InterpretatIonpoSt – Conage : we ’ reaLLexhauStIonIStSnow
Appellate Practice Section Chairs : BrandonK . Breslow — Kynes , Markman & Felman , P . A . & DavidM . Costello — FloridaSolicitorGeneral ’ sOffice
afterConage , practitioners ignorecontext , structure , andcanonsattheirown risk , nomatterhowclear thedisputetextseems .
To declare oneself a textualist today is almost cliché . As Justice Kagan said years ago of Justice Scalia ’ s statutory interpretation legacy , “[ W ] e ’ re all textualists now .” 1 But , just as there can be ambiguity in the texts all of us now hold supreme , there can be ambiguity in what it means to be a textualist . If the disputed text is clear in the eye of the beholder , does he stop the analysis there ? Does he consider context ? Structure ? Canons ? Only what ’ s necessary to defeat ambiguity ? Or exhaust them all ? In post-Conage Florida , we ’ re all exhaustionists now .
Florida courts developed a textfocused approach to answering statutory questions , an approach that long predated Scalia ’ s Supreme Court days . The approach is best captured by the Florida Supreme Court in Holly v . Auld : “[ w ] hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning , there is no occasion for resorting to the rules of statutory interpretation and construction .” 2 Who knows how many briefs and courts relied on this approach over time ?
Then came Conage v . United States . There , the Federal Eleventh
Circuit certified a question of Florida statutory interpretation to the Florida Supreme Court . 3 The question was whether the defendant , Conage , had been properly sentenced under the Armed Career Criminal Act ( ACCA ). 4 Even for a criminal case , the “ stakes ” were “ enormous ” — whether no Florida drug trafficking conviction under “ Florida ’ s most serious criminal drug statute . . . can ever qualify as an ACCA predicate offense .” 5 ( They can . 6 ) The answer to this question would have serious implications for Florida substantive criminal law . 7
Yet , in a sense , the opening act outshone the headliner . Addressing “ a threshold issue about Florida ’ s law of statutory interpretation ,” the Court abrogated the “ misleading and outdated ” Holly principle . 8 Instead , it elevated an exhaustion principle : “[ J ] udges must exhaust all the textual and structural clues that bear on the meaning of a disputed text .” 9 In other words , one can ’ t cry ambiguity until one has referred to “ the language itself , the specific context in which that language is used , and the broader context of the statute as a whole .” 10 “ Viewed properly ”— flexibly — “ the traditional canons of statutory interpretation can aid the interpretive process from beginning to end .” 11 Except , that is , the canons that place themselves at the back of the line and play tiebreaker , such as the rule of lenity . 12
So , call yourself what you will — just be analytically thorough . After Conage , practitioners ignore context , structure , and canons at their own risk , no matter how clear the disputed text seems . In Florida statutory interpretation , the best practice is now undoubtedly exhaustion . n
1
Harvard Law School , The 2015 Scalia Lecture , YouTube ( Nov . 25 , 2015 ), https :// www . youtube . com / watch ? v = dpEtszFT0Tg .
2
450 So . 2d 217 , 219 ( Fla . 1984 ) ( citation omitted ).
3
346 So . 3d 594 , 596 ( Fla . 2022 ).
4
Id . at 596 – 97 .
5
Id . at 597 ( citation omitted ).
6
Id . at 597 , 599 – 600 .
7
See id . at 599 – 600 , 603 .
8
Id . at 598 .
9
Id . ( cleaned up ).
10
Id . ( citation omitted ) 11
Id .
12
Id .
Author : Alison E . Preston – Florida Solicitor General ’ s Office
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