Friday, August 26, 2016

Show-Me State Supreme Court Shows Us Textualism Run Amok

by Michael Dorf

Earlier this week, the Missouri Supreme Court held that most stealing offenses are not felonies under state law; they are only misdemeanors. Really? Yes, really. The case is an example of textualism run amok.

Lest you think I'm exaggerating, check out the opinion in State v. Bazell. The defendant committed two home burglaries in a single day. From the first home, she stole a pistol, a rifle, a laptop, a jewelry box, a suitcase, and two pairs of tennis shoes. (I know, you'd think running shoes would be better for a burglar, but I guess burglars can't be choosers.) From the second home, the defendant stole three rings valued at $8,000. All in all, a pretty remunerative day. And surely a felonious day, right?

Not according to the MO S Ct. The defendant argued that double jeopardy barred her being charged for two counts of stealing firearms because she stole both firearms in one burglary. That's an interesting claim, but the MO S Ct didn't reach it, because the court said that she shouldn't have been charged with a felony at all. Why not? Because the relevant Missouri statute says that the theft offense of stealing firearms (and most other stuff) can only be felonious if the value of the firearms (or other items) stolen is an element of the offense. And guess what? The value of the firearms (or other items) is not an element of the offense.

Linguistically, the MO S Ct opinion is right. Here's the relevant statutory provision:
Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
(a) Any motor vehicle, watercraft or aircraft; or
(b) Any will or unrecorded deed affecting real property; or
(c) Any credit card or letter of credit; or
(d) Any firearms; or
* * * * [emphasis added].
The MO S Ct looked at the italicized language, then looked at the parts of the criminal code defining stealing, found that the value of property or services was not an element of the offense, and so concluded that stealing firearms isn't a felony. By implication, neither is stealing as described in sub-divisions (1), (2), and (3)(a), (b), and (c). That's most of the examples of serious stealing. There are other Missouri code sections that make stealing of special items felonious, without reference to the value being an element of the offense, so these survive the holding in Bazell, but generic stealing of high-value items, including cars, credit cards, guns, boats, and planes(!) is apparently a misdemeanor in Missouri.

Luckily, the Missouri legislature fixed this problem in advance. Effective January 1, 2017, the felony enhancer law will no longer include the value-as-element language. But unluckily, that change may come too late to fix the whole problem created by the Bazell holding. Already, criminal defense attorneys in Missouri are mobilizing to seek relief for clients who were convicted and sentenced under the current version of the statute (which went into effect in 2002). How successful they will be remains to be seen, but under federal habeas law, decisions about what counts as an offense are given retroactive effect, and this year's SCOTUS decision in Montgomery v. Louisiana could be used as precedent for applying federal retroactivity principles in state collateral proceedings.

Even if federal retroactivity rules don't apply (because in Bazell, unlike Montgomery, the underlying claim relies on principles of state statutory construction rather than federal constitutional law), there is the possibility that the MO S Ct could find Bazell applicable to final convictions as a matter of state retroactivity principles. And of course, absent swift action by the Missouri legislature to accelerate the implementation of the new version of the statute, everyone who commits a generic stealing offense between now and January 1 will have committed only a misdemeanor.

What possible justification did the MO S Ct have for unleashing this chaos? In a word, textualism. Here is the key passage explaining the court's reasoning in Bazell:
[T]here is no need to resort to tools of interpretation because the language of [the statute] is clear. We cannot know why the legislature, in 2002, decided to amend [the statute] to add the requirement that only offenses for which “the value of property or services is an element” may be enhanced to a felony, but this is what the legislature clearly and unambiguously did. As a result, [the statute] does not apply here. Defendant’s offenses must be classified as misdemeanors because they cannot be enhanced to felonies by the terms of [the statute].
If this is indeed what plain-meaning textualism requires, then so much the worse for plain-meaning textualism. How about the following alternative (which I made up)?
On its face, the statute does not treat defendant's conduct as a felony. But we can think of no sensible reason (or even any questionable reason) why the Missouri legislature would have wished to downgrade the seriousness of what are undoubtedly serious and dangerous crimes in this way. Why, for instance, make the theft of firearms in particular a felony only if some other statutory provision makes the value of the firearms an element of the offense, when it is clear that there is no other such provision. To read the value-as-element language literally would be to render the felony-enhancer as virtually nugatory. Thus, we reject the literal limitation. Indeed, it is evident from the statute that we have here a case of very sloppy drafting. The legislature was undoubtedly attempting to say that the enhancement provision itself provides the "value" as an "element" of the offense or, in the case of the other, enumerated categories of things stolen (such as motor vehicles and firearms), the enumeration in the enhancement provision qualified as making "value" an "element." This is, we acknowledge, an awkward reading of the language of the statute. But we prefer an awkward reading of the statutory language to one that would attribute to the legislature of the Show-Me State an intention to drastically under-deter serious and potentially deadly crime.
At this point, one is tempted to say that even most textualists wouldn't have done what the MO S Ct did here, but I'm not so sure that's right. Justice Scalia accepted (e.g., here) the absurdity canon--under which a court should set aside the plain meaning of a statute if it leads to absurd results, but Prof. Eskridge offered a powerful argument that doing so was inconsistent with Scalia's broader textualist commitments. Meanwhile, other textualists, like Prof. Manning (in a 2003 Harvard Law Review article that does not appear to be available free online), have argued for abandoning the absurdity canon -- although Manning would soften the blow by allowing "contextual" interpretation to do considerable work for textualists.

Whether one calls my alternative approach an example of very broad contextualism or the absurdity canon, it is clearly preferable to what the MO S Ct did in Bazell. And whether or not Justice Scalia himself would have agreed with that court's result, it is clear that what he did for textualism in general bears some responsibility for this absurd result.


Steve Davis said...

That's a nutty result, but I think it's more an example of bad textualism than an example of how textualism can be bad. The plain meaning of the italicized language -- as I read it -- is that it applies only to those crimes where the value of the property is an element of the crime. It is silent on what to do about crimes where value of the property is not an element. So the better "plain" interpretation would be that it doesn't cover those crimes at all, unless there's some reason based upon context or originalism or something else to think otherwise. In this case it appears the statute was passed in 2002 after the other statutes on stealing were passed. A sound textualist approach would be to read it as amending or superseding those prior statutes only where the text compels that reading, not where it merely permits it.

Unknown said...

Prof. Dorf's post strikes me as a little unfair to the court. Originally, the statute read: "3. Stealing is a class C felony if: (1) The value of the property or services appropriated is seven hundred fifty dollars or more;" etc. In 2002 the legislature amended that provision to: "3. Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a Class C felony, if: (1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars;" etc. If the legislature had simply wanted to change the enhancement threshold from $750 to $500, it could have done so without including the problematic language about value being an element. Why, then, did the legislature make that additional change? The court says we can't know. But we can say that the amended text of subsection 3 dovetails with the language of subsection 8, which reads, in its entirety: "Any offense in which the value of property or services is an element is a class B felony if the value of the property or services equals or exceeds twenty-five thousand dollars." Subsection 8 contains no enumeration. So if, as Prof. Dorf proposes, the 2002 amendment is a poorly drafted way of saying that the enhancement provision itself provides the value as an element of the offense, would that be true for Class C felonies but not for Class B felonies -- which would mean that the same clause would be given two different meanings in subsections of the same statutory section? Or would subsection 8 also be read as if the problematic clause didn't exist -- as if it read, "Any [stealing] offense [regardless of whether the value of property or services is an element] is a class B felony if the value of the property or services exceeds twenty-five thousand dollars"? That seems like a problematic expansion of a criminal statute, creating liability well beyond what an ordinary reader would foresee.

Joe said...

The Court said "show me" and was not willing to work by implication.

Hashim said...

Mike -- so if we assume your proposed interpretation is what the legislature intended, but then draft that in statutory form in competent fashion, what would it look like? Because, on (an admittedly) quick parse, I'm not even sure what you mean, and I'm curious how different the statute would look. If it would bear no resemblance to the current statutory structure -- which I kind of suspect, given how you chose to lay out your interpretation -- and there's no apparent explanation for how they could have botched the structure so badly, then I'm pretty skeptical of your absurdity argument, *especially* in the criminal context.

I don't think it's nearly as uncommon as you think that these sort of "as an element"/"convicted of" phrases end up drastically narrowing a criminal statute because the drafters didn't really understand how the predicate crimes work. It seems like every other Term, there's an ACCA case where the SG's Office complains that faithful application of the "categorical"/elements-based approach will lead to a nonsensical patchwork based on variances in state laws, and they generally lose, but get Alito's vote.

Unknown said...

The more I think about this case, the more attractive I find the court's rigid textualism. I mentioned above the relationship between subsections 3 and 8. Accepting Prof. Dorf's reading of subsection 3, stealing is automatically a Class C felony if the value of the property or services appropriated is $500 or more but less than $25,000. Assuming Prof. Dorf would leave in place the literal reading of subsection 8 as applying only to offenses in which the value of property or services is an element, what would then happen if someone stole property that was worth $25,000 but did not fit within one of the other enumerated categories of subsection 3 (firearm, motor vehicle, etc.)? Apparently, the offense would be a Class A misdemeanor! But that's absurd. So now we have to read the first category of subsection 3 as applying whenever the value of the property or services is $500 or more, with no upper limit, or we have to read subsection 8 as covering all stealing of property or services with a value of $25,000 or more. That in turn gives subsection 8 a meaning that no naive reader could glean from its text. And that's not just because the words "in which the value of property or services is an element" have to be read out of the statute: it's because the entire phrase "[a]ny offense in which the value of property or services is an element" has to be read to mean "stealing" -- no more and no less. Otherwise, subsection 8 would reach "[a]ny offense ... if the value of the property or services equals or exceeds twenty-five thousand dollars." But that seems to narrow subsection 8, which would then be inapplicable to an offense involving appropriation of property or services but not constituting stealing (e.g., because there was no purpose of depriving the legitimate owner), contrary to the fairly plain language. Perhaps, if the alternative really is chaos, a court had better get to work on rewriting the statute across the board. But I'm dubious that a simple contextual tweak would be the end of it.

Joseph said...

Steve Davis's reading is my own - potentially expanding the crimes to be classed as felonies.

Since the court didn't read it this way and Prof Dorf doesn't bring it up, maybe reading more of the criminal code could show why this interpretation isn't supported. Would be interested in clarification on that point.

Also the implications of a court avoiding textualist readings in the criminal law context because they're "absurd" jumped to mind. How is knowledge that the plain text was "absurd" supposed to be imputed to a criminal defendant?

Asher Steinberg said...

As far as retroactivity goes, I don't think that Montgomery requires Missouri to apply federal retroactivity law, specifically Bousley, here, as Montgomery's holding, and reasoning, is limited to new substantive constitutional rules - though one might argue that every interpretive decision that some conduct doesn't violate the law causes convictions under the rejected interpretation to be unconstitutional as a matter of due process, for lack of sufficient evidence. Further, Missouri's actually rejected Teague and chosen to continue to follow Linkletter, see State v. Whitfield, 107 S.W.3d 253 (Mo. 2003), though that doesn't really bear on what it would do with interpretive decisions. I tend to think that Bousley is so obviously correct that the chances Missouri would reject it are very slim. It appears that only one state, Nevada, has chosen not to follow Bousley, at least among courts citing it.

On the statutory question, like Hashim, I'm not even sure what you mean either. Steve's interpretation appears to be the correct one, or at least, the most probable guess as to what the legislature intended, although it does require you to read the statute as if the "in which" clause was in subsection (1), rather than modifying "offense" in the introductory clause. I think I see this as a case of drafting error where the "in which" clause was very probably put in the wrong spot, by someone who doesn't quite grasp how to structure a long sentence. (As the drafter probably read it, it's as if (2) and the rest were preceded by a missing but implied, "or, an offense is also a Class C felony if...") As to David's point, the reason, I think, they added the element language was to require that, for a subsection (1) offense to count as a felony, the jury find the amount of loss, and therefore find whether the defendant committed a felony or not, instead of the judge finding the amount at sentencing and determining at that stage that a defendant had committed a felony. If you just say that an offense is a felony if x amount is stolen, people could be felons without a jury making the predicate finding that x was stolen.

Sam Rickless said...

Poor drafting is not the same as absurdity. What we have here is a clear provision that produces unintended consequences. This happens regularly. When it happens, the rule of law value of notice does not require judges to overrule or modify plain language; indeed, it requires the opposite. As a person to whom the statute applies, my job is to comply with stated rules, not to imagine what the legislature probably meant to say and abide by that. It's up to the legislature to fix its own mistakes.

Joe said...

We have at least two people in the comments who applied the text in a way that did not reach the apparently absurd result or if one wants "unintended consequences" that appear fairly extreme if a major category of crimes will not be felonies in this fashion. It is somewhat curious the result was a brief per curiam, but perhaps the fact the law will be on the books for only a short time more factored in. Also, perhaps it was seen as a way around a broader constitutional claim.

At the very least, seems the proper result is open to debate from the comments and original post. A small sample size but something of way to judge. If so, the opinion seems dubious given its scope. But, clearly there is dispute on that.

Michael C. Dorf said...

[The following comment is from Nat Kramer, who was unable to post it himself and so emailed me:]

When I went to law school, I recall the Professor teaching us that criminal law statutes were supposed to be given strict construction.

There is also a case that I stumbled across one day in the stacks: A slave, who had recently been freed by the Emancipation Proclamation, killed someone in a southern state. At the State Supreme Court he argued that there was no law that criminalized his actions, as the only existing bodies of laws -- those dealing with actions of slaves and those dealing with actions of whites -- were inapplicable to actions of black freedmen.

The court decided the defendant had to go free. The opinions were fascinating.

Michael C. Dorf said...

Thanks for the thoughtful comments. Several people have raised the fact that the Missouri statute sets forth the terms of a crime, invoking the heightened importance of clear notice in criminal cases. I'm going to write a follow-up post exploring the point on Friday.