05 January 2013

Fixing a statute: judges or legislature?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

Last year, the Maryland legislature made changes to state law that required registration, helmets and insurance for mopeds and their drivers. The licensing requirement is set out in Md. TRANSPORTATION Code Ann. § 16-101(b), which provides that:
[e]ach individual operating on any highway in this State a moped, as defined in § 11-134.1 of this article or a motor scooter, as defined in § 11-134.5 of this article, shall have with the individual:
   (1) A driver's license issued to the individual under this title, which license may be of any class issued by the Administration;
   (2) If the individual is a nonresident of this State, a license to drive issued to the individual by the state or country of the individual's residence, which license may be for any class of vehicle; or
   (3) A moped operator's permit issued to the individual under this subtitle.
Judges in Anne Arundel County were faced with cases where police had stopped drivers on scooters who had licenses (or permits), but those licenses or permits had been suspended.

How should a judge decide the case? The text of the statute requires a driver's license or a moped operator's permit. The text does not say anything about the license or permit being valid. So what about a suspended license or permit?  If the intent of the legislature was to require a valid license or permit, that intent was not made explicit in the text of the statute.

As a result, this statute appears to be problematic. Whose job is it to fix it? Judges, or the legislature?

On one hand, a judge might say: clearly, the purpose of this statute is to limit the driving of mopeds to those with valid licenses or permits. Those people on a suspended license can't drive a car, so why should they be allowed to drive a moped (or anything else)? By this method, the judge would effectively be reading the statute as requiring a valid license or permit, even though the word valid isn't in the text itself. This is a problem: 58. The false notion that the spirit of a statute should prevail over its letter, p. 341.

Additionally, when a statute isn't clear about the situations to which it applies (does it require a valid license, or just a license, even if it is suspended?), the rule of lenity may be considered. 49. Rule of Lenity. Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor (p. 296).

At least in some cases, judges have dismissed cases involving such drivers because they had licenses or permits, albeit suspended, because the statute's text does not require validity of the license or permit. By this method, judges are simply interpreting the text without trying to import the intent of the legislator (as if that were even possible). In other words, if the statute is a problem, legislators ought to take note and change the law. Do not rely on the courts to fix it.

That appears to be precisely what legislators in Maryland want to do. House Bill 3 would change the text of § 16-101(b) to read (additions in BOLD CAPS):
[e]ach individual operating on any highway in this State a moped, as defined in § 11-134.1 of this article or a motor scooter, as defined in § 11-134.5 of this article, shall have with the individual:
   (1) A VALID driver's license issued to the individual under this title, which license may be of any class issued by the Administration;
   (2) If the individual is a nonresident of this State, a VALID DRIVER'S license to drive issued to the individual by the state or country of the individual's residence, which license may be for any class of vehicle; or
   (3) A VALID moped operator's permit issued to the individual under this subtitle.
Having the legislature "fix" the law is preferable to judges reading a non-textual purpose into the law because it encourages the legislature to write better laws in the future. If  judges do read non-textual purposes into the law, legislatures will become lazy knowing that the courts will "fix" their problems. This is a problem--the legislature did not vote (and the Governor did not sign) on "intent" or "purpose," but only on the text as it is currently written (67. The false notion that the purpose of interpretation is to discover intent, p. 391).

A final, related issue is one contained within the article cited above:
[Cycle World owner] Riehl doesn’t support changing the [moped] law, saying a change that took effect Oct. 1 left him with a warehouse full of scooters. That law, sponsored by [Delegate] Beidle, requires operators of scooters to register their vehicles with the state and insure them. “(In 2011) we sold 25 between November and January for the holiday season,” he said. “You know what we sold since October? Zero.”
In other words, the moped licensing law is bad for business. Is there any role for the legislature in disposing of "bad" (but otherwise valid) laws? No. In his dissent in Griswold v. Connecticut, Justice Stewart wrote that Connecticut's contraceptives law was "uncommonly silly," yet it did not violate the Constitution. Justice Thomas echoed Justice Stewart's concerns in Lawrence v. Texas. The courts may be sympathetic to bad laws, but this is not a reason to dispose of them.
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