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Legal-Ease: What does “and” mean?

Our justice system presumes that Congress carefully crafts every word of every law in a precise and intentional way, and judges are therefore tasked with discerning Congress’s intent by applying the rules of grammar to interpret laws.

Many courts conclude that only if the interpreted law is unclear can the judges analyze evidence other than the interpreted law itself. Thus, if the literal grammatical structure of the words used in a certain law being interpreted are unclear or vague, judges may look to other evidence of Congress’s intent, things like (a) references to the interpreted law by other laws, (b) statements made by Congress independently from the interpreted law itself and (c) even statements made by the President when the President signed the interpreted law’s bill into law (called signing statements).

However, other courts have concluded that the initial analysis of a law can include certain considerations other than the language of the law itself. One of those considerations is whether a certain interpretation (what the words literally mean) leads to a clearly unintended result.

An example of a clearly unintended result might be a fictional law that states that, “Every person has a right to smoke cigarettes if the owner of that person’s location allows smoking.”

This fictional law literally does not state that toddlers have a right to smoke cigarettes, but that may be “understood enough” to be included as a part of the law even though those words are not included.

This fictional law also does not clarify that the right to smoke presupposes that the smoker has cigarettes. There is obviously no right to demand that cigarettes be provided for every person who happens to be in an area that allows smoking.

This fictional law’s challenges demonstrate part of an argument over the interpretation of Ohio Issue 1 that is to be voted upon this November.

Completely separate from Issue 1, on Monday, the U.S. Supreme Court will hear a case that asks what the word “and” means.

The particular law that is being interpreted by the Supreme Court on Monday defines the circumstances when a judge can deviate from mandatory prison sentencing guidelines for non-violent drug offenders.

Despite this law’s inapplicability to almost all of us reading this column (obviously, few of us are drug dealers), how this law is interpreted by the Supreme Court will define how other laws, written in similar ways, that may affect our lives, are interpreted.

This particular law essentially states that, “Non-violent drug dealers are exempt from certain mandatory minimum prison sentences unless those drug dealers satisfy the following list of factors.” Then, the law lists the factors as a, b “and” c.

If the list’s three criteria each must be satisfied (what “and” literally means in American English grammar), almost all non-violent drug dealers would be exempt from federal sentencing guidelines.

However, Monday’s argument will ask whether that outcome (almost universal applicability of this exception to the mandatory sentencing law) is unintended, despite the literal words that Congress used.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.