State v. Carreon, 437 N.J. Super. 81 (App. Div. 2014). Courts often say that statutes are “inartfully drafted,” or the like. This opinion that Judge Accurso issued today, however, goes further. In addressing the penalty provisions of N.J.S.A. 39:3-10, which deals with driving without a license, Judge Accurso stated that the statute might be subject to two dramatically different interpretations, each of which she found “plainly reasonable.” But Judge Accurso went on to say that the two interpretations “have an Escher-like quality in that viewing the statute from the perspective of one of them makes it hard to readily admit the plausibility of the other.” (For the uninitiated, M.C. Escher was a Dutch graphic artist (1898-1972) who was famous for, among other things, drawings and other art that portrayed physically impossible structures that dizzied the viewer who tried to fathom them. Some examples, and detail aobut Escher himself, can be found here).
The issue was whether the statute authorized both a fine and imprisonment for driving without a license in the particular circumstance where the driver had never been licensed in any jurisdiction. The statute reads:
A person violating this section shall be subject to a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, he shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the [motor vehicle] commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days.
Defendant, who had never been licensed in any jurisdiction, pleaded guilty to unlicensed driving. He was sentenced to both a fine and imprisonment. He contended that the statute did not allow the imposition of both types of penalty. Applying the de novo standard of review applicable to appeals of decisions regarding statutory interpretation, the Appellate Division agreed with him.
Judge Accurso’s opinion, which had to harmonize the first, more general clause with the second “but if” clause, features many of the standard principles of statutory interpretation, such as the concept that a court “begin[s] with the words of the statute, which we are to give their ordinary meaning and construe in a common-sense manner.” When, as here, the language is “unclear or ambiguous, extrinsic aids such as legislative history are to be consulted. Judge Accurso went through the available legislative history. She also noted that “or” and “and” are sometimes used interchangeably, and that whether either or both are to be considered conjunctive or disjunctive “depends primarily on the legislative intent.” Judge Accurso also discussed the fact that “shall” is often meant to be mandatory and the effect of that principle on the two competing interpretations of this statute.
Ultimately, Judge Accurso concluded that a fine or imprisonment, but not both, were permissible for violators of this statute who had never been licensed anywhere. She cited three other basic principles of statutory interpretation to support that result. First, that outcome “harmonizes both clauses and gives effect to all of the words the Legislature employed.” Second, though she did not wish to “overemphasize internal consistency in a title as vast and so often amended as Title 39, when the Legislature intends fine or imprisonment, or both, for a motor vehicle offense, it often says so plainly.” Finally, her ruling was “in keeping with the popular understanding and practical interpretation of the statute in the municipal courts since its amendment in 1982. That long understanding unchallenged by litigation is entitled to some deference.”
The actual process by which Judge Accurso reached her result is nearly as mind-bending as one of Escher’s creations, just as Judge Accurso said it would be. Prepare to be dizzied as you read.