When the Law Speaks Plainly

Oh, that Scalia.  The originalist has once again coined an original term.  You may recall that this past January, while at a speaking engagement at the University of California, Hastings College of the Law, Justice Scalia quipped that Chicago deep dish pizza is not truly pizza, but “tomato pie or something.”  This time, however, the erudite justice offered his neologism in a more formal setting, in his dissent to yesterday’s ruling in Montana v. Wyoming (2011) __ U.S. __, __.  Scalia refers to the people of Wyoming as “Wyomans.”  In a footnote, he explains: “The dictionary-approved term is ‘Wyomingite,’ which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better.”

Unlike Scalia, the rest of us are best advised not to offer novel words in court.  In fact, determining the meaning of existing words presents a challenge in itself.  It’s not uncommon for patrons at the Alameda County Law Library to scour the codes for a statutory definition or read case after case to find a judicial interpretation.  In addition to the primary authorities, two useful tools for finding the legal meaning of a word are Black’s Law Dictionary and Words and Phrases.  If the secondary sources fail also, it may simply be that no legal definition is available.  In such cases, it’s often acceptable to look to non-legal resources for guidance. 

The California Courts sometimes refer to standard dictionaries for help with statutory construction: “When construing the meaning of words in a statute, courts should first look to the plain dictionary meaning of the word unless it has a specific legal definition.”  Ceja v. J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 1375.  Similarly, the Supreme Court of the United States has also found plain meanings of words acceptable where legal definitions are unavailable: “In the absence of a statutory definition, we construe a statutory term in accordance with its ordinary or natural meaning.”  FDIC v. Meyer, 510 U.S. 471, 476 (1994).  In fact, in some instances, a plain language meaning may even be preferable to a legal definition.  The California Legislature enacted such a law that governs the interpretation of contractual terms:

The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed (Code Civ. Proc. § 1644).

So if your search for the legal definition for a statutory or contractual term fails, it could be because the drafters intended no legal meaning.  

If you are searching for a legal definition, the Alameda County Law Library has Black’s Law Dictionary (9th ed. 2009).  Words and Phrases will be found at the end of Federal Practice Digest or the California Digest.  And if all else fails, the library has Webster’s Third New International Dictionary, the more current edition of the dictionary cited by Justice Scalia in Montana v. Wyoming.   

Prescription for Trouble

1996’s California Proposition 215, the Compassionate Use Act, added section 11362.5 to the California Health and Safety Code, legalizing marijuana use for medical purposes.  Despite the passage of this act, marijuana use remains illegal under federal law.  The conflict between state and federal laws on the subject have led to such confusion that last week Paula Dow, Attorney General for the State of New Jersey, asked the Obama Administration for clarification on its policy.  The policy the administration had announced in 2009 was that it would not prosecute marijuana users who comply with state laws.  According to Americans for Safe Access, an Oakland based group, the administration has not upheld this promise.  Americans for Safe Access recently released a report card claiming that the federal government has actually stepped up enforcement considerably since the Bush administration.

But as wary of federal enforcement as California’s providers of medical marijuana should be, there is another group they should be increasingly concerned about: their own customers.  Last month, the parents of a Cal Poly student filed a wrongful death action in the San Luis Obispo County Superior Court.  While under the influence of marijuana, cocaine and alcohol, the 21 year old student attempted to cross Highway 101 on foot and was killed by a motorist.  Among the defendants named in the suit was the doctor who provided the student with his medical marijuana prescription.

What makes this claim novel is that as long as buying marijuana was illegal, drug dealers would have been shielded from civil liability for the acts of their intoxicated clients because the buyers were in pari delicto, or in equal fault.  The Restatement Second of Torts, section 889, comment b, page 352 illustrates the concept:

[I]f the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.

Thus, while marijuana use was illegal (presumably because of its intoxicating effect), sellers of the drug would have had an affirmative defense protecting them from civil liability for things done by their customers while high.  But thanks to the Compassionate Use Act of 1996, those who lawfully make marijuana available for medical purposes may increasingly find themselves vulnerable to damages for stupid things done by their stoned patients.  Ironically, the legalization of marijuana use and the risk of civil liability may be able to accomplish what decades of law enforcement have been unable to do: cause the risks involved in selling the drug to outweigh the profitability.

Given the relative newness of the field and the uncertainty of the law, there are few resources that discuss liability for medical marijuana.  If you are a medical marijuana provider who has been sued by your patient (or are a patient who wishes to sue your provider), the Alameda County Law Library does have several resources on medical malpractice that address liability for drug prescriptions.  In addition, the library has numerous titles on personal injury and general tort litigation.

California Uncodified Statutory Material – What good is it?

A recent reference patron posed the question above.

Q. I am looking at a statute from the California Statutes and Amendments to the Codes.  There is a section of the statute that appears in the California code as “uncodified”. What is the value of uncodified statutory material?

A. From Hastings College of the Law, How to Compile a California Legislative History”, comes this answer:  “[The]uncodified version of the law may contain an urgency statement or some other message of intent, which may be excluded when codified”.

There is much more legislative history information at the Hastings web page under “Other sources” which includes links to materials such as Senate Analyses of bills, legislation and ballot propositions, and statutory construction.

A source for in-depth legislative history including tips and tricks from a former long time legislative insider and head of Legislative Research and Intent, Ms. Carolina Rose, is on the LRI website.  Those include The Magic Drawer: “A Collection of Index Cards, with Hand-Written Annotations, Which Provide all Register Citations by Title, 1945-1990″ copied by Legislative Research Inc., from the Office of Administrative Law in Sacramento, California and The Morgue “Case Law Invalidating California Regulations, Recent Decisions,” compiled by Mike Ibold, Law Librarian.

The Alameda County Law Library collection contains extensive resources for California legislative history, including bills, Statues and Amendments to the Codes, Legislative Journals and the reports of the Law Revision Commission.  We also have materials on statutory construction, Statutes and statutory construction / Norman J. Singer, KF 425 S25 2007 — Stack 203A [2nd floor].

This is  a small listing of legislative history sources.  Come in or call your Alameda County Law Library for information on California Legislative History.

To Be Continued

Many of the patrons at the Alameda County Law Library seek information about continuances.  Black’s Law Dictionary (9th ed. 2009) at page 363, column 1, defines a continuance as “The adjournment or postponement of a trial or other proceeding to a future date.”  According to California Rules of Court, rule 3.1332(c), such motions are “disfavored.”  Nonetheless, courts have the discretion to grant them.  If you are seeking a continuance in California, several secondary sources can be extremely useful for understanding the substantive and procedural law and for seeing sample language for the required filings.  Particularly useful resources include:

  • Chapter 136 of California Forms of Pleading and Practice Annotated (Matthew Bender)
  • Chapter 42 of California Civil Procedure Before Trial (CEB)
  • Chapter 21 of California law and Motion: Model Forms (Rutter)  (sample notice of motion, memorandum, declaration and proposed order only)

As with California, other jurisdictions generally frown upon continuances but will grudgingly grant them.  Occasionally the grounds for granting one are so extraordinary as to make headlines.  One recent continuance granted by a Texas court has become fairly well-known in the Bay Area.  The court granted an emergency motion for continuance to Darrell Cook, an attorney and Texas Rangers fan who wanted to attend this year’s Major League Baseball World Series in San Francisco. 

Other examples of sports-related continuances include one from December 2009, where an Alabama Court granted a continuance so that the attorneys for a defendant could watch the Alabama Crimson Tide play the Florida Gators in the SEC Championship Game.  In December of 2007, a Louisiana court granted a continuance when the Louisiana State University Tigers played the Ohio State Buckeyes at the Allstate BCS National Championship Game.  Another Louisiana court granted a continuance in January of that year when the New Orleans Saints played Chicago Bears for the NFC championship.  Also in Louisiana and also involving the New Orleans Saints was a January 2010 order granting a continuance where the court took judicial notice of “Saintsmania” and recognized that that the presence of jurors, attorneys, and court personnel at the game would “enhance[] the chances of the Who Dat [sic] Nation to acquire the long sought after Holy Grail—the Vince Lombardi Trophy.”

While the South (Louisiana in particular) has led the way with regard to sports-related continuances, courts elsewhere have also granted continuances for unusual grounds.  Just last week, U.S. Judge Kimba Wood granted a continuance to a defense attorney to attend his grandchild’s bris, its circumcision, should it be born a boy.  Had it been a granddaughter, eliminating the need for the continuance, Judge Wood’s response stated that “there will be a public celebration in Court, with readings from poetry celebrating girls and women.”

It should be noted, however, that attendance at a child’s bris soon may not be an option for some Bay Area attorneys and therefore not grounds for continuance.  A San Francisco group calling themselves intactivists are seeking to put a measure on next November’s ballot that would make it a misdemeanor to circumcise a child in that city.

California Prisoners to Help California Budget

Facing fiscal disaster as well as a court-order to reduce prison overcrowding, the California Legislature passed the Non-Revocable Parole Act.  Effective Jan 25, 2010, prisoner releases have recently begun under the less stringent parole policy. 


New York Times article:  http://www.nytimes.com/2010/03/24/us/24calprisons.html?scp=1&sq=driven%20to%20financial%20brink&st=cse