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Thursday, December 8, 2022

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California Chief Justice Bumblebees as Fish (and Statutory Interpretation More Broadly)

On Wednesday, the California Supreme Court denied review of that case (for more on the lower court case, see this post by Jonathan Adler and this post by Ilya Somin); Chief Justice Tani Cantil-Sakauye, joined by Justices Carol Corrigan and Joshua Groban:

The denial of a petition for reconsideration does not convey any particular view of the merits of the issues raised in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement of (and not a rejection of) the statutory analysis by the Court of Appeals, which found that bumblebees, a nonaquatic invertebrate, are vulnerable to entrapment. listed as endangered under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.; CESA), as that statute applies to fish (Fish & G. Code, §§ 2062, 2067 & 2068) and includes “invertebrates”, what the Court of Appeal considered the applicable definition of “fish” (id., § 45) [“Fish” means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals -EV]. (Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 341.)

However, if experience is any guide, some will misinterpret our decision not to order review as an affirmative decision by this Court that bumblebees are fish as a matter of law. A better-informed observer might ask: How can a court pass up this opportunity to review an appellate court’s interpretation of the Fish and Game Code that seems so inconsistent with common knowledge that bumblebees are not a species of fish? Isn’t this stark difference necessarily an “important question of law” (Cal. Rules of Court, rule 8.500(b)(1)) warranting this Court’s intervention, since the Legislature could not possibly have intended such a result?

Things were always so simple. Careful analysis of a statute based on divine legislative intent can sometimes produce results that may seem surprising at first glance. Courts performing this function have interpreted “less” as “more” (Amalgamated Trans. Loc. 1309 v. Laidlaw Tran. Ser. (9th Cir. 2006) 435 F.3d 1140, 1146) and “illegal” as “legal” (Scurto v .LeBlanc (La. 1938) 184 So. 567, 574). Long ago, the United States Supreme Court concluded that the “seas” mentioned in one statute do not require water at all (Murray’s Lessee v. Baker (1818) 16 US 541, 545); more recently, it ruled that fish is not a “tangible thing” (United States v Yates (2015) 574 US 528, 536).

Such apparently illogical results may in fact best capture the intent of the enacting legislature under different circumstances. A statute can be interpreted in a way that goes beyond the literal meaning of its text to avoid an absurd result that could not have been contemplated by the legislature. Sometimes the courts will find a clerical error or clerical error that must be corrected to establish the purpose behind the action. Or the context surrounding the use of a word or phrase in a statute may indicate that it has an unusual meaning specific to that statute. The court noted below that the interpretive question before it fell within the last of these categories, with the result that bumblebees should indeed be considered “fish” under CESA.

Even if the appellate court reaches a result that may seem counterintuitive on the surface, that alone does not show that it erred. Moreover, our decision not to order review here does not preclude us from considering the reach of CESA in some future case in which we may agree or disagree with the appellate court’s analysis. In the meantime, the legislature can make changes to the law that it deems necessary or useful. For while it may not be unusual for a court to decide that a particular statutory word or phrase has a meaning that deviates from common parlance or understanding, such decisions may also put lawmakers on notice that some clarification might be in order.

Judge Patricia Guerrero would have granted a review. Thanks to Stephen Newman of Stroock for the pointer.

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