In Parts One and Two I explained the basics of legal research, and offered an example to illustrate of the complexity of doing it correctly.
The second example I’ll give of lazy research is one I observed (after I retired) while watching two young lawyers — a prosecutor and a public defender — arguing a matter before a judge whom I had trained in his pre-judicial career when he started at the prosecutor’s office where I worked.
They were arguing over the meaning of a particular phrase in a case both had cited to the judge as authority for their respective positions.
I could see the judge was getting frustrated. He took a recess and instructed the young lawyers to do more research before court was re-convened. During the recess he invited me back into his chambers, and asked if I agreed with him that the two lawyers had not done sufficient research. He showed me the case and the particular phrase they were arguing about.
Following that phrase was list of case cites — referred to a “a string cite” — which were presumably the authority for what the court had said in that phrase. Within that string cite was one case with identical facts to the prosecution the two young lawyers were litigating — and that cited case said very clearly how the phrase applied to those facts.
The judge asked if I agreed with him that case in the string-cite provided the answer he needed to decide the issue. I agreed that it did — and pointed out he must have received excellent training from someone in his early legal career. (I know, I know – but I couldn’t help myself!)
When the two young lawyers returned after the recess, the judge asked if either one had found any authority to support their respective interpretations of the phrase in issue. Both said they had not — which clearly meant neither had read the cases in the string cite. The judge pointed that out when he made his ruling — based on the case in the string cite.
It’s common practice (harkening back to how law school professors teach) for judges who already know an answer to quiz lawyers about what they know — before revealing the answer. It gives judges an insight into both a lawyer’s research skills, and sometimes a lawyer’s integrity. At least in this case neither young lawyer tried to mislead the judge. They were both just lazy.
To show how that relates to the recent meeting of a group of Archuleta taxpayers meeting to discuss recalling a county commissioner, I’ll begin with another personal example that is more pertinent to what occurred in that meeting.
I had secured the conviction of a defendant for a crime in which the relevant statute provided that upon conviction a defendant “shall” be sentenced to a specific term in prison. The trial judge gave the defendant the sentence the statute said “shall” be imposed.
On appeal, the defendant’s conviction was upheld, but the appeals court sent it back to the trial court for ‘re-sentencing” based on the appeals court’s declaration that (in the context of that particular statute) the word “shall” meant “may” – and that there was no way to determine if the sentencing judge had imposed the sentence prescribed in the statute because he thought he had to. (Yes, it was as ridiculous as it sounds – particularly considering what happened next.)
We had to have another sentencing hearing because, in our case, the word “shall” (according to the appellate court) actually meant “may”. The defendant’s victory in the appeals court was Pyrrhic. At the re-sentencing the trial judge said “Since the [appeals court] says I ‘may’ sentence you to what I gave you before, I’m giving it to you again!”
So just because a statute says something “shall” happen doesn’t mean a court “must” do it. Conversely, as it relates to the Archuleta county commissioner, in the legal world the language “shall not” does NOT necessarily mean “forbidden under any and all circumstances” — unless a court has said that is the meaning of “shall not” in the particular statute that quote was referring to ( CRS 24-18-109).
I don’t disagree with the intent expressed in that quote. But as a trained lawyer I know that before a judge must accept the correctness of my conclusion, I need to show some authority for it.
So I researched the Colorado statute which was the topic of the discussion at the citizen’s meeting — and the object of that quote about what “shall not” supposedly means. CRS 24-18-109, is a subsection of Title 24, Article 18 of Colorado statutes.
The admonition “shall not” DOES appear in the language of that subsection. But that subsection does not define “shall not” to mean “forbidden under any and all circumstances” — in fact there are no definitions in that subsection at all.
So I went to the definitions provided for Article 18 in general (Subsection 24-18-102), and there was no definition for “shall not” there either. A definition of “shall not” doesn’t appear anywhere in Article 18, nor in Title 24.
As I’ve written before, “Lawyers are trained that if a word is not expressly defined in a statute, we look for the ‘plain’ or ‘ordinary’ meanings of the word. The ‘plain’ meaning is supposed to be that found in a dictionary, while ‘ordinary’ is how the word is used in everyday speech.”
Ordinary meaning would be subjective to the speaker, so it would seem the plain dictionary definition would be preferable. But no! If you rely on a dictionary definition, the question becomes “which dictionary”? The late United States Supreme Court Justice Antonin Scalia once identified varying dictionary definitions of the word “modify”, in a case before the Court in which the meaning of that word was the deciding factor.
Since there is no definition statute itself to support the argument that “shall not” means “forbidden under any and all circumstances” in the context of CRS24-18-109, I looked to see if there is any case authority for whether to rely on the “ordinary” or the “plain meaning”. There is no case law answer to that question either.
So what does “shall not” mean in the context of the recall of an Archuleta County commissioner for allegedly violating the conflict of interest prohibition of CRS 24-18-109?
Damned if I know. But I’m also pretty sure that County Attorney Todd Weaver doesn’t either!
According to Bill Hudson’s reporting of the citizens’ meeting,
As the meeting unfolded, many of the questions posed to Ms. Medina were fielded, instead, by County Attorney Todd Weaver. Mr. Weaver …. noted that he has been practicing law for 24 years. In his opinion, because Commissioner Medina was not personally benefiting from the proposed $2.1 million property purchase brokered by the company she works for, she had no obligation to recuse on June 4. Nor did she violate the four Colorado laws named in the recall petition. In his opinion.
I have no idea if Weaver’s opinion is correct. But… had I been at the meeting, I’d have raised my hand and said, “Excuse me Mr Weaver but, with all due respect, you got any authority to back up that opinion? Seems to me the language of the statute is pretty clear. But being a lawyer I realize just reading the statute isn’t enough. So … whatcha got? ”
That would be my first question, particularly given Mr Weaver’s track record for public claims to having “case law” backing up his positions — about which I’ve commented before, in the Daily Post:
“I researched Mr Weaver’s assertion that there is case law holding that the County Commission cannot materially depart from the approved uses of voter-approved revenue… I’m unable to find any case “on all fours” (a legal term Mr Weaver should recognize) supporting his assertion. However, I did find the following “case law” suggesting Mr. Weaver is mistaken.”
Following my recitation of the case law appearing to refute Mr Weaver’s position (that there is “case law” which precludes the County Commission from re-allocating road funds)
I concluded by writing,
“If I’m wrong, and he can cite to the contrary “case law” he refers to, it will be easy to refute me. I invite him to do so.”
I’m unaware of any refutation by Mr. Weaver. However, the invitation is still open.
As is another invitation now for him to provide any authority for his opinion why Commissioner Medina does not have a conflict of interest in voting on the County’s purchase of land, for which her employer is the real estate firm which stands to benefit from the sale.
And, again with due respect to Mr Weaver, I’m not a person who conducts ‘legal research’ as a hobby, nor a news outlet editor with a limited understanding of what goes into a legal opinion. Or a room full of non-lawyer taxpayers.
I’ve got the same legal education as Mr. Weaver — and over a decade more experience. I invite us to show me, and the other taxpayers of Archuleta County, what ‘ya got.
It’s the first day of law school — and class is in session.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.