18 March 2013

Fixing a statute: when the legislature fails

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.

I wrote a previous post about whether fixing a statute was the role of judges or the legislature. I used the example of a Maryland statute enacted last year to provide licensing for moped drivers:

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?
The legislature tried; House Bill 3 was introduced to ensure that only valid licenses were acceptable. However, on March 11, the bill received an unfavorable report and didn't make it out of committee (there isn't anything in the legislative record that indicates why). The legislature will have to try again next term. In the meantime, judges will continue to encounter moped drivers with suspended licenses and try to figure out what to do.

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