A comma and a question mark

Practice area:

A First Circuit decision interpreting Maine’s overtime law, 26 M.S.A. § 664, issued last week, has been much in the news, given the prominence in the opinion of grammatical rules, in particular, regarding commas. O’Connor v. Oakhurst Dairy, No. 16-1901. See e.g., Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times, March 16, 2017. Once again, we have a slightly different take.

To set the stage: The plaintiffs were delivery drivers, represented by David Webbert and Johnson, Webbert and Young.  The employer was represented by David Schenberg, the co-chair of the Appellate practice group at Ogletree, Deakins.  The panel consisted of Judge Barron, who wrote the decision, joined by Judges Lipez and Lynch.

The relevant statutory text was an exemption to the overtime law that says it does not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.

26 M.R.S. § 664(3)(F).

The question was whether the exception applied to drivers involved in distribution, or only drivers involved with packing for distribution. In a 28-page decision, the Court concluded this text was ambiguous because there was no comma before the word “or,” even though the legislative drafting manual for the Maine Legislature provides “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”

Because it concluded the language was ambiguous, the Court found for the drivers on the ground that it was a remedial statute.

My first question is why this wasn’t certified to the Law Court? The Court of Appeals answered that question:  “notwithstanding the opacity of the text and legislative history,” it is the appellate court’s practice not to certify “when we can discern without difficulty the course that the state’s highest court likely would follow.” It seems a bit counterintuitive to have spent 27 pages explaining why statutory language is unclear, and then conclude the answer is clear enough to refrain from certification.

My second question is why didn’t the employer contest the point that the statute had to be liberally construed because it was remedial, given that the statute includes a penalty? (I’m assuming the employer didn’t raise this point because this wasn’t mentioned in the lengthy decision, but I haven’t read the briefs.)

Presumably, it didn’t raise this because the Law Court in Director of Bureau of Labor Standards v. Cormier, 527 A.2d 1297 (Me. 1987), in determining whether entities should be deemed one or multiple employers for the purpose of calculating whether overtime wages were due under section 664, said, among other things, that to find the defendants one employer was “consistent with the overall remedial nature of the minimum wage and overtime laws,” citing 26 M.R.S. § 661.

The general rule in Maine is

when a statute imposing or enforcing a tax or other burden on the citizen, even in behalf of the state, is fairly susceptible of more than one interpretation, the court will incline to the interpretation most favorable to the citizen. If the statute imposes a penalty, it is to that extent a penal statute, to be construed strictly against the party claiming the penalty. If a statute is penal, even though it is also remedial, it must be strictly construed …

Millett v. Mullen, 95 Me. 400, 49 A. 871 (citations omitted). See also Cobb v. Board of Counseling Professionals License, 2006 ME 48, 896 A.2d 271 (““It is a well recognized principle of statutory construction that penal statutes are to be construed strictly“).

The statute has a penalty. 26 M.R.S. § 671 (“an employer who violates this subchapter shall, upon conviction thereof, be punished by a fine of not less than $50 ….”)

The Law Court in Cormier didn’t mention this point, and I don’t know if it was raised in that case. But the question in Cormier was essentially factual, with the Law Court there finding that the trial court’s finding that there was one employer was reasonable.  The Court said, “the totality of the factual circumstances in a particular case must guide a court’s determination of the employers’ status rather than formalistic labels or common law notions of employment relationships.”  To take a “remedial” view in that broad context seems a little different than applying statutory rules of construction in parsing specific legislative text.  In the latter case, when the Legislature has enacted express text, and the case involves interpreting that express text – why wouldn’t the rule requiring a narrow construction of penal statutes apply?

Understanding that the ship may be deemed as already having sailed on this point, as least as to section 664, is seems to me that this issue could have raised another question mark to favor certification.