21 November 2023

Distinction Without a Difference

 I'm breaking down the published cases in Virginia from March thru now (I do this every year) and I ran across Tomlin v. Commonwealth. The issue in Tomlin is whether bedsores from some fairly nasty abuse of an incapacitated adult qualify under the statute under the following definition:

 "Serious bodily injury or disease" includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.  § 18.2-369(C) 

The proper answer here is whether the fact finder determined the condition of the bed sores to be as serious as the least of the things on the list. Disfigurement doesn't require serious harm and a fracture can be rather minor. The finder of fact at trial should make the determination and the appellate courts should, as they constantly tell us, defer to the person(s) who actually saw the evidence and heard the witnesses.

But no, the Virginia Supreme Court got suckered into an unnecessary discussion of cannons of interpretation. It even batted over .600 in its analyses, getting Noscitur a Sociis and In Pari Materia right. Mind you, the appellant threw some nice fat eephuses right over the plate. Sadly, the Supreme Court whiffed on Ejusdem Generis. Here's my breakdown of the court's reasoning:

Tomlin v. Commonwealth, JUN23, VaSC no. 220223:  (1) 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.  (2) The specific-general sequence is required, and that the rule does not apply to a general-specific sequence.
Let's play out that reasoning some. If your statute says "red, blue, green and other colors", you are stuck with things similar to the colors listed (ie: yellow, purple, magenta). If your statute says "colors including red, blue and green" then "colors" is not limited to things similar to the colors listed. It can include cars, deer, and dynamite. And, yes, I know I'm being ridiculous; it's because that is a ridiculous way to apply that doctrine of interpretation.

 While I'm sure someone out there can come up with a situation where the court's misapplication of the rule actually works, let's be honest. The reason for that particular warping of the rule is so it can be ignored when it should apply. The sad thing is that the court didn't even need to do it in this case.