* Statutory Construction/Interpretation *

STATUTORY CONSTRUCTION/INTERPRETATION - The various methods and tests used by the courts for determining the meaning of a law.

As the Supreme Court has explained: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.' " Id.

"Congress is presumed to act intentionally and purposely when it includes language in one section but omits it in another." Estate of Bell v. Commissioner, 928 F.2d 901, 904 (9th Cir. 1991).

"The clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' " Sumitomo Shoji Amer., Inc. v. Avagliano, 457 U.S. 176, 180, (1982).

It has been argued both that the meaning of section 9 is not clear and unambiguous and that to give section 9 its plain meaning would produce a patently absurd result in that it would frustrate the application of the principal operative provisions of the Rates Act. Our response is based, in part, upon Nugget Hydroelectric, where we were faced with a remarkably similar problem of statutory construction. We were forced to decide whether the Public Utility Regulatory Policies Act of 1978 (Policies Act) preempted the state action doctrine with respect to gas and electric utilities. Id. One provision of the Policies Act provided that "[n]othing in this Act or in any amendment made by this Act affects . . . the applicability of the antitrust laws to any electric utility or gas utility." Id., quoting 16 U.S.C. S 2603(1). Nugget argued that the term "antitrust laws" referred only to statutory law and not to the common law state action doctrine. It also argued that the statute was ambiguous and that the legislative history revealed that Congress clearly intended the Policies Act to preempt the state action doctrine. Id. We held that the language of the statute was clear, that it precluded us from holding that Policies Act preempted the state action doctrine, and that it did not produce an absurd result. See id. Therefore, we refused to look any further than the face of the statute.

Application of "broad purposes" of legislation at the expense of specific provisions ignores the complexity of the legislative problems Congress is called upon to address and the dynamics of legislative action. Congress may be unanimous in its intent to stamp out some vague social or economic evil; however, because its Members may differ sharply on the means for effectuating that intent, the final language of the legislation may reflect hard-fought compromises. Invocation of the "plain purpose" of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent. Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986).

The Supreme Court has set forth the general rule that "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, 114 S. Ct. 807, 813 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

The canon of construction, invoked frequently in cases in which the issue is whether to imply a private right of action, that courts must "presum[e] that a remedy was deliberately omitted from a statute . . . when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement." E.g., Northwest Airlines, 451 U.S. at 97; see also Karahalios v. National Fed'n of Federal Employees, 489 U.S. 527, 533 (1989) ("It is an `elemental canon' of statutory interpretation that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies. Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 19 (1979). In such cases, `[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.'" (quoting Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 15 (1981))). In the cases in which the canon traditionally has been applied, the question has been whether the statute at issue permits an implied private right of action. The canon serves to ensure that courts do not upset a "comprehensive legislative scheme" by creating additional "procedures for enforcement" that Congress did not intend. Northwest Airlines, 451 U.S. at 97.

"When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded." Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S. 856 (1988).

Every question of statutory interpretation starts with the language of the statute. "The primary indication of [Congress'] intent is the language of the statute." United States v. Aguilar, 21 F.3d 1475, 1480 (9th Cir. 1994), aff'd in part, rev'd in part on other grounds, 115 S.Ct. 2357 (1995). Two well-established canons of statutory interpretation:. First, courts must ascertain the intent of the Legislature to effectuate the purpose of the law (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387); Second, they must adopt an interpretation that avoids an absurd result the Legislature did not intend. (Bruce v. Gregory (1967) 65 Cal.2d 666, 673.) When Congress enumerates an exception or exceptions to a rule, we can infer that no other exceptions apply. Koniag v. Koncor Forest Resource, 39 F.3d 991, 998 (9th Cir. 1994); Horner v. Adnrzjewski, 811 F.2d 571, 574-75 (Fed. Cir.), cert. denied, 484 U.S. 912 (1987); 2A Norman J. Singer, Sutherland Statutes and Statutory Construction S 47.23 (5th Ed. 1992). When Congress includes limiting language in an earlier version of a bill, but deletes it prior to enactment, we presume that the limitation was not intended. Russello v. United States, 464 U.S. 16, 23-24 (1983). When Congress does not direct whether a rule should be uniform, the courts determine if a uniform federal rule is appropriate based on the three-part test set out in United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). "Under that test, a court must determine . . . (1) whether the issue requires `a nationally uniform body of law,'; (2) `whether application of state law would frustrate specific objectives of the federal program'; and (3) whether `application of a federal rule would disrupt commercial relationships predicated on state law.'" Mardan, 804 F.2d at 1458 (quoting Kimbell Foods, 440 U.S. at 728-29). Prohibition against construing statutes so as to render any of their provisions superfluous. See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991). Courts begin "with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) To discover that intent we first look first to the words of the statute, giving them their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." (Burden v. Snowden, supra, 2 Cal.4th 556, 562.) STATUTORY CONSTRUCTION -LEGISLATIVE INTENT Legislative intent is what a legislature as a whole had in mind when it passed a particular statute. Normally, any given statute is interpreted by looking just at the statute's language. But when the language is ambiguous or unclear, courts try to glean the legislative intent behind words by looking at legislative interpretations (for instance, reports issued by legislative committees) which were relied upon by legislators when voting on the statute. Statutes are often ambiguous enough to support more than one interpretation, and the material reflecting legislative intent is frequently sparse. This leaves courts free to interpret statutes according to their own predilections. Once a court interprets the legislative intent, however, other courts will usually not go through the exercise again, but rather will enforce the statute as interpreted by the other court. practice. It is defined to be "the drawing in inference by the act of reason, as to the intent of an instrument, from given circumstances, upon principles deduced from men's general motives, conduct and action." This definition may, perbaps, not be sufficiently complete, inasmuch as the term instrument generally implies something reduced into writing, whereas construction, is equally necessary to ascertain the meaning of engagements merely verbal. In other respects it appears to be perfectly accurate. The Treatise of Equity, defines interpretation to be the collection of the meaning out of signs the most probable. There are two kinds of constructions; the first, is literal or strict; this is uniformly the construction given to penal statutes. The other is liberal, and applied, usually, to remedial laws, in order to enforce them according to their spirit. In the Supreme Court of the United States, the rule which has been uniformly observed in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of these states. By adopting them, they become our own, as entirely as if they had been enacted by the legislature of the state.

The received construction, in England, at the time they are admitted to operate in this couutry - indeed, to the time of our separation from the British empire - may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But, however we may respect the subsequent decisions (and certainly they are entitled to great respect,) we do not admit their absolute authority. If the English courts vary their construction of a statute, which is common to the two countries, we do not hold ourselves bound to fluctuate with them.

The great object which the law has in all cases, in contemplation, as furnishing the leading principle of the rules to be observed in the construction of contracts, is, that justice is to be done between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it.

When the contract is in writing, the difficulty lies only in the construction of the words; when it is to be made out by parol testimony, that difficulty is augmented by the possible mistakes of the witnesses as to the words used by the parties; but still, when the evidence is received, it must be assumed as correct, when a construction is to be put upon it.

The following are the principal rules to be observed in the construction of contracts. When. the words used are of precise and unambiguous meaning, leading to no absurdity, that meaning is to be taken as conveying the intention of the parties. But should there be manifest absurdity in the application of such meaning, to the particular occasion, this will let in construction to discover the true intention of the parties: for example;

- 1. When words are manifestly inconsistent with the declared purpose and object of the contract, they will be rejected; as if, in a contract of sale, the price of the thing sold should be acknowledged as received, while the obligation of the seller was not to deliver the commodity. When words are omitted so as to defeat the effect of the contract, they will be supplied by the obvious sense and inference from the context; as, if the contract stated that the seller, for the consideration of one hundred dollars, sold a horse, and the buyer promised to pay him for the said horse one hundred, the word dollars would be supplied. When the words, taken in one sense, go to defeat the contract, while they are susceptible of another construction which will give effect to the design of the parties, and not destroy it, the latter will be preferred.

- 2. The plain, ordinary, and popular sense of the words, is to be preferred to the more unusual, etymological, and recondite meaning or even to the literal, and strictly grammatical construction of the words, where these last would lead to any inefficacy or inconsistency.

- 3. When a peculiar meaning has been stamped upon the words by the usage of a particular trade or place in which the contract occurs, such technical or peculiar meaning will prevail. It is as if the parties in framing their contract had made use of a foreign language, which the court is not bound to understand, but which on evidence of its import, must be applied. But the expression so made technical and appropriate, and the usage by which it has become so, must be so clear that the court cannot entertain a doubt upon the subject. Technical words are to be taken according to their approved and known use in the trade in which the contract is entered into, or to wbich it relates, unless they have manifestly been understood in another sense by the parties.

- 4. The place where a contract has been made, is a most material consideration in its construction. Generally its validity is to be decided by the law of the place where it is made; if valid there, it is considered valid every where. Its construction is to be according to the laws of the place where it is made for example, where a note was given in China, payable eighteen months after date, without any stipulation as to the amount of interest, the court allowed the Chinese interest of one per centum per month from the expiration of the eighteen mouths.

- 5. Previous conversations, and all that passes in the course of correspondence or negotiation leading to the contract, are entirely superseded by the written agreement. The parties having agreed to reduce the terms of their contract to writing, the document is constituted as the only true and final exposition of their admissions and intentions; and nothing which does not appear in the written agreement will be considered as a part of the contract. But this rule admits of some exceptions; as, where a declaration is made before a deed is executed, showing the design with which it was to be executed, in cases of frauds and trusts, though no trust was declared in the writing.

- 6. All contracts made in general terms, in the ordinary course of trade, are presumed to incorporate the usage and custom of the trade to which they relate. The parties are presumed to know such usages, and not to intend to exclude them. But when there is a special stipulation in opposition to, or inconsistent with the custom, that will of course prevail.

- 7 . When there is an ambiguity which impedes the execution of the contract, it is first, if possible, to be resolved, on a view of the whole contract or instrument, aided by the admitted views of the parties, and, if indispensable, parol evidence may be admitted to clear it, consistently with the words.

- 8. When the words cannot be reconciled with any practicable or consistent interpretation, they are to be considered as not made use of "perinde sunt ac si scripts non essent."

It is the duty of the court to give a construction to all written instruments.