Stat Con Aging Lawyer

STATUTORY CONSTRUCTION 2012

Rule1. Apply the Law when it is CLEAR. Do not Interpret or CONSTRUE.

Rule2 in StatCon is IBC, interpret before you CONSTRUE. YouCONSTRUE only when the written

law is not enough to give meaning and EFFECT to the INTENT of the LAW.

The RULES are simplified in the middle of this REVIEWER. Done by a Freshman, by ang aging

Freshman who shall be a Lawyer soooooon!!!

literal meaning or plain meaning rule

dura lex sed lex

doctrine of necessary implication

ejusdem generis

limitations of ejusdem generis

expressio unios est exclusio alterius

negative­ opposite doctrine

application of expressio unius rule

doctrine of casus omissus

doctrine of last antecedent

reddeddo singula singulis

stare decisis

res judicata

obiter dictum

A legislature is a kind of deliberative assembly with the power to pass,

amend, and repeallaws.[1] The law created by a legislature is called

legislation or statutory law. In addition toenacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt thebudget and other money bills. Legislatures are known by many names, the most common being parliament and congress, although these terms also have more specific meanings.

Legislative intent In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law (see judicial interpretation). The judiciary may attempt to assess legislative intent where legislation is ambiguous, or does not appear to directly or adequately address a particular issue, or when there appears to have been a legislative drafting error. When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. It is only when a statute could be interpreted in more than one fashion that legislative intent must be inferred from sources other than the actual text of the statute.

Sources of legislative intent

Courts frequently look to the following sources in attempting to determine the goals and purposes that the legislative body had in mind when it passed the law:

the text of the bill as proposed to the legislative body, amendments to the bill that were proposed and accepted or rejected, the record of hearings on the topic, legislative records or journals, speeches and floor debate made prior to the vote on the bill, legislative subcommittee minutes, factual findings, and/or reports, other relevant statutes which can be used to understand the

definitions in the statute on question, other relevant statutes which indicate the limits of the statute in

question,

legislative files of the executive branch, such as the governor or president,

case law prior to the statute or following it which demonstrates the problems the legislature was attempting to address with the bill, or

constitutional determinations (i.e. "Would Congress still have passed certain sections of a statute 'had it known' about the constitutional invalidity of the other portions of the statute?").

legislative intent­ the reason for passing the law

literal meaning or plain meaning rule. If the statute is clear,

plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. you get the meaning of the law from the word per word written law. Literal meaning or plain rule means INTERPRETATION of the LAW. ALL WORDS words in a statute should if possible, be given effect. Where a statute defines a word or phrase employed therein, the word or phrase should not, by CONSTRUCTION, be given a different meaning. When the legislature defines a word used in a statute, it does not usurp the courts function to interpret the laws but it merely LEGISLATES what should form part of the law itself. It is settled that in the absence of legislative intent to define words, words and phrases used in statute should be given their plain, ordinary, and common usage meaning which is supported by the maximgeneralia verba sunt generaliter intelligenda or what is generally spoken shall be generally understood. It is also the same as GENERALI DICTUM GENERALITIR EST INTERPRETANDUM a general statement is understood in a general sense.

WORDS MUST BE SUBSERVIENT TO THE INTENT and not intent to words. Ubi lex non distinguit nec nos distinguere debemus. When the law

does not distinguish, do not distinguish.

dura lex sed lex or HOC QUIDEM PERQUAM DURUM EST, SED ITA LEX

SCRIPTA EST.

The law maybe harsh, but is still the law. It is exceedingly hard, but so the

law is written.

doctrine of necessary implication this doctrine states that what is

implied in a statute is as much a part thereof as that which is expressed. Every statute isunderstand by implication to contain all such

provision as may be necessary to effectuate to its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. The principle is expressed in the maxim EX NECESSITATE LEGIS or from the necessity of the law.

ejusdem generis . THE SAME KIND OR SPECIE. This is to give effect

to both the particular and general words, by treating the particular

words as indicating the class and the general words as indicating all

that is embraced in said class, although not specifically named by the particular words.

The rule of ejusdem generis is not of universal application; it should be used to carry out, not to defeat the intent or purpose of the law; the rule must give way in favor of the legislative intent;

limitations of ejusdem generis requisites: 1. Statue contains an enumeration of particular and specific words, followed by a general word or phrase; 2. The particular and specific words constitute a class or are of the same kind; 3. The enumeration of the particular and specific words is not exhaustive or is not merely by examples; 4. There is no indication of legislative intent to give general words or phrases a broader meaning.

expressio unios est exclusio alterius. the expression of 1 person, thing or consequence IMPLIES the EXCLUSION of OTHERS or What is expressed puts an end to that which is implied.

EXPRESSUM FACIT CESSARE TACITUM, where a Statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or CONSTRUCTION, be extended to other matters.

These also follows that when a statute specifically lists downs the exceptions, what is not list down as an exception is ACCEPTEDexpress in the maxim EXCEPTIO FIRMAT REGULAM IN CASIBUS NON EXCEPTIS,

the express exception, exemption or savings excludes others.

application of expressio unius rule. This auxiliary rule is used in

CONSTRUCTIONof statutes granting powers, creating rights and remedies, restricting common rights, andimposing penalties and forfeitures, as well as those statutes which are strictly construed. It is only a tool and not a mandatory rule used for ascertaining the legislative intent. The rule must also yield to legislative intent.

negative­ opposite doctrine, WHAT IS EXPRESSED PUTS AN

END TO WHAT IS IMPLIED is known as negative­opposite doctrine or

argumentum a contrario.

doctrine of casus omissus (case of omission) pro omisso habendus est. A person, object or thing omitted from

an enumeration must be held to have been omitted intentionally. This rule is not absolute if it can be shown that thelegislature did not

intend to exclude the person, thing or object from the enumeration. If such legislative intent is clearly indicated, the COURT may supply the omission if to do so willcarry out the intent of the legislature and will not do violence to its language.

doctrine of last antecedent or AD PROXIMUM ANTECEDENS

FIAL RELATIO NISI IMPEDIATUR SENTENTIA or relative words refer to the

nearest antecedents, unless the context otherwise requires. QUALIFYING WORDS restrict or modify only the words or phrases to which they are immediately associated.

The last antecedent rule is a doctrine of interpretation of astatute, by which

"Referential and qualifying phrases, where no contrary intention appears, refer solely to the last antecedent." The rule is typically bound by "common sense" and is flexible enough to avoid application that "would involve an absurdity, do violence to the plain intent of the language, or if the context for other reason requires a deviation from the

rule." Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma."

reddendo singula singulis when two descriptions

makes it impossible to reconcile, reconcile it to have a “singular meaning” to settle the issue. refers to each phrase or expression to its appropriate object, or let each be put in its proper place, that is, the words should be taken DISTRIBUTIVELY to effect that each word is to be applied to the subject to which it appears by context most appropriate related and to which it is most applicable.

REDDENDO SINGULA SINGULIS, construction. By rendering each his own; for example, when two descriptions of property are given together in one mass, both the next of kin and the heir cannot take, unless in cases where a construction can be made reddendo singula singulis, that the next of kin shall take the personal estate and the heir at law the real estate. 14 Ves. 490. Vide 11 East,, 513, n.; Bac. Ab. Conditions, L. Stare Decisis [Latin, Let the decision stand.] The policy of courts to abide

by or adhere to principles established by decisions in earlier cases. (stah­ray

duh­see­sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law")

Res Judicata [Latin, A thing adjudged.] A rule that a final judgment

on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit. The party asserting res judicata, having introduced a final judgment on the merits, must then show that the decision in the first lawsuit was conclusive as to the matters in the second suit. For example, assume that the plaintiff

in the first lawsuit asserted that she was injured in an auto accident. She

sues the driver of the other auto under a theory of Negligence. A jury returns a verdict that finds that the defendant was not negligent. The injured driver then files a second lawsuit alleging additional facts that

would help her prove that the other driver was negligent. A court would dismiss the second lawsuitunder res judicata because the second

lawsuit is based on the same Cause of Action (negligence) and the

same injury claim.

Obiter Dictum[Latin, By the way.] Words of an opinion entirely unnecessary

for the decision of the case. A remark made or opinion expressed by a judge in a

decision upon a cause, "by the way", that is, incidentally or collaterally, and not directly

upon the question before the court or upon a point not necessarily involved in the

determination of the cause, or introduced by way of illustration, or analogy or argument.

Such are not binding as precedent.

AEQUITAS NUNQUAM CONTRAVENIT LEGIS . EQUITY never acts in contravention of the law. The reason of the Law is the Life of the Law or RATIO LEGIS ET ANIMA. Interpretation and CONSTRUCTION of Statutes must be done to avoid evil and injustice. EA EST ACCIPIENDA INTERPRETATIO QUAE VITIO CARET.

Interpretatio fienda est ut res magis valeat quam pereat, the

interpretation that will give the thing the EFFICACY is to be adopted. Law must receive sensible interpretation to promote the ends for which they are enacted. They should be given practical CONSTRUCTION that will give LIFE to them, IF IT CAN BE DONE without doing VIOLENCE to reason.

UT RES MAGIS VALEAT QUAM PEREAT, A STATUTE must be

interpreted to give it efficient operation and effect as a whole avoiding the nullification of provisions. IT is so that a legal provision must not be so construed as to be a useless SURPLUSAGE. Accordingly, in case of Doubt or obscurity, that construction should make the statute fully operative and effective. IT IS PRESUMED THAT THE LEGISLATURE DID NOT DO A VAIN THING IN THE ENACTMENT OF THE STATUTE.

In PARE MATERIA, of the same person or thing.

INTERPRETARE ET CONCORDARE LEGES LEGIBUS EST OPTIMUS INTERPRETANDI MODUS, or every statute must be so

CONSTRUED and harmonized with other statutes as to form a uniform system of Jurisprudence. ALL laws are presumed to be consistent with each other.

DISTINGUE TEMPORA ET CONCORDABIS JURA, distinguish times and you will harmonize laws. IN enacting a STATUTE, the legislature is presumed to have been aware, and taken into account, PRIOR LAWS on the subject of legislation. Thus, conflict on same subject is not intended and if such occur, Court must

construe, through reconciliation to give effect to the statute. If it is impossible to reconcile and harmonize, one statute has to give way to the other. The latest statute shall prevail being the latest expression of the legislative WILL. A GENERAL LAW and a SPECIAL LAW are in pare materia. The fact that one is general and the other special creates a presumption that the special act is to be considered as remaining an exception of the General Act. One as a General Law of the Land, the other as a LAW for a Particular case. This shall apply all the time regardless of which law was enacted first. CONTEMPORANEOUS CONSTRUCTIONS or CONTEMPORARY CONSTRUCTIONS are made by the EXECUTIVE Departments. First type of Contemporary Constructions are the interpretations of the Executive on Statutes, for them to implement it, they must understand it and interpret it if the language of the law is AMBIGUOUS. The executive makes RULES or IRRs for this statutes, or ADMINISTRATIVE RULES and PROCEDURES. These IRRs or RULES issued by the executive to execute the Statute are CONTEMPORARY Construction. Second Type of Contemporary Constructions are the INTERPRETATIONS of the JUSTICE Secretary in carrying out PENAL LAWS and all OTHER LAWS, under her are the PROSECUTORS, FISCALS of the Philippine Republic. The issuances on how laws are to be prosecuted are CONTEMPORARY CONSTRUCTION of the Justice Secretary. The third type are the DECISIONS OF THE ADMINISTRATIVE BODIES handling disputes in a QUASI­JUDICIAL MANNER. These decisions are

based on their UNDERSTANDING of Statutes passed by congress, laws that are enforced. These are CONTEMPORARY INTERPRETATIONS and Constructions. THESE CONTEMPORARY CONSTRUCTIONS STATUTES HAPPEN, WHEN THERE ARENO ACTUAL CONTROVERSIES QUESTIONING THE VALIDITY OF STATUTES IN THE SUPREME COURT, therefore,NO STARE DECISIS HAVE YET BEEN MADE. IF THERE ARE JUDICIAL INTERPRETATIONS AND CONSTRUCTIONS, THEN THE JUDICIAL CONSTRUCTIONS ARE governing and are THE ONES followed BY THE EXECUTIVE DEPARTMENTS once promulgated by the Supreme Court. CONGRESS, NOT BEING THE CONSTITUTIONALLY POWER TO INTERPRET AND CONSTRUE THE LAWS THEY MAKE, MAY ALSO DO CONTEMPORARY CONSTRUCTION IN FOLLOWING STATUTES THAT THEY THEMSELVES ARE BOUND TO FOLLOW. WITH THE GRANT OF POWERS, RIGHTS, PRIVILEGES IS ALSO THE RIGHT TO INCIDENTAL POWERS OF THE POWERS, RIGHTS AND PRIVILEGES. THE GREATER POWER IMPLIES INCIDENTAL LESSER POWER. This is so because the greater includes the lesser as expressed in the maxim, in eo quod plus sit, simper inest et minus.THERE SHALL BE NO CONSTRUCTION TO GIVE EFFECT TO A LAW THAT SHALL MAKE IT MORE POWERFUL THAN WHAT WAS INTENDED BY THE LAW. Every statute is understood by IMPLICATION, to contain such provisions as maybe necessary to EFFECTUATE its object and purpose, or to make

effective Rights, powers, privileges or JURISDICTION which it grants, including all such COLLATERAL and subsidiary consequences as may be fairly and LOGICALLY inferred from its TERMS, as expressed in the maxim, Ex necessitate legis or from the NECESSITY of the LAW. Doctrine of Necessary Implication. WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY. QUANDO ALIQUID PROHIBETUR EX DIRECTO, PROHIBETUR ET PER OBLIQUUM.

WHAT IS AUTOLIMITATION? Doctrine of Autolimitation—It is the doctrine where the Philippines adheres to principles of international law as a limitation to the exercise of its sovereignty.

Functus officio an officer or agency whose mandate has expired either because of the arrival of an expiry date

or because an agency has accomplished the purpose for which it was created. Function is mere FORMALITY.

Sin perjuico judgments are judgment, w/o any stated facts in support of the conclusion.

RULES in STATUTORY CONSTRUCTION The solemn decisions of the judges upon a statute become part of the statute ; and the security of men's lives and property, require that they should

be adhered to:for precedents serve to regulate our conduct ; and there is more

danger to be apprehended from uncertainty, than from any exposition; because,

when the rule is settled, men know how to conform to it; but, when all is

uncertain, they are left in the dark, and constantly liable to error; for the same offence

which, at one time, was thought entitled toclergy, at another, may be deemed capital ;

and thus the life or death of the citizen will be made to depend, not upon a fixt rule,

but upon the opinion of the judge, who may happen to try him, than which a more

miserable state of things cannot be conceived.

1. Presumption of Correctness a. "When testing the constitutional validity of statutes, courts shall presume the

statute to be valid." Consequently, the burden to show the constitutional defect is on

the challenger. "Every act of the legislature is presumed to be

constitutional, and the Constitution is to be given a liberal construction so as to

sustain the enactment in question, if practicable." "When the constitutionality of an

act is challenged, a heavy burden of proof is thrust upon the party making the

challenge. All laws are presumed to be constitutional and this presumption is one of

the strongest known to the law.

b. "Another rule of statutory construction requires the presumption that, in enacting

statutes, the CONGRESS has full knowledge of existing law and interpretations

thereof . Although the repeal of statutes by implication is not favored, if two statutes

are in pari materia, then to the extent that their provisions are irreconcilably

inconsistent and repugnant, the latter enactment repeals or amends the earlier enacted statute.

c. "The legislature is presumed to know the law when enacting

legislation. d. When amendments are enacted soon after controversies arise "as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act, a formal change­rebutting the presumption of substantial change.

e. " We "assume that the legislature chose, with care, the words it used

when it enacted the relevant statute."

f. when current and prior versions of a statute are at issue,there is

a presumption that the CONGRESS, in amending a statute, intended to effect a substantive change in the law. "Further, we assume that CONGRESS’ amendments to a statute are purposeful, rather than unnecessary. g. "The Supreme Court repeatedly has affirmed that it is a presumption of statutory

construction that, where both general and specific statutes appear to address a

matter, CONGRESS intends the specific statute to control the subject

h. "When a statute begins with the phrase "notwithstanding any other provision of law," it is presumed that CONGRESS intended to override any potential conflicts with earlier legislation. i. "The construction of statutes by agencies charged with administration of those statutes is entitled to great weight. A decision of an agency specified to execute the law made by CONGRESS carries great weight and is entitled to deference unless it is proven the agency erred. The grant of regulatory authority extends only to duties or powers conferred by law. As such, "regulations, promulgated pursuant to definitive statutory authority, have the force and effect of law. Moreover, those regulations which "clearly and explicitly mirror" statutory authority are likeliest to be sustained. Any regulation of the Department must be reasonably grounded in an identifiable and definitive statutory foundation. "Generally, the court accords substantial deference to an agency's interpretations of its own regulations. Provided the interpretation "does not violate the Constitution, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.

j. we will overturn COURT’s decision only if it can be fairly characterized as "arbitrary or

capricious" and thus a "clear abuse of delegated discretion." On the other hand, an "agency does not

possess specialized competence over the interpretation of a statute merely because it addresses

topics within the agency's delegable authority. Pure statutory construction, a matter within the "core

competency of the judiciary," . "This axiom stems from basic principles of separation of powers.It is emphatically the province and duty of the JUDICIAL DEPARTMENT to say what the law is. It necessarily follows that the a priori

question whether the statute delegates or withholds discretion is itself a question of statutory

interpretation, one implicating our duty of de novo review."

k. "The circuit court nonetheless deferred to the Technical Review Board's reasoning, correctly noting that courts give "great deference" to an agency's interpretation of its own regulations. This deference stems from

Code § 2.2­4027, which requires that reviewing courts "take due account" of the "experience and specialized competence of the

agency" promulgating the regulation. Even so, "deference is not abdication, and it requires us to accept only those agency interpretations

that are reasonable in light of the principles of construction courts normally

employ. No matter how one calibrates judicial deference, the administrative power to interpret a regulationdoes

not include the power to rewrite it. When a regulation is "not

ambiguous," judicial deference "to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." Though agencies may be tempted to adjudicate their way around unwanted regulations, such overreaching undermines the notice and public hearing procedures of the rulemaking process ­ thereby putting

in jeopardy the "enhanced political accountability of agency policy decisions adopted through the rulemaking process" and the democratic virtue of allowing "all potentially affected members of the public an opportunity to participate in the process of determining the rules that affect them.

l. "However, whenever an "agency's statutory interpretation conflicts

with the language of the statute or when the interpretation has not been

consistently and regularly applied, the usual deference accorded to an

agency's interpretation should be withheld.

m. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation).The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the

implementation of that rule, and thus the initial determination of the rule's meaning.

And though the adoption of a rule is an exercise of the executive rather than the

legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. Deferring to an agency's interpretation of a statute does not encourage Congress, out

of a desire to expand its power, to enact vague statutes; the vagueness effectively

cedes power to the Executive. By contrast, deferring to an agency's interpretation of

its own rule encourages the agency to enact vague rules which give it the power, in

future adjudications, to do what it pleases.

Construed Against the State/ Vagueness a. "It is an ancient maxim of the law that all such statutes must be construed strictly against the state and favorably to the liberty of the citizen. The maxim is founded on the tenderness of the law for the rights of individuals and on the plain principle that the power of punishment is vested in the legislature and not in the judicial department. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penalty. There can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute. If these principals are violated, the fate of the accused is determined by the arbitrary discretion of the judges and not by the express authority of the law."

b. "When a statute is penal in nature, it "must be strictly construed against the STATE and in favor of an accused. c. "While it is true that penal statutes must be strictly construed against the

STATE in criminal cases, "we will not apply 'an unreasonably

restrictive interpretation of the statute' that would subvert the

legislative intent expressed therein. d. "In determining whether a legislative enactment is unconstitutionally vague, the Supreme Court has considered whether the words used have a well­settled . . . meaning . . . (citing dictionary to determine "generally understood" meaning for adjective in ordinance). "A penal statute is void for vagueness if it both fails to give a person of ordinary intelligence notice that her contemplated conduct is forbidden by the statute and encourages selective prosecution

Statutory Exceptions, Negative Element v. Affirmative

Defense

1) "When construing PENAL STATUTES which contain qualifications,

exceptions or exemptions to their application, the limiting language may be

viewed as a negative element of the offense which the prosecution must

disprove. Alternately, the court may determine that the exemption is a statutory

defense, which the accused can assert to defeat the prima facie case of the

prosecution. In determining whether specific limiting language is an element of the

offense or a statutory defense, a court should look both to the intent of the statute as a

whole and the ability of the respective parties to assert the existence or absence of the

underlying facts sustaining the applicability of the limitation. When determining

whether the limiting language is a negative element or a statutory defense, this Court

has identified four factors to be considered: 'the wording of the exception and its role

in relation to the other words in the statute; whether in light of the situation prompting

legislative action, the exception is essential to complete the general prohibition

intended; whether the exception makes an excuse or justification for what would

otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the

matter is peculiarly within the knowledge of the defendant.' An application of these

factors to the present case demonstrates that the phrase "except as provided by law,"

as used in Code § 29.1­553, establishes a statutory defense as opposed to a negative

element

2) "In order to resolve whether there is a due process violation in this

case, we first must address the threshold issue of whether the absence of

a valid prescription is an affirmative defense or a negative element of the

offense. If it is the latter, the burden of proof is on the STATE, and it cannot be

shifted to the accused...When construing penal statutes which contain qualifications,

exceptions or exemptions to their application, the limiting language may be viewed as

a negative element of the offense which the prosecution must disprove. Alternately,

the court may determine that the exemption is a statutory defense, which the accused

can assert to defeat the prima facie case of the prosecution. The ACCUSED

BEARS THE BURDEN OF PRODUCING EVIDENCE OF

THE NEGATION of circumstances sufficient to raise a

reasonable doubt of his guilt. In determining whether specific limiting language is an element of the offense or a statutory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert the existence or absence of the underlying facts sustaining the applicability of the limitation.Accordingly, we should consider the wording of the exception and its

role in relation to the other words in the statute; whether in light of the situation

prompting legislative action, the exception is essential to complete the general

prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets

forth an affirmative defense; and whether the matter is peculiarly within the

knowledge of the defendant. (It is undoubtedly the general rule that the state must prove all the essential facts entering into the description of the offense. But it has been held in many cases that when a negation of a fact lies peculiarly within the knowledge of the defendant it is incumbent on him to establish that fact).

We next observe that the "valid prescription" exemption of Code § 18.2­250 relates to a fact that would be solely within the knowledge of the accused. If we accept appellant's contention that the STATE must prove appellant had no valid prescription, the offense would be virtually unprovable. Under appellant's theory, to obtain a conviction under the facts of this case, the STATE would be required to prove that no medical professional, wherever located, in this Commonwealth or elsewhere, had prescribed the drug to appellant. This would involve a nationwide search of chain drugstores, as well as independent pharmacies, hospitals, prison infirmaries, etc. Appellant, at oral argument, conceded that such an undertaking would most likely be impossible. CONGRESS clearly did not intend such a result, nor would they enact such an impotent statute

Constitutional Construction 1) "The rights enumerated in this Bill of Rights shall not be construed to limit other

rights of the people not therein expressed.

2)“The office and purpose of the constitution is to shape and fix the limits of governmental activity. It thus proclaims, safeguards and preserves in basic form the pre­existing laws, rights, mores, habits, and modes of thought and life of the people as developed under the common law and as existing at the time of its adoption to the extent and therein stated…The purpose and object sought to be attained by the framers of the constitution is to be looked for, and the will and intent of the people who ratified it is to be made effective. As we have stated, CONGRESS may enact any law or take any action “not prohibited by express terms, or by necessary implications by the Constitution. 3)“A fundamental right is one EXPLICITLY OR IMPLICITLY implied guaranteed by the constitution

4) "It is an "established principle of constitutional law that a court will not rule upon the constitutionality of a statute unless such a determination is absolutely necessary to

decide the merits of the case. A statute will be construed to avoid a constitutional question whenever this is possible. 5) "The construction of a constitutional provision by CONGRESS (note it is congress construing, not the supreme court, that is why it is CALLED

“CONTEMPORANEOUS CONSTRUCTION”)is entitled to consideration, and if the construction is contemporaneous with adoption of the constitutional provision, it is entitled to great weight. In addition, Long acquiescence in such an announced construction so strengthens itthat it should not be changed unless plainly wrong. 6) Constitutional provisions are EITHER SELF­EXECUTING OR

MANDATORY.

A self­executing provision does not require enabling legislation for its

enforcement.

A mandatory provision declares or imposes a duty or

requirement that must be followed.

A Directory provision sets forth procedures or " confers discretion on the

legislature" for its implementation.

7) "We review arguments regarding the CONSTITUTIONALITY OF A

STATUTE DE NOVO. When the constitutionality of a statute is challenged,

we are guided by the principle that all acts of CONGRESS are presumed to be

constitutional. Where a statute is constitutional as applied to a litigant, the

litigant has no standing to challenge the statute on the ground that it may be

unconstitutional on its face, that is, as applied to a third person in a

hypothetical situation. As a general rule, "a party has standing to challenge

the constitutionality of a statuteonly insofar as it has an adverse

impact on his own rights

8) "However, when a court, in determining the constitutionality of a

statute, departs from the express limitations of the Constitution and

relies instead on implied constitutional restrictions, the legislative

usurpation must be very clear and palpable to justify the court’s holding

that an enactment is unconstitutional.

9) "This Court’s jurisprudence with respect to Article IV, Section 12 is well

established. “The fact that many things of a diverse nature are

authorized or required to be done in the body of the act, though not

expressed in its title is not objectionable, if what is authorized by the act

is germane to the object expressed in the title, or has a legitimate and

natural association therewith, or is congruous therewith, the title is

sufficient. “[I]f there is doubt as to the sufficiency of the title, the doubt must

be resolved in favor of its sufficiency, as courts will not declare an act of the

legislature unconstitutional unless it is plainly so. The analysis of a particular act

must necessarily “stand on its own,” and we must look to both the body and to

the title of the act under scrutiny to determine whether the act violates the

Constitution.

10) "As a general rule, where a statute is constitutional as applied to

a litigant, the litigant has no standing to challenge the statute on the

ground that it may be unconstitutional on its face, that is, as applied to a

third person in a hypothetical situation." We have said that classification

ordinarily will be upheld "if any state of facts can be reasonably conceived that would

support it." But where the statute creates a "suspect classification" (e.g.

race, sex, or religion) or where it affects a fundamental constitutional right, the

presumption of constitutionality fades, and the "strict scrutiny" test, rather than the

more relaxed "rational relationship" test applies.

11) "Statutory interpretation presents a pure question of law and

is accordingly subject to de novo review by this Court. de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again."

Retroactive Enactment of Laws 1) "Accordingly, when a statute is amended while an action is pending, the rights of the parties are to be deemed in accordance with the law in effect when the action is begun, unless the amended statute shows a clear intention to vary such rights. (Our analysis is guided by the fundamental principles of statutory construction that retroactive laws are not favored, and that a statute is always construed to operate prospectively unless a contrary legislative intent is manifest.); New laws will apply only to future cases unless there is something in the very nature of the case, or in the language of the new provision, which shows that the new law was intended to have a retrospective effect. Further, every reasonable doubt is resolved against a retroactive operation of a

statute, and words of a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them . Retroactive effect will be given to a statute only when legislative intent that a statute be so applied is stated in clear, explicit, and

unequivocal terms.

Common Law

1) In construing statutes, the statutory definition must prevail over the common law definition 2) CONGRESS is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must

therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.

3) "We also apply the established principle that a statutory provision will not

be held to change the common law unless the legislative intent to do

so is plainly manifested. Therefore, a statutory change in the common law will

be recognized only in that which is expressly stated in the words of the statute or is

necessarily implied by its language.

4) " A statutory provision will not be held to change the common law unless the

legislative intent to do so is plainly manifested. "Statutes in derogation of the

common law are to be strictly construed and not to be enlarged in their operation by

construction beyond their express terms. Accordingly, "[a] statutory change in the

common law is limited to that which is expressly stated in the statute or necessarily

implied by its language because there is a presumption that no change was intended.

"When an enactment does not encompass the entire subject covered by the common

law, it abrogates the common­law rule only to the extent that its terms are directly and

irreconcilably opposed to the rule

Previous Construction of a Statute

1) "Where a statute has been construed by the

courts, and is then re-enacted by the legislature, the

construction given to it is presumed to be sanctioned

by the legislature, and thenceforth becomes

obligatory upon the courts." Hence, when the court

finds the old construction should be modified, it cannot

anymore, since the court is BOUND by its old construction

because such statute was RE-Enacted.

2) "The term "battery" possesses "a long history of definition by" the courts, and therefore, it "carries its historical construction" when used by CONGRESS in a statute. 3) "We have said that “when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its

judicial interpretations as well.” (STARE DECIS becomes the interpretation and construction of a law or

STATUTE that is ambiguous even if it was applied to a private case)

New Law New Remedy 4) "It is an established principle of statutory interpretation that "a statute prescribing a new remedy for an existing right should never be construed to abolish a pre­existing remedy in the absence of express words or

necessary implication. Further, " 'when a statute gives a new remedy, and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two.'

Two Statutes Pertaining to the Same Subject 1) "It is well accepted that statutes relating to the same subject should not be read in isolation. Such statutes should be considered in pari materia. Moreover, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent. An accepted principle of statutory construction is that, when it is not clear which of two statutes applies, the more specific statute prevails over the more general. Also, when statutes provide different procedures on the same subject matter, "the general must give way to the specific.

"As a preliminary matter applicable to all of your questions and in accord with the rule of statutory construction in pari materia,

statutory provisions are not to be considered as isolated fragments of law. Such provisions are to

be considered as a whole, or as parts of a greater connected, homogeneous system of laws, or a

single and complete statutory compilation.

Statutes in pari materia are considered as if they constituted but one act, so that sections of one act

may be considered as though they were parts of the other act.

As a general rule, where legislation dealing with a particular subject consists of a system of related

general provisions indicative of a settled policy, new enactments of a fragmentary nature on that

subject are to be taken as intended to fit into the existing system and to be carried into effect

conformably to it, and they should be so construed as to harmonize the general tenor or purport of

the system and make the scheme consistent in all its parts and uniform in its operation, unless a

different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in

the absence of words specifically indicating the contrary, that the legislature did not intend to

innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions

the entire subject matter of which is not directly or necessarily involved in the act (noting that in

absence of words to contrary, legislature did not intend to alter or repeal general statute or system).

3) Closely related statutes must be read as being consistent with one another.Two statutes which are closely interrelated must be read and construed together and effect given to all of their provisions. Statutes should be

construed, if possible, so as to harmonize, and force and effect should be given the provisions of each. 4) The primary objective of statutory construction is to ascertain and give effect to

legislative intent. 'In interpreting statutes, "courts should give the fullest possible

effect to the legislative intent embodied in the entire statutory enactment.

Potentially conflicting statutes should be harmonized to give force and

effect to each.

5) City and municipal ordinances must be consistent with the laws of the

Constitution. Thus, if a statute and a local ordinance both can be given

effect, courts must harmonize them and apply them together.

The Meaning of Words

1) In the absence of a contrary definition, the words in a statute are

presumed to have their usual and ordinary meaning.

3) A fundamental rule of statutory construction requires that every part of a statute be

presumed to have some effect, and not be treated as meaningless unless absolutely

necessary. "We must assume that the legislature did not intend to do a vain and useless thing. "It is a well established rule of construction that a statute ought to be interpreted in such a manner that it may have effect, and not found to be

vain and elusive. "A word or clause contained in a statutemay only berejected as surplusage if it "appears to have been inserted through inadvertence or mistake, and which is incapable of any sensible meaning," or is

otherwise repugnant to the rest of the statute. 4) "We will not construe a statute by singling out a particular term or phrase, but will construe the

words and terms at issuein the context of the other language used in the statute. 5) While in the construction of statutes the constant endeavor of the courts is to

ascertain and give effect to the intention of the legislature, that

intention must be gathered from the words used, unless a literal

construction would involve a manifest absurdity. "The Court has stated the related

principle that "the plain, obvious, and rational meaning of a statute is always to be

preferred to any curious, narrow, or strained construction." Statutes should

not be interpreted in ways that produce absurd or irrational consequences.

6) "A statute must be construed with reference to its subject matter, the object sought

to be attained, and the legislative purpose in enacting it; the provisions should receive

a construction that will render it harmonious with that purpose rather than one which will defeat it. 7)[i]f the language of a statute is plain and unambiguous, and its meaning perfectly

clear and definite, effect must be given to it. It is unnecessary to resort to any rules of

statutory construction when the language of a statute is unambiguous. In those

situations, the statute's plain meaning and intent govern.

"Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness.” 9) "Black's Law Dictionary 1586 (8th ed. 2004) defines "valid" as "Legally sufficient;binding." (noting that if the STATUTE does not provide a statutory definition we may look to the dictionary definition to determine legislative intent 10) "In drafting the statute, the legislature separated the two prohibitions with a comma followed by the disjunctive word "nor." We have noted that, pursuant to the rules of grammar, "phrases separated by a comma and [a] disjunctive . . . are independent. The disjunctive serves to

connect the two parts of the sentence but also to keep them separate and independent.” 12) "The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful. The term "willful act" imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury. [T]he term "gross, wanton, and culpable" describes conduct. The word "gross" means "aggravated or increased negligence" while the word "culpable" means "deserving of blame or censure." 'Gross negligence' is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts 13) "But, courts are not permitted to add language to a statute nor are they permitted to accomplish the same result by judicial interpretation." Rather, when the language of a statute is unambiguous, courts are

bound by the plain meaning of that language and may not assign a construction that

amounts to holding that the General Assembly did not mean what it actually has

stated.

14) "It is equally well established, however, that if the language of a statute is clear

and unambiguous, a regulatory interpretation by the Department that is in conflict

with the plain language of the statute cannot be sustained.

15) "Under the rule ofejusdem generis, when a particular class of persons or

things is enumerated in a statute and general words follow, the general

words are to be restricted in their meaning to a sense analogous to the less general,

particular words. Likewise, according to the maxim noscitur a sociis (associated words) when general and specific words are grouped, the general words are limited

by the specific and will be construed to embrace only objects similar in nature to those

things identified by the specific words.

16) If a statute expressly excepts a class which would otherwise fall within its terms, the exception negates the idea that any other class is to be excepted.

17) One such rule, sometimes referred to as the last antecedent doctrine, is

particularly applicable here and can be summarized as follows: Referential and

qualifying words and phrases, where no contrary intention appears,

refer solely to the last antecedent. The last antecedent is 'the last

word, phrase, or clause that can be made an antecedent without impairing the

meaning of the sentence.' Thus a proviso usually is construed to apply to the

provision or clause immediately preceding it. (explaining and applying "the

grammatical 'rule of the last antecedent,' according to which a limiting clause or

phrase . . . should ordinarily be read as modifying only the noun or phrase that it

immediately follows . . . ."); (noting that construction of a statute according to the last

antecedent rule is "quite sensible as a matter of grammar

19) "An erroneous interpretation of a statute by those charged with its

enforcementcannot be permitted to override [the statute's] clear meaning. Amendments of statutes can only be made by the legislature and not by the courts or administrative officers charged with their enforcement

20) "But principles of statutory construction are not so rigid. Although we presume

that the same term has the same meaning when it occurs here and there in a single

statute, the Court of Appeals mischaracterized that presumption as “effectively

irrebuttable.” We also understand that “[m]ost words have different shades of

meaning and consequently may be variously construed, not only when they occur

in different statutes, but when used more than once in the same statute or even in

the same section.” Thus, the “natural presumption that identical words

used in different parts of the same act are intended to have the same

meaning… is not rigid and readily yields whenever there is such variation in the

connection in which the words are used as reasonably to warrant the conclusion

that they were employed in different parts of the act with different intent.” Ibid. A

given term in the same statute may take on distinct characters from association

with distinct statutory objects calling for different implementation strategies." Ibid. (Latin, short foribidem, meaning "the same place") is the term used to provide anendnote orfootnotecitation orreference for a source that was cited in the preceding endnote or footnote. It is similar in meaning to idem (meaning something that has been

mentioned previously; the same), abbreviated Id., which is commonly used inlegal citation.[1] To find theibid.source, onemust look

at the reference preceding it.

21) "Generally, phrases separated by a comma and the disjunctive "or,"

are independent.(finding that, the word "or" connects two parts of a sentence,

"'but disconnect[s] their meaning'"); (noting disjunctive results in alternatives,

which must be treated separately); (finding that limiting phrase in statute is

independent of and does not modify two earlier phrases because the limiting phrase

is separated from the first two by a comma and the disjunctive "or"); (interpreting

the use of a comma and the disjunctive "or" as implying two separate and

independent phrases in a Virginia statute authorizing payment of dividends by

corporation "out of net earnings, or out of its net assets in excess of its capital").

Accordingly, the phrase, "made by the Defendant to any law enforcement officer,"

is independent of and does not modify the phrase, "[a]ny written or recorded

statement or confessions."

The Terms May/Shall 1) The term "may," as used in a statute, should be given its ordinary meaning intended by the CONGRESS ­permission, importing discretion.

2) It is also true, however, that the Supreme Court has held that the word "may," while ordinarily importing permission, will be construed to be mandatory when it is necessary to accomplish the manifest purpose of the legislature. 3) The use of the word "shall" in a statute generally implies that its terms are intended to be mandatory, rather than permissive or directive. 4) "[T]he use of ‘shall,’ in a statute requiring action by a public official, is directory andnot mandatory unless the statute manifests a contrary intent."14 "A statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute.

The Term Aggrieved “Locus Standi” 1) ""The term 'aggrieved' has a settled meaning when it becomes necessary to

determine who is a proper party to seek court relief from an adverse decision. In

order for a petitioner to be 'aggrieved,' it must affirmatively appear that such person had some direct interest in the subject matter of the proceeding

that he seeks to attack. . . . The petitioner'must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.' . . . Thus, it is not sufficient that the sole interest of

the petitioner is to advance some perceived public right or to

redress someanticipated public injury when the only wrong he has

suffered is in common with other persons similarly situated. The word

'aggrieved' in a statute contemplates a substantial grievance and means a denial of

some personal or property right, legal or equitable, or imposition of a burden or

obligation upon the petitioner different from that suffered by the public generally.

Mens Rea/ Scienter/ Intent 1) "In the final analysis, the issue whether mens rea or scienter is a necessary

element in the indictment and proof of a particular crime becomes a question of

legislative intent to be construed by the court. Thus, to insert a mens rea element

into the offense, and to require proof thereof, would defeat the statutory purpose,

which is to criminalize the introduction of firearms into a school environment. So we

will not add, by implication, language to the statute that the legislature expressly has

chosen not to include. Consequently, we hold that the trial court correctly decided, in

refusing the instruction in question, that this statute is one of strict criminal liability,

and that the Commonwealth was required to prove only that the defendant had

possessed, on school property, a firearm of the type described in the statute.

2) "The contention that an injury can amount to a crime only when

inflicted by intention is no provincial or transient notion. It is as universal

and persistent in mature systems of law as belief in freedom of the human will and a

consequent ability and duty of the normal individual to choose between good

and evil. A relation between some mental element and punishment for a harmful act is

almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has

afforded the rational basis for a tardy and unfinished substitution of deterrence and

reformation in place of retaliation and vengeance as the motivation for public

prosecution.

Unqualified acceptance of this doctrine by English common law in the

Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Common­law commentators of the Nineteenth Century early pronounced the same principle, although a few exceptions not relevant to our present problem came to be recognized. Crime, as a compound concept, generally constituted only from concurrence of an evil­meaning mind with an evil­doing hand, was congenial to an intense individualism. As the states codified the common law of crimes, even if their enactments were

silent on the subject, their courts assumed that the omission did not signify

disapproval of the principle but merely recognized that intent was so inherent in

the idea of the offense that it required no statutory affirmation.

Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of

different offenses, have devised working formulae, if not scientific ones,

for the instruction of juries around such terms as "felonious intent,"

"criminal intent," "malice aforethought," "guilty knowledge," "fraudulent

intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens

rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common­law crimes....The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice.

The purpose and obvious effect of doing away with the requirement of a guilty intent

is to ease the prosecution's path to conviction, to strip the defendant of such benefit

as he derived at common law from innocence of evil purpose, and to circumscribe

the freedom heretofore allowed juries.

Such a manifest impairment of the immunities of the individual should not be extended to common­law crimes on judicial initiative. 3) "The presence of a "vicious will" or mens rea was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category. 13 Id., at 260­261. "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning [401 U.S. 601, 608] 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."

The Dillon Rule and Grants of Authority The Dillon Rule of strict construction controls our determination of the powers of

local governing bodies. This rule provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.

"In determining legislative intent, the rule is clear that where a power is conferred and the mode of its execution is specified, no other method may be selected; any other means

would be contrary to legislative intent and, therefore, unreasonable. A necessary corollary is that where a grant of power is silent upon its mode of execution, a method of exercise clearly contrary to legislative intent, or inappropriate to the ends sought to be accomplished by the grant, also would be unreasonable.

"Consistent with the necessity to uphold legislative intent, the doctrine of implied powers should never be applied to create a power that does not exist or to expand an existing power beyond rational limits. Always, the test in application of the doctrine is reasonableness, in which concern for what is necessary to promote the public interest is a key element. Finally, when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute. It can never go beyond the authority given .

6) “When the legislature delegates authority to an administrative agency to promulgate regulations, those regulations must neither exceed the scope of the authority delegated nor be inconsistent with it. Furthermore, "delegations of legislative power are valid only if they

establish specific policies and fix definite standards to guide the official, agency,

or board in the exercise of the power. Delegations of legislative power which

lack such policies and standards are unconstitutional and void." For example,

language in an enabling statute which provides merely "that the regulations be

designed to protect and promote the safety and health of employees" is

insufficient.

7) "We consistently have held that when the primary purpose of an enactment is to raise revenue,

the enactment will be considered a tax, regardless of the name attached to the act. The General

Assembly is directly prohibited from enacting “any local, special, or private law . . . [f]or the

assessment and collection of taxes. There is, however, an exception to this specific prohibition.The General Assembly may by special act like RA 7160(Local Government Code)delegating the power of taxation to any province, city, municipality.

Inconsistent Regulations/Laws

As a preliminary matter, we agree with Manassas' statements that regulations of

Executive Departments have the force of law, and that any Executive Department

concerned with the execution of a statute’s interpretation of its governing statutes,

as reflected in its regulations, is entitled to great weight. Regulations, however, may not conflict with the authorizing statute.

Whether a regulation is inconsistent with its enabling legislation isproperly a

subject of judicial review.

If both the statute and the ordinance can stand together and be given

effect, it is the duty of the courts to harmonize them and not nullify the

ordinance.

City and municipal ordinances must be consistent with STATUTES. Such

ordinances are inconsistent with state law when they cannot co-exist

with a statute. The fact that a county or municipal ordinance enlarges on a statute's provisions does

not create a conflict with the statute unless the statute limits the requirements (Separability Clause is

inserted)for all cases to its own terms. Thus, if a statute and a local ordinance both can be given effect,

courts must harmonize them and apply them together.

A Single Body of Law 1) "When attempting to define terms in one part of the Code, courts should read a

statute with "a view toward harmonizing it with other statutes. "Ordinarily, when a particular word in a statute is not defined therein, a court must give it its ordinary meaning. 2) "When asked to interpret various code sections, the SUPREME Court oftenexamines other related statutes that contain similar or contrasting language to help determine legislative intent.

The Exclusion Rule

Ambiguity 1) "Language is ambiguous when it may be understood in more than one way, or simultaneously refers to two or more things. 2) "When the language of a statute is ambiguous, it must be interpreted in a manner that will give effect to the intent of CONGRESS.

3) "The primary goal of statutory construction is to discern and give

effect tolegislative intent, with the reading of a statute as a whole influencing the proper construction of ambiguous individual provisions

4) Doctrine of Contra proferentem: "Used in the connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the language." Black's Law Dictionary, 5th Ed. 5) "Instead, we find the restrictive covenant, in particular the phrase "residential purposes," to be ambiguous in

several respects....Indeed, even the circuit court's interpretation that the term " '[r]esidence' means more than

mere physical presence and less than domicile" is ambiguous. It can be argued that a nightly or weekly rental is

more than mere physical presence. Moreover, if the phrase "residential purposes" carries with it a "duration of

use" component, it is ambiguous as to when a rental of the property moves from short­term to long­term.

Under our case law, a restrictive covenant of "substantial doubt or ambiguity" must be interpreted "in favor of

the free use of property and against restrictions

Criminal Versus Civil Intent of a Statute The question whether a particular statutorily defined penalty is civil or

criminal is a matter of statutory construction." First, one must determine

whether the legislature, in establishing the penalizing mechanism, indicates

either expressly or impliedly a preference for one label or the other. Second,

where the legislature has indicated an intention to establish a civil penalty,

one must address "whether the statutory scheme was so punitive either in

purpose or effect as to negate that intention

Supremacy Clause of the Constitution

1) "By virtue of the Supremacy Clause of the Constitution supersedes any conflicting state law. The preemption of Local laws by STATUTES may occur by express statutory language or other clear indication that Congress intended to legislate exclusively in the area. Even if Congress does not intend the enactment of a STATUTORY scheme completely to preempt Local laws in the area, congressional enactments in the same field override Local laws with which they conflict.

The Supreme Court has identified three ways in which preemption may occur: (1) Congress may adopt express language setting forth the

existence and scope of preemption; (2) Congress may adopt a framework for regulation that "occupies the field" and leaves no room for states to adopt supplemental laws; and (3) when statute actually conflicts with the constitution, typically when compliance with both laws is a "physical impossibility" or the statute stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 2) "Settled legal principles provide that the Constitution, not a state court erroneous interpretation of it, is controlling. (in context of determining whether to apply retroactively a new rule for the conduct of criminal prosecutions, adopting Blackstonian view that judges...find the law rather than make the law and that judicial declaration of law is merely a statement of what the law has always been.

Public Policy 1) "A court may not "second­guess the lawmakers on matters of

economics, sociology and public policy. . . . Those considerations

belong exclusively in the legislative domain. Regardless of

whether it "may or may not be better public policy".Meaning COURTS

do not interpret provisions for ECONOMICS, SOCIOLOGY and

PUBLIC POLICY.

2) "Judicial reviewdoes not evaluate the "propriety, wisdom,

necessity and expediency" of legislation.We askonly whether

the statutory classification erects an irrational, arbitrary

distinction ­ one that no conceivable state of facts could

reasonably sustain.