Tuesday, June 19, 2012

Foolish Consistency

Vt. Human Rights Commission v. State of Vt. Agency of Transportation, 2012 VT 45.

At first glance today’s case appears to be a bit of a humdrum.  One state agency challenges the other over the precise meaning of particular terms in a statute.  It appears to have all the excitement as the one-dollar wagers that Randolph and Mortimer Duke used to make.  But like the Dukes’ wagers, the real story of today’s case is how the meaning of such words impacts the lives of those around the agencies.  There is more going on here than frozen orange juice futures. 

What is at stake is vacation time. 

Under 21 V.S.A. § 472 of the Vermont Parental and Family Leave Act, an employee may take up to 12 weeks of unpaid leave from his or her job for either the birth/care of a child or to attend to an ill family member.  During that time, the employee gets to keep his or her job and any accrued seniority.  More importantly under subsection (c), the “employer shall continue employment benefits for the duration of the leave at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave.”

For years, the Attorney General’s Office and the Vermont Human Rights Commission has shared the opinion that the term “benefits” includes not only health insurance but the accumulation of paid vacation and sick days.  If you earn vacation and sick time throughout the course of the work year, your unpaid leave-time will be credited toward the accumulation of such paid leave-time.  This opinion has persuaded (some might say forced) many a private employer to credit their employee with time-off earned during his or her time-off.

All of this changed when the individual Plaintiff in this case, took an unpaid parental leave from her job with the State’s Agency of Transportation in 2007.  Upon her return, she was told that the Agency would not credit any of her parental leave toward her accrued vacation/sick time.  Upset, Plaintiff contacted the Vermont Human Rights Commission, which consistent with it former opinion, agreed that Section 472(c)’s benefits included accrued leave and filed suit on her behalf against the Agency.

Imagine the Commission’s surprise when its former comrade-in-opinion, the Attorney General, showed up on the other side contending that 472(c) was never intended to cover such benefits as accrued leave. 

As Emerson says, “a foolish consistency is the hobgoblin of little minds.” 

Both sides agreed to the facts and sought a determination from the trial court.  It sided with the Agency and Attorney General.  The Commission and Plaintiff appealed, and the entire matter was taken on appeal.

The question for the SCOV is a basic one.  What does the term “benefits” mean?  The SCOV’s analysis is straight-down-the-line statutory construction.

First, the term is not defined in a particular manner.  So the SCOV applies the plain ordinary meaning of the word.  Since this does not move the question much further, the SCOV refers to a “canons of construction” for assistance.  These are rules that courts have developed over the years to help them determine meaning without imposing a willy-nilly “how-does-your-honor-feel-today” analysis. 

The SCOV uses the canon of noscitur a sociis, which translates roughly to “it is known by its associates.”  All the cool canons have either Latin or old French names.  That’s why jurists and logicians are so popular at singles bars.  Basically, it means that the SCOV scours through the statute to see if the surrounding terms and context shed light on the legislature’s purpose.  Is this term used in a particular way?  Does the statue address pay and similar remuneration in a different way from health care and other benefit programs?

From the surrounding context and language of Section 472, the SCOV determines that the legislature did not intend a more expansive reading of the word “benefits,” and intended the section only to cover those on-going coverage benefit programs, such as health, dental, or life insurance that the State provides as part of the on-going employment package (regardless of specific remuneration levels).

Particularly telling is the sentence in Section 472 that follows the one quoted above.  It says that the employers “may require that the employee contribute to the cost of the benefits during the leave at the existing rate of employee contribution.”  Such contribution language clarifies for the SCOV that the legislature did not intend to extend the on-the-job benefits—such as paid time-off—which are automatically awarded as the work is performed. 

This does not benefit Plaintiff who essentially loses a benefit that she once enjoyed and likely budgeted as part of her family’s resources. 

Could the SCOV have come out differently on this one?  It is quite possible.  Whenever a court brings out a canon of construction it is because there is more than one plausible way to read the statute and nothing augers in strong favor of one meaning over the other. 

The canons do not provide answers to questions of legislative intent.  Their sole function is to guide the court in a constant manner toward the more-favored interpretation.  In this sense, a canon of construction will not necessarily produce the same result each time it is applied.  Rather, it guarantees that any analysis will adhere to certain, broader principles and that the result will be justified on solid structure of reasoning. 

This simply illustrates the fact that we have known since Montaigne.  Constancy is not the same thing as consistency.  

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