Add today's opinion to the legion of statutory interpretation cases about whether "and" means "and" or "or".
For the record: For this statute, the panel says it means "and". Which, in truth, is usually the right call.
It's an exciting opinion for statutory interpretation fans. It discusses a ton of the relevant canons -- plain meaning, legislative intent, surplusage, absurdity, rule of lenity, etc. -- and discusses them well. Indeed, the principal conflict between Judge Murguia's opinion and Judge Smith's concurrence is whether the "and" interpretation makes another statutory provision surplusage; Judge Murguia says it doesn't, whereas Judge Smith says it does, but that it doesn't really matter. Neat take.
I'll add parenthetically that the conflicting expressions of legislative intent cited in the opinion are a good example of legislative history that pretty much matter zero. On both sides, the legislators aren't focusing on or even talking about the statutory text at issue. They're just talking about the "purposes" of the bill in general. Vague expressions like that don't really help much. On either side. (By contrast, when there's specific evidence relevant to the meaning of the actual words at issue, then I personally think that's entitled to some weight -- Scalia etc. be damned.) (*Not literally.)
