One of the downsides of deciding appeals that are relatively low value -- and hence may have less well developed briefing -- is that the judges may miss out on potentially relevant information.
That's the thought I had when I read this opinion.
It's a case out of Lake County. Not the most populous county in the state, to be sure. It involves a dispute between unfriendly neighbors. One neighbor says the other trespassed on her property, took down a wire boundary fence, said bad things to her and her family, etc. The point is: This is not a multi-million dollar case. So it only justifies a certain amount of litigation.
The plaintiff nonetheless gets a creative lawyer who files an Elder Abuse claim against the neighbor. She can do that because she's 81 years old, so not only does she get sympathy -- who screams at an 81-year old?! -- but because if you're over 65, you've got a potential Elder Abuse claim.
But that statute is almost always invoked against family, carekeepers, rest homes, etc. Can you really file an Elder Abuse claim just against a mean neighbor?
The trial court thought not. But the Court of Appeal reverses, holding that you can.
It's a statutory interpretation case. It's all about how you read the statute. The Court of Appeal thinks it can do that just fine, thank you very much, and also doesn't say very nice things about the quality of the briefs by the respondent.
The statute says someone older than 65 can sue for "elder abuse," and that term is defined as “[p]hysical
abuse, neglect, abandonment, isolation, abduction, or other treatment [of an elder] with
resulting physical harm or pain or mental suffering.” "Mental suffering" in term is defined as "fear, agitation, confusion, severe depression, or other
forms of serious emotional distress that is brought about by forms of intimidating
behavior, threats, harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten, or cause severe
depression or serious emotional distress of the elder or dependent adult.”
Justice Miller reads that statute in a straightforward fashion. She says, essentially, that, yes, the defendant hadn't allegedly engaged in “[p]hysical abuse, neglect, abandonment, isolation, [or] abduction" under the statute. Yeah, those are admittedly the types of things that caretakers do, and hence is what the statute undeniably focuses on. But, she says, that definition ends by saying that "other treatment with resulting . . . mental suffering" can qualify as elder abuse as well. And here, given the broad definition of "mental suffering," the acts here -- even though undertaken by a non-caretaker -- qualify as "other treatment". So the statute applies.
It makes sense. Applies the words that are employed by the statute in a straightforward fashion. What more could you want?
Okay. Maybe. Good job.
But as I was looking at the list in the statute, here was my thought.
Preface: I'm not a big Latin guy. Failed it -- literally -- in college. Don't feel like I have to say particularly fancy clauses to impress other people. Prefer to speak the one language that I actually know well.
That said, there's a Latin phrase -- a principle of statutory construction -- that seems pretty relevant to this case. One that's nowhere in the opinion, and (perhaps) not in the briefing.
Ejusdem generis.
It's Latin for "of the same kind." When a statute has a list, and they're all types of things of a particular type or class, we often exclude from the coverage of that statute (i.e., not part of the list) things that aren't part of that class. Even if the plain language of the statute covers the thing.
For example, if a statute says that only "automobiles, trucks, motorcycles, tractors, and other motor-powered vehicles" are permitted to use, say, a given road, that list probably doesn't include airplanes or boats or submarines. Even those are indeed "motor powered vehicles" and hence facially included under the statute. You nonetheless read the statute the other way (unless there's a good reason not to).
At least that's a general rule. And one that seems especially relevant when, as here, the list includes certain types of things and we're trying to figure out what the statute means when is has a residual clause that says "other". 'Cause that's even broader than the example I used. You might want to say that if everything that's in the list is part of the same class -- e.g., are all types of things that only caretakers or people in a familial-type relationship can really do -- then maybe we should indeed do what the trial court did and limit that "other" category accordingly. Even though "other" does indeed mean everything else that satisfies the statute.
Now, I'm not totally confident that everything in the list here is necessarily part of the same class. It does indeed seem that the statute -- and the list -- is focusing on stuff that caretakers might do. They hit them ("physical abuse"), "neglect" them, "abandon[]" them, "isolat[e]" them, and "abduct[]" them. That's definitely a list of things we commonly see in Elder Abuse cases, and since all of them seem to be of a class of things that caretakers do (indeed, some of them, like neglecting them, can likely only be actionably done by caretakers), maybe the trial court got it right. Though I could totally see the contrary argument as well: that anyone, for example, can physically abuse someone elderly, so the list is not necessarily all of a certain class.
The point is simply that it seems like this commonly applied principle of statutory interpretation -- ejusdem generis -- seems like definitely something that the Court of Appeal should at least consider. Yet it's nowhere even mentioned in the opinion, much less discussed.
Which I'm confident it would be -- in the briefs, at a minimum -- if this was a $50 million case with reams of fancy lawyers on both sides working full time on the thing.
But this is a civil TRO case involving neighbor Sandra Miller allegedly being mean to Jude Darrin, the 81-year old neighbor. So maybe the assistance the Court of Appeal obtains isn't always as fulsome as in those more expansive -- and expensive -- disputes.
The long and short of all this: It might be helpful to at least add a couple of Latin words to this opinion. Something to consider, at least.
