When is 80 less than 71?
Here.
In the City of Madera, to overturn a recommendation of the Planning Commission, you need a vote of 5/7th of the City Council. That's 71.4 percent.
Why 71 percent? Well, because, in the old days, the City had five council members, and you needed 4 of them to overturn. That's 80 percent. But in 2012, they increased the number of council members to 7. So the closest you can get to 80 percent (with 7) is 71 percent, which gets you to five. So to keep the percentages the same, they said 5/7th. (This is all backed up by clear legislative history.)
So a guy (Junaid Lateef) files an appeal to the City Council, on which there's supposed to be seven members. But one seat is vacant, and one council member has to recuse himself. So that leaves 5. Just like back in the old days.
The vote's taken. Lateef gets 4 votes. Good enough, right? Just like in the old days. 80 percent. Enough to win.
Not according to the trial court. It say that you've got to get 5 of 7. Focusing on the number "5" the trial court says that's not what Lateef got. He got 4. Not 5.
But Lateef says he got 4 of 5. That's 80 percent, which is bigger than 5 of 7 (71.4 percent).
"Sorry, not good enough," the trial court says. Gotta have 5.
And the Court of Appeal affirms. For identical reasons as the trial court.
The part of the ordinance that Justice Snauffer focuses on (beyond the number "5") is the right part, I think. The law reads: "A five-sevenths vote of the whole of the
Council shall be required to grant, in whole or in part, any appealed application denied by
the Commission.” Sure, the whole background of the thing is the percentage part. Trying to keep it like four-fifths like in the old days.
But there's that phrase: "five-sevenths vote of the whole of the Council." That's the tough part for Mr. Lateef. "The whole" facially appears to mean you've got to have five-sevenths of everyone. And that applies whether they're voting or not. So, sure, you got five-sevenths of the people who voted. But you didn't get five-sevenths of the whole of the Council.
The way Mr. Lateef would read it, it'd mean the same thing as "five-sevenths vote of the Council." The words "the whole of" would be irrelevant. Surplusage. Which is why Justice Snauffer agrees with the trial court and says that Lateef loses.
You can see, textually, why you might come out that way.
But I must say that Mr. Lateef has a darn good argument that I don't think the Court of Appeal comes to grip with. Either persuasively or, truthfully, at all.
Lateef says the same thing that came to my mind when I started reading the case. The ordinance can't possibly mean five-sevenths of the whole, including people who aren't there, without being absurd (or at least being totally irrational). Let's say that three of the seven seats are vacant. Someone's sick, a couple of resignations (like the one actually here), three people recusing themselves (like the one who did so here), whatever. You could imagine a million reasons why you might only have four people on a seven-member council.
Then there'd be a quorum, but no one could ever prevail. Since, under the Court of Appeal's holding, you could never get your five-sevenths, since there aren't five votes. So even if 100% of the City Council agrees with you that the Planning Commission is doing something abjectly stupid, you still lose.
That's an absurdity. And it's a common principle of statutory construction that you don't read statutes in a manner that makes them absurd.
Now, Justice Snauffer responds to that, of course. Saying: "The problem with this approach is that to interpret subsection 10-3.1310(E) as Lateef suggests would require us
to rewrite the ordinance in contravention of the city’s expressed intent. We have 'no
power to rewrite the [ordinance] so as to make it conform to a presumed intention which
is not expressed.' [Cite] For this reason,
we cannot rewrite the statute to avoid the other absurd results Lateef claims flow from
interpreting the ordinance to require a five-sevenths vote of the seven-member city
council."
But, respectfully, that's not a very good answer. You interpret statutes to avoid absurdity. You read the existing words in a way that makes sense. You're not making new words or "rewriting" the text when you do so. That's what judicial interpretation of a statute actually means.
Justice Snauffer's critique would negate the whole point -- indeed, even the existence -- of the "avoid absurdity" doctrine. Every time you interpret a statute to avoid absurdity the other side can say that's not permitted since you'd thereby be "rewriting" the statute. Every. Single. Case.
But that's not what you're doing. Particularly not here. Yes, you could interpret "five-sevenths of the whole" to mean the whole council. Everyone, even the people recused, or not present, or not even on the council itself (e.g., vacancies). But you could also interpret "five-sevenths of the whole" to mean the whole council who's there. And if one of those two interpretations is indeed absurd, well, then, that's a pretty darn reason to reject it. Even if you think that, other other things being equal (i.e., no absurdity), that's the textually better reason of the statute.
And Lateef makes a pretty good argument for absurdity. The reason we don't interpret statutes in an absurd way -- even if that's what they appear to say -- is because doing so defeats, rather than adds to, notice and legislative intent. Here, I'm fairly confident that Lateef is right that the point of the 5/7th clause was to (1) make it close to 4 out of 5 (which he got), which was what was required in the old days when the council was only 5 people, and (2) to overrule the Planning Commission when a super-majority of elected officials looking at the thing thought the Commission got it wrong.
Those purposes are accomplished -- i.e., advanced -- when you act according to the wishes of 80 percent (i.e., 4 of the 5) voting members. Whereas those purposes are defeated if you say that in any circumstance in which there are three vacancies, whatever stupid thing the unelected members of the Planning Commission says goes forward even if 100% (i.e., 4 out of 4) of the elected people voting on the City Council disagree with it.
Which is why you interpret statutes to avoid that. In other words, even though you thought that it textually makes more sense (i.e., "was clear") that "five-sevenths of the whole" referred to the whole City Council, since that would be an absurd interpretation that frustrates the whole purpose of what you're trying to do, you realize that the other way of looking at it is better and more faithful to the purposes and intent of the statute. So that's what you do. Advance the will of the voters (and the law), rather than defeat it.
For that reason, I don't think that Justice Snauffer's answer here suffices. You could say the same "Can't rewrite the text" thing in every absurdity case. But that would be to deny the validity of the absurdity rule in toto. So unless you're willing to do that (which Justice Snauffer doesn't do), you've got to give a better answer, in my view. Which Justice Snauffer doesn't.
So that's the normative case against the Court of Appeal's holding today.
But there's also a (related) descriptive one. Justice Snauffer believes that you can't rewrite a statute just because it's absurd. But that totally conflicts with every major precedent that applies that exact doctrine. So, for example, back in 1868, the U.S. Supreme Court was faced with a defendant who had been indicted for obstructing a postal carrier. Which the defendant had definitely done. The text of the statute in that case clearly provided that it was a felony to "knowingly and wilfully obstruct or retard the passage of the mail, or of any
driver or carrier." And the defendant clearly did that; the mail carrier at issue here was on duty at the time, and the defendant totally and knowingly obstructed him; indeed, placed him in handcuffs.
The rub being (1) that the defendant was the sheriff, and (2) the mail carrier at issue was wanted for murder.
The prosecution said: "I don't care. The text is clear. You can't do that. To do otherwise would be to rewrite the statute, and the judiciary can't do that." The Supreme Court said: "Wrong." You have to interpret statues to avoid absurdity. Yeah, you could read the words of this statute to say that the law precludes the sheriff from doing what he did. But no way. We're not doing that. We're reading the thing differently because reading it your way would be a total crock; no way a sheriff has to wait until a mail carrier is off duty to arrest him for murder. Sorry if you don't like that, but that's what it means to interpret a statute to avoid absurdity.
And the statute in that famous and longstanding Supreme Court case was way clearer than the term "five-seventh of the vote of the whole of the Council" is here.
And I didn't just pick out a random, particularly egregious case. The principle is basically the same in all these "absurdity" cases. Starting from the very first one back in medieval
Italy that said that a surgeon "who opened the vein of a person that fell down in the
street in a fit" didn't violate the law even though that statute unambigously punished "whoever drew blood in the streets." Yeah, he drew blood on the streets, alright. But those words don't actually mean what you think they mean. Even though you might think they're clear and someone says to you (seemingly persuasively) that the judiciary doesn't have the power to rewrite them.
So, look, you might not think that letting the unelected Planning Commission go forward even when 100% of the nonrecused City Council members disagrees is in fact "absurd." I sort of do, but I could see an opposite argument. So Justice Snauffer wanted to say "It's not absurd at all, it's totally fine," I would respect that, even though I might perhaps disagree with him.
But that'd at least be a response. "You can't rewrite the statute" sort of isn't. It's normatively wrong (unless you disagree with even the existence of the underlying doctrine), and it's descriptively wrong as a matter of precedent as well.
At least to me. And the 1800 words in which I have just attempted to explain why.
