Legalese (Government Manipulation of Language)


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(For Frank ‘Austin’ England III) 
(Blog Masters Note: The first part of this post is from other websites and is Austin’s teaching tool.  The second portion, under “Constructions” is Austin’s additional information including case law and un-published cases. )

Government Manipulation of Language

A Natural Person vs Artificial Person (A Legal Fiction)

Government Manipulation of Language

Government Tricks:
This is perhaps the most important page on this web-site.
First Trick:

The first “trick” of the Government is the re-definition of certain critical words in each Statute (Act). They (the Government) want you to assume the ordinary meaning of the word so as to trick you into reading and interpreting the Statute in their favour. Here is a summary of some of the Trick Words. Two key words that are re-defined in almost every Statute are the words “person” and “individual”. There are at least two “person” in law:

A natural-person is a legal entity for the human-being.

An artificial-person is a legal entity that is not a human being.

Here are the exact definitions from Barron’s Canadian Law Dictionary, fourth edition (ISBN 0-7641-0616-3):

* natural person. A natural person is a human being that has the capacity for rights and duties.
* artificial person. A legal entity, not a human being, recognized as a person in law to whom certain legal rights and duties may attached – e.g. a body corporate.

You will observe that the natural-person has the “capacity” (i.e. ability) for rights and duties, but not necessarily the obligation. The artificial-person has rights and duties that may be attached (i.e. assigned) by laws.

Second Trick:

The second “trick” of the Government is to use the Interpretation Act to define words that apply to all Statutes, unless re-defined within a particular Statute. Without this knowledge, you could assume the ordinary meaning for the words you are reading, not realizing that they may have been defined by the Interpretation Act. Unless these words have been re-defined in another Statute, the underlying definitions for the two most important words still apply, either from the Interpretation Act, or the Canadian Law Dictionary. Basically, they are defined as follows:

from the Canadian Law Dictionary we find that:
individual means a natural person,
from the Income Tax Act we find the re-definition:
individual means an artificial person.

from the Canadian Law Dictionary we find that:
person means an individual (natural person) or incorporated group (artificial person),
from the Interpretation Act we find the re-definition:
person means a corporation (an artificial- person),
from the Income Tax Act we find the re-definition again:
person means an artificial person (amongst other things).

In the Canadian Human Rights Act you will see how individual and person are used and how they apply to natural and artificial persons.

Third Trick:

The third “trick” of the Government is to use the word “includes” in definitions instead of using the word “means”. They do this in some critical definitions that they want you to misinterpret. If they used “means” instead of “includes” then their deception would be exposed, but by using “includes” they rely upon the reader to assume that “includes” expands the definition, whereas in reality it restricts the definition in the same manner that “means” restricts the definition.

Here is a means definition of the word “person” from the Bank Act:
person means a natural person, an entity or a personal representative;
Here is an includes definition of the word “person” from the Interpretation Act:
person, or any word or expression descriptive of a person, includes a corporation
To expose their deception, substitute the word means and you have
person , or any word or expression descriptive of a person, means a corporation (viz. – artificial-person)

Both “means” and “includes” are restrictive in scope because they only encompass part of the whole. Typically they are used in the following form:

person means A or B or C (and nothing else).
person includes A and B and C (and nothing else).

From the above example, you will see the logical difference. The list that follows means is constructed using “or”, whereas the list that follows includes is constructed using “and”.

There is a Legal Maxim that supports the restriction of “includes”:

Inclusio unius est exclusio alterius.

The inclusion of one is the exclusion of another.

The definition of the word include is key to understanding your potential loss of natural-person. This is the major trick used by the Government in an attempt to take away your natural-person rights. Unless you know this, you will voluntarily forfeit your rights.

Forth Trick:
The fourth “trick” of the Government is to modify how the word “includes” is used in order to make an expansion in the definition when such expansion is required. This “trick” helps add confusion to the use of “includes” convincing most readers that “includes” should always be expansive rather than limiting. Here are some legitimate ways in which “includes” is modified to become expansive rather than restrictive:

also includes
and includes
includes, without limitation,
including but not limited to

The expansive definitions usually take the following form:

person means A or B or C and includes D. (A,B, C and D)

However, there is also a possibility that “and includes” is restrictive in some constructions. There are some people investigating this possibility right now. Their logic is demonstrated by the following example of a definition that states:

province means a province of Canada and includes Ontario and Quebec.

So, if we presume that “and includes” does provide expansion then we must ask why Ontario and Quebec had to be specifically mentioned when they are already part of a so-called province.

The above construction clearly defines the scope of what is meant by province, that is a province of Canada (it does not say which one), and includes only Ontario and Quebec (compiled from a list of two from the original scope of all provinces). In this construction means provides the scope of the definition and includes provides the list of what is actually included in the definition.

The foregoing analysis is one interpretation, but is not the only interpretation. The use of “includes” in statutory definitions can be argued both ways and is the backbone of understanding interpretations.

With the presumption that “and includes” is restrictive, then we must take a very close look at the following definition, taken from the Interpretation Act:

province means a province of Canada and includes the Yukon Territory, the Northwest Territories and Nunavut .

With this presumption what is stated is: unless another statute re-defines province, the default definition of province only includes the Yukon Territory, the Northwest Territories and Nunavut.

So in order to not become absurd, we must allow for “and includes” to be expansive, however more work needs to be done on this subject before placing the last nail in the coffin, so to speak.


Barron’s Canadian Law Dictionary does not provide definitions for “include” or “means” therefore we have to look in the next Source for the definitions.

From Black’s Law Dictionary, fourth edition, here is the definition for the word “include”:

* include. To confine within, hold as in an inclosure, take in , attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Including may, according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words theretofore used.
* inclose. To surround; to encompass; to bound; fence, or hem in, on all sides.

It is stated in the above definition that the verb include is clearly restrictive and only has limited scope. On the other hand the participle, including (but not limited to) enlarges the scope.

Therefore the conclusion is that when used in a definition, include does not expand the existing definition of the word it is attempting to define. It is easy to be confused because we naturally assume the existing definition of the word, then assume include means to add this new interpretation to the existing assumed definition of the word. Our assumptions fail us in this case.

From now on, when you see the word includes, mentally substitute the word means and you will not be “tricked” by this definition any more.

For the Doubting Thomas:

If you look into any statute, you will be able to find a definition that uses the word includes and when you attempt to broaden the scope of that word to include the ordinary meaning, you will find that the statute will break down because it will not be able to support the inclusion of the ordinary meaning of the word. The breakdown usually occurs when slavery is invoked.

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,”
( Preamble – Universal Declaration of Human Rights)


“How’s the dictionary getting on?” Winston asked his comrade Syme, who worked with him in the Research Department.

“We’re getting the language into its final shape,” Syme answered. “By the year 2050 at the very latest not a single human being will be alive who could understand the conversation we are having now.”
1984, George Orwell.

In America we speak three languages: Slang, Formal English, and Legal English, Though simular, if one tries to communicate using one language while the listener is listening using another language, there is great opportunity for miscommunication. This article is written in Legal English.


It’s the language of the street. It is a dynamic, loosely defined language, and it can vary considerably from one geographical area to the next. It abounds with special and paradoxical interpretations. Once must “grow up” with the language to fully appreciate its peculiarities.

Foreigners always have great difficulty dealing with the various idioms. For example, if you think something is genuinely wonderful, you could say either, “That’s really cool!” or “That’s really hot!” Another way to express great approval is to exclaim, “That’s B-A-D!” or “That’s G-O-O-D!”

Formal English

Precise communications require a more formal structure. Formal English is taught in the schools, and it is the language of choice when strangers meet to execute common transactions. It is a stable language that typically requires multi-decades or centuries to evolve its meanings.

Unless otherwise specified, English dictionaries cast all words in Formal English, with the more common usage placed at the beginning of the definition. Dictionaries often will show slang or legal meanings as well. They are placed after the more popular usages.

This author favors Webster’s 1828 Dictionary because it is useful in understanding words used in the U.S. Constitution. G. & C. Merriam Webster’s unabridged dictionary published in 1953 and earlier is great for modern meanings.

Legal English

When you want accuracy in communication, Legal English is the preferred language. Also known as King’s English, or the Language of the Court Room, Legal English is extremely stable, requiring thousands of years for changes in meaning.

Because accuracy is required for good legal communication, legal definitions tend to be rather verbose. The extended explanations are necessary to achieve that accuracy. Legal dictionaries are not all called dictionaries. The more thorough dictionaries are entitled “Corpus Juris” and “Words and Phrases.” A given word could require fifty or more pages to arrive at its exact meaning. Other dictionaries (in descending order of this author’s preference) include Bouvier’s Law Dictionary (1872 Edition), Ballentine’s Law Dictionary, and Black’s Law Dictionary (4th edition or earlier).

Later editions of Bouvier’s Law Dictionary are more like legal encyclopedias

Black’s Law Dictionary, 5th through 7th Editions are not as accurate because references to common law are progressively removed, and Roman Civil Law concepts are augmented in order to conform to the law enforcement needs of political power centers such as the Federal Government and the United Nations.

The rule of thumb is that older dictionaries are useful for understanding natural rights, common law, personal sovereignty, and the people’s point of view. Newer dictionaries are useful for understanding civil rights, Roman civil law, centralized authority, and the government’s point of view. All attorneys are trained in the latter. Judges may go to special seminars to learn the former.

For an excellent research paper on the use of dictionaries in the Supreme Court of the United States, see Kevin Werbach’s LOOKING IT UP: The Supreme Court’s Use of Dictionaries in Statutory and Constitutional Interpretation (1994).



An absolute, unqualified sentence (or proposition) needs no expositor {Absoluta sententia expositore non indiget; 2 Coke, Inst. 533}; From the words of the law there should be no departure {A verbis legis non est recendendum; Broom’s Max. 268; 5 Rep. 119; Wing. Max. 25}; Constructions should be liberal, on account of the ignorance of the laity, or non-professional persons, so that the subject-matter may avail rather than perish; and the words must be subject to the intention, and not the intention to the words {Benigne faciendæ sunt interpretationes propter simplicitatem liacorum, ut res magis valeat quam pereat; et verba intentione, non e contra, debent inservire}; Laws are to be more favorably interpreted, that their intent may be preserved {Benignius leges interpretandæ sunt quo voluntas earum conservetur}; The construction of law works not an injury {Construction legis non facit injuriam; Coke, Litt. 183; Broom’s Max. 259}; The voice of the legislators themselves is like the living voice; the language of a statute is to be understood and interpreted like ordinary spoken language {Est ipsorum legislatorum tanquam viva vox}; It concerns the commonwealth that things adjudged be not rescinded {Interest reipublicæ res judicatas non rescindi}; There should be no departure from common observance {Non est recedendum a communi observantia; 2 Co. 74}; The best mode of interpreting laws is to make them accord {Optimus interpretandi modus est sic legis interpretare ut leges legibus accordant; 8 Coke, 169}; The thing speaks for itself {Res ipsa loquitur}; A statute is to be so interpreted that the words may be taken with effect {Sic interpretandum est ut verba accipiantur cum effectu}; Statutes made for the public good ought to be liberally construed {Statuta pro publico commodo late interpretantur}; When anything is granted, that also is granted without which the thing granted cannot exist {Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest}; and that class of authority, infra:

It is the duty of the court to give a construction to all written instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100; 4 S. & R. 279; 8 S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R. 586; to written evidence: 2 Watts, R. 347 and to foreign laws, 1 Penna. R. 388. For general rules respecting the construction of contracts, see 2 Bl. Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28; 3 Chit. Com. Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans’ Poth. Ob. 35; Long on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F; 1 Powell on Contr. 370 Shepp. Touchst. c. 5; Louis. Code, art. 1940 to 1957; Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly’s Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit. Parols; Hall’s Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit. Contr. 19 to 22; 4 Kent. Com. 419; Story’s Const. § 397-456; Ayl. Pa d. B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, § 4-11; 20 Pick. 150; 1 Bell’s Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation; Parol; Pourparler;

28 U.S.C. § 1366 (Construction of references to laws of the United States or Acts of Congress) (For the purposes of this chapter, references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia.);

ORS 42.230(Office of judge in construing instruments) (In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.); Cf. Hunnel v, Roseburg Resources, 00 CV 0693 CC; A114411 (Or. 08/07/2002); Olson v. Van Horn,182 Or App 264, 48 P3d 860, rev den, 334 Or 631 (2002);

ORS 174.010 (General rule for construction of statutes) (In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.);

ORS 174.020 [Amended by 2001 c.438 §1] (Legislative intent; general and particular provisions; consideration of legislative history) (1)(a) In the construction of a statute, a court shall pursue the intention of the legislature if possible. (b) To assist a court in its construction of a statute, a party may offer the legislative history of the statute. (2) When a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent. (3) A court may limit its consideration of legislative history to the information that the parties provide to the court. A court shall give the weight to the legislative history that the court considers to be appropriate.);

ORS 174.030(Construction favoring natural right to prevail) (Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to prevail.);

Carcieri v. Salazar, No. 07-526 (USSC 02/24/2009) ((a) When a statute’s text is plain and unambiguous, United States v. Gonzales, 520 U.S. 1, 4, the statute must be applied according to its terms, see, e.g., Dodd v. United States , 545 U.S. 353, 359. … There is also no need to consider the parties’ competing views on whether Congress had a policy justification for limiting the Secretary’s trust authority to tribes under federal jurisdiction in 1934, since Congress’ use of “now” in §479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254. Pp. 7-13.);

Ali v. Federal Bureau of Prisons, No. 06-9130 (USSC 01/22/2008) (This Court must give effect to the text Congress enacted. Pp. 3-13.);

Clark v. Capital Credit Collection Services, No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (Well-established canons of statutory construction provide that any inquiry into the scope and meaning of a statute must begin with the text of the statute itself. E.g., Int’l Ass’n of Machinists & Aerospace Workers v. BF Goodrich Aerospace Aerostructure Group, 387 F.3d 1046, 1051 (9th Cir. 2004). They further caution that, “where the statute’s language is plain, the sole function of the courts is to enforce it according to its terms . . . for courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Id. (citing United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989) and Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)) (internal quotation marks omitted).

Clark v. Capital Credit Collection Services, No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (Because the statute affirmatively designates certain manners of operation, we are counseled that, under the doctrine of expressio unius est exclusio alterius, these omissions are the equivalent of exclusions. See ARC Ecology v. U.S. Dept. of Air Force, 411 F.3d 1092, 1099-1100 (9th Cir. 2005); In re Gerwer, 898 F.2d 730, 732 (9th Cir. 1990) (“The express enumeration [of an exception] indicates that other exceptions should not be implied.”). Nevertheless, we have long held that however helpful . . . rules of construction may be, the courts will . . . “construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.” Matheson v. Armbrust, 284 F.2d 670, 674 (9th Cir. 1960) (quoting S.E.C. v. Joiner Leasing Corp., 320 U.S. 344, 350-51 (1943)); see also Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992) (holding that expressio unius “is a rule of interpretation, not a rule of law. The maxim is ‘a product of logic and common sense,’ properly applied only when it makes sense as a matter of legislative purpose.”) (citation omitted). Moreover, we are not bound by the plain meaning of a statute where its literal application will produce a result “demonstrably at odds with the intention of its drafters.” In re Been, 153 F.3d 1034, 1036 (9th Cir. 1998) (citing United States v. Ron Pair Enterprises, 489 U.S. 235, 242 (1989)); see also United States v. Combs, 379 F.3d 564, 569 (9th Cir. 2004) (“[W]e are not required to interpret a statute in a formalistic manner when such an interpretation would produce a result contrary to the statute’s purpose or lead to unreasonable results.”) (citing Commissioner IRS v. Brown, 380 U.S. 563, 571 (1965)). In the present context, strictly abiding by the plain language of § 1692c(c) would do just that. Cf. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 398 (6th Cir. 1998) (“While Congress appears to have intended the [FDCPA] to eliminate abusive collection practices, the language of § 1692c(c) is broader. . . .”).

Clark v. Capital Credit & Collection Servs., Inc.,No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (However, “[i]n analyzing a statutory text, we do not look at its words in isolation. Textual exegesis necessarily is a holistic endeavor. . . . Thus, we look not only to the language itself, but also to . . . the broader context of the statute as a whole.” BF Goodrich, 387 F.3d at 1051 (internal quotations and citations omitted). Indeed, elsewhere we have explained that “[t]he words of a statute are, of course, dead weights unless animated by the purpose of the statute.” Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1171 (9th Cir. 2000). To that end, we are “obliged to give effect, if possible, to every word Congress used,” Baker, 677 F.2d at 778 (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)), and “[w]e have consistently . . . reject[ed] interpretations that would render a statutory provision surplusage or a nullity,” In re Cervantes, 219 F.3d 955, 961 (9th Cir. 2000). See also id. (noting that “statutes should not be construed in a manner which robs specific provisions of independent effect”) (citations omitted). This requirement demands that we pursue consistency not only within a particular provision but also among the provisions of the FDCPA. See Am. Bankers Ass’n v. Gould, 412 F.3d 1081, 1086 (9th Cir. 2005) (“Our goal in interpreting a statute is to understand the statute as a symmetrical and coherent regulatory scheme and to fit, if possible, all parts into a harmonious whole”) (internal quotation and citation omitted).

Clark v. Capital Credit & Collection Servs., Inc.,No. 04-35563, 04-35795, 04-35842 (9th Cir. 08/24/2006) (See, e.g., Security Pac. Nat’l Bank v. Resolution Tr. Corp., 63 F.3d 900, 904 (9th Cir. 1995) (“We must avoid a construction which renders any language of the enactment superfluous.”); Hearn v. W. Conference of Teamsters Pension Tr. Fund, 68 F.3d 301, 304 (9th Cir. 1995) (“Only where a sensible result isn’t reachable may we resort to the drastic step of ignoring . . . statutory language. . . .”) (citation omitted). Instead, intent is only relevant to the determination of damages. Taylor, 103 F.3d at 1238, 1239 (“the fact that violations were innocuous and not abusive may be considered only in mitigating liability, and not as defenses”); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2d Cir. 1993) (“the degree of a [debt collector’s] culpability may only be considered in computing damages”). We are convinced that this reading of the FDCPA is more in harmony with the remedial nature of the statute, which requires us to interpret it liberally. Cf., e.g., Eby v. Reb Realty, Inc., 495 F.2d 646, 650 (9th Cir. 1974) (concluding the remedial purpose of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., required liberal construction); accord Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) (“Because the FDCPA . . . is a remedial statute, it should be construed liberally in favor of the consumer.”).

Hamdan v. Rumsfeld, Secretary of Defense , No. 05-184 (U.S.S.C. 06/29/2006) (The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U.S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh.);

Scheidler v. National Organization for Women Inc., No. 04-1244 (U.S.S.C. 02/28/2006) (Respondents’ contrary claim rests primarily upon a canon of statutory construction that favors interpretations that give a function to each word in a statute, thereby avoiding linguistic superfluity. See United States v. Menasche, 348 U.S. 528, 538-539 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute’ ” (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883))). … The canons of interpretation cannot lead us to a contrary conclusion. Those canons are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent. Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (noting that “canons are not mandatory rules” but guides “designed to help judges determine the Legislature’s intent,” and that “other circumstances evidencing congressional intent can overcome their force”).

Gathright v. City of Portland, No. 04-35402 (9th Cir. 02/24/2006) (Gathright challenged his evictions from the city park on First Amendment grounds. The City defended its ordinance as a legitimate “time, place, or manner” regulation of protected speech. The Ninth Circuit’s opinion rejects the City’s argument and invalidates the ordinance on its face, distinguishing the Supreme Court’s seminal case for such regulation in city parks ( Ward v. Rock Against Racism, 491 US 781) and the Supreme Court case most closely on point ( Hurley v. Irish-American Gay Group of Boston, 515 US 557), and then concluding without much more discussion that the City’s ordinance is not “narrowly tailored” enough to protect the permittees’ interest in exercising their right to gather peaceably in city parks.);

City of Nyssa v. Dufloth, 339 Or. 330 (2005) (Under the Priest paradigm the court searches for the intent of the people who drafted and adopted the original provision of the constitution. In so doing, the court examines the wording of the constitutional provision, the case law surrounding it, and the historical circumstances leading to its adoption. 314 Or at 415-16.)

Lambert v. Blodgett, No. 03-35081 (9th Cir. 12/28/2004) (Reinforcing our textual analysis is the usual presumption that when Congress employs a commonly used phrase like “adjudicated on the merits,” it intends that term to retain its ordinary meaning. See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”); RANDY HERTZ & JAMES S. LIEBMAN, 1 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 1422 & n.4 (4th ed. 2001) (“[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.”) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947)).

United States v. Vagas Amaya, No. 03-50577 (9th Cir. 11/22/2004) (“In construing a statute as a matter of first impression, we first must look to the statutory language: ‘The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.’ ” Morales-Alejo, 193 F.3d at 1105 (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)). It is a well-established canon of statutory construction that when Congress uses a term of art, such as “warrant,” unless Congress affirmatively indicates otherwise, we presume Congress intended to incorporate the common definition of that term: [W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them. Carter v. United States, 530 U.S. 255, 264 (2000) (quoting Morissettee v. United States, 342 U.S. 246, 263 (1952)).

Norfolk Southern Railway co. v. Kirby Engineeering, 543 U.S. 14, 125 S. Ct. 385 (2004) (“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). There is no reason to contravene the clause’s obvious meaning. See Green v. Biddle, 21 U.S. (8 Wheat.) 1 89-90 (1823) (“[W]here the words of a law, treaty, or contract, have a plain and obvious meaning, all construction, in hostility with such meaning, is excluded”).

McMellon v. United States, No. 02-1494 (4th Cir. 10/14/2004) (The Supreme Court has repeatedly explained that the plain language of a statute is the best evidence of Congressional intent. See, e.g., Holloway v. United States, 526 U.S. 1, 6 (1999). As noted above, the SIAA includes no list of exceptions to its waiver of sovereign immunity, but instead provides only that the government is entitled to the limitations of liability that are available in admiralty to private defendants. Thus, the plain language of the SIAA seems to reflect a Congressional intent that discretionary acts should not be excluded from the waiver of sovereign immunity. See Barnhart Comm. of Social Security v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (explaining that when construing a statute, “[t]he first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” (citations and internal quotation marks omitted)).

Miller v. C.C. Meisel Co. , 183 Or App 148, 51 P3d 650 (2002) (In Van v. Fox, 278 Or 439, 445-46, 564 P2d 695 (1977), the court explained: “‘The law does not favor, but leans against, the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained.’ (Quoting 11 Williston on Contracts 813, § 1424 (3d ed 1968);

Hunnel v, Roseburg Resources, 00 CV 0693 CC; A114411 (Or. 08/07/2002) (We review the interpretation of an express easement for errors of law. State Highway Com’n v. Deal et al., 191 Or 661, 681, 233 P2d 242 (1951); Kell v. Oppenlander, 154 Or App 422, 426, 961 P2d 861 (1998). To interpret an easement, we follow the guidelines that the Supreme Court established in Tipperman v. Tsiatsos, 327 Or 539, 544-45, 964 P2d 1015 (1998). See also Olson v. Van Horn, 182 Or App 264, 270 n 4, 48 P3d 860 (2002) (adhering to Tipperman method). We begin with the text of the instrument itself and look beyond it if it is ambiguous, in which case we look to the intent of the original parties as revealed by the relevant surrounding circumstances such as the nature of the easement and how it was used. If ambiguity still remains, we look to rules of construction such as the one announcing that an easement is to be construed against the grantor who reserves it. Tipperman, 327 Or at 545. Applying those guidelines here, we conclude that the trial court erred. Thus, the actual words themselves are unambiguous, and neither the punctuation, the handwritten numeral, nor the context of the disputed phrase alters that fact. And if they did, the ambiguity would attach not to the meaning of the instrument but to whether that meaning reflected the intention of the parties. As the trial court recognized, these factors do not affect the language in such a way as to produce more than one meaning. Rather, they indicate (if anything) an inadvertent scrivener’s omission. Reinserting inadvertent omissions is not the office of the judge in interpreting instruments; that office is “to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted[.]” ORS 42.230. An unambiguous contract that mistakenly fails to reflect the intent of the parties through inadvertent omission is remedied through a claim for reformation–a claim that defendant did not raise and that would have required defendant to prove, by clear and convincing evidence, an antecedent agreement to which the contract could be reformed, a mutual mistake (or unilateral mistake on the part of the defendant and inequitable conduct on the part of plaintiffs), and the absence of gross negligence by defendant. See Jensen v. Miller, 280 Or 225, 228-29, 570 P2d 375 (1977).

Olson v. Van Horn,182 Or App 264, 48 P3d 860, rev den, 334 Or 631 (2002) (ORS 42.230, which provides: “In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.” (Emphasis added.);

AT&T Communications of the Pacific Northwest, Inc. v. City of Eugene,16-98-12672; A105861 (Or. 10/31/2001) (The only possible justification for reading subsections (b) and (c) as substantive prohibitions is the textual maxim expressio unius est exclusius alterius. That maxim, however, may operate only to explain a text, not to contradict it. Neuberger v. Commissioner of Internal Revenue,
311 US 83, 88, 61 S Ct 97, 85 L Ed 58 (1940) (“The maxim expressio unius est exclusio alterius is an aid to construction, not a rule of law. It can never override clear and contrary evidence of Congressional intent.”).

United States v. Oakland Cannabis Buyers Coop., 532 U.S. 483, 496 (2001) (As an initial matter, the Cooperative is correct that, when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise. For “several hundred years,” courts of equity have enjoyed “sound discretion” to consider the “necessities of the public interest” when fashioning injunctive relief. Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944). See also id., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Such discretion is displaced only by a “clear and valid legislative command.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). See also Romero-Barcelo, supra, at 313 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles”).

United States v. One 1997 Toyota Land Cruiser, No 99-55661 (9th Cir. 04/26/2001) (In construing a statute, we first consider its text. “[W]hen the statute’s language is plain, the sole function of the courts –at least where the disposition required by the text is not absurd–is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, 120 S.Ct. 1942, 1947 (2000) (citations and quotation marks omitted). If the statute’s meaning is clear, we will not consider legislative history. “When the words of a statute are unambiguous, … the first canon is also the last: judicial inquiry is complete.” Connecticut Nat’l. Bank v. Germain, 503 U.S. 249, 254 (1992) (citations and quotation marks omitted).

State of Oregon v. Cach,9903-61470; CA A105887 (02/29/2001) (ORS 426.100 is like any other statute, in that its interpretation depends on ascertaining the legislature’s intent. We should interpret it as it is written and not add to, or delete language from, its text. ORS 174.010. There has been a tendency by this court to read this particular statute’s requirements as if the failure to comply with them constitutes “structural” error. See, e.g., State v. Montgomery, 147 Or App 69, 934 P2d 640 (1997); State v. May, 131 Or App 570, 888 P2d 14 (1994). Although that term has a somewhat ambiguous meaning in the law, I understand it to refer to situations where the denial of a fundamental right is so pervasive that it necessarily infects the entire proceeding. An example would be the denial of the assistance of counsel in a criminal proceeding where there has been no effective waiver of that right. See, e.g., State v. Barone, 329 Or 210, 986 P2d 5 (1998).(5) In those instances, the concept of “harmless error” can play no role because it is impossible to ascertain whether the proceeding was fundamentally fair. Nothing in the language of ORS 426.100 suggests that the legislature intended that a failure to comply with its requirements would constitute structural error. Consequently, this court has erred in the past to the extent that it has refused to consider arguments about waiver and harmless error, because those doctrines are applicable under this statute.)

Trus Joist Macmillan v. John Deere Insurance Co.,171 Or. App. 476, 15 P.3d 995 (12/20/2000) (The focus of statutory construction is the intentions of the legislature, not the intentions of the parties to a private insurance policy. There is a presumption that the legislature intended the ordinary meaning of terms to apply, as generally reflected in common dictionary definitions. See, e.g., Marcilionis, 318 Or at 644-45);

Trus Joist Macmillan v. John Deere Insurance Co.,171 Or. App. 476, 15 P.3d 995 (12/20/2000) (This is not a case in which the Oregon legislature enacted a uniform law. See, e.g., Security Bank v. Chiapuzio, 304 Or 438, 445 n 6, 747 P2d 335 (1987) (“the legislative intent to make the UCC a uniform code makes relevant the decisions of other courts”). Nor is it a case in which the Oregon statute is based on the wording of a statute from another jurisdiction, in which case pre-existing decisions from that jurisdiction may become relevant. See, e.g., Pamplin v. Victoria, 319 Or 429, 433, 877 P2d 1196 (1994) (pre-existing federal court decisions construing federal rule of civil procedure relevant to interpretation of identical Oregon rule based on the federal counterpart). In the absence of any such evidence that the Oregon legislature intended to follow decisions of other jurisdictions, the fact that some of those decisions construe similar language differently provides little, if any, assistance to us in determining what the Oregon legislature intended.);

State of Oregon v. Barnes, 329 OR 327, 986 P2D 1160 (1999) (“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted * * *.”);

United States v. Harris, No. 97-10270 (9th Cir. 07/30/1999) (The presumption is that a statute is constitutional. United States v. National Dairy Corp., 372 U.S. 29, 32-33 (1963). Statutes are construed to avoid defects which would render them unconstitutional. U.S. Civil Service Comm. v. Letter Carriers, 413 U.S. 548, 571 (1973)); Cf. Rose v. Clark, 478 U.S. 570, 577-78, 106 S Ct 3101, 92 L Ed 2d 460 (1986);

Fales v. Multnomah Co. et al.,119 Or 127, 133, 248 P 151 (1926) aff’d. City of Eugene v. Nalven, 152 Or App 720, rev den, 327 Or 431 (1998) (When a power is given by statute everything necessary to make it effectual is given by implication.);  Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.

Salinas v. United States, 522 U.S. 52 (1997) (As we held in Albertini, supra, at 680: “Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Heckler v. Mathews, 465 U.S. 728, 741-742 (1984). Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, §1, of the Constitution. United States v. Locke, 471 U.S. 84, 95-96 (1985).” These principles apply to the rules of statutory construction we have followed to give proper respect to the federal-state balance. As we observed in applying an analogous maxim in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), “[w]e cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.” Id., at 57, n. 9 (internal quotation marks omitted). Gregory itself held as much when it noted the principle it articulated did not apply when a statute was unambiguous. See Gregory, 501 U.S., at 467. A statute can be unambiguous without addressing every interpretive theory offered by a party. It need only be “plain to anyone reading the Act” that the statute encompasses the conduct at issue. Ibid.);

Jones v. General Motors Corp.,325 Or 404, 939 P.2d 608 (1997) (In the construction of a statute the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.);

Stull v. Hoke, 326 Or 72, 78, 948 P2d 722 (1997) (We consider other statutes in pari materia, if not strictly speaking as “context” of the statute–because the other statutes were later enacted);

Holcomb v. Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) aff’d. State of Oregon v. Lyons, 94-10-37308; CA A89277 (Or. 07/07/1999) (When the court interprets a statute, that interpretation becomes part of the statute as if it were written into the law at the time of its enactment.);

The Additional Legal Rights Otherwise Dormant


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(Blog Masters Note:   All Posts are now listed in a drop down below comments.  This was a wordpress idea, not mine, but at least all posts are still visible and retrievable)
(For Frank ‘Austin’ England III) 

Sovereign Immunity

[17 Alaska Bar Rag No. 3 (Sep/Oct 1993)]

Sovereign immunity springs from the English common law concepts that (1) the “King can do no wrong” (from the days it was believed that kings ruled by divine right and that all rights flowed from the sovereign) and (2) that there can be no legal right as against the authority that makes the law on which the right depends. Despite widespread criticism by legal scholars the doctrine retains a substantial degree of viability in American law based on the second “prong.”

Sovereign immunity at the Federal level is particularly indefensible since “We the People,” who ordained and established these United States and created the Federal “sovereign,” did not see fit to cloak “our sovereign” with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisholm v. Georgia, [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia, [6 Wheat. (19 US) 264 (1821)], and germinating in United States v. Clarke, [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.

Despite its pernicious nature and logically indefensible character, the purpose of this article is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect in the bankruptcy forum. Recent cases in the U.S. Supreme Court have driven home the fact that the doctrine continues to thrive in the bankruptcy context, particularly with respect to damages for violations of the automatic stay.

In dealing with the immunity of government and government officials, it must be recognized that we deal with three levels of government: federal, state and local. Each has separate rules and varying degrees of “protection.”


As noted above, it is well settled in the law that, absent “consent,” the Federal government, its departments and agencies are immune from suit. Sovereign immunity extends to Indian nations United States v. United States Fidelity & Guaranty Co., 309 US 506 (1940), government officials acting in their official capacity United States v. Lee, 106 US 196 (1882) and, to the extent that Congress has cloaked them with immunity, Federal corporations Keifer & Keifer v. RFC, 306 US 381 (1939).

The critical issue is “consent.” “Consent to be sued” can be in a general sense, as with the Federal Torts Claim Act. Unfortunately, where violations of the automatic stay are concerned, the FTCA is of no help as the actions do not fit within even the broad scope of that statute. However, when a governmental unit formally invokes the jurisdiction of the bankruptcy court by filing a proof of claim, government exposure to counterclaim liability exists under 11 USC 106(a) [ In Re Keith v. Pinkstaff,974 F2d 113 (CA9 1992); see United States v. Nordic Village, 503 US — [112 SCt 1011] (1991)]. Under Pinkstaff, the court applies a so-called “logical relationship” test. For purposes of 26 USC 106(a), a logical relationship exists when the counterclaim arises from the same set of operative facts as the initial claim in that the same operative facts serve as the basis for both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant. In the context of 362, when the activities of the governmental unit in question relate to collection of the claim and the collection activity violates the automatic stay, the necessary nexus exists for a waiver of governmental immunity.

Even where the governmental unit has not filed a formal claim, use of a self-help remedy to collect on the claim by the governmental unit may constitute an “informal proof of claim” sufficient to trigger the waiver provisions of 106(a) [ In Re Town & Country Home Nursing Services Inc., 963 F2d 1146 (CA9 1992)].


While a sovereign may reign supreme within its borders, sovereignty does not extend beyond its borders [ Nevada v. Hall, 440 U.S. 411 (1979)]. Moreover, there being no constiutional basis for sovereign immunity, recognition of sovereign immunity is a forum other than the forum of the sovereign is based upon principles of comity [Id.] Accordingly, sovereign immunity does not per se bar actions against states in Federal courts except to the extent Federal law provides.

However, the Eleventh Amendment bars suit against states, state agencies and instrumentalities in Federal courts. Although the Eleventh Amendment specifically bars only suits against states by citizens of another state, the U.S. Supreme Court has interpreted it as barring suits by citizens of the same state. [ Hans v. Louisiana,134 US 1 (1890)]. Eleventh Amendment protection extends to State officials as well [ Tindal v. Westley, 167 US 204 (1897)], subject to an “excess of capacity” test [e.g. Pennoyer v. McConnaughy,140 US 1 (1891); Truax v. Raich, 239 US 33 (1915)]. However, immunity of state executive personnel is a qualified immunity limited by a “facts and circumstances” test of reasonableness and good faith [ Scheuer v. Rhodes, 416 US 232 (1974)].

As with sovereign immunity, Eleventh Amendment protection may be waived by consent of the State to be sued, such as by voluntary submission to suit [ Clark v. Barnard, 108 US 436 (1883)] or by a general law specifically consenting to be sued in Federal courts [ Gunter v. Atlantic Coast Line, 200 US 273 (1906)]. However, such consent must be clear and specific, and consent to be sued in its own courts does not imply a waiver of immunity in federal courts [ Murray v. Wilson Distilling Co., 213 US 151 (1909)].

Prior to 1992 it was clear that Alaska had not consented to suit in federal courts under the Murray holding because AS 09.50.250 expressly limited suits against the State on contract, quasi-contract or tort to the Superior Court. However, AS 09.50.250 was amended by 1, ch. 119 SLA 1992, deleting the words “in the Superior Court.” If the 1992 amendment is construed as authorizing actions against the State in any court of competent jurisdiction, then it may be held that Alaska has waived its Eleventh Amendment protection [cf. Hopkins v. Clemson Agricultural College, 221 US 636 (1911) (dicta); but cf. Kennecott Copper Corp. v. State Tax Commission, 327 US 573 (1946)].

Absent a general waiver, there may be a specific waiver. To the extent that the actions of the State constitute a waiver of sovereign immunity [under Nordic VillagePinkstaffTown & Country], that same set of operative facts also constitutes a waiver of Eleventh Amendment protection [In re 995 Fifth Avenue Associates, LP, 963 F2d 503 (CA2 1992); see Hoffman v. Connecticut Dept. of Income Maintenance, 492 US 96 (1989)].

Political Subdivisions

Political subdivisions are creatures of the state, created by state law. As such, they are not truly “sovereigns.” Thus, the generally accepted rule is that political subdivisions of a state do not enjoy sovereign immunity and are only cloaked with immunity to the extent that the state sees fit to cloak them with immunity. Alaska follows this rule: political subdivisions in Alaska do not possess “blanket” immunity from suit [City of Fairbanks v. Schaible, 375 P2d 201 (Alaska 1962)].

Partial immunity from suit at the local government level is provided in AS 09.65.070(d). The main protection is the “discretionary function” provision of AS 09.65.070(d)(2). In this connection, a sharp distinction is drawn between “planning” and “operational” decisions in evaluating the exercise of discretion under AS 09.65.070(d)(2) [see e.g. Gates v. City of Tenakee Springs, 822 P2d 455 (Alaska 1991); Urethane Specialties v. City of Valdez, 620 P2d 683 (Alaska 1980)]. “discretionary acts are those which require `personal deliberation, decisions and judgment. . . .'” [Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P2d 295 (Alaska 1987)]. In addition, Alaska does not insulate even discretionary acts where the act itself violates established law. Thus, it must be concluded that political subdivisions of the State are not immune to damage claims under 362.

Moreover, immunity from suit in federal courts under the Eleventh Amendment does not extend to Municipalities, counties and other political subdivisions of a state [ Lincoln County v. Luning ,133 US 529 (1890); Chicot County Drainage Dist. v. Baxter State Bank, 308 US 371 (1940)].

Accordingly, municipalities, boroughs, and other political subdivisions that are not the functional equivalent of a state agency are subject to liability for transgressions of the automatic stay in the same manner and to the same extent as a private party.

Update: BRA 94 amended § 106 ostensibly waiving sovereign immunity and the 11th amendment protection of states in bankruptcy cases. However, the U.S. Supreme Court decision in Seminole Tribes of Florida v. Florida,517 US 44, 116 SCt 1114, 134 LEd2d 252 (1995) raises a serious question regarding the power of Congress to override the 11th amendment proscription on suits against states in federal courts. [For an in-depth discussion of sovereign immunity and the 11th amendment, one should read this 71-page decision, particularly the dissent by Justice Stevens (not exactly recommended as a late evening exercise).


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