Tuesday, June 27, 2017

The Meaning of Legislative Words

I have spent a fair portion of my spring reading bills and watching hearings. the 2017 session was lively and interesting. Much of a bill's procession can be seen on a schedule. During the committee process in Florida there are agendas for meetings. The bill you may be watching is either on the agenda for a particular meeting or not. Being on the agenda does not tell you what time it will be discussed, or really even in what order. But, it tells you that the discussion will be during that time allotted for the meeting.

The chamber floors are a little harder to predict. A bill may be listed on the "calendar" for a given day, but that does not mean that it will be called up. And, that possible time window is not the 3 hours for some committee meeting. If the bill is listed on a day's calendar, it can be called anytime that day. I recall one bill years ago that was listed as third or fourth on the calendar when a chamber convened at 10:00 a.m. I watched all day on the video, and finally gave up. The next day I learned it had been called at 8:00 p.m. and passed. Watching legislation made can be an exhausting process.

So, the 2017 session involved a great deal of interest in SB1582 and HB7085. As the end of session neared, the House had passed its bill, and the Senate Bill was listed on the floor calendar, and from call-to-order through adjournment, a great many watched and waited. Some had a specific interest, a feature of one bill or the other that was valued or disliked. I was more curious at that stage than anything else. But we watched, waited and wondered. In the end, neither bill was sent to the Governor.

In the course of the waiting and watching, however, I became acquainted with CS/CS/HB937. That name signifies that since the House Bill ("HB") 937 began its life, there have been two "committee substitutes," or "CS,' that changed the original language in some way.

The bill caught my attention because the discussion on the Senate floor included mention of "addiction." Anyone that reads this blog is likely to know that I have been a critic of opioid and heroin misuse, and have attempted to explore how our society can address the many deaths in which drugs are implicated. When I caught the word "addiction," my attention was refocused. 

And, while CS/CS/HB937 can be characterized as being concerned with addiction, it is not about drugs. It is about gambling. Gambling was the subject of other bills this session also, but this one is specifically about lottery gambling. It is a form of gambling that has become institutionalized in Florida, with state control and much of the money generated going to the state education system.

If the bill becomes law, there will be warnings included in lottery advertising. It was presented to the Governor on June 14, 2017 and so the Governor's decision will be known this week. One of the bill sponsors likened these warnings to those that have been included with cigarette advertising in recent decades. The bill would require the use of a series of warnings on that lottery advertising, including:


And it was these two sentences that spawned much of the debate on the Senate floor in May. One Senator essentially questioned whether gambling is an "addiction" or a "compulsion." Another question was raised as to whether studies had supported that gambling is not an addiction. It was a discussion focused on specific words, meanings, or interpretations. I was later questioned about that debate, it had caught more ears than mine. Why would the Senate, with so much business to do, be so focused on specific words?

Addiction is defined by Mirriam Webster as 

compulsive need for and use of a habit-forming substance (such as heroin, nicotine, or alcohol) characterized by tolerance and by well-defined physiological symptoms upon withdrawal; broadly : persistent compulsive use of a substance known by the user to be harmful

And, Mirriam Webster defines "compulsion" as

an irresistible persistent impulse to perform an act (such as excessive hand washing) her compulsion to repeatedly check and recheck the stove to be certain that it is turned off; also : the act itself Gambling is a compulsion with him.
The two words do seem to convey a similar sentiment in terms of the behavior exhibited. But these dictionary definitions support that "addiction" and "compulsion" are not synonyms. The key words in "addiction" are perhaps "substance," and "well-defined physiological symptoms." These are missing from "compulsion," whose key definitional terms in this context might be "an act" and "irresistible." Perhaps "irresistible" is not included in "addiction" because that definition begins with the word "compulsive"; thus, perhaps compulsion is a broader subject, within which certain "substance" issues form a sub-category of "addiction?"

The Scientific American contends that gambling is an addiction. Psychguide.com describes both forms of gambling and offers the logic that drives some people to this "gambling addiction," which it nonetheless describes as a "compulsive." 

Researchers at the University of Sydney contend that gambling is not an addiction. They note that the "symptoms such as tolerance or withdrawal, which are central features of addiction, are rarely seen in gamblers." Others question the models or standards through which we define "addiction." One fascinating example by Stanton Peele is worthy of review. He essentially concluded that gambling as an activity can be "addictive," but seems to agree that medically it is mislabeled as an "addiction" per se. This may be parsing words, but after all he is not just a doctor, but a lawyer as well. 

Peele eloquently draws some intriguing distinctions. Perhaps the most valuable thought he provides on this, however, is 

any powerful experience in which people can lose themselves can become the object of an addiction. The result of this immersion is deterioration of the person's engagement with the rest of his or her life, which increases the person's dependence on the addictive object or involvement.
And, in that context, it is perhaps possible to accurately say that any activity can be "addictive," without characterizing the activity as an "addiction?" Perhaps I find writing this blog addictive?

More importantly, Peele explains why there is debate about gambling and addiction. He contends that gambling and gamblers are generating 

continued and increasing attention — due to state reliance on gambling for revenues and government and private marketing of the gambling experience
He suggests that there could be some perception that as society we are enabling and encouraging behavior that can be addictive, and which may lead to untoward outcomes. He seems to suggest that in their drive for revenue, states have become complicit in promoting a social problem. As I read his analysis, I wondered if we might apply the same analysis to the exponential opioid distribution in the 1990s, and the many dollars that it generated? There is no Florida sales tax on prescriptions, but that is not nationally universal. And, those sales generated commissions for sales persons, wages for manufacturers, etc. There was undoubtedly state revenue from the boom in opioid sales. 

And so, back to the Florida Senate. As mentioned, a fellow observer asked why legislators would be so focused on individual words. The purpose of CS/CS/HB937 is clear, and the distinctions between "addiction" and "compulsion" seem, to some observers, to be a case of semantics. That perception, at least so far as it generates discussion, has some validity. 

The fact is that law is made of words. Some will react to that sentence viscerally because of their belief system. In America today there are multiple views on the law. Some contend that documents such as the U.S. Constitution and statutes should be read and interpreted according to their words. Others, contend that these writings are merely expressions of sentiments, and that law should evolve based upon how judges feel more so than upon what those laws actually say. Because of this, both camps are likely to have equal but quite opposite reactions to the simple premise that "law is often made of words."

And, that is why the legislature might struggle with the words. Why should these statutory warnings about gambling say "addictive" or "compulsive," or either? Though my inquisitor was dismissive of this debate (concluding it a "silly" debate), and though it could be perceived as picking nits, I would posit that there are several good reasons to both select the right term, and to do so thoughtfully. 

In interpreting statutes, courts are supposed to follow rules of interpretation. The first and foremost of these is the "plain meaning" rule in which law are "interpreted using the ordinary meaning of the language of the statute." In other words, a statute that requires leashes on dogs would not be interpreted expansively to require leashes on the feline, bovine, or swine. 

The Florida Supreme Court has steadfastly held that "the legislature is presumed to know the meaning of words and the rules of grammar." Therefore, the "only way the court is advised of what the legislature intends is by giving the generally accepted construction," to the words themselves and to the "manner in which it is punctuated." Florida State Racing Com'n v. Bourquardez, 42 so.2d 87 (Fla. 1949). For a a sincere, but perhaps whimsical, review of a recent punctuation peccadillo, see I Never Knew Oxford had a Comma. Legislators are expected to know words and meanings, and how courts interpret those law they pass can critically depend upon them. That is a valued reason to debate word choice. 

Some contend that courts too often eschew the "plain meaning," and instead deviate to personal perceptions of what the legislature "meant," its "legislative intent." Advocates of this departure assure that they select this path when the meaning of words is not clear, either in that statute or when read along with some other statute. Others argue that these departures are merely courts seeking to create law rather than interpret it. Much depends on the perspective of the interpreter. 

An interesting discussion of that conflict is in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 129 (Fla. 2004). After reminding that "the Legislature is presumed to know the meaning of the words it chooses," the Court provides an overview of the elusive "legislative intent." In that case, one judge dissented, citing "legislative history" for foundation. The one judge expressed the "intent" of a legislator that offered an amendment when that bill was passed. The Court explained that

the problem of using a single legislator's comments to 'prove' the intent of the Legislature, however, is that the clause at issue was not even included in the amendment the representative offered.
The attempt to discern intent came from comments made when that language was not part of the bill. And that, in a nutshell is the challenge of interpreting "intent." When that statute in Knowles was passed, the clause upon which the dissent relied to suppose intent was not the bill sponsor's clause, but was "inserted into the amendment on the floors of the two houses of the Legislature," an "amendment to the amendment," much perhaps like a "committee substitute" for a "committee substitute." 

As Justice Scalia noted in Crosby v. National Foreign Trade Council, 530 U.S. 363, 390–91 (2000):

the only reliable indication of that [legislative] intent—the only thing we know for sure can be attributed to all of them—is the words of the bill that they voted to make law.
There is a value to the debate of word choices. Courts will assume that legislatures choose carefully and thoughtfully. So, legislatures should. Perhaps not because of future debates that they see coming, but in case there are debates coming unpredicted and unforeseen, debates about what words mean or what the legislature itself meant. 

With the selection of "addiction" over "compulsion," might there be implications regarding how someone suffering through a "powerful experience in which people can lose themselves" might be perceived or treated medically? Might treatment be afforded for addiction, where none would be for "compulsion?" Might there be differences in how someone having "lost themselves" might be perceived if that is an "addiction?" In that choice of words, might the legislature be seen as expressing intent regarding the perceptions of others?

Or, might a simpler explanation apply to the selection of "addiction?" As the learned Senators exhibited in this year's debate, there is no universal agreement on describing the inclination toward gambling. As illustrated above, there are arguments among the brightest as to whether "addiction" or "compulsion" best describes what to some is nonetheless this "powerful experience." And, when a warning is necessary, perhaps it is best to use a word that is easily recognized, a word that carries a disagreeable connotation? In that perspective, perhaps warning someone that they could become "addicted" is more likely to produce results (conscious, intelligent consideration of the act) than a warning of potential "compulsiveness?" 

In the end, the meaning of words does have impact. Courts will presume that legislators knew the meaning of their words, and that resulting statutes are intended to do as they say. Canine leash laws should not be implied upon loose bovines any more that statutory definitions should be loosely and retrospectively relabelled as presumptions. Statutes should be clear, words should be carefully chosen, and people should be able to understand them. Courts should respect those words when stated, and avoid inserting words of their own to facilitate their conclusions. 

Whether warnings are added will be seen this week. That is the other forgotten piece of the legislative process: once the legislature agrees, the Governor's opinions mean a great deal.

Update, June 26, 2017 - this bill was vetoed by Governor Scott.