Punctuation can be Pivotal in Interpreting Text
June 19, 2017
It’s not often that a circuit court decision parsing statutory language in a state overtime-pay statute makes national headlines, and even less often that the decision in question hangs on the presence (or absence) of an Oxford comma. But that’s what happened when the 1st Circuit’s decision in O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017), resulted in a New York Times headline that “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute.”
The Oxford (or serial) comma is a comma that is used with the conjunction (“and” or “or”) culminating in a series of three or more terms. Some style guides require it, some do not. But it cannot be doubted that the Oxford comma can avoid some strange meanings. Imagine a conservative who writes, “My favorite people are my parents, Donald Trump and Ann Coulter.”
In O’Connor, the Oxford comma — or lack thereof — took center stage in a class action under Maine’s overtime-pay law brought by dairy-truck drivers, who were not paid time-and-a-half for hours worked in excess of 40 hours per week, as the law requires. The defendant dairy argued that the drivers were not entitled to overtime pay because they performed duties related to handling food that the dairy argued were exempted from the law. The exemption covered the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” several food products. M.R.S. § 664(3)(F).
The parties’ disputed whether “packing for shipment or distribution,” referred to one or two separate activities. The 1st Circuit agreed with the drivers that the exemption was limited to “packing and distribution,” which entitled the drivers (who “distributed” but did not “pack”) to overtime pay.
But before you drop this newspaper to reach for a grammar textbook, the court did not stop after siding with the drivers’ interpretation of the missing comma. Instead it weighed other textual arguments, such as the dairy’s argument that the “or” in the clause, “packing for shipment or distribution” — the only “or” in the list — signaled that “distribution” was a new item in the list. It was also persuaded by the drivers’ argument that the “packing” set off a new item but “distribution” did not because all other items were gerunds—i.e., “ing” words. The court then resorted to the statute’s legislative history and the canon that wage-and-hour laws are interpreted in favor of employees to “break the tie” that the text created.
In short, although the court’s focus on the missing Oxford comma grabbed headlines, it was hardly the end of the court’s analysis. While O’Connor is (for what it’s worth) the most high-profile example of punctuation’s impact in statutory interpretation, other Minnesota and federal courts have also had occasion to examine punctuation’s impact on a statute’s meaning. A few lessons can be gleaned from these cases, which we share below.
In Minnesota, we have a statute: In Minnesota, as in several other states, the Legislature gives explicit guidance to courts on the interpretation of its statutes. In other states, that the guidance may lie outside of the state’s statutes, however, as was the case in O’Connor, in which the parties focused on the Legislature’s drafting guide.
Minnesota Statute § 645.08 codifies several canons of interpretation that courts have developed at common law. First among these is that “words and phrases are construed according to rules of grammar and according to their common and approved usage.” While grammarians may differ on whether punctuation is included in the “rules of grammar,” the state courts interpret this language to mandate that they also follow the standard rules of punctuation.
Start with the plain meaning of text: The comma issue confronted by the court in O’Connor was interesting precisely because the text alone was ambiguous. While the Oxford comma received significant attention from the court, it was analyzed only after the court concluded that the text was ambiguous. Thus, before diving into the potential meaning of punctuation (or lack thereof), practitioners should have a solid understanding of the statute’s key words and phrases and how those could possibly be interpreted. When interpreting text, courts most often turn to standard dictionaries, resorting to specialized sources only when those words have acquired a specialized meaning.
Punctuation matters: While practitioners should pay attention to the importance of punctuation, it is by no means the only tool in the interpretive toolbox. In O’Connor, punctuation was considered side-by-side with the use of gerunds, the significance of the word “or,” and the legislative history and purpose. The Minnesota Supreme Court followed a similar path in City of Oronoco v. Fitzpatrick, 883 N.W.2d 592 (Minn. 2016), which interpreted the state attorney-lien statute. In Oronoco, the court considered the fact that a particular clause was set off by a comma rather than a harder mark such as a semicolon, but buttressed this factor by considering the “last-antecedent” rule that the last antecedent modifies only the immediately preceding clause, and the canon to avoid superfluous language.
Sometimes, punctuation choice means more than word choice. In NACS v. Board of Governors of the Federal Reserve System, 746 F.3d 474 (D.C. Cir. 2014), for example, the D.C. Circuit drew upon the Chicago Manual of Style and Follett’s Modern American Usage in holding that Congress’s use of the word “which” should be read restrictively when determining which costs the Fed could consider when setting debit-card-transaction-fee caps, pursuant to a Congressionally mandated formula. Even though those style guides observed that writers ordinarily use the word “which” to describe and “that” to restrict, commas always precede a descriptive phrase, and there was none in the statutory provision. In that court’s view, “the absence of commas matters far more than Congress’s use of the word ‘which’ rather than ‘that.’” Id. at 486.
Try to tell a story: Statutory interpretation is dry to begin with. Interpreting the meaning of punctuation may be even drier. All the more reason to liven up your argument with a story about how your preferred interpretation effectuates the Legislature’s intent, and how the Legislature sympathized with your client’s plight when passing that statute. When text is ambiguous, courts regularly look to legislative history to determine the meaning of statutes. Explaining how the Legislature intended to benefit your client may help tie the potentially dry statutory analysis into your hopefully more colorful facts.
Conclusion: Punctuation’s at-times pivotal role in interpreting legal text—statutes, contracts, and patents for instance—is nothing new. As a Supreme Court justice famously observed nearly 200 years ago when assessing the placement of a comma in the piracy statute, “men’s lives may depend on a comma.” United States v. Palmer, 16 U.S. (3 Wheat) 610, 611 (1818) (Johnson, J., dissenting). While a man’s fate may (quite literally in the case of Palmer) hang on a comma, it is rare that even a less consequential case will rest completely on the Legislature’s use of punctuation. Nonetheless, advocates and readers alike would be wise to heed the advice of the D.C. Circuit that “stuffing punctuation to the bottom of the interpretive toolbox” would be a mistake. NACS, 746 F.3d at 486.
Reprinted with permission of Minnesota Lawyer ©2017
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