An article published on page 3 of the Business Outlook section of the Albuquerque Journal last week sheds light on the current state of the law and the legal profession. The article, written by Joel Jacobsen and headlined Court puts quirky spin on burglary statute, discussed two recent decisions by the New Mexico Supreme Court. But it seems the disease these decisions exemplify is spread much more broadly than just this state.
At issue was whether entering a business for a criminal purpose in a manner that was not authorized, by deception or in violation of an express prohibition, is "unauthorized" as part of the definition of burglary (a felony) as opposed to shoplifting (a misdemeanor). As Jacobsen wrote,
'Unauthorized' doesn't always mean what it seems to say when would-be thieves enter a commercial enterprise with crime in mind. . . . Because entry into Costco without a valid membership doesn't implicate such highly wrought feelings, therefor it's not unauthorized. Even though it's not authorized. . . . Again, as a matter of statutory construction, the court held that the entry into the store wasn't "unauthorized," even though it was prohibited.What can make sense out of that sort of self-contradictory verbiage? How can English words be made to say things that are so completely at odds with their normal meanings? The answer to these questions is what is called "statutory construction".
Professor Daniel A. Farber [apparently now at the School of Law of the University of California at Berkeley] once explained how statutory construction works. If a person at the table asks you to pass the salt, obviously he or she wants you to pass a common flavor enhancing condiment.Why is this important? Jacobsen explains at the end of his article.
But it would be unreasonable to assume the person is asking to be given a substance that raises blood pressure and shortens lifespan. Therefore, he or she means for you to pass the pepper.
In constitutional theory, as expressed in Article III of the New Mexico Constitution, courts have no power to rewrite statutes. But, in judicial theory, interpreting a simple word like "unauthorized" to refer to a complex of emotions that "we" supposedly feel doesn't count as rewriting. And that's why New Mexico now has two burglary statutes, one found in the statute books that covers all businesses equally and one existing only in the opinions of judges that carves out an exception for retail stores. Here's your pepper.In other words, while judges are not allowed to write or rewrite laws, they do it anyway by changing the meanings of words. As I suggested above, that's not something that's limited to the judges in this state. It seems to be a communicable disease a communicable mental disease. But a remaining question is whether it is communicated judge to judge (or senior judge to senior judge), or whether that occurs in their initial law school training.