Court Strikes Death Blow to "Rule of Lenity"

State v. Thonesavanh, Minn.S.Ct., 9/6/20177.  At first blush this is a garden variety motor vehicle theft case but with an urban paranoid twist.  What it's really about is the gutting of the rule of lenity in criminal cases.

J.V. started up his car and left it running in his driveway before departing for work.  Mr. Thonesavanh knocked on J.V.'s door; instead of answering the door J.V. called the cops.  The cops found Mr. Thonesavanh sitting in J.V.'s car, doors locked and the rear lights illuminated.  The state charged Mr. Thonesavanh with motor vehicle theft:

(a) Whoever does any of the following commits theft . . . :

. . .

(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent . . . .

Minn. Stat. § 609.52, subd. 2(a)(17) (emphasis added).

No one said that Mr. Thonesavanh drove J.V.'s car so the fight was over whether he took it.  The trial judge and the court of appeals said that he didn't take the car; all seven of the Justices disagreed with that conclusion.  But, again, that's not what the case is about.

Justice Stras, fresh off Senator Frankin's rebuff of the Justice's nomination for a seat on the already ultra-conservative Eighth Circuit Court of Appeals, hauls out the dictionaries as well as the rules of English grammar to determine that, indeed, Mr. Thonesavanh took J.V.'s car. There are, it turns out, sixty-one definitions of the word "take" when it's used as a transitive verb. Yes, the Justice believes, somewhat skeptically - read footnote 2 - that the legislature knows what a transitive verb is. Not all of these definitions were even remotely the same.  Some of these sixty-one transitive verb definitions require movement - "to carry in one's possession" - and some do not - "to seize with authority or legal right". This being a theft statute, the Justice eliminates sixty of the transitive verb definitions of "take" and goes with "to carry in one's possession." Or, to possess the car "adversely."

So, Mr. Thonesavanh took J.V.'s car by sitting in it behind the wheel with the door locked and the rear lights illuminated.  

That could have been the end of things but wait there's more. Justice Stras's real objective here is to knock the legs out from under the "rule of lenity,"  which requires a court to construe an ambiguous criminal statute in favor of a defendant.  The court of appeals, after having hauled out its dictionaries and settling on a different transitive verb definition of "take," one that does require movement, had relied upon this rule to affirm the trial court's dismissal of the motor vehicle theft charge. Justice Stras admits that application of the rule of lenity would mean that Mr. Thonesavanh wins, something he and the majority weren't willing to allow.  So, he throws up two by and large insurmountable impediments to its application.  First he announces, despite previous Minnesota cases to the contrary, that the rule of lenity is a rule of last resort.  Only after you've considered any and all other "canons of construction" without success can a court resort to this rule.  Second he adopts an extremely harsh definition of that rule:

“[T]he rule of lenity . . . applies to the interpretation of criminal statutes when ‘a grievous ambiguity or uncertainty in the statute’ remains after we have considered other canons of construction."

Not just any old ambiguity will do; it must be a "grievous" one. 

Justice G. Barry Anderson dissented.  He said that the theft statute was not ambiguous and thus there was no need to dive into the definition and application of the rule of lenity.  He found that the statute did not require movement of the vehicle.  On the rule of lenity he thought that Justice Stras was playing a bit fast and loose with prior case law:

Even when we have described the rule of lenity as one of last resort, we have rarely ruled against the defendant when presented with an ambiguous criminal statute. See, e.g., Nelson, 842 N.W.2d at 444; State v. Rick, 835 N.W.2d 478, 485-87 (Minn. 2013) (holding that the communicable-disease statute was ambiguous, and ruling for the defendant based on the rule of lenity and relevant legislative history); State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011) (ruling for the defendant in light of an ambiguous criminal statute based on the doctrine of in pari materia and the rule of lenity). The court cites only two instances in which we have ruled against a defendant when a criminal statute was ambiguous. First, in State v. Sullivan, we held that there was “some ambiguity” in the statute and we resolved that ambiguity in favor of the State by reading the statute as a whole. 71 N.W.2d 895, 900 (Minn. 1955). But because we never discussed the rule of lenity, Sullivan is of little help here. Second, in State v. Al-Naseer, we were presented with five possible interpretations of the statute: two that the State supported, one that the district court applied, one that the defendant advocated, and one that the court of appeals applied. 734 N.W.2d 679, 684 (Minn. 2007). Although the court is correct that we ruled in favor of the State because we accepted one of the State’s proposed interpretations, we did not adopt the least defendant friendly of the options. Id. at 685-89. In fact, we used the rule of lenity to reject the more extreme interpretation supported by the State. Id. at 685-86.

Getting to the level of ambiguity required Justice Anderson points out that SCOTUS has supplied at least four different answers to that question.  "These varying articulations of when the rule of lenity applies are not merely different ways of saying the same thing—the outcome of a particular case often depends on which formulation of the rule the Court employs. See Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 105 (2016). He concludes with this biting observation:

We need not decide here which option for either of these issues is best. I point out only that the court has arguably chosen the least defendant-friendly option for both the rule of lenity’s position among other interpretive aids and the amount of ambiguity that must exist for the rule of lenity to apply. The result is a rule of lenity that will rarely apply

Chief Justice Gildea joined Justice G. Barry Anderson's dissent. Justice Chutich joined so much of that dissent that concluded that the statute was unambiguous and did not require movement.