Is Robbery Piracy? Is Robbery Piracy? Seeing and Avoiding the Conundrum

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Iris Byrd
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in an unusual way: They boarded a ship on the high seas, pointed muskets and pistols at the crew, and stole the

1 Seeing and Avoiding the Conundrum Is Robbery Piracy? On the Fourth of July 1817, John Palmer, Thomas Wilson and Barney Calloghan celebrated the nation s 41st birthday in an unusual way: They boarded a ship on the high seas, pointed muskets and pistols at the crew, and stole the cargo. Is Robbery Piracy? 500 boxes of sugar, 60 pipes of rum, 200 demijohns of honey, 1,000 hides, 10 hogsheads of coffee, and 4 bags of silver and gold. Total value of $92,000.

2 Is Robbery Piracy? [I]f any person commit, upon the high seas, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death every such offender shall suffer death United States v. Palmer, et al, 16 U.S. 281 (1818) Robbery didn t carry the death penalty on land. Is Robbery Piracy? [I]f any person commit, upon the high seas, robbery every such offender shall suffer death Is Robbery Piracy? [I]f any person commit, upon the high seas, robbery if committed within the body of a county, would be punishable with death every such offender shall suffer death

3 Is Robbery Piracy? The defendants weren t represented by a lawyer. The circuit judges were so opposed in their opinions that the judge certified the question to the United States Supreme Court. Is Robbery Piracy? In the Supreme Court opinion, Justice Marshall keenly saw both sides of the argument. He said of the losing argument that This argument is entitled to great respect on every account. But he decided that there s no reason to even make a list if you merely mean any offense punishable by death on land is punishable by death on the high seas. The statute is ambiguous because it contains a qualifier after a list. Is a Rifle Deadly? In 1977, Martin J. McPherson pointed a rifle at the night clerk and asked her how to get to the roof. She didn t answer, so he ordered her to the elevator. When it opened, two people looked out. In response to this complication, he ordered all three outside. Getting outside, one of the people ran. As he watched, something dawned on him: He was frightening these people. So he apologized to the other two, "I'm sorry I scared you. I was looking for someone else."

4 Is a Rifle Deadly? As he turned to leave, something else dawned on him: He could get in trouble. So he warned, "I have a high-powered rifle here, and if anyone touches that phone, I'll blow a hole right through you. The rifle wasn t loaded. Is a Rifle Deadly? Martin was convicted of felony menacing with a deadly weapon. But the appeals court overturned the conviction. Of course, he was guilty of menacing. Is a Rifle Deadly? Deadly weapon was defined as:... any firearm, knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury. People V. McPherson, 619 P2d 38 (Colo. 1980)

5 Is a Rifle Deadly? Deadly weapon means:... any firearm Is a Rifle Deadly? Deadly weapon means:... any firearm which in the manner it is used or intended to be used is capable of producing death or serious bodily injury. Is a Rifle Deadly? The Colorado Supreme Court disagreed: [T]he phrase "which in the manner it is used..." modifies only the last antecedent, "other weapon, device, instrument, material, or substance, whether animate or inanimate. People V. McPherson, 200 Colo. 429; 619 P2d P.2d 38 (Colo. 1980)

6 Is a Rifle Deadly? The general assembly hereby finds and declares that the rule of statutory construction expressed in the Colorado supreme court decision entitled People v. McPherson,, which holds that "... relative and qualifying words and phrases, where no contrary intention appears, are construed to refer solely to the last antecedent with which they are closely connected..." has not been adopted by the general assembly and does not create any presumption of statutory intent. Section , Colorado Revised Statutes The Colorado legislature passes a statute saying, That s not what we meant. Does Effort Count? The California legislature also overturned its supreme court. A court ended Renee J s parental rights. A court has already terminated her rights over a sibling. She had gotten substance abuse treatment. She argued that the statute required the court to find she has made no reasonable effort to treat the problem. Does Effort Count? Reunification may be denied on a finding "[t]hat (A) the court ordered termination of reunification services for any siblings because the parent failed to reunify with the sibling after the sibling had been removed from that parent or (B) the parental rights of a parent over any sibling of the child had been permanently severed, and that, according to the findings of the court, this parent has not made a reasonable effort to treat the problems that led to removal of the sibling. Renee J. v. Superior Court (2001) 26 Cal. 4th 735.

7 Does Effort Count? Renee J. petitions for extraordinary relief from the trial court s order terminating her reunification services with her daughter She contends the trial court erred in applying the California Supreme Court s interpretation of Welfare and Institutions Code section 361.5, subdivision (b)(10) because the California Legislature almost immediately overrode that interpretation by amending the statute. In the unusual (to say the least) circumstances of this case, we agree. Renee J. v. The Superior Court (2002) 96 Cal. App. 4th 1450 The California legislature passed a bill saying that the California Supreme Court got it wrong. The appeals court overturned the supreme court s interpretation. French to the Rescue In a Canadian case, two companies were locked in a dispute over whether one could terminate a contract. Aliant Telecom wished to terminate its contract with Rogers Communications, so it could raise the price of its services. But the contract seemed to say that the contract should last at least five years: French to the Rescue Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party. Telecom Decision CRTC (2007)

8 French to the Rescue Does the termination clause apply to the first 5 years? The commission held that the comma before the termination language meant that it applied to both clauses. But a French version of the contract made it clear that the termination clause only applied to the successive 5-year terms. So the commission reversed its prior decision. Supreme Confusion The defendant, Hayes, was arrested for possessing a firearm. He had been convicted of assault and the victim was his wife But he wasn t convicted of a crime of domestic violence. Does the firearms statute apply to his conviction? Supreme Confusion [T]he term misdemeanor crime of domestic violence means an offense that (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common United States v. Hayes, 482 F. 3d 749, (2009)

9 Supreme Confusion That is a defined term so the definition certainly must be parsed but it would be at least surprising to find from that parsing that a misdemeanor crime of domestic violence need not by its terms have anything to do with domestic violence. United States v. Hayes, 482 F. 3d 749, (2009) Gluing with a Knife In 1891, Jabez Sutherland suggested a way to cope with the rule in Sutherland on Statutory Construction: Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma. Gluing with a Knife The word comma comes from the Greek word κομμα, which means something that has been cut away Restrictive versus unrestrictive use. A comma is used to mean the exact opposite things!

10 Gluing with a Knife Let s eat, mom! Let s eat mom! Gluing with a Knife The problem can be seen in the deadly-weapon case. The statute sports a comma before the modifier: material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or Is the comma after inanimate for the animate clause or is it for the deadly clause? Gluing with a Knife Ditto for the parental-rights case: the parental rights of a parent over any sibling of the child had been permanently severed, and that, according to the findings of the court, this parent has not made a reasonable effort to treat the problems that led to removal of the sibling Is the comma there because the italicized clause is independent? Or does it separate the clause from the last antecedent?

11 Gluing with a Knife And for the domestic-violence case: (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common Gluing with a Knife The comma didn t guide the court. Gluing with a Knife The Rule of the Last Antecedent in general, and the comma test in particular, can t be relied on to resolve ambiguity. Ken Adams, the author of A Manual of Style for Contract Drafting. (

12 Gluing with a Knife "Punctuation marks are no part of an act. To determine the intent of the law, the court, in construing a statute, will disregard the punctuation, or will repunctuate, if that be necessary, in order to arrive at the natural meaning of the words employed." U.S. v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932) Gluing with a Knife California, Kentucky, Montana, Pennsylvania, and South Dakota have also felt free to disregard punctuation. Indian Springs, Ltd. v. Palm Desert Rent Review Bd., 193 Cal. App. 3d 127 (4th Dist. 1987); Asher v. Stacy, 299 Ky. 476 (1945); Clinton v. Miller, 124 Mont. 463 (1951); Kuntz v. Alliance Sand Co., 156 Pa. Super. 563 (1945); Lewis v. Annie Creek Min. Co., 74 S.D. 26 (1951) Confusticated? What s a wordsmith to do?

13 Change the List Order To get dessert, you must eat ham and eggs that are green. To get dessert, you must eat eggs that are green and ham. Change the List Order Make it extra clear by breaking it up: To get dessert, you must eat the following: 1. Eggs that are green; and 2. Ham. Change the list order To get dessert, you must eat green eggs and ham. To get dessert, you must eat ham and green eggs.

14 Put the qualifier in front To get dessert, you must eat ham and eggs that are green. To get dessert, you must eat each of the following that are green: ham and eggs. Put the qualifier in front Again, break it up: To get dessert, you must eat each of the following that are green: 1. Eggs; and 2. Ham. Repeat the qualifier To get dessert, you must eat: 1. Green eggs; and 2. Green ham.

15 Simplify the list? null and void, death and serious injury, and sale and transfer. Do you really need that list? Simplify the list? Black s Law dictionary: transfer embraces every method direct and indirect, absolute or conditional, voluntary or involuntary of disposing or parting with property or an interest in property. Black s Law Dictionary, seventh edition, p Simplify the list? You shall not sell or transfer to a family member ham and green eggs. You shall not transfer to a family member ham and green eggs.

16 Repeat the preposition Each of those suggestions has something in common: They don t have a single qualifier after a list. What if one list modifies another list? What about a sentence with three lists? Repeat the preposition To get dessert, you must eat eggs and ham of greenness. To get dessert, you must eat eggs of and ham of greenness. Don t do it! Try never to have a single qualifier lazily perched on a list bewilderingly squawking a muddle. And if you do, don t think you can rely on comma glue to fix it.

, ) Civil No. ) Petitioner, ) ) DOMESTIC VIOLENCE vs. ) PROTECTION ORDER ), ) ) Respondent. ) TO THE RESPONDENT:

, ) Civil No. ) Petitioner, ) ) DOMESTIC VIOLENCE vs. ) PROTECTION ORDER ), ) ) Respondent. ) TO THE RESPONDENT: STATE OF NORTH DAKOTA COUNTY OF IN THE DISTRICT COURT JUDICIAL DISTRICT, Civil No. Petitioner, DOMESTIC VIOLENCE vs. PROTECTION ORDER, Respondent. TO THE RESPONDENT: A hearing having been held and the