What the Textualist Revolution in Florida Jurisprudence Means for Practitioners
Justice Kagan famously remarked in 2015 that “we’re all textualists now.”[1] She was speaking about the federal judiciary, where the late Justice Scalia’s brand of textualism has come to dominate. But here in Florida, not only is textualism dominant, it is arguably[2] mandatory for practitioners since the Florida Supreme Court declared its adherence to “the supremacy-of-text principle” in Advisory Opinion to the Governor re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020). According to that principle, “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”[3]
This language is quoted from what has become the seminal treatise on textualism: Antonin Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts. It is hardly an exaggeration to say that Reading Law has achieved blackletter status in this state. Indeed, as of February 23 of this year, this work has been cited no less than 171 times by Florida’s appellate courts since its 2012 publication. That being the case, it behooves the Florida practitioner — regardless of his or her opinions on textualism’s merits — to become acquainted with its doctrines and methodologies. This column provides a few practical pointers on advocacy in the current textualist moment.
Do Not Argue What the Legislature Intended; Argue What the Text Means
In years past, the Florida Supreme Court prefaced its statutory analyses with the maxim that legislative intent is the “polestar” of statutory construction.[4] However, according to Scalia and Garner, the quest to discover legislative intent is “a search for the nonexistent.”[5] This is because statutes are written and voted on by multitudes of individual legislators with “their own subjective views” — or perhaps even no view at all — as to what each individual provision means.[6] Scalia and Garner’s criticism was echoed by former Justice Lawson in his partial concurrence in Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017), where he observed that the polestar mantra has conditioned Florida judges and practitioners to “first ask what the [l]egislature intended by its enactment rather than what the [l]egislature actually said in its statute.”[7] Multiple Florida appellate judges have also offered similar criticisms of an intent-focused approach to statutory interpretation in recent years.[8]
Consequently, arguments that “the legislature intended this statute to do x” should be avoided. That does not mean that statutory provisions should be interpreted in a vacuum. To the contrary, the whole-text canon dictates that statutes must be “construed as a whole;” i.e., individual statutory provisions must be interpreted in the context of the overall statutory scheme.[9] This principle may be obvious, but Scalia and Garner caution that it “can lend itself to abuse,” since lawyers often confuse context with intent.[10] As Chief Judge Pryor of the 11th Circuit observed a few years ago, “it is hornbook abuse of the whole-text canon to argue ‘that since the overall purpose of the statute is to achieve x, any interpretation of the text that limits the achieving of x must be disfavored.’”[11] Instead, a proper analysis of context looks at how a term is used in different parts of a statute to arrive at a definition that can be applied logically and consistently.[12]
Another important distinction to note is between legislative history and statutory history. The former — i.e., “the hearings, committee reports, and debates leading up to the enactment of a statute” — is of no use to the textualist, while the latter — i.e., “the statutes repealed or amended by the statute under consideration” — can be a valuable interpretive aid.[13] Scalia and Garner explain that statutory history “form[s] part of the context of the statute,” such that “a change in the language of a prior statute presumably connotes a change in meaning.”[14] Thus, it can be helpful to provide the court with a side-by-side comparison between a current statute and its previous versions to shed light on the current statute’s meaning. However, arguments based on legislative history should be avoided in most instances, notwithstanding language from older Florida Supreme Court cases approving its use.[15] While many of these cases may still be cited for their holding, they should not be cited for the methodology they apply.[16]
Learn How To Use Dictionaries Properly
As one might expect, textualists like dictionaries. The Florida Supreme Court has recently described dictionaries as the best evidence of a statute’s ordinary meaning.[17] But, as Scalia and Garner point out, not just any regular dictionary will do, and not all dictionaries are created equal.[18] On this point, Florida practitioners would do well to bookmark Appendix A to Reading Law, “A Note on the Use of Dictionaries,” which contains a comprehensive list of the authors’ preferred dictionaries going all the way back to 1750. Older dictionaries are important tools because modern Florida courts “often look to contemporaneous dictionaries” to determine the “plain and ordinary meaning” of statutory language at the time a statute was enacted.[19] Ascertaining that meaning usually requires a comparative analysis of multiple different dictionaries.[20] The number and type of dictionaries to use, as well as how to use them, is ultimately a judgment call that depends on the circumstances. Case in point, a recent panel of the First District Court of Appeal split based on differing views concerning the proper use of dictionaries.[21]
Now, a note of caution: while dictionaries are indispensable aids to statutory interpretation, Judge Learned Hand’s sage advice that one should not “make a fortress out of the dictionary” remains true today.[22] Construing statutes is a “holistic endeavor,” and dictionary definitions are not the be-all and end-all of that endeavor.[23] Judge Soud of the Fifth District recently observed that “while we often — and rightly — turn to dictionaries to inform our opinions as to the plain meaning of terms, Florida courts do not engage in a merely robotic exercise when called upon to interpret legal texts.”[24] In sum, context remains key, and dictionary definitions are but one part of a thorough textual analysis.
Acquaint Yourself with Canons of Construction
In Florida, it used to be the case that “[w]hen the language of [a] statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.”[25] Not so anymore. In Conage v. United States, 346 So. 3d 594 (Fla. 2022), the Florida Supreme Court declared that courts now have free rein to apply canons of construction without having “to make a threshold determination of whether a term has a ‘plain’ or ‘clear’ meaning in isolation.”[26] Given this development, Florida practitioners should familiarize themselves with canons of construction. Once again, Reading Law is a very helpful resource. Enlivened by Justice Scalia’s characteristic wit, the treatise identifies, analyzes, and illustrates 57 different canons and principles.
As with dictionaries, not all canons of construction are equal in the eyes of the textualist. Canons can be broadly divided into two categories: linguistic and substantive. The former “are based on grammatical rules and presumptions about usage,” while the latter “incorporate policy-based assumptions about legislative intent.”[27] It should come as no surprise that textualists liberally rely on linguistic canons, while viewing substantive canons with suspicion. According to Justice Scalia, substantive canons are “dice-loading rules” that pose “a lot of trouble” for “the honest textualist,” given their reliance on extratextual considerations of public policy.[28] Some examples of substantive canons often seen in Florida caselaw are the presumption against preemption,[29] the principle that remedial statutes are to be liberally construed,[30] and the principle that statutes in derogation of the common law are to be strictly construed.[31] As with cases relying on legislative history, many Florida cases applying these canons remain good law, insofar as their holdings remain intact. That said, Florida practitioners should be wary about citing those cases for the methodologies they apply.
Consider Bringing in an Appellate Specialist When Your Case Turns on Statutory Construction
In recent years, many Florida appellate judges have demonstrated an increased willingness to re-examine old precedents.[32] Most notably, the Florida Supreme Court in 2020 receded from prior decisions in a trio of death penalty cases: State v. Poole, 297 So. 3d 487 (Fla. 2020); Phillips v. State, 299 So. 3d 1013 (Fla. 2020); and Lawrence v. State, 308 So. 3d 544 (Fla. 2020). The cases are not just important to criminal practitioners. Each contains a lengthy discussion of the role of stare decisis and why the Supreme Court decided to depart from it under the circumstances.
Of especial importance is Poole, in which the court signaled a departure from “multi-factor stare decisis tests” that “do not lend themselves to objective, consistent, and predictable applications.”[33] Instead, the court decided to apply a more straightforward approach: “[w]hen we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield.”[34] This pronouncement reflects the textualist preference for formal, bright-line rules over more flexible balancing tests that afford individual judges greater discretion. As Justice Scalia once remarked, “[l]ong live formalism. It is what makes a government a government of laws and not of men.”[35]
What does all this mean for Florida litigators? The precedents you cite to a trial court may bind that court to a favorable interpretation of a statute, but an appellate court is more likely to scrutinize that interpretation nowadays than in years past. This is especially true where the caselaw supporting your favored interpretation relies on non-textualist methodologies. In such cases, it may become necessary to ground your interpretation in first principles. Indeed, the Florida Supreme Court in 2021 faulted a party for putting all of its eggs in the stare decisis basket, without making any arguments from first principles to support its position.[36]
Appellate specialists regularly make first-principles arguments, and they have their finger on the pulse of the latest developments in Florida jurisprudence — including the recent methodological shift discussed here. Accordingly, if your case concerns a question of statutory interpretation, you may want to consider bringing in an appellate specialist to maximize the chances that your favored interpretation survives appellate scrutiny.
[1] Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, Nov. 25, 2015, https://www.youtube.com/watch?v=dpEtszFT0Tg.
[2] Because textualism is an interpretive methodology, rather than a legal rule applied to a set of facts, it has been argued that the Florida Supreme Court’s adoption of textualism lacks the binding force of precedent. See, e.g., State v. Crose, No. 2D21-2784, 2024 WL 292231, at *29 (Fla. 2d DCA Jan. 26, 2024) (Atkinson, J., concurring in result) (noting that “it is not clear that the supremacy-of-text principle, a methodological precedent, is entitled to binding precedential effect under stare decisis”) (citing Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring) (“[W]e do not regard statements in our opinions about such generally applicable interpretive methods, like the proper weight to afford historical practice in constitutional cases or legislative history in statutory cases, as binding future [j]ustices with the full force of horizontal stare decisis.”)) However, given the reality on the ground, the question whether the supreme court’s adoption of textualism constitutes a “holding” is essentially academic. An argument that a Florida court should depart from textualism based on this technicality is not likely to be a winner in most cases.
[3] Advisory Opinion to the Governor re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).
[4] See, e.g., McCloud v. State, 260 So. 3d 911, 914 (Fla. 2018); W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012); State v. J.M., 824 So. 2d 105, 109 (Fla. 2002).
[5] Scalia & Garner, Reading Law at §67, 394.
[6] Id. at 392.
[7] Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 313 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part).
[8] See, e.g., Enriquez v. Velazquez, 350 So. 3d 147, 157 (Fla. 5th DCA 2022) (Sasso, J., dissenting) (“[C]ollective intent is pure fiction because dozens if not hundreds of legislators have their own subjective views on the minutiae of bills they are voting on — or perhaps no views at all because they are wholly unaware of the minutiae.” (citation omitted)); Mattino v. City of Marathon, 345 So. 3d 939, 946 (Fla. 3d DCA 2022) (Emas, J.) (“If the plain language of the statutory text does not properly reflect the legislative intent, it falls upon that body, and not this court, to amend the statute to reflect that intent.”); Castellano v. Halpern, Nos. 2D22-3154, 2D22-4155, and 2D22-4156, 2023 WL 9006989, at *4 (Fla. 2d DCA Dec. 29, 2023) (Kelly, J.) (rejecting idea that the court was “obligated to honor the obvious legislative intent and policy behind the statutes even where that intent requires an interpretation that exceeds the literal language of the statutes”).
[9] Scalia & Garner, Reading Law at §24, 167.
[10] Id. at 168.
[11] Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1194-95 (11th Cir. 2019) (quoting Scalia & Garner, Reading Law at §24, 168).
[12] See Scalia & Garner, Reading Law at §24, 167-69.
[13] Progressive Express Ins. Co. v. SimonMed Imaging, 363 So. 3d 1196, 1201 n.3 (Fla. 6th DCA 2023).
[14] Scalia & Garner, Reading Law at §40, 256.
[15] See, e.g., Rollins v. Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000) (“[W]hen the statutory language is susceptible to more than one meaning, legislative history may be helpful in ascertaining legislative intent.”); Hawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999) (applying legislative history “[i]n addition to consideration of the plain language” of the statute in question); Magaw v. State, 537 So. 2d 564, 566 (Fla. 1989) (“In construing a statute which is susceptible to more than one interpretation, it is often helpful to refer to legislative history.”).
[16] Despite older Florida Supreme Court caselaw approving the use of legislative history, the district courts of appeal have moved away from this approach in recent years. See, e.g., State v. Arshadnia, No. 3D22-524, 2023 WL 8793248, at *3 (Fla. 3d DCA Dec. 20, 2023) (“In cases involving statutory construction, the cardinal rule is that ‘the authoritative statement is the. . . text, not the legislative history or any other extrinsic material.’”) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)); Taylor v. Nicholson-Williams, Inc., 368 So. 3d 1007, 1015 n.3 (Fla. 5th DCA 2023) (declining to consider legislative history materials cited in the appellant’s brief, noting that “legislative history offers little to assist our interpretive task as judges”); Kidwell Grp., LLC v. Olympus Ins. Co., 346 So. 3d 658, 661 n.4 (Fla. 5th DCA 2022) (finding the use of legislative history to be “inconsistent with our application of the supremacy-of-text principle”).
[17] See Steele v. Commissioner of Soc. Sec., No. SC2022-1342, 2024 WL 630219, at *3 (Fla. Feb. 15, 2024) (quoting Conage v. United States, 346 So. 3d 594, 599 (Fla. 2022)).
[18] See Scalia & Garner, Reading Law at app. A, 415 (“When [lawyers and judges] look up a word in a dictionary — and they often do — they are as likely as not to select a poor dictionary.”) (alteration in original) (quoting Max Radin, A Juster Justice, a More Lawful Law, in Legal Essays in Tribute to Orrin Kip McMurray 537, 538 (Max Radin & A.M. Kidd eds., 1935)).
[19] Tsuji v. Fleet, 366 So. 3d 1020, 1028 (Fla. 2023); see also Steele, 2024 WL 630219, at *2 (“To arrive at a fair reading of [an undefined term in a statute], we look to sources bearing on its objective meaning, that is: what a reasonable reader would have understood it to mean at the time it issued.”); Fla. Ass’n of Realtors v. Orange County, 350 So. 3d 115, 124 (Fla. 5th DCA 2022) (“[W]e can ascertain [a statutory term’s] meaning by considering its plain and ordinary public meaning at the time of enactment.”).
[20] See Scalia & Garner, Reading Law at app. A, 417 (“[A] comparative weighing of dictionaries is often necessary.”); see also, e.g., Tomlinson v. State, 369 So. 3d 1142, 1148 n.7 (Fla. 2023) (comparing definitions from multiple mid-19th century dictionaries to define the term “maliciously” for purposes of the crime of extortion); Tsuji, 366 So. 3d at 1028 (applying definitions from three different late-20th century dictionaries to define the term “liable” for purposes of the statute of repose for claims against a probate estate).
[21] See N. Collier Fire Control and Rescue Dist. v. Harlem, 371 So. 3d 368 (Fla. 1st DCA 2023). In this workers’ compensation case, the panel split on the definition of “heart disease” as that term is used in the Florida Heart/Lung Bill, which creates a presumption of compensability for heart disease in law enforcement officers, firefighters, and other similar public employees. See Fla. Stat. §112.18. Judge Tanenbaum’s majority opinion relies on medical dictionaries from the 1960s to define the term. Harlem, 371 So. 3d at 370-75. Judge Kelsey’s dissent criticizes this approach, arguing that it “shifts core medical analysis from doctors to lawyers (and then judges), contrary to the clear statutory framework for resolving these issues with medical experts.” Id. at 380 (Kelsey, J., dissenting).
[22] See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).
[23] See Scalia & Garner, Reading Law at §24, 168 (quoting United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)).
[24] State Farm Fla. Ins. Co. v. James, 374 So. 3d 934, 939 (Fla. 5th DCA 2023) (Soud, J., concurring).
[25] See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144 (1931)).
[26] Conage, 346 So. 3d at 598.
[27] University of Akron School of Law Library, Canons of Statutory Construction (also called Rules of Statutory Interpretation), http://tinyurl.com/3j8yr8mk.
[28] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 28 (Amy Gutmann ed., 1997); see generally Benjamin Eidelson & Matthew C. Stephenson, The Incompatibility of Substantive Canons and Textualism, 137 Harv. L. Rev. 515 (Dec. 2023).
[29] See, e.g., Menefee v. State, 980 So. 2d 569, 572 (Fla. 5th DCA 2008) (“When conducting a preemption analysis in an area traditionally and ordinarily regulated by the states, there is a presumption against preemption that should be applied.”).
[30] See, e.g., Bruner v. GC-GW, Inc., 880 So. 2d 1244, 1246 (Fla. 1st DCA 2004) (“[R]emedial statutes should be liberally construed in favor of granting access to the remedy provided by the [l]egislature.”).
[31] See, e.g., McGraw v. R & R Invs., Ltd., 877 So. 2d 886, 890 (Fla. 1st DCA 2004) (“[S]tatutes in derogation of common law. . . must be strictly construed, and if any doubt exists as to the legislature’s intent, the doubt should be interpreted in favor of the injured party.”).
[32] See, e.g., Adventist Health Sys./Sunbelt, Inc. v. Machalek, No. 5D23-0780, 2023 WL 6526318, at *4 (Fla. 5th DCA Oct. 6, 2023) (Kilbane, J., concurring) (criticizing prior decisions for “regularly depart[ing] from the plain text [of the Medical Malpractice Act] in the name of [access to courts]”); Normandy Ins. Co. v. Bouayad, 372 So. 3d 671, 699 (Fla. 1st DCA 2023) (Tanenbaum, J., concurring) (arguing that if a panel of judges “determines that there is a clear, bona-fide conflict between [a] prior panel’s decision and the legal text, the panel has both the authority and the duty to choose the law over the prior panel’s decision”).
[33] Poole, 297 So. 3d at 507.
[34] Id.
[35] Scalia, A Matter of Interpretation at 25.
[36] See City of West Palm Beach, Inc. v. Haver, 330 So. 3d 860, 866 (Fla. 2021).
Nicholas “Nick” P. McNamara is an associate with Creed and Gowdy, P.A., in Jacksonville. His practice consists primarily of civil appeals and litigation support in cases likely to be appealed. Before joining the firm, he served as a law clerk to Judge Susan Kelsey of the First District Court of Appeal.
This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, and Dimitri Peteves, editors.
