Dueling canons

In interpreting statutes, lawyers and judges often employ "canons of construction" to determine the meaning of a text that could be construed in multiple ways.

But what if, in a single case, two canons of construction conflict, each requiring a different result?

This question may underlie a criminal sentencing case in which the U.S. Supreme Court granted certiorari last week.

In Lockhart v. United States, 14-8358, federal authorities obtained a search warrant for Avondale Lockhart's computer, based on information that he had been purchasing child pornography. In fact, his laptop contained thousands of child pornography images as well as at least nine videos. He pled guilty to possession of child pornography.

At issue before the Supreme Court will be the sentencing statute under which Lockhart received a mandatory 10-year term, 18 U.S.C. Section 2252(b)(2). The law requires that sentence if the defendant has a prior state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."

That description arguably contains an ambiguity. The parties in Lockhart will dispute whether the phrase "involving a minor or ward" modifies only the term immediately before it - "abusive sexual conduct" - or instead modifies all three terms listed.

If the phrase modifies only the term immediately before it, considerably more state convictions fall into the statute's ambit. Under that interpretation, any state sexual abuse conviction - even if the victim was an adult - requires the 10-year mandatory sentence. This is the prosecution's position.

In contrast, if the phrase instead modifies all three terms, then fewer state convictions will trigger the mandatory sentence. To qualify, a state sexual abuse conviction would have to "involve a minor or ward." The defense favors this interpretation.

The issue is meaningful to Lockhart's case because his prior conviction involved the attempted rape of his 53-year-old girlfriend, not a sex offense involving a minor or ward. The federal sentencing guidelines recommended a child pornography possession sentence of 78 to 97 months, yet the district court imposed the 10-year mandatory sentence required by the Section 2252(b)(2), accepting the government's view that any sexual abuse conviction qualified, even if no minor was involved. The 2nd U.S. Circuit Court of Appeals affirmed. United States v. Lockhart, 749 F.3d 148 (2d Cir. 2014).

Each side in this case will come to the Supreme Court armed with a canon of construction. The government will make use of the "last antecedent rule." Under this canon, "a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Thus, this rule counsels that "involving a minor or ward" modifies only "abusive sexual conduct" in the statute.

The defendant, on the other hand, will rely on the "series qualifier canon." That canon "provides that a modifier at the beginning or end of a series of terms modifies all the terms." United States v. Laraneta, 700 F.3d 983, 989 (7th Cir.2012). It applies if the "modifying clause appear[s] not in a structurally discrete statutory provision, but at the end of a single, integrated list," Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 344 n.4 (2005), and if the modifier "undeniably applies to at least one antecedent, and ... makes sense with all," United States v. Bass, 404 U.S. 336, 339-40 (1971).

In the 9th U.S. Circuit Court of Appeals, which includes California, the court has adopted the government's view that "abusive sexual conduct involving a minor or ward" is a separate category under Section 2252 from "aggravated sexual abuse" or "sexual abuse," though the court did not discuss the canons of construction. United States v. Sinerius, 504 F3d 737, 740 (9th Cir. 2007). The 2nd Circuit in Lockhart cites four additional circuits that have taken that view (the 4th, 5th, 7th and 11th) but acknowledges that three federal circuits (the 6th, 8th and 10th) have adopted the defense position that the phrase "involving a minor or ward" modifies all three categories of state sex crimes. 749 F.3d at 154-55.

As with most Supreme Court cases, it is unpredictable how the justices will approach Lockhart, especially prior to briefing and argument. But, due to the dueling canons, this case has the potential to provide an intriguing look at how the justices approach statutory interpretation, and particularly how they believe canons of construction should be employed.

In a well-known 1950 article on statutory interpretation, professor Karl Llewellyn laid out 28 pairs of canons that conflict with each other, and this duo was one (the 27th, though the canons were not assigned their current names). Llewellyn argued that when used in a lawyer's argument a canon must be "sold, essentially, by means other than the use of the canon." He suggested that judges should choose between dueling canons based on the "good sense of the situation," including the purpose of the statute.

In their 2012 book "Reading Law: The Interpretation of Legal Texts," Justice Antonin Scalia and Bryan A. Garner endorse the use of both of the canons of construction potentially applicable here - the "last antecedent rule" and the "series qualifier canon" - among the 57 canons of which they approve. Perhaps Justice Scalia will find one of these canons flatly inapplicable here, and thus the resolution easy. But otherwise it may prove intriguing to see how he chooses between canons.

Even absent a conflict between canons of construction, most judicial opinions, including those cited in this article, recognize that canons are simply one device in an interpreter's toolbox and can be rejected in light of other evidence of what the statute means. Barnhart, 540 U.S. at 26 (rule of the last antecedent "is not an absolute and can assuredly be overcome by other indicia of meaning") (Scalia, J., for a unanimous court).

But it is not clear what evidence it takes to reject a canon of construction. On this, in the right case, the justices may divide. Because Lockhart may present a case where some canon must be rejected, it may prove interesting to see whether and why the justices discard one canon or both, and what they rely on instead: other portions of the statutory text, the statute's general purpose, its legislative history, the consequences of each interpretation to federal sentencing, or something else.

In an influential 1947 speech on statutory interpretation, Justice Felix Frankfurter remarked that while judges at times rely on canons of construction, the canons cannot "save us from the anguish of judgment." Frankfurter opined that "[d]ifficulties emerge when canons compete in soliciting judgment, because they conflict rather than converge."

At least at first blush, Lockhart appears that it could serve as a good example of what Frankfurter described.