I've never really thought that much about the ability of courts to use subsequent legislative amendments to retrospectively clarify the meaning of a statute. I mean, I know that courts do that, of course. And it's fairly obvious that once the Legislature amends a statute, thereafter, it means what it (now more clearly) says.
But are there any limits to that power?
Take, for example, a hypothetical statute that says that it's illegal "to shoot a flying bird" within 500 feet of a state-owned drone. (Presumably because, I don't know, maybe the Legislature is worried about people accidentally hitting the drone.) On November 24, Jimmy sees a government-owned drone flying overhead while he's out hunting for a Thanksgiving turkey, sees one 15 feet away, aims his gun, snaps on a twig, the turkey "flies" (or tries to) and gets a foot or so off the ground, and Jimmy blasts it.
A police officer happens to spot all this and cites Jimmy for violating the statute. Jimmy says: "Dude, come on, turkeys don't actually fly, and in any event, I don't think they're really 'bird" within the meaning of the statute anyway." (To be clear, Jimmy doesn't say this, his lawyer does, and probably omits the word 'Dude' when she's talking to the judge.)
Now, it would seem to me that Jimmy and/or his lawyer have a decent argument in that regard. Maybe it's right, maybe it's wrong. We'll have to figure it out. That's what courts do, after all.
But let's say that the Story of Jimmy and the Turkey somehow comes to the attention of the Legislature, which then amends the statute to "clarify" what it means by adding "and by birds, we definitely mean turkeys as well, and even if they're only a foot off the ground, that's still 'flying'" to the statute.
That solve the problem for future Jimmies, of course. But what about Jimmy 1.0? Does the subsequent legislative clarification of the statute weigh heavily -- or at all -- in an assessment of whether the original statute (1.0 as well?) applies to him?
Now, in the criminal context, we might well have principles of ex post facto application or principles of lenity that might potentially be dispositive regardless of the subsequent legislative amendment. But let's say it's just a civil statute. Does the amendment mean that Jimmy 1.0 is liable?
One side will say: "Sure it does. The Legislature expressly clarified the statute and told you what it meant by it. Can their be any better proof of legislative intent than that?" The rejoinder from Jimmy and his well-credentialed lawyer will undoubtedly be: "Sure, the Legislature says that now, but didn't say it before -- and those are different Legislatures at different times anyway. Plus, how was Jimmy 1.0 to know what the Legislature would do after he shot his turkey? Not fair to bind him to that."
Who wins?
I thought about all that after reading this opinion by Justice Irion. Because it raises basically the same issue, in my mind. The opinion is even about guns and hunting (in a way). But this one involves killing people, not turkeys, so I wanted to strip away the emotion with a hypothetical first.
The issue is this: A teenager buys a gun and shoots up a synagogue in Poway. Some of the victims sue the store that sold him the gun. California law makes it illegal to sell a rifle to anyone under 21 unless he has "a valid, unexpired hunting license." Because we don't want teenagers to have weapons unless they've got a good reason.
The shooter here had a hunting license. He got it the day before he bought the gun, and 11 days before he received the weapon (there was a 10-day waiting period). He got the hunting license on April 15, 2019, and showed it to the store when he purchased the rifle on April 16. It was a valid license, and hadn't yet expired.
But here's the rub:
The hunting license, purchased on April 15, said on its face it was "Valid 7/1/2019 to 6/30/2020." So it definitely hadn't "expired" yet, but also didn't actually allow hunting yet either.
Is that a "valid" hunting license under the statute?
You can see the arguments both ways, right? And Justice Irion's opinion admits -- I think correctly -- that the statute is thus ambiguous on this point.
But after the Poway shooting, the Legislature amends the relevant statute to clearly say that a license is not 'valid" under the statute if the time period listed on the license has not yet commenced. Moreover, everyone agrees that this amendment was deliberately passed in direct response to the Poway shooting and was an attempt to 'clarify' the statute. (Which it clearly does.)
But, like the Hypothetical Jimmy, the defendant here (San Diego Guns) says it can't be found liable for negligence per se under the statute because it didn't do anything wrong at the time. That the shooter had a "valid, unexpired hunting license" at the time of the sale, so was permitted to buy the weapon. While the plaintiffs say "No, he didn't, and if there's any doubt, the subsequent amendment removes it."
Again: Who's right?
I'm on board for, as a general matter, subsequent amendments being used to somewhat clarify the meaning of an ambiguous statute. Just like I'm on board for legislative history and purpose being used in a similar fashion. Sure, there are downsides to that, and you've got to be careful. But it seems to me a somewhat logical way to think about things. (Strict textualists, of course, might well -- and often do -- disagree.)
That said, I somewhat sympathize with the Jimmies of the world. They're being punished for something they didn't know at the time was wrong. How does a subsequent legislative pronouncement change their liability for something that transpired long before the amendment?
At the same time, well, you know, sometimes, statutes are ambiguous, and we punish you anyway if you violate what the courts subsequently say is the superior reading of the statute. How is this any different, at least qualitatively?
But there's a part of me that responds: "Well, sure, but at least when I end up on the wrong side of an ambiguous statute, I can read the thing as well as anyone else, and go to a lawyer who can look at all the facts and says that it more likely will be interpreted to mean X instead of Y. Then I can assess the relevant probabilities and decide to risk it. But once you add a future legislative at to the mix, then all that changes; my lawyer's really good, but he's not Carnac the Magnificent. He can't anticipate or assess things that haven't even happened yet and that will only happen as a result of my choice; e.g., if I sell a weapon to this kid, he goes on a high-profile shooting spree, and then the Legislature changes the statute because they want to make people like me liable. That ain't right."
I know it's a civil statute. I know there's insurance anyway. And I know there are dead people whose families I'd like to compensate if it's morally and legally permissible.
I'm just not sure how right it is to include future events in an assessment of what a statute meant on a date when the statute said something different.
One last time: Whatcha think?
