There’s a good reason why Minnesota lawmakers spend hours during floor debate arguing about the wording of laws they intend to pass. Words matter.
Take the state’s law on first-degree burglary, for example (emphasis mine):
A person is guilty of it if “the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive…”
If a victim isn’t home, can this provision be used to send someone away for 20 years? If you’re not at home to see it, can you believe a BB gun, for example, is a dangerous weapon as the law appears to require?
That question, on which an additional 10 years in prison rests, was decided by a divided Minnesota Supreme Court on Wednesday. No.
Prosecutors had argued that the law only means to describe what type of weapon must be in a burglar’s possession to be convicted under the law, not what the owner of a home or apartment needs to believe.
“The item must be fashioned to lead the victim to believe that it is a dangerous weapon. In requiring that ‘the victim’ have the reasonable belief, the statute requires that that specific victim be present,” Chief Justice Lorie Gildea wrote on behalf of the majority, contending that it was significant that the Legislature used the victim rather than a victim.
Such is the nature of the finer points of language that legislators use in writing laws.
But prosecutors have their own view of the language, too, in this case, which can make one believe more English teachers should be serving in the Legislature.
Specifically, the State asserts that “to lead” is an infinitive verb and that such verbs represent “intentions, desires, or expectations.”
According to the State, if the Legislature had intended to require the victim to be present and subjectively believe the article is a dangerous weapon, it would have used a progressive verb like “leading” or “causing.”
We are not persuaded because the context of the statute makes clear that the victim must be present.
Even the words “used” or “fashioned” came in for scrutiny by the court.
But, the State argues, requiring the victim’s presence both when the weapon is “used” and when the weapon is “fashioned” renders “fashioned” superfluous. We disagree.
There are certainly circumstances where a weapon could be used against the victim and fashioned at the same time; but there are also circumstances where a weapon could be fashioned in such a way that the victim reasonably believes it is a dangerous weapon, but that weapon is not used on the victim.
In a dissent, Justice Paul Thissen, who once served in the Legislature, said the “majority fails to see the forest of legislative intent for the trees of grammatical conventions in this case.”
And he criticized the dissection of individual words in the law to determine a Legislature’s intent.
“Nothing in the structure of the statute suggests that the Legislature intended the statute to be a Sesame Street game of ‘One of These Things Is Not Like the Others,'” he wrote, adding a footnote with the actual words to the song.
One of these things is not like the others;
one of these things just doesn’t belong.
Can you tell which thing is not like the others
By the time I finish my song?
Thissen, who wasn’t in the Legislature when it revamped the law in 1988, said the Legislature was responding to citizen concerns over the increasing use of toy guns in crimes which escaped a penalty under the first-degree burglary statute at the time.
In so doing, the Legislature used language that was already in the state’s criminal sexual conduct statute.
“Admittedly, the Legislature’s drafting technique of grabbing language from one statute and inserting it with a minor change into a different statute may have been inartful,” Thissen wrote in his dissent, in which he was joined by Justice Anne McKeig.
“But the majority is using the inartful drafting to impose a new element to the crime of first-degree burglary that the Legislature, by any commonsense assessment of the language and history of the statute, never intended,” he said.
But Justice Gildea said the result is the same since in the criminal sexual assault law from which the Legislature cribbed its language, a victim still had to be present.
As a result of the examination of language, Rogers was acquitted of first-degree burglary and will be sentenced on a lesser charge.
The decision also serves as an invitation to the Legislature to clean up the wording of the law.