Canons of statutory construction commonly used in California

For purposes of statutory construction, the courts and bill drafters use a series of “canons” to guide them. These include textual canons (intrinsic aids), linguistic presumptions and grammatical conventions, substantive canons, and extrinsic aids. It is impossible to list them all, but there are some common canons, and those are most useful for legislative drafting.

We start with the presumption that the Legislature drafts its bills carefully and intentionally. Because of this presumption, the usual approach of the judicial branch is to narrow statutes rather than expand them, and the courts are less activist in their interpretation.

Constitutional Avoidance

There are also so-called “clear statement rules” that are canons that the U.S. Supreme Court has developed as an expression of “quasi-constitutional” values. For example, under the Constitutional Avoidance Canon, statutes will be construed, if possible, to avoid questions about their constitutionality.

In such cases, the court does not have to find that the statute is unconstitutional, only that it could raise a constitutional issue. Most commonly referred to as just the “avoidance canon,” it is when a possibly acceptable construction of a statute would raise a serious constitutional question or problem and so a court will construe the statute to avoid any such constitutional problem, unless that construction is plainly contrary to the intent of the legislative branch.

So, the fundamental principle of the Constitutional Avoidance Canon is that a court should interpret the Constitution only when it is strictly necessary to do so.

Rule of Lenity

There are several “tie-breaker canons” that are used when there is a 50/50 split in interpretation of a statute. An example of this type of canon is the Rule of Lenity, in which penal (or criminal law) statutes whose purpose is to punish offenders must be construed strictly or narrowly.

The purpose of this narrow interpretation is to provide adequate notice, due process, and fairness to the suspected criminal. It is usually not used in a way that decides the case: “all evidence is in the defendant’s favor, plus the rule of lenity.” Instead, it basically requires a strict construction of a criminal law statute.

In this way, the court will apply any unclear or ambiguous law in a manner that is most favorable to the defendant. So, the Rule of Lenity is a canon used in criminal law, sometimes called the “rule of strict construction,” that an ambiguous statute is to be construed against the state.

Last Antecedent

The last antecedent rule is a doctrine of interpretation of a statute, by which “Referential and qualifying phrases, where no contrary intention appears, refer solely to the last antecedent.” Knowing that explanation may not be helpful, it is a rule of statutory interpretation used by the courts to determine that qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious.

In other words, the Rule of the Last Antecedent provides that a modifier set off from a series of antecedents by a comma should be interpreted to apply to all of the antecedents. Put another way, any qualifying words are to be applied to the words or phrases immediately preceding the qualifying word or words, and are not interpreted as extending to other words.

On a related note, the Serial Comma Rule specifies that, in a series of three items where each is set off by a comma, each item should be viewed as independent of each other. Here is an example: My favorite ice cream is coffee, mint chocolate chip, and vanilla with chocolate sauce. In this example, the phrase “with chocolate sauce” should apply to vanilla ice cream.

Compare that sentence to the following example: My favorite ice cream is coffee, mint chocolate chip, and vanilla, with chocolate sauce. In this example, the phrase “with chocolate sauce” would apply to all three flavors of ice cream.

In order to better address potential problems with lists, a legislative drafter could change the list order, put the qualifier at the front of the list, repeat the qualified throughout, or repeat the proposition. If none of these modifications are made, the Last Antecedent Rule will most likely prevail if a court interprets the statute

Whole Act Rule

The Whole Act Rule provides that statutory provisions should be interpreted so they have a whole, coherent meaning. In other words, identical words in the same or related statutes should have the same meaning ascribed to them. The basis for this rule is that the canon of construction assumes that the legislature drafts purposefully and is consistent in their word use.

As a result, the Whole Act Rule is a textual canon that provides, when construing a statute, the text of the entire statute as a whole must be considered by the court.

Rule Against Surplusage

The Rule Against Surplusage explains that different words in the same statute cannot have the same meaning. In other words, one word is not duplicative or redundant of another word found in the statute.

The canon called the “rule against surplusage” is used when reading a statute and it appears that one or more parts of the statute are redundant. If there is another reading that would avoid the perceived redundancy, then a court will do so.

Ejusdem Generis

Ejusdem Generis guides the courts to interpret catch-all phrases to be limited by the specific words around them. Former U.S. Supreme Court Justice Antonin Scalia asked, “What category would come to a reasonable person’s mind?” His opinion was that the canon narrows the statute, or the catch-all, by the surrounding words in the remainder of the statute.

The Latin phrase Ejusdem generis means “of the same kind” and is used regarding related content in a statute. In other words, this canon of construction requires that, where there are general words in a statute following particular and specific words, then the general words must be confined to things of the same kind as those specifically mentioned.

This canon is used for interpreting loosely written statutes. Again, it is used if the statute lists certain things and the list ends with a general statement to include other things (which legislative drafters refer to as a “catch-all”), then a court will assume that the general statement only includes things that are similar to the items listed.

For example, if a statute says that “cars, motorcycles, scooters, and other motorized vehicles must be licensed,” the court would not likely require boats, trains, or planes to be licensed as well.

Expressio Unius

Expressio Unius provides that a list of words with no catch-all means that the inclusion of specific words suggests the exclusion of other words. The full Latin phrase is Expressio unius est exclusio alterius which means that “the express mention of one thing excludes all others.”

In other words, when a statute includes a list of specific items, that list is presumed to be exclusive and, therefore, the statute applies only to the listed items and not to other that are not listed.

However, note that, if the list starts with a phrase like “at a minimum” or “including,” or the list ends with a general catch-all term, then it is more likely that a court will interpret the list as illustrating the types of things the statute applies to and not as an exclusive list.

In Pari Materia

In pari materia means “on the same subject or matter.” This is a doctrine of statutory construction that statutes that are on the same subject must be construed together. In other words, if a statute is ambiguous, the court may apply this canon and look to the rest of the statute, or the surrounding statutory scheme, in order to determine the meaning of the ambiguous statute.

Noscitor

Noscitur a Sociis guides us to interpret words or phrases in light of the other words around it in the statute. In other words, the courts should interpret an ambiguous word or phrase by taking into account the words and phrases use in its textual context. Some commentators have opined that words are defined by the company they keep.

The following is an example: Each classroom shall be provided paper, binder paper, printer paper, cardstock, and colored paper. In this case, what is the first “paper” referring to? Under this canon, the first “paper” would be something related to binder paper, printer paper, cardstock, and colored paper, perhaps writing paper, but likely would not be receipt paper, which would have little use in the classroom and would stand out given the context provided by the other words in the sentence.

So, this canon of statutory construction helps determine the meaning of an unclear or ambiguous word (as in a statute) should be determined by considering the words with which it is associated in the context. Noscitur a sociis is used for interpreting questionable words in a statute.