Tag Archives: statutory construction

Arguing Legislative Intent on Appeal

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These posts return to an outline suggested by Wilson R.Huhn’s book, The Five Types of Legal Argument. Huhn identifies five sources of legal arguments, including arguments based on text and those based on the drafters’ intent.

South Carolina largely treats the two the same in that text is the best evidence of intent. Grier v. AMISUB of South Carolina, Inc., 397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012). Earlier posts explored this and other South Carolina canons of textual construction. The summary is available here.

Huhn identifies other evidence of intent from the text’s 1) earlier versions, 2) history, 3) official commentary, and 4) contemporaneous commentary. South Carolina courts use most of these tools — if a statute is ambiguous.

SC Considers Prior Versions of the Text

Michau v. Georgetown County, 396 S.C. 589, 595 n. 4, 723 S.E.2d 805, 808 n. 4 (2012), is an example where the Court relied on a statute’s earlier version. The statute at issue defined “medial evidence” as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.” The employer argued that the “medical certainty” clause modified “documents, records, or other material . . ..” The Court disagreed, in part because the Senate version of the bill read that way yet failed to pass the legislature.

The Court will likewise look to an enacted statute’s earlier version if its revision is ambiguous. “[I]f the revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining the intent of the Legislature.” Town of Forest Acres v. Seigler, 224 S.C. 166, 179-180, 77 S.E.2d 900, 906 (1953).

SC Considers Some Types of History

South Carolina courts may also look to the history of the times. In re Hospital Pricing Litig., 377 S.C. 48, 54, 659 S.E.2d 131, 134 (2008)(“The history of the period in which the statute was passed may be considered in interpreting the statute.”). They will not, however, consider a drafter’s or legislator’s views on legislative intent. Catawba Indian Tribe of South Carolina v. South Carolina, 372 S.C. 519, 527 n. 5, 642 S.E.2d 751, 755 n. 5 (2007).

SC Considers Official Commentary

South Carolina courts may look to a uniform statute’s official commentary and reporter’s notes. Atlanta Skin & Cancer Clinic, P.C. v. Hallmark General Partners, Inc., 320 S.C. 113, 120 and n. 7, 463 S.E.2d 600, 604 and n. 7 (1995).

SC Considers Contemporaneous Commentary

When South Carolina adopts a statute from another jurisdiction, South Carolina courts may also consider that jurisdiction’s judicial gloss on the statute. Orr v. Clyburn, 277 S.C. 536, 540, 290 S.E.2d 804, 806 (1982). And the court may consult the contemporaneous construction placed on a statute by those authorized to administer it. Craig v. Bell, 211 S.C. 473, 477, 46 S.E.2d 52, 54 (1948).

Has anyone effectively used any of these sources to argue legislative intent? Please leave a reply or reach me at www.attorneyroberthill.com. 

 

 

 

 

 

 

South Carolina Statutory Construction Cases

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Posts over the past several weeks have annotated with South Carolina law the canons of textual construction that Justice Antonin Scalia and Bryan A. Garner identified in their book, Reading Law: The Interpretation of Legal Texts.

These annotations are now gathered together and hyperlinked — Statutory Construction Cases

Please let me know if the annotations are helpful. You may reach me through the comment box or at www.attorneyroberthill.com.

Statutory Construction Canons with SC Citations – X

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This is the tenth post annotating with South Carolina law the canons of construction that Justice Antonin Scalia and Bryan A. Garner describe in Reading Law: The Interpretation of Legal Texts. This post describes how South Carolina handles what the book on page xvii describes as falsities.

     Text v. Purpose and Intent    

Scalia and Garner, for example, describe as “false notions” that the text is only the “best evidence” of intent; the court’s goal is to discover legislative intent; a statute’s spirit prevails over its letter; and that a statute should be construed to do justice. They similarly describe as a “half-truth” that considering the statute’s consequences guides sound interpretation.

The South Carolina Supreme Court applies many of these so-called false notions, including holding that the statutory language is the “best evidence” of intent and that the “cardinal rule” of statutory construction is to ascertain and effectuate the legislative intent. Grier v. Amisub of South Carolina, Inc., 397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012).

The Court has also held that it is “not always confined to the literal meaning of a statute; the real purpose and intent of the lawmakers will prevail over the literal import of the words.” Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 341, 47 S.E.2d 788, 789 (1948). See also Soil Remediation Co. v. Nu-way Envtl., Inc., 317 S.C. 274, 276, 453 S.E.2d 253, 254 (Ct.App. 1995)(“Where, however, there is something about the statute that makes it clear the legislature did not intend the letter of the statute to prevail, the court can consider the spirit of the enactment.”)

On the other hand, the Court more recently suggested that a statute be reformed but, “Nevertheless, we are interpreters not legislators and are bound by the language of [the statute] as written.” Bentley v. Spartanburg County, 398 S.C. 418, 426, 730 S.E.2d 296, 301 (2012).

     Strict and Liberal Construction

The book on page xvii also condemns as false notions that courts should strictly or liberally construe statutes. But the South Carolina Supreme Court has often held that certain classes of statutes deserve strict or liberal construction. See, e.g., Alltel Communications v. South Carolina Dep’t of Revenue, 399 S.C. 313, 731 S.E.2d 869 (2012)(construing tax statutes to favor taxpayers if meaning in doubt); Auto Owners Ins. Co. v. Rollison, 378 S.C. 600, 663 S.E.2d 464 (2008)(liberally construing remedial statute); Harris v. Harris, 307 S.C. 351, 415 S.E.2d 391 (1992)(strictly construing statutes which deprive a court of jurisdiction).

     Committee reports and floor speeches.

The South Carolina Supreme Court agrees with Scalia and Garner’s rejection of committee reports and floor speeches as interpretive guides. In South Carolina, courts do not consider the individual views of a statute’s drafters and legislators when construing even ambiguous statutes. Catawba Indian Tribe of South Carolina v. South Carolina, 372 S.C. 519, 527 n. 5, 642 S.E.2d 751, 755 n. 5 (2007).

     Original meaning

Lastly, the Court agrees with Scalia and Garner that contemporaneous history may guide interpretation. In re Hospital Pricing Litig., 377 S.C. 48, 54, 659 S.E.2d 131, 134 (2008)(“The history of the period in which the statute was passed may be considered in interpreting the statute.”).

What do you think about Scalia and Garner’s falsities? Please let us know through the comment box or at www.attorneyroberthill.com.

 

 

 

Statutory Construction Canons with SC Citations – IX

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This is the ninth post that annotates with South Carolina law the statutory construction canons described in the book, Reading Law: The Interpretation of Legal Texts. This post quotes the six stabilizing canons from page xvi of the book, followed by the South Carolina citations.

“Presumption against change in the common law – A statute will be construed to alter the common law only when that disposition is clear.”

Jade Street, LLC v. R. Design Const. Co., 398 S.C. 338, 343, 728 S.E.2d 448, 450 (2012)(“Therefore, a statute is not to be construed in derogation of common law rights if another interpretation is reasonable.”).

“Imputed common-law meaning – A statute that uses a common-law term, without defining it, adopts its common-law meaning.”

Grier v. Amisub of South Carolina, Inc., 397 S.C. 532, 536, 725 S.E.2d 693, 696 (2012)(“In ascertaining the meaning of language used in a statute, we presume that the General Assembly is ‘aware of the common law, and where a statute uses a term that has a well-recognized meaning in that law, the presumption is that the General Assembly intended to use the term in that sense.’”).

“Prior-construction – If a statute uses words or phrases that have already received authoritative construction by the jurisdiction’s court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.”

McLeod v. Starnes, 396 S.C. 647, 660, 723 S.E.2d 198, 205 (2012)(“The Legislature is presumed to be aware of this Court’s interpretation of its statutes,” and “its inaction is evidence [it] agrees with this Court’s interpretation.”); CFRE, LLC v. Greenville County Assessor, 395 S.C. 67, 77, 716 S.E.2d 877, 882 (2011)(“The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.”).

“Presumption against implied repeal – Repeals by implication are disfavored — “very much disfavored.” But a provision that flatly contradicts an earlier-enacted provision repeals it.”

Aakjer v. City of Myrtle Beach, 388 S.C. 129, 135, 694 S.E.2d 213, 216 (2010)(“In general, repeal by implication is disfavored, and it found only when two statutes are incapable of any reasonable reconcilement. . .. When two statutes ‘are incapable of reasonable reconcilement, the last statute passed will prevail, so as to impliedly repeal the earlier statute to the extent of the repugnancy.”")

“Repeal of repealer – The repeal or expiration of a repealing statute does not reinstate the original statute.”

S.C. Code Ann. § 2-7-20 (1976)(“The repeal of an act or joint resolution shall not revive any law theretofore repealed or superseded, nor any office theretofore abolished.”).

“Desuetude – A statute is not repealed by nonuse or desuetude.”

Cain v. Daily, 74 S.C. 480, 55 S.E. 110, 112 (1906)(“Courts should hesitate long to declare an act on our statute books obsolete through desuetude [citation omitted]. The better view is that a state is in force until repealed by the proper authority, either expressly or by clear implication . . ..”).

Has anyone used any of these canons effectively? Please let us hear from you through the comment box or at www.attorneyroberthill.com.

 

Statutory Construction Canons with SC Citations – VIII

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This post continues to annotate with South Carolina law cannons of construction that Justice Antonin Scalia and Bryan A. Garner describe in their book, Reading Law: The Interpretation of Legal Texts. This post quotes the canons from pages xv and xvi of the book, followed by the South Carolina annotations.

Government-Structuring Canons

“Repealability Canon – The legislature cannot derogate from its own authority of the authority of its successors.”

Harleyville Mut. Ins. Co. v. State of South Carolina, 401 S.C. 15, 736 S.E.2d 651 (2012)(“Subject to constitutional limitations, the legislature has plenary power to amend a statute.”).

“Presumption Against Waiver of Sovereign Immunity – A statute does not waive sovereign immunity – and a federal statute does not eliminate state sovereign immunity – unless that disposition is unequivocally clear.”

S.C. Code Ann. § 15-78-200 (1997)(Tort Claims Act statute that, “The provisions of this chapter establish limitations on and exemptions to the liability of the governmental entity and must be liberally construed in favor of limiting the liability of the governmental entity.”).

“Presumption Against Federal Preemption – A federal statute is presumed to supplement rather than displace state law.”

Priester v. Cromer, 388 S.C. 425, 428, 697 S.E.2d 567, 569 (2010)(“[C]ourts should begin with a presumption against preemption.”), reaff’d after remand Op. No. 27191, filed Nov. 21, 2012 (Shearouse Ad. Sh. 42 at p. 50).

Private-Right Canons

“Penalty/Illegality – A statute that penalizes an act makes it unlawful.”

Rollings v. Evans, 23 S.C. 316, 322 (1885)(“If a statute inflicts a penalty for doing an act, the penalty imposes a prohibition, and the thing is unlawful, though there is no prohibitory words in the statute.”).

“Rule of Lenity – Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant’s favor.”

In re Manigo, 398 S.C. 149, 157 n. 7, 728 S.E.2d 32, 35 n. 7 (2012)(“The rule of lenity provides that typically, statutes that are penal in nature must be strictly construed in favor of a criminally accused and against the State.”).

“Mens-Rea Canon – A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. Al statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the act.”

State v. Ferguson, 302 S.C. 269, 272, 395 S.E.2d 182, 183 (1990)(“In offenses at common law, and under statutes which do not disclose a contrary legislative purpose, to constitute a crime, the act must be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as is regarded by the law as equivalent to a criminal intent.”).

“Presumption against Implied Right of Action – A statute’s mere prohibition of a certain act does not imply creation of a private right of action for its violation. The creation of such a right must be either express or clearly implied from the text of the statute.”

Adkins v. South Carolina Dep’t of Corrections, 360 S.C. 413, 418, 602 S.E.2d 51, 54 (2004)(“In this respect, the general rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity is not subject to a construction establishing a civil liability.”).

Has anyone used thee canons effectively? Please let us know, You may reach me through the comment box or at www.attorneyroberthill.com.

Statutory Construction Canons with SC Citations – VII

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This post quotes the seven “expected meaning” canons from page xv of the book, Reading Law: The Interpretation of Legal Texts, followed by South Carolina citations.

“Constitutional doubt — A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”

Curtis v. State, 345 S.C. 557, 569-570, 549 S.E.2d 591, 597 (2001)(“A possible constitutional construction must prevail over an unconstitutional interpretation.”).

“Related statutes — Statutes in pari materia are to be interpreted together, as though they were one law.”

Beaufort County v. South Carolina State Election Comm’n, 395 S.C. 366, 371, 718 S.E.2d 432, 435 (2011)(“[I]t is well settled that statutes dealing with the same subject matter are in pari materia and just be construed together, if possible, to produce a single, harmonious result.”).

“Reenactment — If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.”

Duvall v. South Carolina Budget and Control Bd., 377 S.C. 36, 46, 659 S.E.2d 125, 130 (2008)(“When the Legislature adopts an amendment to a statute, this Court recognizes a presumption that the Legislature intended to change the law [citation omitted]. Nonetheless, a subsequent statutory amendment may also be interpreted as clarifying original legislative intent.”).

“Presumption against Retroactivity – A statute presumptively has no retroactive application.”

South Carolina Dep’t of Revenue v. Rosemary Coin Machines, Inc., 339 S.C. 25, 28, 528 S.E.2d 416, 418 (2000)(“In the construction of statutes, there is a presumption that statutory enactments are to be considered prospective rather than retrospective in their operation unless there is a specific provision in the enactment or clear legislative intent to the contrary [citation omitted]. However, statutes that are remedial or procedural in nature are generally held to operate retrospectively.”).

“Pending Action — When statutory law is altered during the pendency of a lawsuit, the courts at every level must apply the new law unless doing so would violate the presumption against retroactivity.”

Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346, 352 (1929)(applying  amendment enacted after case commenced because, “It is a well-settled general rule that the Legislature, by a curative or validating statute which is necessarily retrospective in character and retroactive in effect, can validate any act which it might originally have authorized.”).

“Extraterritoriality — A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio nec ultra territorium disponunt).”

Sayles v. Russell, 247 S.C. 506, 508, 148 S.E.2d 373, 374 (1966)(“[T]he general rule is that no state or nation can, by its laws, directly affect, bind, or operate upon property or persons beyond its territorial jurisdiction. A statute which purports to have such operation is invalid.”).

“Artificial person — The word person includes corporations and other entities, but not the sovereign.”

S.C. Code Ann. § 2-7-30(A) provides that, “The words ‘person’ and ‘party’ . . . used in any act or joint resolution shall be held  . . . to include firms, companies, associations, and corporations . . ..”

Has anyone be able to use these canons effectively? Please let us know. You may reach me through the comment box or at www.attorneyroberthill.com.

 

 

Statutory Construction Canons with SC Citations – VI

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This post finishes annotating with South Carolina law the contextual canons that Justice Antonin Scalia and Bryan A. Garner identified in Reading Law: The Interpretation of Legal Texts. The canons are quoted from page xiv of the book –

“Associated Words – Associated words bear on one another’s meaning (noscitur a sociis).”

Travelscape, LLC v. South Carolina Dep’t. of Revenue, 391 S.C. 89, 101, 705 S.E.2d 28, 34 (2011)(“This Court has held that words in a statute must be construed in context, and their meaning may be ascertained by reference to words associated with them in the statute.”).

“Ejusdem Generis  – Where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned (ejusdem generis).”

Sheppard v. City of Orangeburg, 314 S.C. 240, 243, 442 S.E.2d 601, 603 (1994)(“When the Legslature uses words of particular and specific meaning followed by general words, the general words are construed to embrace only persons or things of the same general kind or class as those enumerated.”); but cf. Harper v. South Carolina Tax Comm’n, 267 S.C. 144, 150, 226 S.E.2d 699, 702 (1976)(stating that ejusdem generis canon “should not be used as a mere formalism when other indices of intent are present.”).

“Distributive phrasing — Distributive phrasing applies each expression to its appropriate referent (reddendo singula singulis).”

Withers v. Comm’r of the Roads for Claremnont Co., 5 S.C.L. (3 Brev.) 83, 87-88 (S.C.Const.App. 1812)(“The construction must be given to this act in connection with the other acts passed on the same subject, and the words supposed to give the arbitrary power contended for, ought to be taken reddendo singula singulis.”).

“Prefatory Materials — A preamble, purpose clause, or recital is a permissible indicator of meaning.”

Brown v. Continental Ins. Co., 315 S.C. 393, 395, 434 S.E.2d 270, 272 (1993)(“The preamble of an act, while often used for the purpose of explaining otherwise unclear legislative intent, does not control where the statutory language has a plain and obvious meaning.”).

“Title and Headings — The title and headings are permissible indicators of meaning.”

Beaufort County v. South Carolina State Election Comm’n, 395 S.C. 366, 373 n. 2, 718 S.E.2d 432, 436 n. 2 (2011)(“This Court may, of course, consider the title or caption of an act in determining the intent of the Legislature.”).

“Interpretive Direction — Definition sections and interpretation clauses are to be carefully followed.”

Goldston v. State Farm Mut. Auto. Ins. Co., 358 S.C. 157, 177-178, 594 S.E.2d 511, 522 (Ct.App. 2005)(“[t]he lawmaking body’s construction of its language by means of definitions of the terms employed should be followed in the interpretation of the act or section to which it relates and is intended to apply.”).

“Absurdity — A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.”

Florence County Democratic Party v. Florence County Republican Party, 398 S.C. 124, 128, 727 S.E.2d 418, 420  (2012)(“This Court will not construe a statute in a way which leads to an absurd result or renders it meaningless.”).

Anyone been able to use any of these canons effectively? Please let us know. You may reach me through the comment box or at www.attorneyroberthill.com.