WA Canons of Statutory Construction Archives — LAW OFFICE OF GREGORY A. WILLIAMS

February 15, 2024February 15, 2024

The Campbell & Gwinn Framework

Under Washington State canons of statutory construction, what is the Campbell & Gwinn Framework? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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**CANONS OF CONSTRUCTION: THE CAMPBELL & GWINN FRAMEWORK**

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

NOTE: “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Ambiguous Statutes (WA State)

Washington State courts use the Campbell & Gwinn Framework to inquire whether a statute is ambiguous. See Magney v. Pham, 195 Wash.2d 795, 803, 805, 466 P.3d 1077 (Wash. 2020).

**The Campbell & Gwinn Framework**

Courts apply the Campbell & Gwinn Framework as follows:

(1) DETERMINE the legislative intent OF the STATUTE

When a Washington State court construes “a statute, … [its] goal is to determine and effectuate legislative intent.” Magney, 195 Wash.2d at 803, 466 P.3d 1077 (citing Swinomish Indian Tribal Cmty. v. Dep’t of Ecology, 178 Wash.2d 571, 581, 311 P.3d 6 (2013); Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002)) (internal citations omitted) (emphasis added).

(2) EVALUATE the plain and unambiguous language OF the STATUTE

The court will “start with the plain and unambiguous language of a statute.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4).

(3) if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning

“[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4) (alteration in original). “[T]he plain meaning is … derived from what the Legislature has said in its enactments, but that meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Id (citing Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4) (alteration in original).

(4) if the statute is ambiguous, then it is appropriate for the court to resort to aids to construction

“[I]f, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 12, 43 P.3d 4) (alteration in original).

Conclusion

Washington State courts use Campbell & Gwinn Framework to inquire whether a statute is ambiguous. If the interpretation of the statute is clear at first glance, the court is obligated to uphold that straightforward interpretation as reflective of the legislature’s intent. Alternatively, if the statute is determined to be ambiguous–meaning, “susceptible to more than one reasonable meaning”–then it is appropriate for the court to resort to aids to construction, including legislative history. See id.

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February 1, 2024February 7, 2024

The Implied Cause of Action Rule

Under Washington State laws, what is the Implied Cause of Action Rule? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for entertainment purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE IMPLIED CAUSE OF ACTION RULE: WA STATE

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990).

a judicial canon of construction

Accordingly, the Implied Cause of Action Rule is a judicial canon directing that “when a statute … [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland’s Statutes and Statutory Construction § 55.03 (4th ed. 1973).” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state’s labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee’s labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) (“[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy”)) (alteration in original) (emphasis added) (internal quotation marks omitted).

This judicial canon has its roots in federal law as well as the Restatement of Torts.

NOTE: A judicial canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added). “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Federal Law

“The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy.” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).

THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that “The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing Restatement (Second) of Torts § 874A (1979)) (emphasis added).

THE ELEMENTS

Washington courts have borrowed “from the test used by federal courts in determining whether to imply a cause of action.” Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

(1) whether the plaintiff is within the class for whose “especial” benefit the statute was enacted;

(2) whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

(3) whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

the assumptions

Lastly, the court may make two important assumptions under the Implied Right of Action Rule:

(1) “[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and

[(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.”

See id. at 919-20 (paragraph formatting added).

READ OUR RELATED ARTICLES

We invite you to read more of our articles related to this topic:

» Employment Law 101: Legal Theory

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January 18, 2024January 31, 2024

Canon: Expressio Unius Est Exclusio Alterius

Under Washington State canons of statutory construction, what is the canon expressio unius est exclusio alterius? Here’s my point of view.

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CANONS OF CONSTRUCTION

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

The Canon Expressio Unius Est Exclusio Alterius

According to the canon expressio unius est exclusio alterius:

[W]here a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature.

Magney v. Pham, 195 Wash.2d 795, 803, 466 P.3d 1077 (Wash. 2020) (citing Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wash.2d 94, 98, 459 P.2d 633 (1969)).

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December 7, 2023January 18, 2024

Canon: Noscitur A Sociis

Under Washington State canons of statutory construction, what is the canon noscitur a sociis? Here’s my point of view.

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THE CANON NOSCITUR A SOCIIS

According to the canon noscitur a sociis:

[T]he meaning of an unclear word or phrase should be determined by the words immediately surrounding it.

Black’s Law Dictionary 1087 (Deluxe 8th ed. 2004); Hous. Auth. v. Parker, No. 39089-6-III, slip op. at 7 (Div. 3 Sept. 21, 2023) (“Under the canon[ ] of noscitur a sociis … the use of the word “other” to modify a general term can signify legislative intent that the general term shares some sort of attribute with preceding, more specific terms.” (emphasis in original)).

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February 16, 2023

Canon of Administrative-Agency Interpretations

Under Washington State canons of statutory construction, what is the canon of administrative-agency interpretations? Here’s my point of view.

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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

According to the canon of administrative-agency interpretations:

Generally, administrative agency interpretations of statutes are given great weight.

Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).

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December 22, 2022December 29, 2022

Canon of Constitutional Presumption

Under Washington State canons of statutory construction, what is the canon of constitutional presumption? Here’s my point of view.

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THE CANON OF CONSTITUTIONAL PRESUMPTION

According to the canon of constitutional presumption, Washington courts “presume statutes are constitutional, and the party challenging constitutionality bears the burden of proving otherwise.” Woods v. Seattle’s Union Gospel Mission, 481 P.3d 1060, 1064 (Wash. 2021) (citing Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 215, 143 P.3d 571 (2006), overruled in part by Chong Yim v. City of Seattle, 194 Wash.2d 682, 451 P.3d 694 (2019)).

There are two types of lawsuits that challenge the constitutionality of a statute: (1) the as-applied challenge; and (2) the facial challenge.

THE AS-APPLIED CHALLENGE

The as-applied challenge to the constitutional validity of a statute is based on “a party’s allegation that application of the statute in the specific context of the party’s actions or intended actions is unconstitutional.” Id. (alteration in original) (internal citation and quotation marks omitted). According to the Washington Supreme Court in Woods, “Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.” Id. (internal citation and quotation marks omitted).

THE FACIAL CHALLENGE

A facial challenge is a claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally. To ascertain whether a law is facially invalid, “courts must be careful not to exceed the facial requirements and speculate about hypothetical cases.” Id. (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008)). Washington courts generally disfavor facial claims. See id. (citing State v. McCuistion, 174 Wash.2d 369, 389, 275 P.3d 1092 (2012). Accordingly, a “facial challenge must be rejected unless there is no set of circumstances in which the statute[, as currently written,] can constitutionally be applied.” Id. (In re Det. of Turay , 139 Wash.2d 379, 417 n.27, 986 P.2d 790 (1999) (emphasis and alteration in original) (internal citation and quotation marks omitted).

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April 27, 2022April 27, 2022

Presumption of Acquiescence

Under Washington State canons of statutory construction, what is the canon regarding presumption of acquiescence? Here’s my point of view.

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PRESUMPTION OF ACQUIESCENCE

Under the Presumption-of-Acquiescence canon, “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (concluding that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993). State v. Ritchie, 126 Wash.2d 388, 393, 894 P.2d 1308 (1995). See also State v. Young, 125 Wash.2d 688, 696, 888 P.2d 142 (1995); In re King County Foreclosure of Liens, 117 Wash.2d 77, 86, 811 P.2d 945 (1991) (“the Legislature is presumed to know existing case law in areas in which it is legislating”))). Id.

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December 30, 2021December 30, 2021

Canon of Harmonious Statutory Scheme

Under Washington State canons of statutory construction, what is the canon of a total harmonious statutory scheme? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

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THE CANON OF HARMONIOUS STATUTORY SCHEME

According to the Canon of Harmonious Statutory Scheme:

Where possible, statutes should be read together to determine the legislative purpose and to achieve a total harmonious statutory scheme.

Marquis v. City of Spokane, 130 Wn.2d 97, 119 (Wash. 1996) (citing King County Fire Protection Dist., No. 16 v. Housing Auth., 123 Wash.2d 819, 826-27, 872 P.2d 516 (1994)). In addition:

The meaning of ambiguous statutes must be determined by examining the statutory scheme as a whole, and legislative history may serve as an important tool in divining legislative intent.

Id. (citing In re Sehome Park Care Ctr., 127 Wash.2d 774, 778, 903 P.2d 443 (1995)).

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December 11, 2021May 11, 2022

Canon of Section Headings

Under Washington State canons of statutory construction, what is the canon regarding section headings? Here’s my point of view.

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CANON OF SECTION HEADINGS

“Where a statute is ambiguous, section headings enacted as a part of the act may assist in determining legislative intent, but they do not control the plain meaning.” Matter of Estate of Ray, 15 Wn. App. 2d 353, 362, 478 P.3d 1126 (2020), review denied sub nom. Stine v. Dep’t of Revenue, 197 Wn.2d 1009, 484 P.3d 1264 (2021).

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October 28, 2021April 21, 2022

The Absence of Implementing Rules

Under Washington State canons of statutory construction, what is the rule regarding absence of implementing rules? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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ABSENCE OF IMPLEMENTING RULES: COURTS GIVE EFFECT TO THE LEGISLATURE’S INTENT

In Washington State, agencies are often authorized to promulgate implementing rules for associated statutes. However, issues can arise where agencies fail to enact such rules.

“[W]ith or without recourse to implementing rules, … court[s] must interpret … [Washington statutes] so as to give effect to the legislature’s intent.” See Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 496, 325 P.3d 193 (Wash. 2014).

WHEN SILENCE MEANS SOMETHING MORE

“It is certainly true that an administrative agency’s silence must be deemed significant where it admits of only one reasonable interpretation.” Id. at 494 (footnote omitted) (emphasis added). For example, “where [an] agency historically engaged in comprehensive regulation of certain industry practices, the agency’s silence regarding an affirmative defense based on a violation of those regulations was deemed significant[.]” Id. at 514 n.20 (referencing S. P. Transp. Co. v. Commercial metals Co., 456 U.S. 336, 345, 102 S.Ct. 1815, 72 L.Ed. 2d 114 (1982)).

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September 19, 2021May 19, 2022

Canon of Presumed Awareness

Under Washington State canons of statutory construction, what is the canon of presumed awareness? Here’s my point of view.

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THE CANON OF PRESUMED AWARENESS

Under the canon of presumed awareness: “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (reasoning that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992))).

In Dailey, the majority opinion essentially held that punitive damages are not available for employment discrimination under the Washington Law Against Discrimination, because the legislature has not expressly authorized them. See id at 574-75.

Read our related article entitled Presumption of Acquiescence concerning a similar Washington State canon of statutory construction.

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June 28, 2021July 9, 2021

The Valid Regulation Presumption

Under Washington State canons of statutory construction, what is the Valid Regulation Presumption? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE VALID REGULATION PRESUMPTION

Generally, regulations implement statutes. In Washington State, the Valid Regulation Presumption is as follows:

There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it …. [The court’s] review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.

Barnes v. Washington Natural Gas Company, 22 Wn.App. 576, 580, 591 P.2d 461 (Div. 1 1997) (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

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June 27, 2021October 13, 2022

The Canon of Statutory Parallelism

Under Washington State canons of statutory construction, what is statutory parallelism? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE CANON OF STATUTORY PARALLELISM

Statutory parallelism is a term that I’ve coined for the following assumption commonly held by Washington State courts:

[W]hen the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout.

Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504, 509 (Wash. 2017) (citing Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972)).

EXAMPLE: CERT. FROM U.S. DIST. CT. FOR EAST DIST. OF WA IN ZHU v. NORTH CENTRAL ESD 171

In Zhu, the WA State Supreme Court decided that the Washington Law Against Discrimination (i.e., RCW 49.60.210(1)) creates “a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer[.]”

This was an issue of first impression. As part of its decision, the WA Court evaluated the Washington Law Against Discrimination (WLAD) definition of the term “employer.” In so doing, the Court concluded:

For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit. . . .

This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD. See Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout).

Zhu Cert., 404 P.3d at 509 (emphasis added).

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June 26, 2021July 8, 2021

The Absurd-Consequences Rule

Under Washington State canons of statutory construction, what is the Absurd-Consequences Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE ABSURD-CONSEQUENCES RULE

In Washington State, courts “will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (Wash. 2002) (citing State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992)). “The spirit or purpose of an enactment should prevail over … express but inept wording.” Id. (citing State v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981)) (internal quotation marks omitted).

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June 26, 2021July 8, 2021

The Dictionary Rule

Under Washington State canons of statutory construction, what is the dictionary rule? Here’s my point of view

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE DICTIONARY RULE

Generally, “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by reference to a standard dictionary.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (Wash. 2002) (citing State v. Sullivan, 143 Wn.2d 162, 174, 19 P.3d 1012 (2001)).

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June 26, 2021July 8, 2021

The Relative and Qualifying Words-and-Phrases Rule

Under Washington State canons of statutory construction, what is the Relative and Qualifying Words-and-Phrases Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE

In Washington State, “[c]ourts construe relative and qualifying words and phrases, both grammatically and legally, to refer to the last antecedent if a contrary intention does not appear in the statute.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 240, 59 P.3d 655 (Wash. 2002) (citing In re Application of Andy, 49 Wn.2d 449, 302 P.2d 963 (1956); see, e.g. Caughey v. Employment Sec. Dep’t, 81 Wn.2d 597, 602, 503 P.2d 460 (1972) (“[W]here no contrary intention appears in a statute, relative and qualifying words and phrases refer to the last antecedent.”)).

“The reason for this rule … is to make clear what is being modified.” Id.

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June 26, 2021July 8, 2021

The Ejusdem Generis Rule

Under Washington canons of statutory construction, what is the Ejusdem Generis Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE EJUSDEM GENERIS RULE

“The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms. In short, specific terms modify or restrict the application of general terms where both are used in sequence.” Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930, 965 P.2d 1124 (Wash.App.Div. 1 1998) (citing Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972)) (hyperlink added).

EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.

In Malo, the statute at issue states as follows:

It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

Id. (citing RCW 49.60.210(1)) (emphasis added).

In this case, there was an issue as to the meaning of the term “or other person.” The court applied two canons: (1) “[p]rovisions in a statute are to be read in the context of the statute as a whole[,]” and (2) the Ejusdem Generis Rule–holding that “the general term ‘or other person’ is restricted by the words ’employer,’ ’employment agency’ and ‘labor union.'” Id. (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993); RCW 49.60.210(1)).

Thus, “[t]he section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Id. (hyperlink added).

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June 19, 2021July 9, 2021

Presumption of Prospective Application

Under Washington State canons of statutory construction, what is Presumption of Prospective Application? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE PRESUMPTION OF PROSPECTIVE APPLICATION

Under the Washington State canon Presumption of Prospective Application, the court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271 (Wash. 2012) (internal citations and quotation marks omitted).

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June 18, 2021August 18, 2021

Agency Rules

Under Washington State canons of statutory construction, how do courts interpret agency rules–particularly those of the Washington State Human Rights Commission (WSHRC/HRC)? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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“PLAIN MEANING” CANON ALSO APPLIES TO AGENCY RULES

Washington State Human Rights Commission is a state agency. “As is true of statutes, [Washington courts] … interpret agency rules according to their plain meaning.” Mikolajczak v. Mann, 1 Wn.App.2d 493, 498 (Wash.App. Div. 3 2017) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 349, 172 P.3d 688 (2007)) (hyperlink added). “Each word in an agency rule must be given its common and ordinary meaning, unless the word is ambiguous or defined in the regulation.” Id. (citing Grays Harbor Energy, LLC. v. Grays Harbor County, 175 Wn.App. 578, 584, 307 P.3d 754 (2013)) (internal quotation marks omitted) (hyperlink added).

LIBERAL CONSTRUCTION APPLIED TO WA STATE HUMAN RIGHTS COMMISSION (HRC) RULES

Washington courts also “liberally construe the terms of the [Washington State Human Rights Commission’s] … rules to protect against discrimination.” Id. (citing Phillips v. City of Seattle, 111 Wn.2d 903, 908, 766 P.2d 1099 (1989)).

REGULATORY REDRAFTING PROHIBITED

“However, [courts] … cannot engage in statutory or regulatory redrafting.” Id. (citing Hegwine, 162 Wn.2d at 352, 172 P.3d 688). “If a particular discrimination claim is plainly left uncovered by both the [Washington Law Against Discrimination (“WLAD”)] … and the HRC’s implementing rules, it will not merit relief.” Id. at 498-99.

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June 9, 2021July 9, 2021

The Harmonizing Rule

Under Washington State canons of statutory construction, what is the Harmonizing Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE HARMONZING RULE

According to Washington State courts, “[a]pparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 821, 792 P.2d 500 (Wash. 1990) (citing Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981)).

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June 8, 2021July 9, 2021

The General-Terms Rule

Under Washington State canons of statutory construction, what is the General-Terms Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE GENERAL-TERMS RULE

In Washington State, “[a] general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930 (Div. 1, 1998).

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May 30, 2021August 11, 2021

The Plain Meaning Rule

Under Washington State canons of statutory construction, what is the Plain Meaning Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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STATUTORY INTERPRETATION

“Statutory interpretation is a question of law reviewed de novo.” Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611 (Wash. 2019). (internal citation and quotation marks omitted).

THE PLAIN MEANING RULE

“Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Id. (internal citation and quotation marks omitted).

AMBIGUOUS STATUTES

“If the statute is ambiguous, the court resorts to principles of statutory construction, legislative history, and relevant case law to assist [the court] in discerning legislative intent.” Id. (alteration in original) (internal citation and quotation marks omitted).

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