The reason why courts have and exercise the
power of interpretation is the fact that, when it comes to deciding a concrete
case under a statute, a court often finds itself presented with two or more
applications of the statute to the facts, each application being as much within
the frame of the statute as the others.--
Orville C. Snyder: Preface to JURISPRUDENCE
(1954)
I now feel compelled to comment on the legal
and political fallout from Senator Robert Torricelli's withdrawal from the
New Jersey U.S. Senate race, not only because I am the designated
Commentator for 'The Green Papers' but also
because I happen to be a resident- and, therefore, a voting citizen- of the
Garden State. Yes, indeedy... here I am right smack dab within the
"vortex", as it were, of the legal and political battle now having been
joined between my State's Democrats and my State's Republicans over whether or
not a new Democratic candidate for my State's "Class 2" Senate seat can legally
replace Mr. Torricelli on the General Election ballot. In fact, I grew up
and came of age (indeed, cast my very first vote in anger back in the State
primary of June 1974) in New Jersey and, thus, have
had long acquaintance with this State's politicolegal dynamic and
I think I can, therefore, bring something of the unique perspective of
the "insider" to the "real story" behind the whole courtroom bru-ha-ha
that will begin with a State Supreme Court hearing on the morning of
Wednesday 2 October!
Putting aside the political issue involved- if
only for the time being, the legal issue, in a nutshell, is
relatively simple: what do the following words found in New Jersey
Revised Statutes Title 19, Chapter 13, section 20
actually mean?:
In the event of a vacancy,
howsoever caused, among candidates nominated at primaries, which vacancy shall
occur not later than the 51st day before the general election,...a candidate
shall be selected in the following manner: [i]n the case of an office
to be filled by the voters of the entire State, the candidate shall be selected
by the State committee of the political party wherein such vacancy has
occurred...
Does the language of the above-quoted provisions
demand that a Party nominee's withdrawal take place before the 50th day
before the General Election in order for a replacement candidate to be named by
that Party (as the Republicans in general, and the Forrester campaign in
particular, claim)? Or does the above statute merely state the procedure to be
followed in New Jersey should a Party nominee withdraw prior to the 51st
day before the General Election without any reference or effect on what the
procedure might be once the 50th day before Election Day hath dawned?? The
questions are simple to pose; they are far from simple to answer, however. In
order to attempt to answer them at least somewhat, one must take a brief
look at statutory interpretation based merely on the internal language
of a given statute (since, as a layman non-lawyer, external factors [such
as, to take one obvious example, the intent of the state legislators
who drafted and passed the latest version of this piece of New Jersey's Election
Code back in early 1985] cannot be dealt with here because they are not
immediately available to me [I don't have access to the transcripts of
committee meetings and the debate on the floor of the State Senate and General
Assembly from which such legislative intent can best be
discerned]):
The internal meaning of statutes is
determined (and the same could apply to determining the meaning
of statute-like constructs such as administrative rules and
regulations or the provisions of the Federal or a State Constitution, by
the way) according to so-called "Canons of Interpretation". There is not
enough room- even in one of my lengthier Commentaries- to go through every
single one of these interpretive devices, so I will only touch on a few of them-
if only by way of example and for purposes of illustration:
In the law
textbook/casebook Legislation by Charles B. Nutting and Reed
Dickerson, five basic assumptions about the drafting of a statute and
necessary to a proper construction of same are laid out, as
follows:
1. that the draftsman used his words in their
normal senses, and that he meant what he said;
2. that the draftsman did not intend to
contradict himself;
3. that the statute is intended to produce a
reasonable, constitutional result;
4. that the legislature was made up of
reasonable persons pursuing reasonable purposes reasonably;
5. that the draftsman did not include language
unless it contributed to the ideas expressed.
Affiliated with these basic assumptions as to the
attitude and intent of the legislators who drafted and then passed a
given statute are those "canons of interpretation" of which I wrote
earlier and that are known primarily by their Latin phraseology... there
are, among others:
Noscitur a sociis ("it is known from its
associates")- that is, the notion that the meaning of a word can be discerned
from its accompanying words;
Ejusdem generis ("of the same kind")-
that is, the notion that where more general words follow a particular
enumeration of specific persons or things, these general words are not to be
taken too broadly but, rather, narrowly construed so as to only apply to
those items of the same class or kind as the particular
specifics mentioned;
Inclusion unius est exclusio alterius
("the inclusion of one [thing] is the exclusion of another")- that is, the
notion that when certain persons or things are specified, an intention to
exclude all others can then be inferred.
Now, it has to be understood that
these "canons" are merely guides to interpretation and that they
cannot possibly apply when the context clearly indicates a contrary
intention. A 19th Century Missouri appellate decision, for example, once noted
that (to touch on only one of the "canons")
The rule of ejusdem generis,
in statutory construction, is by no means a rule of universal application,
and its use is to carry out, not to defeat, the legislative intent. When it can
be seen that the particular word by which the general word is followed was
inserted, not to give a coloring to the general word, but for a distinct object,
and then to carry out the purpose of the statute, the general word ought to
govern. It is a mistake to allow the ejusdem generis rule to pervert
the construction. [State v. Broderick]
The cautionary warning of that last sentence above
quoted might well apply to any "rule" of statutory
interpretation/construction!
It is simple common sense that a
statutory interpretation that permits that which is expressly prohibited by
the statute is just such a "perversion" as the Missouri court long ago
mentioned; likewise, a construction which prohibits that which the statute
expressly permits is also just as improper. In the case of NJSA
19:13-20, however, we are faced with the following dilemma: the statute neither
expressly prohibits, nor does it expressly permit, the replacement of a
withdrawing Party nominee with another candidate 50 days or less before Election
Day. The argument, by the Forrester camp, that the "clear intent of the statute"
(their words) would be violated should the New Jersey Democratic State
Committee be allowed to replace Senator Torricelli's name on
the General Election ballot doesn't, in fact, well hold-- for the
legislative intent regarding what is prohibited and what is permitted re:
a Party nominee's withdrawal from an election contest after the 51st
day before Election Day is not at all clear!
The statute merely reads: In
the event of a vacancy, howsoever caused, among candidates nominated at
primaries, which vacancy shall occur not later than the 51st day before the
general election... (i.e. 'if a vacancy by a Party
nominee should occur by the 51st day before the general election...')--
nowhere does it say 'By the way, fellas! Don't bother trying to vacate a
candidacy from 50 days before Election Day on!!'-- but neither does it say 'Hey,
guys! If you withdraw a candidacy after the 51st day prior to Election Day, you
can come up with a solution to the problem of your own devising!!' But the
Democrats are arguing that the lack of prohibition equals permission, while the
Republicans are just as vociferously arguing that the lack of permission implies
prohibition; neither side is inherently wrong- yet, of course, they both cannot
be right! We are here basically left with Professor Snyder's "two...
applications of the statute to the facts, each application being as much within
the frame of the statute as the other"!!
What we also have here is a classic conflict
between Substantive Law (that part of Law that actually creates, defines and
regulates) and Procedural- also, at one time, more well known as Adjective- Law
(that portion of "the Law" that prescribes methods for the enforcement of the
stuff of Substantive Law). The Republican (Forrester) camp is
essentially arguing that there is Substantive Law underlying the
Procedural/Adjective Law inherent in 19:13-20: that the outlining of the
procedure to be followed up to and including the 51st day prior to Election Day
implies that there is no procedure (and hence no substantive legality)
for a situation in which a Party nominee drops out of a race for elective office
from 50 days before the General Election on; the Democrats, on the other hand,
are arguing that the statute is wholly Procedural Law- that there is no
Substantive Law to be had from what is merely the outlining of a process- a
method- to be followed 'if a vacancy by a Party nominee should occur
by the 51st day before the general election...' and nothing more.
In the end, of course, neither of these
theoretical legal machinations much matter as regards the more
practical aspects of the upcoming Senate election in my State of New Jersey
itself, for- should Robert Torricelli's name be forced to remain on
the ballot- those Democrats, Independents who trend Democratic and any
others who would otherwise vote for a Democrat to be the next Senator from this
State will, in fact, simply pull the lever, push the button or make a mark
next to the Senator's name on the assumption that, even though Senator
Torricelli's name appears on the ballot on the Democrat line, a
possibly re-elected Senator Torricelli will not be a serving
Senator after next 3 January. And there is nothing Doug Forrester or the
Republican Party of New Jersey can really do about any such voting
behavior in any event!
I am not so naive- or, for that matter, stupid-
enough to engage in the rather silly belief that there is much real
altruism involved here. Just this very evening of Tuesday 1 October, I received
an e-mail (in my personal, not my REBA@TheGreenPapers.com, Inbox, by the
way) from fairvote@forrester.com in the name of Bill Pascoe, the Campaign Manager for
'Forrester 2002', and addressed to "Dear Friend" in
which was written the following regarding the recent actions of the New
Jersey Democratic Party:
It makes no difference to them whether what they're demanding is LEGAL
(it's NOT).
It makes no difference to them whether what they're demanding is FAIR (it's
NOT).
It makes no difference to them whether what they're demanding is RIGHT (it's
NOT).
But, of course, Legality, Fairness and Rightness
actually have very little to do with it... all this is- in the
main- basic, clawing/scratching in the gutter, "Joizey" Politics-
pure and simple, for ahead of the above-quoted words are the following
admonitions:
Some of our fellow New Jerseyans have even VOTED ALREADY.
You read that right - SOME OF OUR FELLOW CITIZENS HAVE EVEN VOTED
ALREADY.
In other words … this election is ALREADY UNDER WAY.
What is going on here is quite clear: those who
have already voted by absentee or overseas military ballot obviously
did so with Bob Torricelli still in the race and with absolutely no idea he
would drop out; presumably, an at least fair number of those who have
already voted were people who might have otherwise voted for a Democrat but for
the presence of Senator Torricelli on the ballot and who, therefore, voted for
Doug Forrester instead. There is no doubt that Mr. Forrester would not at all
wish to lose any of those votes already cast for him, regardless of
their actual source (his political base or no).
Mr. Forrester's own dilemma is that he gained on
and then surpassed Senator Torricelli in the polls of late largely because
Torricelli was still an active, while at the same time more and more repulsive-
to the "bell curve" of the New Jersey electorate, candidate -- that is, a
healthy chunk of those who shifted to Forrester and away from Torricelli
over the last several weeks were not necessarily from Forrester's own
Republican base (here including Independents that trend
Republican) but, rather, were Democrats or Independents who usually vote
for Democrats but who just couldn't bring themselves to vote for
Torricelli. The Senator's withdrawal from active candidacy now allows these
people to abandon any notion of voting for Forrester and "come back home"--
again, there is absolutely nothing Mr. Forrester and the Republicans
can do about whomever voters might choose in the privacy of the voting booth,
regardless of what the New Jersey Supreme Court should decide or whatever
further legal action might yet be heard in Federal court on
appeal by either side!
It all puts pay to the statement, in the fairvote@forrester.com e-mailing I so
recently received that- again, re: the Democrats in this whole sordid
affair-
But that won't stop these powerful special interests from trying to play politics. They don't care what effect their actions have on us - all they care about is
their own partisan political interests.
Of course, the same could easily be said about
the Republicans in my State as well... this is all merely the
proverbial "Pot Calling the Kettle Black"!!
the e-mail from the Forrester campaign further
notes that
[t]hese special interests have the finest attorneys money can buy. They
have powerful allies in high places. And they are DETERMINED to do whatever they
can - NO MATTER THE COST - to get what they want.
Are we to then suppose the Republicans'
attorneys are that incompetent- as well as so underpaid- to
advocate the Republican/Forrester statutory construction re: NJRS 19:13-20?
Wouldn't one consider the Administration of President George W.
Bush a "powerful ally" of Mr. Forrester's Senate campaign in a
"high place"?? Are New Jersey Republicans really so woefully UNdetermined
to do whatever they can to get what they want?! Aren't Mr.
Forrester's own "deep pockets" already being used to try and win the "Class
2" Senate seat more or less "no matter the cost"??!! Pardon me while I weep
for the Forrester campaign's alleged poverty of legal and financial
resources!!!
Now I am more than well aware (and, if I weren't so
aware prior to 'The Green Papers' first coming online three years ago, I
certainly am- given all the junk I regularly receive via
e-mail at REBA@TheGreenPapers.com- by NOW!)
that much of what this campaign e-mail contained was pretty
much "preaching to the choir" (as is the case with the vast majority of
all political "spin"- which is primarily geared to
highly motivate [where not also agitate] the political base, as
opposed to attracting new adherents to the cause)... but
puh-LEEZE!!!
Forrester's campaign rightly points out, in the
e-mail I received, that
One of the things that makes America unique is the notion that this is a
nation under the rule of LAW - NOT the rule of MEN.
The Republican candidate should, therefore,
well realize that this is precisely why we have an independent
Judiciary (a uniquely American innovation, by the way) in the first
place!
Nor can canons of construction save us from
the anguish of judgment. Such canons give an air of abstract
intellectual compulsion to what is in fact a delicate judgment,
concluding a complicated process of balancing subtle and elusive elements...
[there must be] a recognition that these rules of construction are not in
any true sense rules of law. So far as valid, they are what Mr. Justice
[Oliver Wendell] Holmes [Jr.] called them, axioms of
experience.-
Mr. Justice [of the U.S. Supreme Court] Felix
Frankfurter: Lecture before the New York City Bar Association re: 'Some
Reflections on the Reading of Statutes' (1947)
Modified .