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.