Construing the Construers

Mark Kleiman is still agitated by Forrester/Republican hypocrisy. Eugene Volokh, who is still not sure, provides a link to the opinion of the NJ Supremes.

Perhaps Eugene or other wise (not otherwise) lawbloggers will wring some additional information or insight out of this opinion, but I didn’t see anything new of interest or significance. The Joisey Judges purported to find an “absence of explicit direction from the Legislature” because “the statute simply does not contain a legislative declaration that the filling of a vacancy within forty-eight days of the election is prohibited.” (“True, the posted speed limit was 55, your Honor, but all that means is that you are immune from speeding tickets if you drive 55 or less. The Legislature didn’t positively say you couldn’t drive over 55….”) This tortured interpretation was made possible by the now familiar conclusion that “election laws are to be liberally construed.”

So far the blogosphere debate over this matter has divided into two camps: those who believe that statutory deadlines are deadlines, and those who believe that deadlines should be liberally construed. Deadlines mean what they say, or they don’t. Legislatures rule, or judges do. By now it will come as no surprise to DISCRIMINATIONS readers that my preferences run toward principles, rules, bright lines, plain text. But putting those preferences aside for a moment, let me propose a middle course, a third way, one that has the benefit of more closely tracking how most debates like this are actually decided.

In doing so I will of course have to join the liberal construers in putting aside the actual words of the statute, but in this case I want to concentrate on different words — not the 51 day “deadline” (my quotes; I simply couldn’t resist), but “howsoever caused“:

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, ….

Accepting for the moment that it is legitimate for judges to be unconstrained by the unambiguous terms of the statute, then I think a good argument can be made that post-”deadline” (there I go again) candidate substitution is permissible if the reason is good enough. The candidate died, fled the country with his campaign funds, became critically ill, etc.

But that’s not what we had in Joisey. There, Torcho resigned simply because he was going to lose. Democratic primary voters gambled that they could win with an ethically challenged candidate, but when it became clear they were wrong party leaders decided they wanted a fresh (well, a different) face. If substitution is allowed in that circumstance, it’s hard to imagine any circumstance where it wouldn’t be allowed.

Even accepting the general approach of the liberal construers, I submit, this is not construing a statute. It is destroying it.

Say What? (5)

  1. Mark Kleiman October 9, 2002 at 4:38 pm | | Reply

    I’m with you on the law. The legislature said what it said, and the courts shouldn’t have monkeyed with it.

    However, the NJ Supreme Court opinion — the unanimous ruling of a court that included two Republicans and an independent, all appointed by Republican governors — made it clear that there was a half-century-long line of precedent for exactly such monkeying, or “liberal construction.” It would hardly have been consistent with the principles of the rule of law to suddenly, in this case, return to strict statutory construction. And the court was surely right to say that the legislature could, if it had disapproved of the liberal-construction regime, passed an additional statute nailing down the question, which the courts would then have followed.

    But your post conveniently neglects the smoking gun in the case: the showing that Forrester had gotten the courts to apply the same liberal construction to a missed deadline in the spring, thus permitting him to grab a favorable ballot position.

    He was certainly at liberty to do so. And he was also at liberty to try to persuade the New Jersey Supreme Court that this case was somehow unlike that case in some legally relevant way.

    But having lost in the state’s highest court, it was an outrage for him, and other Republicans, to pretend that the New Jersey Supreme Court decision was such a travesty of law that the United States Supreme Court should intervene. If that was true — if the New Jersey Courts have no authority to waive statutory election-law deadlines — then Forrester asked for, and got, an unlawful advantage in the spring.

    Can you say “hypocrite”?

  2. John Rosenberg October 9, 2002 at 5:08 pm | | Reply

    Not only can I say “hypocrite,” I did say it. In fact, I thought I said it pretty loudly, since I also said that conservatives are even more hypocritical than liberals when they ignore unambiguous plain text in statutes since they, unlike many liberals, claim to be bound by text. My only reservations about Forrester’s possible hypocrisy are those expressed by Eugene Volokh, i.e., questions about exactly what happened, who made what arguments where, etc. I have no reservations about labeling Forrester a hypocrite if he in fact did what Kleiman and the New York Times are sure (but Volokh isn’t) he did.

    Beyond Forrester himself, I think Kleiman raises a good point about consistency: if a court has consistently been unbound by plain text, then it would be a bit abrupt suddenly to be bound by it. I don’t have a firm view on that issue, other than a general sense that dumb, unappealing precedents should be discarded somehow.

    I’m less taken with Kleiman’s own observation “that the legislature could, if it had disapproved of the liberal-construction regime, passed an additional statute nailing down the question, which the courts would then have followed.” I don’t think language can get much clearer than the 51 day deadline, nor is there any reason to believe the court would have deferred to additional language any more than they did to what was already there.

    The bigger problem, of course, is not that the NJ Supremes were far out of the mainstream in their liberal construing. It is that they weren’t.

  3. [...] I have commented before (here, here, and here), judicially rewriting a statute through the magic of an unrestrained power of interpretation is [...]

  4. [...] I have commented before (here, here, and here), judicially rewriting a statute through the magic of an unrestrained power of interpretation is [...]

  5. Liberals And Voting Rights I July 7, 2013 at 4:57 pm |

    [...] (See  “Construed” Once Again…,  Construing Liberal Construing, Or: Construe You,  Construing the Construers,  Liberals vs. Conservatives: It’s A Matter Of Interpretation,  Interpretation: Reading [...]

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