A Shot Across the Bow: Appellate Court Takes Aim at Canons of Construction
Huge doctrinal shifts often have humble beginnings. And we see them only in hindsight. A recent opinion, Wilton Campus 1691, LLC v. Wilton, 191 Conn. App. 712 (2019), is likely just a blip on the radar. But it may signal the start of a deeper change in how our state appellate judges read the law.
So first, how do you know what a law means? In Connecticut, you begin with the law's text. General Statutes 1-2z says if the text is clear, you stop there. It doesn't matter if the legislature meant to do the opposite, they're stuck with what they wrote.
Great. But how do you know if the text is clear? A dictionary will give you the meaning of individual words; what book do you consult for the rules of interaction between words? Curiously, it's not a linguistics textbook. Instead, it's a hodgepodge of disjointed grammar and policy rules that courts have incorporated on an ad hoc basis over the years and dubbed the Canons of Construction. Every state is a little different and there's no single authoritative text that collects all the Canons. You'll find a couple in this case, another in that case, scattered throughout thousands of cases in the law reporters. The closest thing to a unifying collection is the treatise Reading Law, by Bryan Garner and the late Justice Antonin Scalia. It should be required reading for any lawyer who works with statutes. But no state has adopted it to date. And it is perhaps more an argument for a unified set of Canons than a statement of them. Nobody thinks the Canons are perfect, but they have been and continue to be a fundamental part of how we interpret statutes.
Along comes the Connecticut Appellate Court. In Wilton Campus 1691, LLC, the Court launched a broadside against not just any single Canon, but the very idea of Canons of Construction. It said:
"The defendant predicates its argument on the axiom ‘‘expressio unius est exclusio alterius,’’ translated from Latin to mean ‘‘the expression of one thing is the exclusion of another.’’ ‘‘Although the so-called canons of statutory construction may at times serve as useful tools in deciphering legislative meaning, to rely on any one of them as a compelling factor in the interpretive process is problematic, because as Professor Karl Llewellyn persuasively has demonstrated, ‘there are two opposing canons on almost every point.’ K. Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed,’ 3 Vand. L. Rev. 395, 401 (1950). The so-called ‘canons’ are not that, at least in the sense that any one of them reliably can be determined to apply or not to apply in any given case. They are, instead, merely guides drawn from experience, to be employed or not to be employed carefully and judiciously, depending on the circumstances. See F. Frankfurter, ‘Some Reflections on the Reading of Statutes,’ 47 Colum. L. Rev. 527, 544–45 (1947); see also United Illuminating Co. v. New Haven, 240 Conn. 422, 455, 692 A.2d 742 (1997)."
Wilton Campus 1691, LLC, 191 Conn. App. at 728-29.
Scalia and Garner had this to say about Llewellyn's demonstration:
"An oft-cited law-review article by Karl Llewellyn, a highly regarded 20th-century legal scholar, derides time-honored canons of construction by asserting that 'there are two opposing canons on almost every point.' Llewellyn's supposed demonstration, however, treats as canons some silly (and deservedly contradicted) judicial statements that are so far from having acquired canonical status that most lawyers have never heard of them. And some are not canons of interpretation because they reject textual interpretation as the basis of decision. (To the extent that these might have become frequently expressed, they are not canons but anticanons.) The rest are not contradictions at all, but merely indications that different (noncontradictory) canons may sometimes provide differing indications of meaning. This unsurprising fact hardly renders the canons useless or obsolete: '[T]he fact that the maxims may work against each other . . . does not establish the hopeless confusion posited by Llewellyn's model. It is simply a matter of competing inferences drawn from the evidence.' "
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 59–60 (2012) (footnotes omitted).
The Connecticut Appellate Court then bolstered its argument by quoting a case from before General Statutes 1-2z was enacted for the holding that one may ignore a canon of construction "where there is no language, legislative history or statutory purpose suggesting . . . such a result." 1-2z likely killed that holding. Certainly, legislative history and purpose can no longer override a canon of construction. And as for the idea that one can discard a canon if "there is no [other] language . . . suggesting . . . such a result," the absence of a second point in favor of an interpretation is hardly a reason to reverse course and embrace the interpretation with zero points in its favor. That is atextualism, which 1-2z forbids.
Finally, the Court gets to the heart of its analysis:
"The defendant’s position is also untenable because it assumes that the assessor has the authority to add § 12-63c (d) penalties for a particular assessment year—at any time and for an indefinite period—after he signed the grand list for that assessment year. Such an interpretation yields an absurd or unworkable result in violation of General Statutes § 1-2z."
Wilton Campus 1691, LLC, 191 Conn. App. at 729-30.
Really, the Court could have begun and ended with those two sentences. The Canons often provide competing inferences and the absurdity canon is a trump card. One need not kick the Canons to the curb en masse to acknowledge there is a pecking order within them. In fact, making that pecking order express, and predetermined, would go a long way toward stabilizing expectations, so folks can conduct their affairs pursuant to the law, rather than under the shadow of various guesses at how various judges might construe the law. If the Appellate Court believes the Canons are a broken system, it would seem the better course is to fix them, not discard them.
Time will tell if today's criticism of the Canons leads to something more. Certainly, a more coherent (and predictable) set of rules for statutory interpretation is welcome. But I don't think giving the Court more discretion – and so making the process more opaque – is the answer.