We mentioned in the last piece the reality that there sometimes can be no "plain language" interpretation of a statute. Some statutes are simply ambiguous or unclear, either because they were poorly drafted or because their drafters failed to anticipate a real-world factual twist. It is the unclear statute that justifies judicial interpretation, indeed, that cries out for it. Yet, for some reason, some "textualist" judges are unwilling or unable to accept that role.
As we noted, both the Court of Appeals and the Supreme Court, in addressing the issue raised in the Eggleston decision, purported to rely on the "plain language" of the statute in question. The following comes from the Court of Appeals decision:
We disagree and hold that, pursuant to the plain language of the statute, a successor personal representative does not acquire a new two-year period to bring an action on behalf of the estate and that, under these facts, the statute of limitations was not tolled between the time the first representative died and a new representative was appointed.
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The plain language of MCL 600.5852 states that "the personal representative of the deceased" may commence an action "at any time within 2 years after the letters of authority are issued."
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Furthermore, the plain language of the saving clause refers to one set or "the" letters of authority, not multiple letters of authority. The statute applies to "the" personal representative, not "a" personal representative, which might suggest that any personal representative who receives letters of authority, initially or as a successor, has two years to file a claim.
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Here, construing the statute according to its plain terms better serves the purpose of the saving clause by allowing a personal representative reasonable time to discover a decedent’s potential claims while protecting the underlying principles of the limitations period by encouraging the prompt filing of claims and relieving "defendants of the prolonged threat of litigation."
The Supreme Court decision similarly stated, in coming to the precisely opposite conclusion:
Although the Court of Appeals purported to construe and apply the plain language of MCL 600.5852, the Court misquoted the statute by inserting "the" before "letters of authority." If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after [the] letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
The Court relied on this misquotation in holding that a personal representative must bring an action within two years after the initial letters of authority are issued to the first personal representative. This is not, however, what the statute says. The statute simply provides that an action may be commenced by the personal representative "at any time within 2 years after letters of authority are issued although the period of limitations has run." Id. The language adopted by the Legislature clearly allows an action to be brought within two years after letters of authority are issued to the personal representative. The statute does not provide that the two-year period is measured from the date letters of authority are issued to the initial personal representative. Plaintiff was "the personal representative" of the estate and filed the complaint "within 2 years after letters of authority [were] issued," and "within 3 years after the period of limitations ha[d] run." MCL 600.5852. The action was therefore timely.
In truth, the meaning of the statute is not meaningfully changed by the use of the article "the". MCL 600.5852 says:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
Compare
at any time within 2 years after letters of authority are issued
with
at any time within 2 years after the letters of authority are issued
Either way, the ambiguity exists. In the oddball case in which a first personal representative is named, and to whom Letters of Authority are issued, and he is then replaced by another personal representative, with a second set of Letters of Authority issued, does the statute call for the two-year period to be started by the issuance of the first LOA or the second? The presence or absence of "the" simply provides no assistance in answering this question. There is a true ambiguity, and this is a case in which even rigorous textualism would permit the judge to use external considerations, such as an analysis of the purpose sought to be accomplished by the statute, to resolve the issue.
Yet neither the Court of Appeals nor the Supreme Court were able or willing to recognize the existence of the ambiguity. Instead, each pretended that it was simply applying the "plain language" of the statute.
Several of our Supreme Court Justices, most notably Robert Young, profess to follow "textualism" as a doctrine of judicial decision-making. Under this doctrine, the "plain text" of a statute must be followed, without inquiry into the intent behind the law and without resort to secondary sources such as committee reports and other documents setting forth "legislative history", if it is possible to do so. Yet it is surely a species of intellectual dishonesty to claim to be applying the plain language of a statute, all the while ignoring the existence and implications of a clear ambiguity staring the judge in the face.
For some of the judges who have embraced textualism, there seems to be a kind of judicial blind spot when it comes to ambiguity. The most prominent textualist of modern times is, of course, Justice Antonin Scalia. It is remarkable that, in his widely read and influential book "A Matter of Interpretation -- Federal Courts and the Law", Scalia makes virtually no mention of statutory vagueness, uncertainty, or ambiguity in determining when and under what circumstances a judge has the authority to go beyond the text of a statute.
I have always noted this strange fact and have pondered the reason. The best that I can come up with is that Scalia recognizes that judges, like lawyers, can very easily claim to find an ambiguity, and that this can provide a small but readily-accessible opening to the wide world of freewheeling judicial legislation. As anyone familiar with the litigation of contractual terms and insurance policies knows, it is easy for a lawyer to claim that a certain word or phrase is ambiguous and in dire need of judicial assistance in its interpretation, even when it looks pretty damn clear to the eye of the "ordinary" lawyer or judge.
Still, Scalia's blind spot is hard to understand. Scalia simply does not make room for the reality of vague, conflicting, ambiguous, or uncertain language. Instead, he pretends that this problem never arises. He rejects the use of rules of construction which have been widely used and recognized within the legal profession for centuries. His concern appears to be that any deviation from strict textualism will invite judges to engage in freewheeling and unrestrained reinterpretation of the governing language. But he disregards the reality that courts may be unsure of the meaning of a word or phrase when considered in the light of a particular set of facts.
The original textualist was Felix Frankfurter, whose views were perhaps given their best expression in a speech given to the New York Bar in 1947, precisely fifty years before Scalia published his tome. The presentation was published in the Bar's official Record under the name "Some Reflections on the Interpretation of Statutes".
Frankfurter readily recognized the problem of ambiguity. He found a justification for the application of rules of construction and for resort to extratextual sources in the fact that the phrasing of a statute "seldom attains more than approximate precision" due to the nature of words and of human use of language. He relied on the judge's hopefully inherent sense of restraint to ensure that such resort occurs only occasionally and only when necessary.
Given the progression of Federal Constitutional jurisprudence since 1947, perhaps one cannot fault Justice Scalia for being less confident in the "inherent sense of judicial restraint" than Justice Frankfurter had been.
Nonetheless, Frankfurter saw something that Scalia can not or will not see. It appears that some of our own state's present-day textualists have a tendency to share the same narrow view. We may regard it as a type of judicial macular degeneration, which at first presents as blurred vision, no more than a minor annoyance; but then it becomes a small and focal blind spot, and over time it leads to progressive loss of the central judicial vision.
10:51:57 PM 
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