Saturday, July 2, 2016

Sentence structure and punctuation gain their 15 minutes of fame in recent Supreme Court decision

(begin listening to John Philip Sousa’s Stars and Stripes Forever, click here 

On this holiday weekend I will roll out a few posts on the Connecticut Supreme Court’s recent decision on the farming exemption in the wetlands act.  The advance sheets were released this week and the official decision will be issued July 5, 2016.

Farmers and grammarians will be waving their flags high in support of Indian Spring Land Company v. Inland Wetlands and Watercourses Agency.  (As the official copy has not yet been issued the citation for the case will not be available until July 5, 2016.)  In the first paragraph of its decision the Supreme Court tackled the difficult second sentence of the agricultural exemption and held: “road construction directly related to farming operations is permitted as of right under the Inland Wetlands and Watercourses Act . . . and, therefore, that the agency did not have jurisdiction to regulate the construction of the plaintiff’s access road.”  Clear and concise.

You may recall the farming exemption in C.G.S. § 22a-40 (a) begins:

(a): The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation . . . The provisions of this subdivision shall not be construed to road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel of similar material from wetlands or watercourses for the purposes of sale.

Ah, if “road construction or the erection of buildings not directly related to the farming operation does not fall within the exemption, exactly what does fall within in it?  The agency argued that the phrase “not directly related to the farming operation” only modified erection of buildings.  The Supreme Court definitively disagreed: “the plain language of the text of § 22a-40 (a) (1), as evinced by the legislature’s sentence structure and use of punctuation, makes it clear that road construction directly related to farming operations is exempt from the regulatory oversight of municipal wetlands agencies.”  And then it supported its decision citing the United States Supreme Court on sentence structure and the D. C. Circuit Court of Appeals on commas.

During the oral argument Justice Zarella took the lead on sentence structure and comma questions.  He appeared (to me) to be sitting on the edge of his seat peppering the town counsel with question after question about the use of “or” and the lack of a comma.  I could scarcely sit still and remain poker face in the audience.  In the previous road construction case which came before the Supreme Court, Taylor v. Conservation Commission, 302 Conn. 60 (2011), I made these same sentence structure and comma comments on behalf of the Connecticut Farm Bureau.  Alas, the Supreme Court in Taylor favored a Gertrude Stein approach: filling is filling is filling and requires a permit.

But the commas were soaring through the Supreme Court courtroom during the Indian Spring Land Company argument.  I stared hard at the ceiling mural to stay calm during the questioning.  I gazed at men bearing torches.  I later learned that in Albert Herter’s ceiling mural the torches represent the “Light of Education gained from the Book of Knowledge and Experience.” Yes!

Do you think I am mocking the reliance on sentence structure and punctuation?  I am not.  I spent my undergraduate years doing close readings of Roman poetry and writing papers where we had to mean what we say and say what we mean.

And in closing, before the piccolos are blowing their brains out at the end of “Stars and Stripes Forever,” what remained, from my perspective, was to determine if the Supreme Court would be implicitly or explicitly overruling the Taylor decision.  In a baffling “none-of-the-above” approach, the Supreme Court explicitly affirmed the Taylor decision. A close consideration of the facts in Taylor and Indian Spring Land Company leads only to a lot of head-scratching which we can do together in the next post.

Many thanks to the always-resourceful and helpful CT State law librarians, one of whom helped me locate the information on the ceiling mural in the Supreme Court courtroom in Visitor’s Guide: The Connecticut Supreme Court.

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