3 replies to this topic

[stebbinsd]

According to this statute,

http://law.justia.com/codes/arkansas/2010/title-5/subtitle-1/chapter-1/5-1-102/

we have the following subsection:

(16) "Public servant" means any:

(A) Officer or employee of this state or of any political subdivision of this state;

( Person exercising a function of any officer or employee of this state or any political subdivision of this state;

© (i) Person acting as an adviser, consultant, or otherwise in performing any governmental function.

Two of those definitions specify "this state." The other says "any governmental function."

It appears as if there is a legislative intent to extend the arm of this state's jurisdiction to actions performed by federal officers - or even other states - so long as (A) they serve primarily an advisory or consultory role, and ( their actions took place on this state's soil.

Ignoring whether or not such a definition would withstand a constitutional challenge if brought up in a habeas corpus petition... what canon of statutory interpretation did I just use to reach the conclusion that it even applies in this manner in the first place? I want to say "in pari materia" but that doesn't feel 100% right.

[Tax_Counsel]

what canon of statutory interpretation did I just use to reach the conclusion that it even applies in this manner in the first place? I want to say "in pari materia" but that doesn't feel 100% right.

You are correct that in pari materia is not correct. What you are doing is simply applying the plain ordinary meaning of the words of subsection 16( c) read alone, i.e. apart from the rest of subsection 16. There isn't a fancy Latin phrase for it and the argument can be readily understood without resort to Latin. A contrary argument would be that the general wording of subsection 16( c), following as it does the more specific language of 16(a) and 16( b ) that limits the definition to persons employed by or performing functions of state and local governments of this state (i.e. Arkansas) implies that the 16( c) ought to be read with the same limitation, that is persons acting as advisors, consultants or otherwise performing any governmental function of this state. This is an argument along the lines of ejusdem generis.

It appears as if there is a legislative intent to extend the arm of this state's jurisdiction to actions performed by federal officers - or even other states - so long as (A) they serve primarily an advisory or consultory role, and ( their actions took place on this state's soil.

Ignoring whether or not such a definition would withstand a constitutional challenge if brought up in a habeas corpus petition...

This is simply a definition provision and does nothing on its own. A definition on its own cannot be unconstitutional. The application of the definition in some statute that actually does something, e.g. makes an act taken against a public servant, for example, a crime may be unconstitutional. I'm curious why you'd think that a state defining an act against a public servant of another state or of the federal government that takes place within that state would be unconstitutional? For example, a prosecution under a statute that makes it illegal to murder any law enforcement officer (even if the officer is from another state or is a federal officer) within that state would be constitutional as the state has the jurisdiction to prohibit such acts within its own borders.

[stebbinsd]

A contrary argument would be that the general wording of subsection 16( c), following as it does the more specific language of 16(a) and 16( b ) that limits the definition to persons employed by or performing functions of state and local governments of this state (i.e. Arkansas) implies that the 16( c) ought to be read with the same limitation, that is persons acting as advisors, consultants or otherwise performing any governmental function of this state. This is an argument along the lines of ejusdem generis.

Wouldn't the Plain Meaning Rule take priority over any other?

Also, what about expressio unius est exclusio alterius? "This state" is expressly mentioned in the first two subsections, but is not expressly mentioned in the third. Thus, the lack of an express mention in one, where there are express mentions in others of the same subject-matter, indicates a lack of legislative intent to convey that same meaning.

I'm curious why you'd think that a state defining an act against a public servant of another state or of the federal government that takes place within that state would be unconstitutional? For example, a prosecution under a statute that makes it illegal to murder any law enforcement officer (even if the officer is from another state or is a federal officer) within that state would be constitutional as the state has the jurisdiction to prohibit such acts within its own borders.

The phrase "public servant," in this state, is mostly used in government corruption laws (e.g. bribery laws). So... it would make sense that the federal government may not want the states prosecuting the corruption of federal officials. It would be part of the whole "states can't tread upon the federal government or impede her operations" rule.

[Tax_Counsel]

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Wouldn't the Plain Meaning Rule take priority over any other?

It would, once you've concluded that reading subsection ( c) alone rather than in conjunction with (a) and ( b ) is appropriate.

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Also, what about expressio unius est exclusio alterius?

That isn't right, either. That phrase is used to describe situations in which the statute's specific mention of one thing is used to imply that things not mentioned are excluded, i.e. it's a Latin phrase for a negative implication. For example, if a statute on toll roads said "electric cars are admitted through the toll gate for free" then the negative implication is that cars using any other mode of power must pay the toll. You are not using some specific mention of a term in ( c) to define public servant implies that everyone else not mentioned is not a public servant, so you are not making a negative implication (or expressio unius est exclusio alterius) argument here.

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"This state" is expressly mentioned in the first two subsections, but is not expressly mentioned in the third. Thus, the lack of an express mention in one, where there are express mentions in others of the same subject-matter, indicates a lack of legislative intent to convey that same meaning.

That's basically a plain meaning argument — the words mean just what they say, and had the legislature meant to limit it to government functions only of "this state" it would have said so. Referring to the use of “this state” in the preceding subsections merely bolsters that argument by illustrating the legislature knew how to use that limiting phrase had it wanted it.

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The phrase "public servant," in this state, is mostly used in government corruption laws (e.g. bribery laws). So... it would make sense that the federal government may not want the states prosecuting the corruption of federal officials. It would be part of the whole "states can't tread upon the federal government or impede her operations" rule.

Certainly there are some types of state statutes in that regard which could be a problem.