Why we can’t dismiss grammatical rules while interpreting legislation.
In creative writing, rules often give way to style. E.E. Cummings had little patience for punctuation; Twain and Orwell created their own words when imagining and defining new worlds, and one of the most acclaimed books of this year is a single sentence that runs the length of one thousand pages. Creative writing excites the mind by challenging the reader with innovative ideas, language, and form. Unfortunately, lawyers and legislators – some of the world’s most prolific writers – do not enjoy the same freedom as their creative counterparts. To be effective, legal writing must be technical and precise, often to the point of banality; only the best lawyers manage to wrestle a touch of imagery or flourish into jargon-heavy motions and briefs. While every lawyer must adhere to grammatical technicalities, strict adherence to linguistic precision is arguably most important in the context of reading and interpreting law from the judge’s bench – while one attorney’s sloppy work can throw a single person’s life into disarray, a misinterpreted statute can implicate the rights of millions.
This post was inspired by a recent project in which I dealt with a maddening misinterpretation of a piece of Georgia legislation. Specifically, O.C.G.A. § 53-2-27 which authorizes Georgia courts to compel parties to submit to DNA testing to prove a biological relationship with a decedent in the context of probate proceedings. Section A of the statute reads:
When the kinship of any party in interest to a decedent is in controversy in any proceeding under this article, a superior court may order the removal and testing of [DNA] samples from the remains of the decedent and from any party in interest whose kinship to the decedent is in controversy for purposes of comparison and determination of the statistical likelihood of such kinship.
Relying on its interpretation of the statute, the court at issue ordered a decedent’s undisputed biological and legal child (who was also serving as the administrator of the estate) to submit to DNA testing to prove shared paternity with a child who claimed to be the decedent’s previously unacknowledged biological child (and was obviously demanding some share of the decedent’s intestate estate). The problem with the court’s order is that the statute clearly does not allow it.
Let’s get technical. The phrase “whose relationship to the decedent is in controversy” is a restrictive clause that limits the meaning of the phrase “a party in interest.” Introduced by the pronouns, who, that, which, and whose, a restrictive clause defines the meaning of the noun or noun phrase and is essential to the meaning of the sentence because it limits the thing it refers to. The phrasing at issue is a restrictive clause. “Whose relationship to the decedent is in controversy” is not preceded by a comma and is introduced by the pronoun “whose.” “Whose relationship to the decedent is in controversy” is used to limit the meaning of the noun phrase “any party in interest” to mean a party whose relationship to the decedent has not yet been proven, or is “in controversy.” Universally agreed upon English grammatical rules make this interpretation unequivocal.
If this statute is interpreted based on the grammatical rules set out above, then the court has legislative authority to order DNA testing from two parties: (1) the decedent and (2) the interested party with an unproven biological relationship with the decedent. The court does not have authority to order a party with a proven, uncontroversial, relationship to the decedent to submit to a DNA test.
This statute isn’t vague – the wording is concise, and the meaning is clear. But any attorney who’s spent significant time in courtrooms knows that judges aren’t law professors, and nuanced, technical (correct) arguments often lose to a judge’s idea of what is “right” or “wrong” in a specific context. It’s a frustrating result that, due to the delay, cost and uncertainty of the appellate process, often goes unchecked. This isn’t to say that judges aren’t often right – courts of review have long recognized a trial court’s right to recognize a statute’s implied authority, and statutes are often rewritten to make previously implied authority explicit. But this is simply not one of those occasions.
While most legislators aren’t lawyers, they are still legal writers and beholden to the same level of technical specificity that governs the rest of us. When interpreting the statutes that legislators write, judges must apply universally accepted English grammatical rules. Judges must assume that the legislature expects for laws to be interpreted according to a clear reading of the language based on grammatical rules that govern punctuation and composition. Holding otherwise doesn’t just lead to a lot of frustrated lawyers – it makes following the law confusing, which will make life harder, in general, for everyone.