation.c. Ejusdem Generis (A Word Is Known by the Company It Keeps)
The literal meaning of ejusdem generis is “of the same kind.” As the heading indicates, it is commonly used in statutory interpretation to mean “a word is known by the company it keeps.” This canon is congruent with the concept that courts should interpret language within context. It means that when a legislature lists specific items or classes of items in a statute, and then follows that list with a more general term, the courts should construe the more general term to apply only to things of the same general class as the items in the list. It is also used to refer broadly to the argument that specific provisions should prevail over more general ones.
In Yates v. United States,16for example, the United States Supreme Court was asked to determine whether a fish is a “tangible object.” While fish are of course tangible, the Court used the ejusdem generis canon to find that fish are not “tangible objects” as that term is used in the Sarbanes-Oxley Act. One section of that Act imposes fines on any person who “knowingly... destroys... any... tangible object”17with the intent to impede certain investigations. The defendant in that case had thrown under-sized fish overboard to prevent his prosecution for violating federal fishing laws, and the excerpted language seems to apply to his behavior. But when the language is read in context, a different impression emerges. The title of the relevant section is “[d]estruction, alteration, or falsification of records in Federal investigations and bankruptcy,” and the Sarbanes-Oxley Act was enacted following the Enron corporate fraud scandal. Furthermore, the clause as a whole imposes liability on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.”
In its finding that the statute did not apply to the defendant, the Court held that in the context of the Sarbanes-Oxley statute, the phrase “tangible object” “is better read to cover only objects one can use to record or preserve information, not all objects in the physical world.”18 The Court specifically mentioned the ejusdem generis canon, observing that “[h]ad Congress intended ‘tangible object’ in § 1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer specifically to ‘record’ or ‘document.’ The Government’s unbounded reading of ‘tangible object’ would render those words misleading surplusage.”19
Likewise, in a 2017 opinion, a Pennsylvania court held that private security guards were not included in the exception provision of a concealed-carry statute that applied to “[c]onstables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers.”20 The court concluded that “the General Assembly intended the general class—‘other lawenforcement officers’—to include only those individuals who share the central characteristic of those in the enumerated classes: employment by a government entity.”21
If you are interpreting a provision that includes both general and specific items, or a general provision of a statute that also includes a more specific provision (or vice versa), you should consider whether the ejusdem generis canon could advance your argument.