Tuesday I had the good fortune of moderating the SJC's oral argument session at Windham High School (in a very nice auditorium), and it was an illuminating experience. But first, an aside note of thanks to fellow AAAL fellow (a fellow fellow) Gerry Petrucelli, for the lovely soiree at Grace celebrating the 30th anniversary of Petrucelli, Martin & Haddow. There was deservedly a big crowd, and may you have many more anniversaries to come.
So back to Windham. There were three oral arguments, two criminal and one civil penal involving the suspension of a commercial motor vehicle license. My job was to introduce the student audience first to what they were going to see (what's an appeal, what will happen that morning, what do the lights mean etc.). I also presented each individual case with a short snappy explanation of the issues. The Court then came in, and a regular argument ensued. The Justices, particularly the Chief, did a remarkable job of placing their questions in context, to help the students follow the arguments.
After each the argument, the Court left, and we had a 10 minute Q&A with the students, the lawyers who just argued, and, it happily turned out, two legislators who attended the session, Senator Diamond and Representative Plummer. Given the subject matters of the appeals that day, it was great to have them participate in the discussion. Two of the cases involved blood alcohol tests, for example, so having ex-Secretary of State Diamond there was a bonus. The students were also able to ask these legislators, well, why does the statute say that? What WAS the legislative intent? Obviously the thoughts of two legislators is not dispositive from a legal point of view, but in terms of a learning experience Q&A, it's terrific to have them there to show the relationship between the multiple branches of government.
And that's one lesson that I took away from this experience: the living nature of the Court-Legislature relationship. When there is a case involving legislative intent, we lawyers have our checklist of rules of statutory construction. But this dry approach has to inhabit the real world. What a statute is interpreted to mean is not going to be answered by Sutherland on statutory construction.
For example, one case involved a statute with a .04% legal blood alcohol limit. You don't necessarily show impairment at that level. So what should be the standard for probable cause to require the driver to have his blood alcohol level tested? What is probable cause of having a .04% level, as opposed to a legal .02%? The trooper stops a truck and smells a slight odor of alcohol (the trooper can make a stop without probable cause because it's a commercial vehicle). He asks the driver if he's been drinking, and the driver answers, one beer 90 minutes ago – which would not produce a .04% level. The trooper then required the test.
The Superior Court concluded that there was no probable cause. There was probable cause of some alcohol consumption, that's not what the statute says. This evidence wouldn't be probable cause for e.g. ordinary drivers' .08% limit, correct?
Because there is a federal regulation that prohibits any alcohol consumption 4 hours before driving a commercial vehicle, the potential bad result of having the driver continue on his way without a test is not at issue (plus the trooper didn't report signs of impairment). But trying to figure out how to implement the Legislature's intent – not to suspend commercial licenses absent probable cause of a .04% level, when there likely won't be any visible signs of impairment at that level is a real conundrum. How does the trooper tell the difference between any alcohol and a .04 level? And whatever the Legislature's intent, what does the Constitution require?
The SJC addresses issues like this every day. I've talked before about how important working through the policy implications presented in an appeal is, and this experience only confirms my thoughts on this point.