The LitiGator
Michigan lawyers specializing in civil litigation




Subscribe to "The LitiGator" in Radio UserLand.

Click to see the XML version of this web page.

Click here to send an email to the editor of this weblog.

Friday, January 09, 2004

One of the accepted rules of traditional statutory interpretation is that the language of a statute should be interpreted to avoid a manifestly absurd result, on the theory that the legislature could not have intended a result which does not comport with common sense. 

The reason behind the rule appears to be the belief that the legislature, in choosing the language it used, may not have fully considered all of the different scenarios under which the statute might be applied. 

Among our current Supreme Court Justices, Maura Corrigan has staked out what to some would appear to be an extreme textualist position: that the courts have the duty to apply the language of the statute, even though to do so would produce an absurd result.  The text must be faithfully followed, she says, despite the absurdity of the outcome.  In her view, legal absurdity is no excuse for declining to follow the language of the statute.  If the absurd result is to be remedied, she posits, it is up to the legislature to amend the statute to do so.

Justice Corrigan's position has much to commend it.  If the effect of the language is blunted by judicial interpretation, then the full import of its meaning will not be apparent, and legislators, citizens, and voters will not have any reason to push for amendatory action.  They will be content to allow the courts to amend the statute by judicial fiat, thereby becoming enablers of the addictions of judges.

In her "Dice Loading" Rules Of Statutory Interpretation, published in 2003 in the New York University Annual Survey of American Law, Symposium On State Constitutional Law, Justice Corrigan stated flatly:

The Michigan Supreme Court no longer subscribes to the so-called "absurd result" doctrine. [FN40]  Under this doctrine, judges ignore the plain language of a statute whenever they deem the result required by the statute to be absurd or unjust.  A judge has no authority to disregard a law validly enacted by the representatives of the people merely because the judge dislikes the outcome.  A judge's personal predilection regarding what is unjust or absurd simply is not relevant.

In this passage, I believe, Justice Corrigan overstates the rule.  The rule of avoiding a truly absurd result is far different from a more general principle (if it can be so dignified) which would allow a judge to ignore statutory language if she finds it to be "unjust".  I would agree that allowing judges to use a general standard of injustice gives them a power that the framers of our legal system never intended that they have.  But the same is not true of the absurdity rule.

The opinion cited by Corrigan in the footnote is her own concurrence in Maier v. General Telephone, 645 N.W.2d 654, 654 (Mich. 2002).  The fact that she cites her concurrence rather than a majority opinion is notable; if her position is indeed that of the Supreme Court as a whole, it would be better to cite to a majority opinion saying so.  A review of that concurrence, further, shows that it did not really deal with the absurdity rule.  In that opinion, she criticized the Court of Appeals in its recourse to another long-standing rule, that remedial statutes should be "construed liberally".  Indeed, she used the phrase "dice-loading" and cited Justice Scalia in her textualist argument.  It can be fairly said that this concurrence was a direct precursor of her 2003 article - or maybe it was the other way around.

She referred in the article's footnote 40 to the case of People v. McIntire, 599 N.W.2d 102 (Mich. 1999), which was a majority opinion by the Michigan Supreme Court.  In that case, the defendant had agreed to a grant of immunity in exchange for his testimony before the grand jury but then had given perjured testimony.  Years later, the perjury was discovered, and the prosecutor sought to reinstate the charges against him.  The prosecutor argued, and the trial court and the Court of Appeals agreed, that an obligation that the defendant testify truthfully is an implied obligation of an immunity agreement.  Judge Robert P. Young, Jr., then sitting on the Court of Appeals, had dissented.  By the time the case got to the Supreme Court, so had Young, and he recused himself from participation.  The Supreme Court, speaking per curiam, adopted Young's dissent in toto.

Young's opinion eloquently stated the textualist position:

These traditional principles of statutory construction thus force courts to respect the constitutional role of the Legislature as a policy-making branch of government and constrain the judiciary from encroaching on this dedicated sphere of constitutional responsibility. Any other nontextual approach to statutory construction will necessarily invite judicial speculation regarding the probable, but unstated, intent of the Legislature with the likely consequence that a court will impermissibly substitute its own policy preferences. See Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939) ("Courts cannot substitute their opinions for that of the legislative body on questions of policy"). Unfortunately, the [Court of Appeals] majority has abandoned these traditional rules of construction, ignored the plain text of the statute before us, and substituted its own policy preferences for those of our Legislature by finding an unexpressed legislative intent that a witness who lies in a one-man grand jury proceeding forfeits statutory immunity granted under MCL 767.6; MSA 28.946. While [we] do not question the sincerity of [the Court of Appeals majority's] effort, [we] view the [Court of Appeals] opinion as a herculean, yet ultimately unsuccessful, attempt to create an ambiguity where none exists in order to reach a desired result, albeit one with which [we] might wholeheartedly agree [if we were legislators] authorized to enact policy.

He considered the language of the statute and found therein nothing that required that the recalcitrant witness' testimony be truthful.  He observed that there were other sections of the Code which provided a penalty for perjured testimony, and concluded that those were the only sections which afforded relief.  Given the plain language of the statute, first Young and then his colleagues, adopting his position, could not avoid the result that the grant of immunity remained in full force. 

The events which occurred thereafter substantiate Young's opinion and Corrigan's position as stated in her article.  Steps were immediately taken to amend the statute, and as it now stands it provides that the grant of immunity applies only if the testimony given was truthful.  A legislative mistake has now been corrected legislatively, rather than judicially.  Can it be doubted that the result would have been, if the court had ruled otherwise, that the defective legislation would still be on the books today? 

Considered strictly, the result in McIntire was not a truly absurd result.  An absurdity is a logical or philosophical paradox, a conclusion which cannot stand, which is internally inconsistent.  The interpretation of the accrual statute in Connelly v. Paul Ruddy's Equipment and Service Company, 388 Mich 146, 200 NW2d 146 (1972) provides an example.  Section 5827 of the Revised Judicature Act of 1963 provides that a "claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."  In most cases, this is a perfectly reasonable rule.  The problem arises in cases such as product liability cases, in which a defective product is manufactured and sold but does not cause damage until many years later.  If the date of accrual is the date of the wrong, the date on which the defective product is sold, then the claim for personal injuries expires three years later.  If the injury itself does not occur until several years after that point, a plain reading of the statute leads to the inconsistent conclusion that a claim is stale under the statute of limitations before it ever arises.  That is consistent with the theory and purpose behind a statute of repose, but is entirely inconsistent with the purpose of the statute of limitations.  Hence the Court ruled in Connelly that the term "wrong" would be interpreted to mean "actionable wrong" to avoid this absurd result. 

Perhaps this was a wise and just ruling, avoiding the logical paradox that would otherwise result.  But the practical effect of this 1972 ruling is that the defective legislation is still on the books.  Section 5827 says today the same thing that it said then. 

The result in McIntire was not absurd in the sense of logical inconsistency.  It was just a bad result.  But most judges are not logicians and philosophers.  They are men and women, lawyers who have been vested with the responsibility of interpreting and applying the law.  I might even be so bold as to suggest that some of them are not very bright. (The majority were appointed to their positions by a politician, for political reasons.) In ordinary use, "absurdity" does not bear a meaning as stringent as the one I have suggested.  The ordinary dictionary definition of an absurd result is a result that is "at variance with reason", and the synonyms for "absurd" include "ridiculous" and "silly".  Perhaps an license to use absurdity as a basis for a judicial ruling is an invitation to nullify legislation because the judge thinks that it is silly.  And that is not his job.  He is elected as a judge, not a philosopher-king.

The Corrigan-Young brand of "damn the torpedos" textualism has not won converts everywhere.  A recent Court of Appeals decision allowed a 2-1 panel to voice a different position on this issue.  In Nippa v. Botsford Hospital, decided on remand in July 2003, a majority panel of the Court of Appeals had this to say about the issue in its footnote 5:

While we do not believe in judicial activism, we do believe that the role of the judiciary is more than that of a simple statute-reading machine that spits out the plain language of what is put in. . . Judging is an art. It is not best served by reaching absurd results or by reaching decisions that lack common sense or violate the intention of the Legislature. We note that writing is "[t]he bare transmission of data" from the writer to the reader. Irving Younger, Culture's the Thing, 8 Scribes J. Leg. Writing 137, 138 (2001-2002). It is simply "a mechanical function requiring only a command of grammar, syntax, and vocabulary. Though grammar, syntax, and vocabulary can be programmed into a computer," no computer will ever be able to replace the role of judge in our society, and no computer or mechanical device can function at the level of a judge. Id. "The reason is that there are demesnes of [judging] closed to computers," mechanical devices, "and to those who aspire to no more than a computer's function." Id. Computers can reach absurd or illogical results on the basis of the process chosen to program the computer. Reaching an absurd or illogical result is best left to mechanical devices. In our opinion, the judge's role is significantly different.

6:57:44 PM    

Click here to visit the Radio UserLand website. © Copyright 2004 Franco Castalone.
Last update: 2/1/2004; 5:51:38 AM.
January 2004
Sun Mon Tue Wed Thu Fri Sat
        1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 31
Dec   Feb