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EX PARTE Deborah R. TISDALE (IN RE: Deborah R. Tisdale v. State of Alabama)
WRIT DENIED. NO OPINION.
In rejecting Deborah R. Tisdale's interpretation of § 13A-5-4(b), Ala. Code 1975, the Court of Criminal Appeals held that the Covington Circuit Court's judgment is supported by (1) the application of the disjunctive-negative-proof rule to § 13A-5-4(b) and (2) the application of the principle of interpreting statutes in pari materia. Tisdale v. State, [Ms. CR-21-0174, Dec. 16, 2022] ––– So. 3d –––– (Ala. Crim. App. 2022). In her certiorari petition, Tisdale correctly asserts that the first holding, concerning the application of the disjunctive-negative-proof rule, presents a material question of first impression for this Court, and I agree with Chief Justice Parker that the Court of Criminal Appeals incorrectly applied that rule. However, that first holding does not present a material question “requiring decision” by this Court, which is the requirement for granting a certiorari petition under Rule 39(a)(1)(C), Ala. R. App. P. (allowing review of “decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama”). This is so because Tisdale completely omits any discussion of the second holding reached by the Court of Criminal Appeals, i.e., that the circuit court's judgment is supported by the application of the principle of interpreting statutes in pari materia. Because Tisdale's petition omits any discussion of the second holding, the petition fails to demonstrate any probability of merit, i.e., that the Court of Criminal Appeals committed reversible error. See Rule 39(f), Ala. R. App. P. (“If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order ․”). Unless both of the holdings of the Court of Criminal Appeals are erroneous, this Court would have to affirm that court's decision. See, e.g., Soutullo v. Mobile Cnty., 58 So. 3d 733, 739 (Ala. 2010) (“Because the [appellants] have pretermitted discussion of one of the two grounds forming the basis for the [judgment as a matter of law], we pretermit discussion of the other ground, and we affirm the judgment.”). Accordingly, I concur in the decision to deny the petition.
Deborah R. Tisdale was convicted of violating a statute that provides a punishment of a maximum $50 fine. Yet she was sentenced to 90 days’ imprisonment, and the Court of Criminal Appeals affirmed that sentence based on other, more general statutes about misdemeanors. I dissent from this Court's denial of certiorari as to the question whether the statute that Tisdale violated allows imprisonment.
Section 3-1-28, Ala. Code 1975, provides that owners of animals that die in their possession or custody must bury or burn them within 24 hours. The statute provides that anyone who violates it “shall be guilty of a misdemeanor and, on conviction, shall be fined not more than $50.00.” Id. Tisdale was convicted of violating this statute by failing to bury a dead horse within 24 hours of its death. The Covington Circuit Court sentenced her to 90 days’ imprisonment, suspended the sentence, and placed her on unsupervised probation for 2 years.
Tisdale appealed to the Court of Criminal Appeals, arguing that her 90-day sentence was unauthorized by § 3-1-28, the dead-animal statute. That court affirmed the sentence. Tisdale v. State, [Ms. CR-21-0174, Dec. 16, 2022] ––– So. 3d. ––––, –––– (Ala. Crim. App. 2022). The court held that, although the dead-animal statute contains no reference to imprisonment, the statute must be read in light of the following more general misdemeanor statutes:
“Any offense defined outside [Title 13A] which is declared by law to be a misdemeanor without specification as to classification or punishment is punishable as a Class C misdemeanor.”
“Sentences for misdemeanors shall be a definite term of imprisonment ․, within the following limitations:
“․ For a Class C misdemeanor, not more than three months.”
“Unless otherwise expressly provided or unless the context otherwise requires, the provisions of [Title 13A, Chapter 1,] shall govern the construction of and punishment for any offense defined outside [Title 13A] ․”
“Unless different meanings are expressly specified in subsequent provisions of [Title 13A], the following terms shall have the following meanings:
“․ Misdemeanor. An offense for which a sentence to a term of imprisonment not in excess of one year may be imposed.”
“Every person convicted of a misdemeanor ․ shall be sentenced by the court to:
“(1) Imprisonment ․; or
“(2) Pay a fine ․; or
“(3) Both such imprisonment and fine.”
In seeking certiorari, Tisdale argues that the Court of Criminal Appeals’ interpretation of the dead-animal statute presents a question of first impression for our Court: whether the statute allows imprisonment. She is correct, and this question merits review.
In concluding that imprisonment is an allowed punishment for violation of the dead-animal statute, the Court of Criminal Appeals first relied on § 13A-5-4(b). That statute provides that any offense defined outside Title 13A that is “declared by law to be a misdemeanor without specification as to classification or punishment is punishable as a Class C misdemeanor.” (Emphasis added.) (Class C misdemeanors are punishable by imprisonment. § 13A-5-7(a)(3).) In context, the natural, ordinary meaning of “without specification as to classification or punishment” is that the offense does not specify either a classification or a punishment. Put another way, an offense does not come within this catchall provision if the offense either specifies a classification or specifies a punishment.
But the Court of Criminal Appeals concluded the opposite -- that “without specification as to classification or punishment” means that an offense comes within the catchall provision unless the offense specifies both a classification and a punishment. The court reasoned that the “or” in “classification or punishment” creates a disjunctive negative proof:
“The phrase at issue illustrates what Scalia and Garner label ‘the disjunctive negative proof.’ [Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 120 (Thomson/West 2012).] They offer this hypothetical example:
“ ‘To be eligible for citizenship, you must prove that you have not (1) been convicted of murder; (2) been convicted of manslaughter; or (3) been convicted of embezzlement.
“ ‘An applicant proves #3 -- that he has never been convicted of embezzlement -- but fails to prove that he has not been convicted of both murder and manslaughter. Is he eligible? (No.) Is the requirement that he not have done one of these things, or that he have done none? (He must have done none.)’
“Id. at 120.
“Applying this principle to § 13A-5-4(b), the phrase ‘without specification as to classification or punishment’ means that § 13A-5-4(b) applies to any misdemeanor defined outside Title 13A that does not include a specification as to both classification and punishment. Thus, § 13A-5-4(b) applies to a misdemeanor offense outside Title 13A if: (1) the provision includes a punishment but does not classify that offense; (2) the provision classifies that misdemeanor but does not include a punishment; (3) the provision includes neither a classification nor a punishment.”
Tisdale, ––– So. 3d at ––––.
There are several problems with that reasoning. First, the court correctly identified the syntactic phenomenon as disjunctive negative proof but then incorrectly applied it. Scalia and Garner's example is summarized by them as: “To be eligible, you must prove that you have not done A, B, or C.” Scalia & Garner, supra. Under that example, if you have done any one of A, B, or C, then the condition (“you have not done A, B, or C”) is not satisfied, and the result (“eligible”) does not obtain. Similarly, under § 13A-5-4(b), if an offense statute specifies either classification or punishment, then the condition (“without specification as to classification or punishment”) is not satisfied, and the result (“punishable as a Class C misdemeanor”) does not obtain. In both instances, the “or” functions the same within the negative multifaceted condition: If any one of the facets is true, the condition is not satisfied.
The Court of Criminal Appeals may have been distracted by the words “you must prove” in Scalia and Garner's example. That language is merely part of the illustration; it has no effect on the syntactic phenomenon itself. “[Y]ou must prove” makes sense in an example of a statute that contains a burden of persuasion. But here, the statute contains no burden as part of the condition; it merely provides the condition in the abstract -- “without specification as to classification or punishment.” Thus, nothing about the words “you must prove” affects the parallel between Scalia and Garner's example and § 13A-5-4(b) that I have explained above.
Moreover, the Court of Criminal Appeals’ holding is contradicted by the official commentary to § 13A-5-4, which explains:
“Subsection (a) makes all felonies defined outside the Criminal Code [i.e., Title 13A,] for which no punishment is provided Class C felonies, the lowest category. Subsection (b) similarly deals with misdemeanors. Most existing crimes were covered in Title 13, Alabama Code of 1975, but most were repealed upon the effective date of the Criminal Code. To the extent that there are some crimes now found outside former Title 13 which have not been subsumed by the Criminal Code and which are not repealed, it is desirable that they be incorporated into the Criminal Code, at least those which specify no particular punishment.”
§ 13A-5-4, Commentary (emphasis added). This language clarifies that the statute was not designed to classify offenses that already specify a punishment. Instead, if an offense specifies a “particular punishment,” regardless of whether it specifies a classification, the catchall provision of § 13A-5-4(b) does not apply.
Further, as alluded to by the commentary, § 13A-5-4 contains substantially identical catchall language classifying felonies: “Any offense defined outside [Title 13A] which is declared by law to be a felony without specification of its classification or punishment is punishable as a Class C felony.” § 13A-5-4(a). In a prior case, the Court of Criminal Appeals, as it did here with the misdemeanor provision, held that § 13A-5-4(a) applies unless both classification and punishment are specified, see Cade v. State, 491 So. 2d 1075, 1076 (Ala. Crim. App. 1986). But this Court rejected that interpretation and overruled Cade. Ex parte Chambers, 522 So. 2d 313 (Ala. 1987). We held that the felony catchall provision did not apply to a statute outside Title 13A that specified a punishment. Id. at 315. And we specifically relied on the official commentary quoted above. Id. It is incongruous indeed for the Court of Criminal Appeals to interpret the “or” in subdivision (a) of § 13A-5-4 differently from the “or” in the substantially identical phrase in subdivision (b). I see no reason why what we said in Chambers would apply to one half of the statute but not the other. Criminal defendants now face a situation in which two subdivisions of § 13A-5-4, containing substantially identical language, have essentially opposite meanings. The rule of law cannot long sustain such a tension.
The Court of Criminal Appeals’ interpretation of the misdemeanor catchall provision, § 13A-5-4(b), also leads to absurd results. Under that interpretation, an offense that does the opposite of the dead-animal statute -- specifies a classification but not a punishment -- is also classified as a Class C misdemeanor. Thus, a hypothetical offense statute outside Title 13A that specifies only that the offense is a Class A misdemeanor would create, unbeknownst even to the careful reader, a Class C misdemeanor.
As an alternative rationale, the Court of Criminal Appeals relied on the principle of interpreting statutes in pari materia. “Where possible, statutes should be resolved in favor of each other to form one harmonious plan and give uniformity to the law.” League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974). The court attempted to read the dead-animal statute together with three other statutes. Section 13A-1-7(b) provides that, “[u]nless otherwise expressly provided or unless the context otherwise requires, the provisions of [Title 13A, Chapter 1,] shall govern the construction of and punishment for any offense defined outside [Title 13A].” Section 13A-1-2(9), in turn, generally defines a misdemeanor as an offense imprisonable for up to one year. In addition, § 13A-5-2(c) provides: “Every person convicted of a misdemeanor ․ shall be sentenced by the court to: (1) Imprisonment ․; or (2) Pay a fine ․; or (3) Both such imprisonment and fine.” The Court of Criminal Appeals reasoned that those other statutes characterize a “misdemeanor” as an offense that allows imprisonment, so “misdemeanor” in the dead-animal statute must be read as allowing imprisonment as a punishment.
But none of those three other statutes requires that interpretation. Although § 13A-1-2(9) defines a “misdemeanor” as an imprisonable offense, § 13A-1-7(b) provides that Chapter 1 of Title 13A governs offenses that are outside Title 13A “[u]nless otherwise expressly provided or unless the context otherwise requires.” In the dead-animal statute, a “misdemeanor” is not an imprisonable offense because that statute expressly provides otherwise: It provides only for punishment by a $50 fine. § 3-1-28 (“Any person violating this section ․ shall be guilty of a misdemeanor and, on conviction, shall be fined not more than $50.00.”). Similarly, in that statute a “misdemeanor” is not an imprisonable offense because the “context” of the word “misdemeanor” -- the immediately succeeding language providing only for a $50 fine -- “otherwise requires.”
The third other statute relied on by the Court of Criminal Appeals is similarly unavailing. Section 13A-5-2(c) provides that a misdemeanor is punishable by imprisonment. But that statute is in Chapter 5 of Title 13A, not Chapter 1. So its misdemeanor-punishment provision cannot be applied to offenses outside Title 13A via § 13A-1-7(b), because the latter statute makes only Chapter 1 applicable to non-Title 13A offenses. Moreover, § 13A-5-2(c)’s general allowance of imprisonment for misdemeanors, standing alone, cannot override the dead-animal statute's allowance only of a fine for the specific misdemeanor of failing to bury a dead animal. See Scalia & Garner, supra, at 183-89 (general/specific canon).
Finally, to the extent that any ambiguity remains about the allowed punishment for violation of the dead-animal statute, the rule of lenity resolves it. “ ‘[C]riminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants.’ ” Ex parte Bertram, 884 So. 2d 889, 891 (Ala. 2003) (emphasis and citation omitted). “The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals ․” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.). Here, resolving any ambiguity in favor of the defendant means that, for violation of the dead-animal statute, the only punishment allowed is a fine.
Accordingly, the question of first impression raised by Tisdale -- whether the dead-animal statute, § 3-1-28, allows punishment by imprisonment -- warrants this Court's review. The importance of this question extends far beyond this obscure offense. Until the Court of Criminal Appeals’ interpretation of § 13A-5-4(b)’s catchall provision is corrected, it will allow imprisonment for every misdemeanor offense outside Title 13A that does not specify both classification and punishment, even misdemeanors that specify a punishment other than imprisonment. For the reasons I have explained, that interpretation is untenable.
The special concurrence agrees that the question here is one of first impression regarding the interpretation of the catchall provision, § 13A-5-4(b), and that the Court of Criminal Appeals incorrectly interpreted that provision. But the special concurrence argues that this aspect of the question does not “ ‘requir[e] decision,’ ” and that Tisdale does not demonstrate a “ ‘probability of merit,’ ” because she does not challenge the Court of Criminal Appeals’ alternative rationale based on the principle of interpreting statues in pari materia. ––– So. 3d at –––– (quoting Rule 39(a)(1)(C), (f), Ala. R. App. P.). In my view, that omission by Tisdale does not affect the reviewability of the lower court's application of the catchall provision.
In certiorari review of questions of first impression, this Court fulfills an important constitutional role, as “the highest court of the state,” “to issue such remedial writs or orders as may be necessary to give [this Court] general supervision and control of courts of inferior jurisdiction,” Art. VI, § 140(a), (b)(2), Ala. Const. 2022; see § 12-2-7(3), Ala. Code 1975 (containing similar language). An integral part of this Court's role, “within the structure of the Alabama Unified Judicial System, ․ is to ‘say what the law is’ for the benefit of lower courts, attorneys, and the public.” Ex parte Self, [Ms. 1200431, Sept. 10, 2021] ––– So. 3d ––––, –––– (Ala. 2021) (Parker, C.J., concurring specially) (citation omitted).
When a question is one of first impression for this Court, that means there is no prior on-point decision from this Court. Thus, if a court of appeals has decided the question in an opinion, that opinion is binding on trial courts throughout the State. In this context, then, the primary purpose of certiorari is to promote the correctness of Alabama courts’ application of the law. Therefore, if a petitioner seeking first-impression certiorari makes a sufficient showing that the appeals court's opinion is wrong in one of its holdings, and that holding is likely to have significant application to future lower-court cases, then we ought to review that holding. Even if the petitioner, for reasons separate from that challenged holding, might not ultimately obtain our reversal of the appeals court's judgment, that should not avert us from reviewing that holding. To decline to review a first-impression issue because another issue might be ultimately dispositive is to miss the main, law-correcting purpose of this ground for certiorari.
This purpose of first-impression certiorari makes it different from ordinary appellate review. In an appeal to this Court, we review a trial court's decision that has no binding effect on anyone other than the parties. Thus, we properly prioritize the effect that our analysis of trial-court error will have on the result of the case. If an error did not affect the ultimate correctness of the trial court's judgment -- i.e., was harmless -- then the judgment must be affirmed, see Greene v. Thompson, 554 So. 2d 376, 381 (Ala. 1989), and we often do so without an opinion. Similarly, if an appellant does not challenge each ground of the trial court's decision, then the appellant fails to meet its burden to show that any error was harmful, cf. Fogarty v. Southworth, 953 So. 2d 1225, 1231-32 (Ala. 2006), and we likewise routinely affirm without an opinion. In those appeal situations, there is nothing for us to correct but a trial court's nonprecedential error that has not been shown to have harmed anyone, so correcting it is ordinarily not a good use of this Court's resources.1 But that contrasts starkly with first-impression certiorari, in which we are often confronted with novel questions of legal importance that lack an opinion from this Court. The question presented often warrants our public analysis and answer to it, even if it may not affect the result of the individual case (or the petitioner has not shown that it will). For the reasons I have explained, when reviewing a first-impression certiorari petition, our primary concern should be the correctness of the law, not the correctness of the judgment.
The present case is a good example. The Court of Criminal Appeals’ interpretation of the misdemeanor catchall provision, § 13A-5-4(b), will be binding on all trial courts regarding all misdemeanor offenses outside Title 13A, not just regarding the dead-animal statute. That is true regardless of whether the Court of Criminal Appeals’ alternative, in pari materia rationale will also apply to those other offenses. As binding precedent, that court's holding regarding the catchall provision stands alone; its correctness does not depend on the in pari materia rationale, and its correctness should be reviewed on its own merit.2
Accordingly, when a petitioner seeks certiorari as to an opinion of a court of appeals on the ground that a question of first impression is presented, I do not believe that the petitioner needs to challenge every alternative rationale of the appeals court to show that the question “requir[es] decision,” that the petitioner's argument has a “probability of merit,” and that “there are special and important reasons for the issuance of the writ,” Rule 39(a)(1)(C), (f), (a). To import such a requirement from our direct-appeal review would be to hinder this Court from fulfilling its constitutional role as “the highest court of the state,” Art. VI, § 140(a), Ala. Const. 2022.
1. Notably, the special concurrence relies on a direct-appeal case in its discussion of waiver. See ––– So. 3d at –––– (citing Soutullo v. Mobile Cnty., 58 So. 3d 733, 739 (Ala. 2010)).
2. It may also be proper for this Court to address the in pari materia rationale as part of that review, because addressing it would be an integral part of answering the broader question whether the dead-animal statute permits imprisonment. Cf. Ex parte George, [Ms. 1190490, Jan. 8, 2021] ––– So. 3d ––––, –––– n.12 (Ala. 2021) (Parker, C.J., dissenting) (recognizing that grant of certiorari may apply to “question[s] that [are] ․ inextricably intertwined with[ ] the question on which we granted certiorari review”).
Shaw and Wise, JJ., concur. Bryan, J., concurs specially, with opinion, which Sellers, Mendheim, Stewart, and Mitchell, JJ., join. Parker, C.J., dissents, with opinion, which Cook, J., joins.
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