Tuesday, May 05, 2015

Davis v. Devanlay Retail Group (9th Cir. - May 5, 2015)

Do these two statutes mean the same thing:

(A)  "A person located on a public sidewalk and engaged in the residential picketing of a residence shall not request, or require as a condition of leaving the sidewalk, the provision of money from the homeowner."

(B)  "A person located on a public sidewalk and engaged in the residential picketing of a residence shall not request or require as a condition of leaving the sidewalk, the provision of money from the homeowner."

To put it a different way:  Does the placement of the first comma in (A) make a difference?

As a matter of both English grammar as well as statutory interpretation, I would think that (A) is clearly different than (B).  (A) says that you (1) can't request money from the homeowner, and (2) can't demand money from the homeowner for certain acts.  In (A), the clause "require as a condition of leaving the sidewalk" is independent from the first clause, something that we make clear by the setting off of this clause by commas.  By contrast, in (B), the clause isn't set off by commas, so the phrase "as a condition of leaving the sidewalk" applies to both antecedent verbs -- both "request" as well as "require".

So they mean different things.  That's standard English.

The Ninth Circuit, however, isn't entirely convinced.  This morning, it certifies a nearly identical issue to the California Supreme Court.  The statute at issue has both commas -- like (A) -- and says (in relevant part):

"[N]o person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall . . . [r]equest, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information . . . ."

The Ninth Circuit wants to know whether that means that a store that accepts credit cards can't request personal information at all, or whether the store is prohibited from requesting (or requiring) such information only "as a condition to accepting the credit card."

Again, as a matter of simple English, I think the answer's clear.  There's a comma in the statute.  It means something.  That meaning grammatically clear.  It means that the clause between the commas -- "require as a condition to accepting the credit card" -- is independent, and doesn't modify the verb "request".  Which in turn means that the store can't request such information.  Regardless of whether it's required.

Just as in the hypothetical I posed at the outset of this post.

So if you're a textualist -- say, someone with the last name "Scalia" or "Thomas" -- the answer should be clear.  The statute means what it says.  The store's liable.  No need to certify.  Don't need to look at legislative history, purpose, or anything else.  End of story.

Me:  I've got a different last name.  I'm not such a strict textualist.  I think it makes sense to look at the entire statute.  Context, purpose, etc.  So I'm willing to consider things like the fact that the Legislative Counsel's Digest of the statute said that “[t]his bill would provide that the merchant in such a transaction may neither request personal identification information, nor require that information as a condition to acceptance of the card."  Seemingly supporting a view that a request would violate the statute even if it wasn't required as a condition to accepting the card.

I'd also be willing to look at purpose.  I'd find plausible a claim that the Legislature might have wanted to create a bright-line, easily enforced rule that prohibited even a "request" for personal identification information so as to avoid disputes about whether, say, a cashier's statement "Can I please have your address?" was a "demand" for credit card information, or whether statements like these were sometimes okay (e.g., before the credit card was handed over by the customer, or after it was returned by the cashier), sometimes not (e.g., right as the card was being transferred), and maybe sometimes might depend on how the question was asked, the sophistication of the customer, etc.

That'd make sense to me.

But there are arguments on the other side as well.  It might be overbroad -- and perhaps even silly in some contexts -- to stop a store from "requesting" personal information just because it accepts credit cards.  What about requests in the parking lot?  And while there's some legislative history in favor of a broad interpretation, there's some the other way as well.  And I'm not sure that we really want to put much stock anyway in how various committees used commas in their descriptions of the statute when I'm not persuaded that even the Legislature itself thought a lot about the comma's meaning when they dropped it in there.

The one thing I'm confident about is that strict textualists are silly.  They'd have a clear answer to this question.  At least if they were honest about it.  Though, in truth, since many textualists wouldn't like the result that'd arise from such a view in the present case -- i.e., a ruling in favor of the plaintiffs -- I think lots of 'em would find ways to make the statute suddenly "unclear".  Even though, as a matter of pure text, it's not.

But, in my view, textualism doesn't entirely answer the question.  So the California Supreme Court should do more.  Yes, I think that text matters.  A lot.  If the Legislature's intent is unclear, even after looking at all the things we should, I think it makes a ton of sense to follow what the statute actually says.

But text nonetheless is not a be-all-and-end-all.  This case, in my view, is a perfect example.