Ambiguity Times Three

The word "ambiguity," appropriately, can mean several things. What are they? The three ways that statutes can be ambiguous can be explained through last year's California Supreme Court opinions.

In statutory interpretation, ambiguity plays a facilitating role. Our Supreme Court has often told us that the overarching interpretative goal is to determine the Legislature's intent to effectuate the law's purpose. If there's no ambiguity in a statute's language, our determination starts and ends with the text.

But if ambiguous statutory language permits multiple reasonable interpretations, we are to look beyond the words to determine the meaning. Faced with ambiguous language, we consider the statute's legislative history, its purpose, and public policy.

When, though, is statutory language ambiguous?

A lawyer's first thought about ambiguity is likely semantic (or lexical) ambiguity. This type of ambiguity arises when a word or phrase is polysemous (having more than one meaning).

The sentence "I hate to see a person smoking" is semantically ambiguous. In that sentence, the polysemous word "smoking" could refer to a person either puffing on a cigarette or combusting in fire.

In many contexts, the human-ablaze interpretation of that phrase would be absurd. Fortunately, if one meaning is unreasonable in context, that doesn't make a statute ambiguous. We can consider "the nature and obvious purpose of the statute" in determining whether words are ambiguous. (People v. Walker, 16 Cal.5th 1024, 1032 (2024).) If a city ordinance forbids smoking in restaurants, it would be unambiguous which type of smoking the council had in mind.

Statutory semantic ambiguity regularly arises, though. Last year, our Supreme Court dealt with the polysemy of the phrase "residential projects." In Make UC a Good Neighbor v. Regents of the University of California, 16 Cal.5th 43, 59 (2024), the court recognized that the term "could either refer narrowly to plans to add residential units to a specific location, or more broadly to land use planning [that] concerns residential development." Faced with that semantic ambiguity, the court found the answer it needed housed in "the statute's purpose, revealed in its legislative history." Id. at 59-60.

Likewise, People v. Clark, 15 Cal.5th 743, 755-756 (2024), confronted the statutory phrase "collectively engage." It could mean two gang members acting together, or it could mean "individual acts, that, considered in the aggregate, form a general pattern." Id. at 756. To "discern the meaning" the court "examine[d] the legislative history" and the purposes of the statute. Id. at 759. Having collectively engaged that statutory background, the justices relied on "what the Legislature meant [that language] to accomplish" to decide the case. Id. at 759-761.

The second way a statute can be ambiguous is through syntactic ambiguity. Groucho Marx's famous Animal Crackers joke invokes this type of ambiguity: "One morning I shot an elephant in my pajamas. How he got in my pajamas, I don't know."

In Marx's first sentence, neither "elephant" nor "pajamas" is semantically ambiguous. But the syntax of the sentence allows for two markedly different views of the sleepwear's wearer: comedian or pachyderm. That is syntactic ambiguity.

Our Supreme Court dealt with syntactic ambiguity in Naranjo v. Spectrum Security Services Inc., 15 Cal.5th 1056 (2024). That case involved a "knowing and intentional" violation of a Labor Code provision about providing wage statements. For the court, Justice Leondra Kruger explained that the issue was "not so much what the terms 'knowing' and 'intentional' mean, but what the terms modify. That is to say, what, precisely, must be done knowingly and intentionally: violating the law, or the acts or omissions constituting the violation?" Id. at 1072-1073. That question could not "be decided based on the plain text, read in isolation." Id. at 1074. Faced with syntactic ambiguity, the court knew what it had to do: rely on the placement of the statutory provision, its relationship to other provisions, and the legislative history. Id. at 1074, 1076, 1084.

People v. Reynoza, 15 Cal.5th 982 (2024), also confronted syntactical ambiguity, in the Penal Code section that criminalizes dissuading a witness. Did that statute require just one thing for guilt--deterring a witness from assisting the prosecution--or did it also require a second thing, deterring the person from filing a complaint? Chief Justice Patricia Guerrero explained that the syntax of the statute supported "both a conjunctive and a disjunctive construction." Id. at 990. Indeed, the court found them "equally plausible interpretations of the statute." Id. at 994. This dissuaded the court from relying on the text alone, but the legislative history was no help. Id. at 996. So the court settled for the rule of lenity, by which two equally plausible interpretations of a statute are resolved in favor of a criminal defendant. Id. at 1012.

The third way statutes can be ambiguous is the most sophisticated: contextual ambiguity. Statutes can be contextually ambiguous even though no word is polysemous, and the provision's syntax provides no uncertainty. Contextual ambiguity occurs when the provision's connection to other statutory provisions renders its meaning unclear.

A good example comes from a decade ago, when the United States Supreme Court decided a case that concerned whether a fish was a "tangible object." (See "In the Supreme Court, Plain Text Means Context,"  Daily Journal, Sept. 8, 2014.) Of course, a fish is a tangible object. The language is unambiguous. But in Yates v. United States, 574 U.S. 528 (2015), the justices divided on whether a fish is a "tangible object" under the federal Sarbanes-Oxley Act. In the case, a fisherman had been charged with criminal obstruction under that Act for tossing red grouper into the sea to thwart authorities from discovering he had harvested undersized fish.

Sarbanes-Oxley had been enacted in 2002 to protect investors in the wake of the Enron Corporation's collapse after massive accounting fraud that included the destruction of financial documents. In Yates, a 5-4 majority held that in that statute "tangible object" did not include fish; Justice Ruth Bader Ginsberg wrote, "[i]n law as in life . . . the same words, placed in different contexts, sometimes mean different things." Id. at 537.

Last year, City of Los Angeles v. PriceWaterhouseCoopers, LLP, 17 Cal.5th 46, 65-66 (2024), dealt with contextual ambiguity. The court found two plausible meanings of the phrase "[t]o the extent authorized" in the section of the Code of Civil Procedure that generally authorizes discovery sanctions. Id. at 58. Either it gave the court power to issue sanctions so long as they weren't prohibited elsewhere, or it gave the court the power only if the sanctions were authorized elsewhere.

That ambiguity did not come from the meaning of the words, nor from their syntax in the provision. Rather, it came from the provision's "interaction" with other sections of the statute; that is, from its context. Id. at 65; see also id. at 64 [opinions that found the language clear did not "carefully consider[] the language of the provisions in their broader statutory context"]. The court resolved the ambiguity by interacting with "the Legislature's overarching purposes" in enacting the Civil Discovery Act. Id. at 71.

Also illustrating contextual ambiguity was Rodriguez v. FCA US, LLC, 17 Cal.5th 189 (2024), which considered what vehicles are covered by our state's lemon law. The statute covers not only dealer demonstrator vehicles but also "other motor vehicles sold with a manufacturer's new car warranty." Does that include a used car that was sold while the warranty was still in effect?

There is nothing semantically or syntactically ambiguous about the definition. But Justice Goodwin Liu explained that the words themselves were "reasonably susceptible" to either interpretation in the context of the lemon law statute. Id. at 197. To navigate the case, the court looked to clues about what the Legislature intended from the context, id. at 199-200, the "overall framework" of the statute and its other provisions, id. at 200-202, and the legislative history, id. at 200-204. (Result: used cars are not covered.)

And those are the three varieties of statutory ambiguity--semantic, syntactic, and contextual--illustrated by the state Supreme Court's opinions last year. Readers who are further interested might like this brief and amusing article discussing these three types of ambiguity by dissecting a ten-word standard definition in auto insurance policies. (Mark Cooney, Once Upon a Car, 20 Green Bag 2d 143 (2017).) And if you really like this sort of thing, well . . . perhaps you like ambiguity more than most lawyers.