State v. Rasabout , 2015 UT 72 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 72
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
ANDY RASABOUT,
Petitioner.
No. 20130430
Filed August 14, 2015
On Certiorari to the Utah Court of Appeals
Attorneys:
Sean D. Reyes, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,
Salt Lake City, for respondent
Debra M. Nelson, Daniel Torrence,
Salt Lake City, for petitioner
JUSTICE PARRISH authored the opinion of the Court, in which
JUSTICE DURHAM and JUDGE HARRIS joined in full, CHIEF JUSTICE
DURRANT joined except as to Part I.C, and ASSOCIATE CHIEF
JUSTICE LEE joined except as to Part I.A, I.B, and I.C.
CHIEF JUSTICE DURRANT authored an opinion concurring in part
and concurring in the judgment.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in
part and concurring in the judgment.
Due to his retirement, JUSTICE NEHRING did not participate herein;
DISTRICT COURT JUDGE RYAN HARRIS sat.
JUSTICE DENO G. HIMONAS became a member of the Court on
February 13, 2015, after oral argument in this matter,
and accordingly did not participate.
JUSTICE PARRISH, opinion of the Court:
INTRODUCTION
¶1 Andy Rasabout fired twelve shots at a house in a gang-
related drive-by shooting. A jury convicted him of twelve felony
counts of unlawful discharge of a firearm, in violation of Utah Code
section 76-10-508. The trial court merged the twelve counts into one,
STATE v. RASABOUT
Opinion of the Court
but the court of appeals reversed. We granted Mr. Rasabout’s
petition for certiorari and now affirm the ruling of the court of
appeals, holding that the allowable unit of prosecution for unlawful
discharge of a firearm is each discrete shot.
BACKGROUND
¶2 Mr. Rasabout is a member of the street gang known as the
Tiny Oriental Posse. On November 1, 2007, Mr. Rasabout, riding
shotgun in a Honda Civic, fired twelve shots from a Glock 9 mm
semiautomatic pistol at a house and a car parked in front. Lee Tran,
whom Mr. Rasabout knew to be a rival in the Original Laotian
Gangsters, owned the car and was inside the house at the time. But
Mr. Tran was not the only person in danger. Two young girls and
their mother were asleep upstairs. Several others were playing cards
in the basement. And one man was standing in the carport, enjoying
the crisp morning air and a cigarette.
¶3 A jury convicted Mr. Rasabout of twelve felony counts of
unlawful discharge of a firearm, in violation of Utah Code section
76-10-508. At Mr. Rasabout’s request, the trial court merged the
twelve counts and sentenced Mr. Rasabout on the basis of one
conviction. The court of appeals concluded that the trial court erred
and ordered that court to resentence Mr. Rasabout on all twelve
convictions.1 We granted Mr. Rasabout’s petition for certiorari and
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶4 On certiorari to the Utah Court of Appeals, we review the
decision of that court for correctness; we do not review the decision
of the trial court.2
ANALYSIS
¶5 When Mr. Rasabout fired twelve shots into a house that he
knew to be occupied by a rival gang member, Utah Code section 76-
10-508 provided,
(1)(a) A person may not discharge any kind of
dangerous weapon or firearm:
(i) from an automobile or other vehicle;
(ii) from, upon, or across any highway;
1
State v. Rasabout, 2013 UT App 71, ¶ 33, 299 P.3d 625.
2
State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.
2
Cite as: 2015 UT 72
Opinion of the Court
....
(vii) without written permission . . . within 600
feet of . . . a house, dwelling, or any other building;
....
(2) A violation of any provision of this section is a class
B misdemeanor unless the actor discharges a firearm
under any of the following circumstances . . . , in
which case it is a third degree felony and the convicted
person shall be sentenced to an enhanced minimum
term of three years in prison:
(a) the actor discharges a firearm in the
direction of any person or persons, knowing or having
reason to believe that any person may be endangered;
(b) the actor, with intent to intimidate or harass
another or with intent to damage a habitable
structure . . . , discharges a firearm in the direction of
any building; or
(c) the actor, with intent to intimidate or harass
another, discharges a firearm in the direction of any
vehicle.3
Pursuant to this statute, a jury convicted Mr. Rasabout of twelve
felony counts of unlawful discharge of a firearm. The trial court
merged the twelve counts into one. The court of appeals reversed
this ruling, reasoning that the allowable unit of prosecution for the
offense is each discrete shot. Thus, the court concluded that the
twelve discrete shots Mr. Rasabout fired support twelve convictions.
We affirm the court of appeals.
¶6 Our analysis proceeds in three parts: First, we hold that the
allowable unit of prosecution for unlawful discharge of a firearm is
each discrete shot; accordingly, Mr. Rasabout was properly
convicted of and may be punished for twelve separate counts
because he fired twelve discrete shots. Second, we reject as
inapplicable the single criminal episode statute and the single
larceny rule, on which Mr. Rasabout relies. Third, we hold that the
state and federal cruel and unusual punishment clauses are
inapplicable because those clauses deal with punishment, which is
distinct from the allowable unit of prosecution for an offense.
3
UTAH CODE § 76-10-508 (2007).
3
STATE v. RASABOUT
Opinion of the Court
I. MR. RASABOUT WAS PROPERLY CONVICTED OF TWELVE
COUNTS OF UNLAWFUL DISCHARGE OF A FIREARM
BECAUSE HE FIRED TWELVE DISCRETE SHOTS
¶7 At the heart of this case is a single question: What is the
allowable unit of prosecution for the crime of unlawful discharge of
a firearm? The answer to that question determines whether Mr.
Rasabout was permissibly convicted of twelve counts. The court of
appeals concluded that “the unit of prosecution under the firearm
discharge statute is each discrete shot.”4 Mr. Rasabout argues that
this conclusion was in error. He points instead to the intent required
by the enhancement provision and argues that the allowable unit of
prosecution is the continuous intent that motivates one or more
shots. He reasons that he violated the statute only once because a
single continuous intent motivated him to fire all twelve shots. The
State disagrees, arguing that the Legislature criminalized each
discrete shot. We agree with the State and therefore affirm the court
of appeals.
A. Identifying the Allowable Unit of Prosecution for an Offense
¶8 The allowable unit of prosecution for an offense determines
whether a perpetrator’s conduct constitutes one or more violations
of that offense. Take the example of child pornography. It is a crime
to “intentionally . . . view[] child pornography.”5 If a perpetrator
views multiple images of multiple victims over a period of time,
how many times has he committed the offense? Perhaps there is one
violation for each viewing session, regardless of the number of
images or victims. Or maybe there is one violation for each victim or
one for each image. The allowable unit of prosecution provided by
the offense resolves this question. In the case of child pornography,
the Legislature has provided that “[i]t is a separate offense under
this section: (a) for each minor depicted in the child pornography;
and (b) for each time the same minor is depicted in different child
pornography.”6
¶9 But not all statutes explicitly define the allowable unit of
prosecution. State v. Morrison, which dealt with a prior version of the
child-pornography statute, illustrates the appropriate analysis when
4
State v. Rasabout, 2013 UT App 71, ¶ 33, 299 P.3d 625.
5
UTAH CODE § 76-5b-201(1)(a)(ii).
6
Id. § 76-5b-201(3).
4
Cite as: 2015 UT 72
Opinion of the Court
the statute at issue is not so explicit.7 In that case, the defendant
contended that he violated the child-pornography statute only once
even though he possessed multiple visual representations of child
pornography.8 Although the statute did not explicitly define the
allowable unit of prosecution, we nevertheless focused on the
statutory language that defined the offense as “‘knowingly . . .
possess[ing] . . . material . . . depicting’” child pornography and
defined “material” as “‘any visual representation.’”9 We reasoned
that “[t]he clearest reading of the statute is that each individual
‘visual representation’ of child pornography that is knowingly
possessed by a defendant constitutes the basis for a separate
offense.”10 Accordingly, on the basis of the statutory language, we
held that the allowable unit of prosecution for child pornography is
each visual representation.11
¶10 In short, identifying the allowable unit of prosecution for an
offense is a question of statutory construction.12 And when
construing a statute, we seek to give effect to the intent of the
Legislature.13 Indeed, this has been our practice from the time of
statehood until now.14 To ascertain that intent, we look first to the
7
2001 UT 73, ¶¶ 24–26, 31 P.3d 547.
8
Id. ¶ 24.
9
Id. ¶ 25 (alterations in original).
10
Id. ¶ 26.
11
Id.
12
Id. ¶¶ 25–26; see also Bell v. United States, 349 U.S. 81, 81 (1955)
(When determining how many times a federal offense has been
committed, courts must determine “[w]hat Congress has made the
allowable unit of prosecution.” (internal quotation marks omitted));
41 AM. JUR. 2D Indictments and Informations § 205 (2015) (“[W]hen the
same statutory violation is charged twice, the question is whether
[the Legislature] has intended the facts underlying each count to
make up a separate unit of prosecution.”); 42 C.J.S. Indictments § 213
(2015) (A court must “consider[] whether the legislature intended
the facts underlying each count to make up a separate unit of
prosecution.”).
13
LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
14
See, e.g, Delta Canal Co. v. Frank Vincent Family Ranch, LC,
2013 UT 69, ¶ 16, __ P.3d __; Anderson v. United Parcel Serv.,
(continued...)
5
STATE v. RASABOUT
Opinion of the Court
text of the statute within its context.15 And while the ordinary
meaning of a word is powerful evidence in understanding statutory
text, it is not the only consideration because it is simply inconclusive
as to the meaning intended in a particular context.16 Even if a word
bears one meaning in the majority of cases where that word is used
proximate to another, that does not foreclose the possibility that the
Legislature intended a less-preferred meaning in a particular
context. We therefore begin with the plain language of the provision
at issue in our broader effort to ascertain the intent of the Legislature
disclosed by the language of the act as a whole, the act’s operation,
and its purpose.
B. The Allowable Unit of Prosecution for Unlawful Discharge of a
Firearm is Each Discrete Shot
¶11 The unlawful-discharge-of-a-firearm statute provides that
“[a] person may not discharge any kind of dangerous weapon or
14
(...continued)
2004 UT 57, ¶ 24, 96 P.3d 903; Savage Indus., Inc. v. Utah State Tax
Comm’n, 811 P.2d 664, 671 (Utah 1991); Wells Fargo Armored Serv.
Corp. v. Pub. Serv. Comm’n of Utah, 626 P.2d 450, 451 (Utah 1981);
Scott v. Sch. Bd. of Granite Sch. Dist., 568 P.2d 746, 747–48 (Utah 1977);
Walker Bank & Trust Co. v. Taylor, 390 P.2d 592, 594 (Utah 1964);
Donahue v. Warner Bros. Pictures Distrib. Corp., 272 P.2d 177, 183
(Utah 1954); Norville v. State Tax Comm’n, 97 P.2d 937, 939 (Utah
1940); Moormeister v. Dep’t of Registration of State, 288 P. 900, 903
(Utah 1930); Roberts v. Lynch, 190 P. 930, 932 (Utah 1920); Hayes v.
Ross, 127 P. 340, 343 (Utah 1912); Armstrong v. Johnson (In re Owens’
Estate), 85 P. 277, 279 (Utah 1906); Pratt v. Bd. of Police & Fire Comm’rs,
49 P. 747, 749 (Utah 1897).
15
LPI Servs., 2009 UT 41, ¶ 11.
16
While some of our cases focus on ordinary meaning, they
should not be read to suggest that ordinary meaning is the exclusive
tool available to us in our effort to effectuate legislative intent when
a statutory term is not expressly defined or does not appear to be a
technical term of art. E.g., Barneck v. Utah Dep’t of Transp.,
2015 UT 50, ¶ 28, __ P.3d __; State v. Bagnes, 2014 UT 4, ¶ 13,
322 P.3d 719; Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18,
304 P.3d 851; State v. Canton, 2013 UT 44, ¶¶ 10–27 & n.6,
308 P.3d 517; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9,
248 P.3d 465.
6
Cite as: 2015 UT 72
Opinion of the Court
firearm” in certain dangerous conditions.17 The allowable unit of
prosecution turns on the meaning of the term “discharge” in the
context of a “dangerous weapon or firearm.”
¶12 The word discharge is made up of two parts: a prefix and the
root word. Adding the prefix dis provides the negative or opposite
meaning of the root word.18 The root word charge includes the verb
meaning “to place a charge (as of powder) in” and the noun
meaning “the quantity of explosive used in a single discharge.”19
And the dictionary entry of the word discharge includes the meaning
“to release from confinement” or simply to shoot.20 The definition of
shoot confirms its synonymous meaning in the firearm context; it
means “to eject or impel . . . by a sudden release of tension” or “to
drive forth . . . by an explosion (as of a powder charge in a
firearm . . . ).”21 Under these dictionary entries, the clearest reading
of the statute is that discharging a weapon or firearm means
shooting a weapon or firearm.
¶13 This understanding is confirmed by the statutory definition
applicable to this offense. It defines a firearm as “any device . . . from
which is expelled a projectile by action of an explosive.”22 In other
words, it contemplates the expulsion of a single projectile with a
single explosion. Similarly, that section defines a handgun as a
“firearm of any description . . . from which any shot, bullet, or other
missile can be discharged, the length of which . . . does not exceed 12
inches.”23 This definition also contemplates a single “shot, bullet, or
17
UTAH CODE § 76-10-508(1)(a) (2007) (emphasis added).
18
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 354 (11th ed.
2012).
19
Id. at 208.
20
Id. at 356 (equating discharge with shoot as in “[discharge] an
arrow”); see also id. at 471 (defining firearm as “a weapon from which
a shot is discharged by gunpowder”); THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 514 (5th ed. 2011) (“The
musket discharged loudly.” (emphasis omitted)).
21
MERRIAM-WEBSTER, supra, at 1151; AMERICAN HERITAGE, supra,
at 1620 (defining shoot as “[t]o fire or let fly (a missile) from a
weapon” or “[t]o discharge (a weapon)”).
22
UTAH CODE § 76-10-501(9) (2007) (emphasis added).
23
Id. § 76-10-501(12).
7
STATE v. RASABOUT
Opinion of the Court
other missile” that “can be discharged.”24 These definitions thus
confirm that the term discharge contemplates a discrete shot or
explosion.25
¶14 Additionally, it was reasonable for the Legislature to
criminalize each shot fired because each shot carries an independent
harm. Otherwise, an individual shooting once would have no
punitive deterrent from continuing to shoot as many times as
possible—essentially a buy one, harm as much as you like discount.
Thus, convicting Mr. Rasabout of a separate offense for each shot
fired creates an independent punitive deterrent for each pull of the
trigger.
¶15 In urging his position that the allowable unit of prosecution
is not each shot fired, Mr. Rasabout points to the “intent to
intimidate” language in subsection (2) of the statute. He argues that
this language suggests that the Legislature defined the allowable
unit of prosecution for this offense based on the singular intent of
the perpetrator, no matter haw many shots are actually fired. We are
unpersuaded by Mr. Rasabout’s argument for two reasons. First, the
“intent to intimidate” language is not part of the provision defining
the crime. Rather, it is located in the enhancement provision.
Because we presume that the Legislature used the term discharge
consistently throughout the statute, it must mean the same thing
whether or not the offense is enhanced. Because the word discharge
means shoot in the provision defining the crime, it must mean the
same thing when the perpetrator discharges a firearm with an
“intent to intimidate.” Second, there is nothing about an “intent to
intimidate” as an enhancement that suggests that the intimidation
24
Id.
25
Mr. Rasabout points out that a shotgun expels multiple pellets
with a single explosion. But we are not persuaded that this is a
distinction with a meaningful difference. The statutory definition of
firearm equates a shotgun with a pistol and a rifle, all of which use a
single explosion to expel a projectile. Id. § 76-10-501(9). The fact that
a cartridge of ammunition includes multiple pellets does not change
the fact that it is a single shot. Mr. Rasabout also points to the case of
an automatic weapon. But a fully automatic weapon is a “firearm
which fires . . . automatically more than one shot without manual
reloading by a single function of the trigger.” Id. § 76-10-501(11).
Even though there is only “a single function of the trigger,” there are
still multiple shots.
8
Cite as: 2015 UT 72
Opinion of the Court
supercedes the flying bullet as the principal harm that the
Legislature sought to criminalize. Just as each flying bullet is
dangerous, so too is each flying bullet that was fired with the intent
to intimidate. Accordingly, the allowable unit of prosecution for the
unlawful-discharge-of-a-firearm statute under which Mr. Rasabout
was convicted is each discrete shot, whether or not the shot is fired
with a mens rea that enhances the classification of the offense.
C. Sua Sponte Corpus Linguistics Research is Not Appropriate
¶16 Justice Lee charges the court with coming to this conclusion
by plucking a definition from a dictionary on the basis of cloaked
intuition.26 Instead, he advances what he deems a “more
transparent” interpretation methodology that utilizes corpus
linguistics research.27 We decline to adopt his approach because,
among other reasons, it is unfair to the parties and it attempts
scientific research that is not subject to scientific review.
¶17 To begin, Justice Lee argues that we should decide this case
against Mr. Rasabout on the basis of the corpus linguistics research
he has conducted sua sponte. But because his rationale is so different
in kind from any argument made by the parties, Mr. Rasabout has
never had a reasonable opportunity to present a different
perspective. This violates the very notion of our adversary system,
which “assures fairness by exempting a party from the inequity of
[losing] on appeal on a ground that [he] had no opportunity to
address.”28 “[W]e should not dilute [the protections of our adversary
system] by stretching their standards to justify our consideration of
[an argument] we find interesting or important.”29 Moreover,
deciding this case on the basis of an argument not subjected to
adversarial briefing is a recipe for making bad law.30
26
Infra ¶ 53.
27
Infra ¶ 55.
28
R.C.S. v. A.O.L. (In re Baby Girl T.), 2012 UT 78, ¶ 42,
298 P.3d 1251 (Lee, J., dissenting).
29
Id. ¶ 56.
30
See, e.g., St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 14, __ P.3d __ (noting
that “we would be ill-advised to reach a decision regarding unset-
tled law without the benefit of adversarial briefing” (internal
quotation marks omitted)); Munson v. Chamberlain, 2007 UT 91, ¶ 21,
173 P.3d 848 (overruling the last paragraph of a previous opinion
(continued...)
9
STATE v. RASABOUT
Opinion of the Court
¶18 Additionally, it would be entirely inappropriate for this
court to conduct the independent scientific research that serves as
the basis for Justice Lee’s approach. Justice Lee admits that he is not
an expert in this field and does not completely understand its
methodologies, but asserts that we must “try.”31 Linguistics is a
scientific field of study that uses empirical research to draw
findings.32 And just as with other fields of scientific study, simply
trying harder will not lead us to a better answer. The knowledge and
expertise required to conduct scientific research are “usually not
within the common knowledge” of judges, so “testimony from
relevant experts is generally required in order to ensure that [judges]
have adequate knowledge upon which to base their decisions.”33 We
regularly refuse to conduct legal research, a field in which we are
experts.34 We should similarly refuse our inclination to contrive of
interesting research projects that require expertise in fields in which
we have no training.
¶19 Moreover, as Justice Lee points out, “[m]ost judges are
generalists.”35 Indeed, we are aware of almost no one sitting on the
bench or practicing law in this state who has the kind of scientific
30
(...continued)
because in deciding that issue “we were not able to benefit from any
adversarial briefing”).
31
See infra ¶¶ 107, 113, 116 (internal quotation marks omitted).
32
See infra ¶ 58 (citing TONY MCENERY & ANDREW HARDIE, CORPUS
LINGUISTICS: METHOD, THEORY AND PRACTICE (2012), which notes
that “the combination of falsifiability and replication can make us
increasingly confident in the validity of corpus linguistics as an
empirical, scientific enterprise,” id. at 16); infra ¶¶ 114–15 (noting
that coprus linguistics “is not rocket science,” but is instead “like
math”); What is Linguistics?, LINGUISTIC SOCIETY OF AMERICA,
http://www.linguisticsociety.org/what-linguistics (last visited July
10, 2015) (“Linguistics, in a nutshell, is the scientific study of
language.”); Linguistics MA, BRIGHAM YOUNG UNIVERSITY,
http://linguistics.byu.edu/linguistics/ma/ (last visited July 10,
2015) (defining linguistics as “the scientific study of language”).
33
Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754.
34
See, e.g., Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 20
n.9, 270 P.3d 456.
35
Infra ¶¶ 107, 113.
10
Cite as: 2015 UT 72
Opinion of the Court
expertise required to reliably conduct the research Justice Lee
requires. And issues of statutory construction where “both sides are
able to marshal dictionary definitions in support of their view”
permeate the majority of cases in this state.36 But in every such case,
Justice Lee would require ad hoc linguistics research that could only
be reliably conducted by dueling linguistics experts. Imposing such
a significant financial burden on so many of the litigants coming
through the doors of our courts would be tantamount to locking
those doors for all but the most affluent. Moreover, it would place an
unbearable burden upon our already thinly stretched district judges.
That is simply unacceptable.
¶20 Justice Lee’s appeal to linguistics research would not be so
disquieting if he were not conducting the research himself, but
merely citing findings that have been advanced by the parties,
published in a scholarly journal, or authored by a respected source.
Such sources include the reports of expert witnesses, published
academic articles, and widely available dictionaries. In those cases,
findings are subject to review by the relevant field of study or the
opposing party’s expert before we rely upon them. But if we conduct
our own research, the parties are bound by our decision even if our
methods or findings are subsequently found to be flawed.
Accordingly, it is unfair, and indeed unwise, for us to decide a case
on the basis of scientific research that is subject to neither prior
review by the relevant field of study or adversarial briefing.
¶21 We are not experts in this field and accordingly have no
intention of meeting Justice Lee on the merits of his research. But
there are at least a few questions that are immediately apparent with
regard to his methodology. To begin, of the eighty-six “hits” Justice
Lee found with his search, he simply ignores thirty-six as having
“insufficient detail to indicate whether the discharge at issue had
reference to a single shot or the emptying of a magazine.”37 And
thirty-one of the remaining hits required an interpretive assumption
or were “a bit more ambiguous.”38 So many apparently neutral or
questionable data points raise the question of whether the trend that
Justice Lee draws from the data is statistically insignificant—“the
figures extracted from the data are simply the result of random
36
Infra ¶ 70.
37
Infra ¶ 90.
38
Infra ¶ 89.
11
STATE v. RASABOUT
Opinion of the Court
chance, and do not indicate what they seem to indicate.”39 It
certainly calls into question his claim that “discharge of a weapon is
used overwhelmingly in the single shot sense.”40 Additionally, the
data set on which Justice Lee relies “‘contains more than 410 million
words of text and is equally divided among spoken, fiction, popular
magazines, newspapers, and academic texts.’”41 The point of a large
data set is to avoid “‘basing conclusions on a few speakers’
idiosyncrasies.’”42 But the “idiosyncrasies” of the Utah Legislature
constitute the rule of law in this state. And the only way to identify
those idiosyncrasies is through the text of the Utah Code, which is
wholly absent from Justice Lee’s data set. Apparently, there is no
statutory or legal text of any kind in the data set. Accordingly, in an
attempt to eschew the influence of any one speaker, Justice Lee’s
data set ignores the only speaker that matters. These are just two of
the many questions raised by Justice Lee’s methodology. And we
have no doubt that more would surface if his methodology were
subject to adversarial briefing or review by an expert in this field.
D. The Rule of Lenity Does Not Apply Because the Statute
Is Not Ambiguous
¶22 Mr. Rasabout argues that we should use the rule of lenity
to find in his favor. The rule of lenity requires that we interpret an
ambiguous statute in favor of lenity toward the person charged with
criminal wrongdoing.43 Thus, in the context of determining the
39
MCENERY & HARDIE, supra, at 251 (defining “statistical
significance,” noting that “statistical procedures [are] used to test
statistical significance,” and also defining a “significance test” as “[a]
mathematical procedure to determine whether a result is statistically
significant” (first and second emphasis added)); DOUGLAS BIBER ET
AL., CORPUS LINGUISTICS: INVESTIGATION LANGUAGE STRUCTURE AND
USE 275 (2004) (discussing “[s]ignificance tests and the reporting of
statistics”).
40
Infra ¶ 92.
41
Infra ¶ 84.
42
Infra ¶ 54 n.10 (quoting BIBER ET AL., supra, at 3).
43
State v. Watkins, 2013 UT 28, ¶ 38 n.3, 309 P.3d 209 (“The rule of
lenity applies when, after consulting traditional canons of statutory
construction, we are left with an ambiguous statute and prescribes
the narrow construction of ambiguous penal laws against the state.”
(continued...)
12
Cite as: 2015 UT 72
Opinion of the Court
allowable unit of prosecution under an ambiguous criminal statute,
“doubt [must] be resolved against turning a single transaction into
multiple offenses.”44 But as both parties agree, the rule of lenity is
not implicated unless a statute is ambiguous. A statute is ambiguous
when ”its terms remain susceptible to two or more reasonable
interpretations after we have conducted a plain language analysis.”45
In this case, we have conducted a plain language analysis and
concluded that there is only one reasonable interpretation of the
statute at issue. Accordingly, the rule of lenity is not implicated here.
¶23 Nevertheless, we take this opportunity to vacate the
erroneous conclusion of the court of appeals with respect to the rule
of lenity. The court of appeals held that the rule of lenity has been
abrogated by the strict construction statute, Utah Code section 76-1-
106.46 It reasoned that the statute may permissibly abrogate the rule
of lenity because “the rule is one of statutory construction, not
constitutional law.”47 The State defends this reasoning on appeal.
Mr. Rasabout argues that the rule of lenity cannot be abrogated by
statute because it is based in due process. We agree.
¶24 The United States Supreme Court has held that the rule of
lenity “is rooted in fundamental principles of due process which
mandate that no individual be forced to speculate, at peril of
indictment, whether his conduct is prohibited.”48 The reasoning
43
(...continued)
(internal quotation marks and citations omitted)).
44
Bell, 349 U.S. at 84; 42 C.J.S. Indictments § 213 (2015) (“Any doubt
as to [the intended unit of prosecution] is resolved in favor of lenity
for the defendant.”).
45
Watkins, 2013 UT 28, ¶ 24.
46
Rasabout, 2013 UT App 71, ¶¶ 29–32; UTAH CODE § 76-1-106
(“The rule that a penal statute is to be strictly construed shall not
apply to this code, any of its provisions, or any offense defined by
the laws of this state. All provisions of this code and offenses defined
by the laws of this state shall be construed according to the fair
import of their terms to promote justice and to effect the objects of
the law and general purposes of Section 76-1-104.”).
47
Rasabout, 2013 UT App 71, ¶ 30.
48
Dunn v. United States, 442 U.S. 100, 112 (1979); see also United
States v. Lanier, 520 U.S. 259, 266 (1997) (“[T]he canon of strict
(continued...)
13
STATE v. RASABOUT
Opinion of the Court
behind the Court’s holding is simple. An ambiguous statute violates
the notice requirement of due process because it “fails to give a
person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute.”49 The Due Process Clause of the
Utah Constitution provides an alternative basis for the same
protection.50 That provision “do[es] not permit enforcement of a
statute that forbids an act in terms so vague that [persons] of
common intelligence must necessarily guess at [the statute’s]
meaning and differ as to its application.”51 Thus, the rule of lenity is
dictated by the notice protection afforded by both federal and state
due process. Accordingly, insofar as the strict construction statute
purports to abolish the rule of lenity, we hold that it does not.
E. Mr. Rasabout’s Twelve Convictions Do Not Violate the Rule Against
Multiplicity Under the Double Jeopardy Clause of the
United States Constitution
¶25 Mr. Rasabout contends he committed only one offense and
accordingly the State cannot punish him for twelve counts without
violating the rule against multiplicity, which arises from the Double
Jeopardy Clause of the United States Constitution.52 We disagree.
¶26 The Double Jeopardy Clause protects a defendant from
48
(...continued)
construction of criminal statutes, or rule of lenity, ensures fair
warning[, as required by due process,] by so resolving ambiguity in
a criminal statute as to apply it only to conduct clearly covered.”).
49
United States v. Harriss, 347 U.S. 612, 617 (1954).
50
UTAH CONST. art. I, § 7.
51
State v. Mooney, 2004 UT 49, ¶ 17, 98 P.3d 420 (second and third
alterations in original) (internal quotation marks omitted).
52
Mr. Rasabout also asserts a double jeopardy claim under the
Utah Constitution, but we decline to reach it because he failed to
adequately differentiate this claim from its federal counterpart. We
will not reach a state constitutional argument unless it is distinctly
raised and adequately briefed. State v. Tiedemann, 2007 UT 49,
¶¶ 32–38, 162 P.3d 1106. There is no “formula . . . for adequate
framing and briefing of state constitutional issues,” but a clearly
raised and differentiated argument will likely include a separate
section of analysis that begins with the text of the state constitutional
provision. Id. ¶ 37.
14
Cite as: 2015 UT 72
Opinion of the Court
“be[ing] twice put in jeopardy” “for the same offence.”53 From this
protection springs the rule against multiplicity, which prohibits
“‘multiple punishments for the same offense.’”54 The rule against
multiplicity is violated if the State punishes a defendant for more
counts of an offense than are allowed by the intended unit of
prosecution for that offense.55 But it is not implicated in determining
the allowable unit of prosecution for an offense or when the state
charges a defendant with multiple violations consistent with the
statutorily defined unit of prosecution.
¶27 In this case, Mr. Rasabout was convicted of twelve separate
counts of unlawful discharge of a firearm on the basis of twelve
discrete shots. Because the allowable unit of prosecution for that
offense is each discrete shot, the State may charge and punish Mr.
Rasabout for twelve counts without implicating Mr. Rasabout’s Fifth
Amendment rights.
II. THE SINGLE CRIMINAL EPISODE STATUTE AND THE
SINGLE LARCENY RULE ARE INAPPLICABLE
¶28 In merging Mr. Rasabout’s twelve convictions, the trial
court relied on the single criminal episode statute, Utah Code section
76-1-401, and a case applying the single larceny rule. Mr. Rasabout
urges us to adopt its reasoning. We conclude that neither the single
criminal episode statute nor the single larceny rule apply here.
¶29 First, the single criminal episode statute, Utah Code section
76-1-401, is inapplicable because it does not dictate the merger of
offenses. While this section provides that a “‘single criminal episode’
means all conduct which is closely related in time and is incident to
an attempt or an accomplishment of a single criminal objective,”
there is nothing in this or the operative sections that follow
mandating that a court merge offenses committed within a single
criminal episode.56 To the contrary, subsection (1) of section 76-1-402
specifically provides that “[a] defendant may be prosecuted in a
single criminal action for all separate offenses arising out of a single
53
U.S. CONST. amend. V.
54
State v. Prion, 2012 UT 15, ¶ 30, 274 P.3d 919 (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
55
Morrison, 2001 UT 73, ¶¶ 24–26.
56
UTAH CODE § 76-1-401; see id. §§ 76-1-402 to -405.
15
STATE v. RASABOUT
Opinion of the Court
criminal episode.”57 And subsection (2) explicitly accounts for a
situation when “conduct may establish separate offenses under a
single criminal episode.”58 Additionally, while the operative sections
provide specific double-jeopardy-like protections, such as protecting
a defendant from being “subject to separate trials for multiple
offenses,” being “convicted of both the offense charged and [an]
included offense,” and being “punished [for the same act] in
different ways under different provisions of [the] code,”59 none of
these concerns are implicated in this case. Mr. Rasabout was
convicted in a single trial of twelve separate counts of violating a
single offense. Thus, the trial court’s reliance on section 76-1-401 for
merging Mr. Rasabout’s convictions was misplaced.
¶30 The single larceny rule is also inapplicable here because this
case does not involve larceny.60 The single larceny rule governs the
aggregation of multiple thefts over a period of time when the
statutory text does not otherwise provide an allowable unit of
prosecution.61 In the context of theft, a statutory descendent of
common law larceny, we have held that “‘[i]f there is but one
intention, one general impulse, and one plan, even though there is
a series of transactions, there is but one offense.’”62 This doctrine was
developed in the context of common law larceny and has been
extended to larceny’s statutory progeny in this state, including theft
57
Id. § 76-1-402(1) (emphasis added).
58
Id. § 76-1-402(2) (emphasis added).
59
Id. § 76-1-402.
60
The trial court cited State v. Irvin, 2007 UT App 319, ¶¶ 14–21,
169 P.3d 798, an opinion from the court of appeals that cites our
opinion in State v. Crosby, 927 P.2d 638, 645 (Utah 1996). These
opinions apply the single larceny rule. They also cite the single
criminal episode statute for support. While the single larceny rule,
the Double Jeopardy Clause, and the single criminal episode statute
often operate in proximity to one another, they are nevertheless
distinct. When litigants and courts mingle them, as has been done in
this case, it muddies the legal analysis.
61
Irvin, 2007 UT App 319, ¶¶ 14–21; Crosby, 927 P.2d at 645–46.
62
Crosby, 927 P.2d at 645 (quoting State v. Kimbel, 620 P.2d 515, 518
(Utah 1980)).
16
Cite as: 2015 UT 72
Opinion of the Court
and robbery.63 But Mr. Rasabout has failed to provide us with a
rationale for extending this common law doctrine outside the realm
of larceny and into a statutory scheme that independently defines
the allowable unit of prosecution.
¶31 In sum, we hold that the single criminal episode statute is
inapplicable because Mr. Rasabout was convicted of twelve counts
of a single statutory offense in a single trial. And we hold that the
single larceny rule is inapplicable because this case is governed by
the allowable unit of prosecution defined by the Legislature in the
statute criminalizing unlawful discharge of a firearm.
III. CRUEL AND UNUSUAL PUNISHMENT IS NOT
IMPLICATED IN DETERMINING THE ALLOWABLE UNIT OF
PROSECUTION FOR AN OFFENSE
¶32 Mr. Rasabout finally argues that defining the allowable unit
of prosecution as each discrete shot may result in a sentence that is
cruel and unusual in violation of the United States Constitution and
the Utah Constitution. The State argues that this issue is not
implicated here. We agree with the State because this appeal raises
only the allowable unit of prosecution, an issue that is distinct from
punishment.
¶33 Both the United States Constitution and the Utah
Constitution prohibit cruel and unusual punishment.64 But these
protections are a constitutional backstop to the overall punishment
imposed for criminal conduct; they do not dictate the allowable unit
of prosecution.65 In this case, the question is how many convictions
63
See United States v. Sydnor, 12 F. App’x 141, 142 (4th Cir. 2001)
(noting the common law origin of the single larceny rule and
collecting cases that have applied it); Crosby, 927 P.2d at 645–46
(applying the single larceny rule to theft); Irvin, 2007 UT App 319,
¶¶ 14–21 (applying the single larceny rule to aggravated robbery).
64
U.S. CONST. amend. VIII; UTAH CONST. art. I, § 9.
65
Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex. Crim. App. 1999)
(“‘The Eighth Amendment’s Cruel and Unusual Punishment Clause
might impose limits on the total amount of punishment that can be
heaped upon a person for a single ‘act’ or series of acts, but the
Double Jeopardy Clause imposes no limits on how the legislature
may carve up conduct into discrete legal offense units.’” (quoting
Akhil Reed Amar, Double Jeopardy Law Made Simple,
(continued...)
17
STATE v. RASABOUT
Opinion of the Court
are permissible. On remand, the trial court will determine the
appropriate punishment for Mr. Rasabout’s criminal conduct. While
the number of convictions will be one factor in that determination,
the trial court will consider numerous other factors. It is at that point
that Mr. Rasabout may challenge the total sentence as cruel and
unusual.
¶34 In sum, we hold that the question of cruel and unusual
punishment is not implicated in a determination of the allowable
unit of prosecution for an offense.
CONCLUSION
¶35 Mr. Rasabout fired twelve shots at a house he knew to be
occupied by a rival gang member. A jury convicted him of twelve
counts of unlawful discharge of a firearm, in violation of Utah Code
section 76-10-508. That was permissible because each shot fired was
a separate discharge under the statute. We accordingly affirm the
court of appeals and remand this case for further proceedings
consistent with this opinion.
65
(...continued)
106 YALE L.J. 1807, 1818 (1997))).
18
Cite as: 2015 UT 72
DURRANT, C.J., concurring in part and concurring in the judgment
CHIEF JUSTICE DURRANT, concurring in part and concurring in
the judgment:
¶36 I concur in the majority’s affirmance of the court of
appeals’ judgment and in all of the majority’s analysis—except the
portion addressing Justice Lee’s corpus linguistics interpretive
method. While I too would decline to use that method in this case,
I applaud Justice Lee for his thoughtful exploration of corpus
linguistics as a potential additional tool for our statutory
interpretation tool box. I am open to the possibility that in certain
cases it may well prove useful in our assessment of the ordinary
meaning of statutory terms.1 But I do not consider it necessary in
this case, because I find the majority’s analysis of the meaning of
the term “discharge,” an analysis conducted using our long-
1 I consider the assessment of a term’s ordinary meaning to be
an important tool, but not the only tool, in the process of statutory
interpretation. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT
50, ¶ 14, 267 P.3d 863. But I do not believe such an assessment
should displace our central objective in interpreting statutes—the
ascertainment of legislative intent. See, e.g., L.G. v. State (In re A.T.),
2015 UT 41, ¶ 16, __ P.3d __ (“With any question of statutory
interpretation, our primary goal is to effectuate the intent of the
Legislature.”). Rather, I apply the presumption, which I consider
to be a common-sense one, that the legislature intends that words
be understood in statutes as they are ordinarily used, unless there
are indicia to the contrary. See Marion Energy, 2011 UT 50, ¶ 14. As
examples of such indicia, our caselaw indicates that specialized
usage, statutory definitions, or the structure of the statute itself
can all show that the legislature did not intend to use a word
according to its ordinary meaning. See, e.g., State v. Bagnes, 2014
UT 4, ¶ 13, 322 P.3d 719 (noting that because a word was not
“defined by statute[,] [w]e must accordingly look elsewhere to
derive its meaning—to either the ordinary meaning of the word,
or to its technical sense as a legal term of art” (footnote omitted));
State v. Canton, 2013 UT 44, ¶ 21, 308 P.3d 517 (noting that “all but
one of the meanings” of a statutory term could be “eliminated by
context” (internal quotation marks omitted)). I do not see the use
of corpus linguistics as inconsistent with this approach.
19
STATE v. RASABOUT
DURRANT, C.J., concurring in part and concurring in the judgment
established methods of statutory construction, to be compelling.2
And I would further note that although the dictionary
alternatively defines “discharge” as “to shoot” or “to unload,”3
the former definition applies specifically to firearms while the
latter seems to encompass the more general concept of unloading
cargo or emptying a container.4 Granted, the cartridge of a firearm
is in some sense a “container” that can be “unloaded,” but in the
context of a statute that involves firearms, I am confident the
legislature intended the term “discharge” to mean “to shoot,” not
“to unload.” So unlike Justice Lee, I do not believe this is a case
where the dictionary “fails to dictate the meaning that the
statutory terms must bear.”5
¶37 Further, I am concerned about our use of corpus
linguistics in a case where it has not been argued by the parties.6
Now, it is certainly true, that we may, and often have, employed
dictionaries, canons of construction, or other tools for statutory
interpretation that have not been argued by the parties.7 But
2 See supra ¶ 10 (noting that we look to the ordinary meaning of
statutory terms as well as “the act as a whole, the act’s operation,
and its purpose” when interpreting statutory language); supra
¶¶ 12–15 (examining the dictionary definition of discharge and
the structure and context of the unlawful discharge statute to
conclude that the term “discharge” as used in the statute means
“to shoot”).
3 See infra ¶ 47; see also THE AMERICAN HERITAGE DICTIONARY
514 (5th ed. 2011).
4 See THE AMERICAN HERITAGE DICTIONARY, supra, at 514
(defining “discharge” as “[t]o relieve (a ship, for example) of a
burden or of contents; unload”).
5 See infra ¶ 47 (internal quotation marks omitted).
6 Cf. State v. Baker, 2010 UT 18, ¶ 57, 229 P.3d 650 (declining to
address an issue in an “unsettled” area of the law because the
court was “without the benefit of adversarial briefing on the
subject”).
7 See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828
(noting that “we are unwilling to disregard controlling authority
that bears upon the ultimate resolution of a case”); Kaiserman
(Continued)
20
Cite as: 2015 UT 72
DURRANT, C.J., concurring in part and concurring in the judgment
primary linguistics research seems to me a step removed from
these traditional tools. I fear that a sua sponte venture into such
territory may be fraught with the potential for error.8 I think this
is illustrated by Justice Lee’s critique of the flaws in Judge
Posner’s sua sponte attempt at such research.9 The fact that a jurist
of Judge Posner’s intellect and stature is capable of such missteps
suggests to me that, even in those cases where corpus linguistics
may be a useful addition to our traditional methods of statutory
construction, it would be best employed by us, or by other judges,
only after the parties have raised it and argued it.10 This would
allow the respective sides in the dispute to challenge each other’s
database, methodologies, and conclusions.
¶38 Finally, in our exploration of whether or when corpus
linguistics should play a role in our interpretation of statutes, it is
important that we weigh the potential usefulness of the approach
against its potential cost. In some cases, the linguistic analysis
may be sufficiently complicated that an expert would be
Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998) (“We
should not be forced to ignore the law just because the parties
have not raised or pursued obvious arguments.”); see also Carducci
v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that although
courts in an adversarial system “are not precluded from
supplementing the contentions of counsel through [independent]
deliberation and research,” courts “will not remedy [a] defect”
where “counsel has made no attempt to address the issue” and
the issue involves “important questions of far-reaching
significance” (internal quotation marks omitted)).
8See TONY MCENERY & ANDREW HARDIE, CORPUS LINGUISTICS:
METHOD, THEORY, AND PRACTICE 14 (2012) (noting that if one
“approach[es] a corpus with a specific theory in mind, it can be
easy to unintentionally focus on and pull out only the examples
from the corpus that support the theory”).
9 See infra ¶¶ 82–83.
10I should note that in my own examination of Justice Lee’s
search on the corpus linguistics website, I found no such flaws
and did find his search to be both replicable and transparent.
21
STATE v. RASABOUT
DURRANT, C.J., concurring in part and concurring in the judgment
required.11 This would be an unfortunate cost to add to the
already-too-expensive litigation process. But I think that in other
cases the lawyers could themselves conduct the linguistic
analysis, outline their methods and conclusions in their briefs, and
present argument as to why we should adopt their approach over
their opponents’. Because so few judges and, perhaps, even fewer
members of the bar are familiar with corpus linguistics, I believe it
is simply too soon to know whether the benefits of using this new
tool warrant the increased expense.
¶39 Finally, I wish to make clear that while I would not
employ Justice Lee’s corpus linguistics analysis in this case for the
reasons I have specified, and because of other concerns I have not
discussed here nor resolved for myself, I look forward to our
continued debate in this area. Should we elect to embark down
this path, we should tread slowly and cautiously. And caution
dictates that this potential method of statutory interpretation be
fully tested in the crucible of the adversarial process, rather than
simply applied sua sponte by our court.
______________
11 See PAUL BAKER, USING CORPORA IN DISCOURSE ANALYSIS 18
(2006) (“[C]orpus data does not interpret itself, it is up to the
researcher to make sense of the patterns of language which are
found within a corpus.”); cf. State v. Rothlisberger, 2006 UT 49, ¶ 20,
147 P.3d 1176 (noting that lay witnesses are not competent to offer
testimony that is based upon “scientific, technical, or other
specialized knowledge” (internal quotation marks omitted)).
22
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶40 I concur in the judgment of the court and in elements of the
majority’s analysis. Thus, I share the majority’s goal of “giv[ing]
effect to the intent of the Legislature,” and of looking for such in-
tent in “the text of the statute.” Supra ¶ 10. And I agree that our
interpretation of the operative statutory text “turns on the mean-
ing of the term ‘discharge’ in the context of a ‘dangerous weapon
or firearm.’” Supra ¶ 11. Ultimately, moreover, I concur in the
court’s construction of this statutory phrase—as defining the ele-
ment of prosecution in terms of “each discrete shot” expelled from
a gun. Supra ¶ 1.
¶41 I write separately, however, because I cannot resolve the
ambiguity in the term discharge as the court does—by mere resort
to the dictionary. I see the need to look elsewhere. I would inter-
pret the terms of the statute by looking for real-world examples of
its key words in actual written language in its native context. This
sort of analysis has a fancy name—corpus linguistics. But it is hard-
ly unusual. We often resolve problems of ambiguity by thinking
of examples of the use of a given word or phrase in a particular
linguistic context. I propose to do that (as I have in a couple of
prior opinions) on a systematic scale—by computer-aided search-
es of online databases in an effort to assemble a greater number of
examples than I can summon by memory on my own.
¶42 I begin with a description of the question presented in this
case as I understand it. Then I outline my approach to answering
it. And I close with a response to criticisms to my methodology.
I
¶43 My starting point is in line with the majority’s: I would
seek to discern the intent of the legislature, and to find it in the
language it enacted into law. When the text is plain that enterprise
is straightforward. But in cases litigated to an appeal that is rarely
the case. The statutory text in such cases is often ambiguous. One
form of ambiguity concerns a conflict between the “ordinary” and
“specialized” meaning of a term. Thus, a threshold question is
whether the legislative text conveys some specialized meaning—
as in the case of a statutorily defined term, a scientific phrase, or a
23
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
legal term of art.1 If so that is the end of the matter; the specialized
meaning controls if it was intended by the legislature.2
1 See Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 28, __ P.3d __
(unanimous opinion) (construing the statute according to its ordi-
nary meaning after determining that the statute does not express-
ly define the term at issue and the term was not a “technical term
of art”); State v. Bagnes, 2014 UT 4, ¶ 13, 322 P.3d 719 (unanimous
opinion) (noting that because the term at issue is not defined by
statute, the Court “must accordingly look elsewhere to derive its
meaning—to either the ordinary meaning of the word, or to its
technical sense as a legal term of art”) (footnote omitted); Hi-
Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18, 304 P.3d 851
(unanimous opinion) (only seeking to determine the ordinary
meaning of the term at issue after finding that the “term is not ex-
pressly defined in the Act, and does not appear to be a technical
term of art”) (footnote omitted); State v. Canton, 2013 UT 44, ¶¶ 12-
13, 308 P.3d 517 (unanimous opinion) (determining the ordinary
meaning of the terms in question only after rejecting the proposi-
tion that it was a technical term of art); Olsen v. Eagle Mountain
City, 2011 UT 10, ¶ 9, 248 P.3d 465 (unanimous opinion) (inter-
preting the statute according to its plain meaning because it uses
nontechnical speech); Parkinson v. State Bank of Millard County, 35
P.2d 814, 821 (Utah 1934) (“Ordinarily the Legislature speaks only
in general terms. . . . Words and phrases are presumed to have
been used according to their plain, natural, and common import
and usage of the language, unless obviously used in a technical
sense.”); State v. Navaro, 26 P.2d 955, 956 (Utah 1933) (“Under the
ordinary canons of construction of statutes we are required to give
the word its plain, natural, ordinary, and commonly understood
meaning, in the absence of any statutory or well-established tech-
nical meaning, unless it is plain from the statute that a different
meaning is intended.”); State v. Hendrickson, 245 P. 375, 378 (Utah
1926) (“[It is] the fundamental rule recognized in every jurisdic-
tion of the country that words and phrases are construed accord-
ing to the context and the approved usage of the language. Except
in the case of technical words and phrases, they must be con-
strued according to their plain and ordinary meaning.”); Miles v.
Wells, 61 P. 534, 536 (1900) (“[W]here there is no ambiguity, the
language must be taken as the expression of the legislature’s in-
(continued…)
24
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶44 Another form of ambiguity concerns a contest between two
different definitions of a word in common usage. But “[t]he fact
that the statutory language may be susceptible of multiple mean-
ings” does not leave us without an answer, as all but one of the
meanings is often “eliminated” by the structure or context of the
statute. Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 13, 248 P.3d
465. When neither of two competing meanings can be so eliminat-
ed, however, we opt for the meaning we deem as more “ordi-
nary.” See Hi-Country Prop. Rights Group v. Emmer, 2013 UT 33, ¶¶
18–19, 21–22, 304 P.3d 851.
¶45 This case presents this latter question. No one has suggest-
ed that discharge is a specialized term,3 or that the structure of the
statute eliminates one of the parties’ proposed definitions. So we
are left to construe the relevant statutory language to convey the
“ordinary meaning” of its terms—the meaning its words would
have in the mind of a “reasonable person familiar with the usage
and context of the language in question.” Olsen, 2011 UT 10, ¶ 9.4
tention, unless other provisions of the statute clearly show that the
language was used in a sense different from its natural and ordi-
nary meaning.”).
2 The majority appears to paint my views with a different brush.
See supra ¶ 10 n.16 (implying that I “suggest that ordinary mean-
ing is the exclusive consideration” in matters of statutory interpre-
tation). But that misreads the unanimous cases it cites, compare su-
pra ¶ 43 n.1 with supra ¶ 10 n.16, and misunderstands my inter-
pretive methodology.
3 The majority does not so claim. It concedes that this is a case
that comes down to a question of the ordinary meaning of “dis-
charge.”
4 See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12
HARV. L. REV. 417, 417–19 (1899) (explaining that we consider not
the “idiosyncrasies of the writer” but “the general usages of
speech,” or “what those words would mean in the mouth of a
normal speaker of English”); Felix Frankfurter, Some Reflections on
the Reading of Statutes, 47 COLUM. L. REV. 527, 536 (1949) (“And so
we assume that Congress uses common words in their popular
meaning, as used in the common speech of men.”); Frank H.
Easterbrook, The Role of Original Intent in Statutory Construction, 11
(continued…)
25
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶46 Dictionaries are a good “starting point” for analyzing ordi-
nary meaning. Hi-County Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶
19, 304 P.3d 851. They are “useful in cataloging a range of possible
meanings that a statutory term may bear.” Id. (citing HENRY M.
HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS
IN THE MAKING AND APPLICATION OF LAW 1375–76 (William N.
Eskridge, Jr. & Phillip P. Frickey eds., 1994) [hereinafter HART &
SACKS]). Dictionaries provide “‘an historical record, not necessari-
ly all-inclusive, of the meanings which words in fact have borne.’”
Id. (quoting HART & SACKS, at 1190). “Such a record, however, will
often fail to dictate ‘what meaning a word must bear in a particu-
lar context.’” Id. (quoting HART & SACKS, at 1190). “That question
will often require further refinement—of selecting the best mean-
ing among a range of options, based on other indicators of mean-
ing . . . .” Id.
¶47 This case requires such “further refinement.” It is “one of
those cases where the dictionary fails to dictate the meaning that
the statutory terms ‘must bear’ in this context.” State v. Canton,
2013 UT 44, ¶ 14, 308 P.3d 517. That is because, as in Canton, “dic-
tionary definitions” of the operative terms of the statute “leave the
statute semantically open to” both parties’ positions. Id. On one
hand, as the majority indicates, discharge is susceptible to the defi-
nition advanced here by the State—of discharge as “to release from
confinement” or “to shoot.” Supra ¶ 12 (quoting MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 356 (11th ed. 2012)).5 Yet that
is not the only sense of discharge identified in the dictionary. Dis-
charge is also understood as “to empty of a cargo: UNLOAD.” See
WEBSTER’S THIRD INT’L DICT. 644 (3d ed. 2002). And that is the
sense of discharge advanced here by the defense. Rasabout urges a
unit of prosecution defined by unloading or emptying the con-
tents of a weapon, asserting that the latter sense of discharge sup-
ports his position.
HARV. J.L. & PUB. POL’Y 59, 65 (1988) (“We should look at the stat-
utory structure and hear the words as they would sound in the
mind of a skilled, objectively reasonable user of words.”).
5 See also State v. Rasabout, 2013 UT App 71, ¶ 21, 299 P.3d 625
(citing the MERRIAM-WEBSTER definition, as well as the Macmil-
lanDictionary.com definition of discharge as to “fire a weapon”).
26
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶48 The majority paints part of the relevant picture. It cites the
first of the above definitions and adopts it as the operative sense
of discharge of a firearm under Utah Code section 76-10-508(1)(a).
But the majority fails to acknowledge the second dictionary defi-
nition set forth above. And I am unsure of its basis for preferring
the first definition over the second.
¶49 In context, I see three possible grounds for the court’s con-
clusion. But each falls short.
¶50 First, the definition invoked by the court may be listed first
in the dictionary, see MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
at 356 (listing, as the first sense of the verb discharge, “to relieve of
a charge, load, or burden”), but there is no such thing as a “main”
or “primary” dictionary definition.6 “The dictionaries most relied
upon by courts in statutory interpretation make no claims about
the ordinariness of the words they define or the senses they assign
to those words.” J.M.W. v. T.I.Z. (In re Baby E.Z.), 2011 UT 38, ¶ 98,
266 P.3d 702 (Lee, J., concurring) (citing Stephen C. Mouritsen, The
Dictionary Is Not a Fortress: Definitional Fallacies and the Corpus-
6 Some courts have offered this premise more explicitly. See, e.g.,
Muscarello v. United States, 524 U.S. 125, 128 (1998) (interpreting
“carries a firearm” in federal sentencing enhancement provision,
18 U.S.C. § 924(c), to encompass the conveyance of a firearm in a
locked glove compartment of a vehicle; crediting what the court
views as the “primary” definition of “carry,” meaning the first-
listed definition in various dictionaries). But the sense-ranking
premise is a fallacy. See Stephen C. Mouritsen, The Dictionary Is
Not a Fortress: Definitional Fallacies and the Corpus-Based Approach to
Plain Meaning, 2010 BYU L. REV. 1915, 1926-1938 (criticizing this
analysis while developing extensive scholarly grounds for ques-
tioning the “sense-ranking fallacy”—the “notion that a given
sense of a term may be considered somehow primary or ordinary
or more likely to be legally operative than another sense simply
because it is listed first in a dictionary”); see also J.M.W. v. T.I.Z. (In
re Baby E.Z.), 2011 UT 38, ¶¶ 98-99, 266 P.3d 702 (Lee, J., concur-
ring) (marshaling scholarly authority for the proposition that “dic-
tionaries do not tell us how words are commonly or ordinarily
used,” particularly in the context-specific circumstances of a par-
ticular statute).
27
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
Based Approach to Plain Meaning, 2010 BYU L. REV. 1915, 1925–45
(discussing problems with dictionary usage by courts)). “Nor do
they present their lexical information in a way that reveals ‘ordi-
nary’ usage.” Id. “A number of dictionaries simply rank their def-
initions according to evidence of historical usage.” Id. (emphasis
added). The dictionary cited by the majority, Webster’s, “express-
ly disavows any attempt to establish a hierarchy of ordinariness in
the ranking of its senses, admitting that sometimes an ‘arbitrary’
listing of senses is used.” Id.; see also MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY at 20a. So the dictionary generally cannot
provide the basis for preferring one of its definitions over another.
¶51 Second, the majority seems to attribute significance to the
apparent meaning of the component parts of the term discharge. In
embracing the shoot sense of discharge, the court notes that the
term “is made up of . . . a prefix [‘dis’] and the root word
[‘charge’].” Supra ¶ 12. And because “dis” conveys a “negative or
opposite,” and “charge” indicates a “quantity of explosive,” the
majority concludes that “the clearest reading of the statute is that
discharging a weapon or firearm means shooting a weapon or
firearm.” Supra ¶ 12. The ordinary meaning of a word is not al-
ways discernible by simple addition, however. Many words take
on meanings that bear a strained relation to the sum of their con-
stituent parts—including words with the prefix “dis,” like disease
or disheveled. The former is more than a mere state of unease.7 And
the latter is not the opposite of sheveled.
¶52 In this case, discharge does appear to convey the undoing of
a charge. But that conclusion still begs the question of the nature
of the charge being undone. Even if the relevant charge is, as the
majority says, a “quantity of explosives,” we must decide here
what quantity of explosives must be undone to count as a dis-
charge. The majority says that it’s a “single projectile with a single
explosion.” Supra ¶ 13. That sounds fine. But Rasabout’s alterna-
tive is no less defensible; all of the bullets in a gun’s magazine also
qualify as a “quantity of explosives.” So the majority’s deconstruc-
tion of the component parts of discharge does not yield a conclu-
sive answer to the interpretive question presented.
7 See WEBSTER’S THIRD INT’L DICTIONARY 648 (3d ed. 2002) (not-
ing the “lack of comfort” meaning of disease is now obsolete).
28
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶53 That leaves a third explanation for the majority’s conclu-
sion: The court’s sense of discharge as shoot may simply be an ex-
pression of the majority’s linguistic intuition. That is the way most
problems of lexical ambiguity are resolved by our courts.8 Instead
8 See, e.g., Moon v. Salt Lake County, 76 P. 222, 226 (Utah 1904)
(“By the phrase ‘to Salt Lake City,’ Congress evidently meant the
inhabited portion of the city, where the station buildings were lo-
cated, without reference to the artificial line which marked its ter-
ritorial limits. That phrase was employed in the act in the same
sense in which it is ordinarily used in common parlance with ref-
erence to the city. When Mr. A. says, ‘I am going to Salt Lake
City,’ he does not mean that he is simply going to the line that
marks its territorial limits, but that he is going into the city where
the people live.”); Davasier v. James, 278 S.W.3d 625, 631 (Ky. 2009)
(“The next question is whether Cissell communicated ‘an actual
threat’ at all. The word ‘threat’ is an ordinary English word in
common usage and readily understood by English-speaking peo-
ple. It requires no specialized legal definition, but in common us-
age the word “threat” carries two different meanings.”); Extra Eq-
uipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th
Cir. 2008) (“An interpreter as normally understood is a person
who translates living speech from one language to another. He is
a type of translator, but the translator of a document is not re-
ferred to as an interpreter. Robert Fagles made famous transla-
tions into English of the Iliad, the Odyssey, and the Aeneid, but no
one would refer to him as an English-language ‘interpreter’ of
these works.”) (citations omitted); Mallard v. U.S. Dist. Court for the
S. Dist. of Iowa, 490 U.S. 296, 301 (1989) (“[The statute’s] operative
term is ‘request’: ‘The court may request an attorney to represent’
an indigent litigant. The import of the term seems plain. To re-
quest that somebody do something is to express a desire that he
do it, even though he may not generally be disciplined or sanc-
tioned if he declines. Of course, somebody who frequently refuses
another person’s requests might not win that person’s favor. A
soldier who regularly fails to fulfill his superior's requests might
not rise in the ranks as rapidly as would someone who was more
compliant. But somebody who refuses a request, as the word is
(continued…)
29
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
of acknowledging and rejecting contrary senses of a statutory
term, judges tend to ignore them—identifying only the sense of a
word they deem ordinary without acknowledging any others.
¶54 Reliance on judicial intuition is entirely appropriate. When
confronted with problems of ambiguity in legal text, judges must
employ their intuition to discern the proper sense of its terms. Too
often, however, we proffer our intuition as if it were authoritative;
and when we do so in a manner cloaking alternative senses of the
operative terms, we deprive the parties and the public of a clear
understanding of the complex nature of the linguistic problems
that we confront. We also risk confirmation bias, or just old-
fashioned mistake. The former risk is well-known.9 And it is mag-
ordinarily used, may not be penalized formally for doing so, as a
soldier who disobeyed orders might be court-martialed.”).
9 See, e.g., CASS SUNSTEIN & REID HASTIE, WISER: GETTING BEYOND
GROUPTHINK TO MAKE GROUPS SMARTER 190 (2014) (“People usual-
ly assimilate new information in a way that confirms their view of
the world—confirmation bias . . . .”); Barbara A. Spellman & Fred-
erick Schauer, Legal Reasoning, IN THE OXFORD HANDBOOK OF
THINKING AND REASONING 720–21 (Keith J. Holyoak & Robert G.
Morrison eds., 2012) (“[T]he research on confirmation bias . . . .
teaches us that both novice and expert decision makers are in-
clined to design their tasks in ways that yield results consistent
with their initial beliefs. In light of what we know about motivat-
ed reasoning and confirmation bias, therefore, it is plausible that
judges often consult the formal law after having tentatively decid-
ed how the case, all or many things other than the law considered,
ought to come out. The judges would then select or interpret the
formal law to support outcomes reached on other grounds, as the
Realists contend, rather than using the formal law to produce
those outcomes in the first place, as the traditional view of legal
reasoning maintains”). Chief Justice Durrant correctly notes a
concern for this type of error (or perhaps for its cousin—
motivated reasoning). See supra ¶ 37 n.8. But such error is at least
as likely to occur when a judge is assessing competing dictionary
definitions or examples from memory as when considering exam-
ples of language from a corpus. And the point of the latter is to
(continued…)
30
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
nified in cases where our analytical methods are opaque. Our
human intuition of ordinary meaning, moreover, is fallible. As
linguists have noted, our analysis of word meaning and usage
“remains hidden from introspection,” and may thus too often be
mistaken.10
¶55 For these reasons we should be more transparent about our
means of resolving the difficult problems of interpretation that
come before us. When confronted with a contest between two
competing constructions that each find tenable support in our lex-
icon, we should openly acknowledge the ambiguity. And when
we resolve that ambiguity based purely on instinct or intuition,
we should be open about that.
¶56 I would do so here. Instead of embracing one accepted
sense of discharge of a firearm and ignoring the contrary under-
check the former. Adding one more set of data cannot do any-
thing but minimize the risk of bias.
10 See SUSAN HUNSTON, CORPORA IN APPLIED LINGUISTICS 20
(2002) (“Although a native speaker has experience of very much
more language than is contained in even the largest corpus, much
of that experience remains hidden from introspection.”); TONY
MCENERY & ANDREW WILSON, CORPUS LINGUISTICS 12–14 (2d ed.
2003) (“[H]uman beings have only the vaguest notion of the fre-
quency of a construct or a word. Natural observation of data
seems the only reliable source of evidence for such features as fre-
quency. . . . There are certain types of language data which can
only be gathered accurately from a corpus. . . . [Frequency infor-
mation] is not susceptible to recovery via introspection.”);
DOUGLAS BIBER, SUSAN CONRAD, & RANDI REPPEN, CORPUS
LINGUISTICS: INVESTIGATING LANGUAGE STRUCTURE AND USE 26
(1998) (“Finding patterns of use and analyzing contextual factors
can present difficult methodological challenges. Because we are
looking for typical patterns, analyses cannot rely on intuitions or
anecdotal evidence. In many cases, humans tend to notice unusual
occurrences more than typical occurrences, and therefore conclu-
sions based on intuition can be unreliable. Furthermore, we need
to analyze a large amount of language collected from many
speakers, to make sure that we are not basing conclusions on a
few speakers’ idiosyncrasies.”).
31
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
standing, I would acknowledge both. To the extent my intuition
tells me (as it does) that the single shot sense of discharge is the
more ordinary sense of discharging a firearm, moreover, I would
openly present that as the basis for our decision. I would also take
the matter a step further, however. I would also check my intui-
tion against publicly available means for assessing the ordinary
meaning of a statutory phrase. My proposed means for doing so
are outlined below.
II
¶57 In this age of information, we have ready access to means
for testing our resolution of linguistic ambiguity. Instead of just
relying on the limited capacities of the dictionary or our memory,
we can access large bodies of real-world language to see how par-
ticular words or phrases are actually used in written or spoken
English. Linguists have a name for this kind of analysis; it is
known as corpus linguistics.
¶58 The fancy Latin name makes this enterprise seem esoteric
and daunting. It is not. We all engage in it even if we don’t attach
the technical label to it. A corpus is a body, and corpus linguistics
analysis is no more than a study of language employing a body of
language.11 When we communicate using words we naturally ac-
cess a large corpus—the body of language we have been exposed
to during our lifetimes—to decode the groups of letters or sounds
we encounter. The most basic corpus linguistics analysis involves
our split-second effort to access the body of language in our heads
in our ongoing attempt to decode words or phrases we may be
uncertain of. We all do that repeatedly every day.
¶59 The first time we heard a skateboarder described as “so
sick,” we may have misperceived that description as negative—if
not an indication of illness, then at least a general notion of repel-
lence. OXFORD ENGLISH DICTIONARY online, “sick” (defintitions 1a
and 4a(d)). In time we learned to decode the above use of this
term in this context. We came to understand that “so sick” in this
context was not criticism but high praise. OXFORD ENGLISH
DICTIONARY online, “sick” (“slang (now esp. Skateboarding and
Surfing). Excellent, impressive; risky”). Our means of sensing that
11See TONY MCENERY & ANDREW HARDIE, CORPUS LINGUISTICS:
METHOD, THEORY AND PRACTICE 1–6 (2012).
32
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
meaning, moreover, was not a matter of looking the word up in
the dictionary (as the word sick itself can mean all of the above,
and this new meaning does not yet appear in most dictionaries). It
was a matter of accessing the body of language we have encoun-
tered to view the meaning of the word in its broader context—the
object of the adjective (skateboarder), the broader phrase (“so
sick”), and even the demographics of the speaker (millennial).
¶60 Judges have long employed similar methods of decoding
the language of the law. To resolve ambiguities in statutes, judges
access their memory of the use of uncertain terms in the context in
which they have heard them used.12 In so doing they are engaged
in corpus linguistics analysis. And no one bats an eye, because
this is a natural, accepted method for humans to resolve ambigui-
ties in language.
¶61 It is a small step to utilize a tool to aid our linguistic
memory. Judges do this with some frequency as well. Naturally. If
judges are entitled to consult the corpus of language in our heads
(and how could we not?), we must also be permitted to supple-
ment and check our memory against publicly available sources of
language.
¶62 A dictionary, in fact, is a corpus. Its material—definitions
of an extensive body of words—is compiled from broader linguis-
tic corpora.13 And some dictionaries include snippets of concord-
12 See, e.g., FCC v. AT&T, 562 U.S. 397, 403–404 (2011) (citing, in
deciding that the “personal privacy” exemption in the Freedom of
Information Act did not encompass corporate privacy, examples
of “personal” as an adjective limited to individuals—as in “per-
sonal expenses,” “personal life,” and “personal opinion”); Smith v.
United States, 508 U.S. 223, 242–43 (1993) (Scalia, J., dissenting) (cit-
ing, in asserting that a sentence enhancement for “use” of a fire-
arm in committing a crime should not extend to use as a bargain-
ing chip, examples of “use” of an object for its intended purpose—
as in the notion that the question whether someone “use[s] a
cane” is not aimed at asking whether they beat their children with
one).
13 See, e.g., SIDNEY I. LANDAU, DICTIONARIES: THE ART AND CRAFT
OF LEXICOGRAPHY 190 (2d ed. 2001). To the extent the majority and
(continued…)
33
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
ance lines from those corpora, as examples of instances in which a
particular sense of a word might be intended. Judges also use dic-
tionaries as a means of this kind of corpus analysis.
¶63 Judges have also looked to databases available in Westlaw
or Lexis, or more broadly through an internet search engine, to
help us recall how particular words or phrases are commonly
used in written or spoken English. We have done so in opinions
for this court.14 The U.S. Supreme Court has also taken this ap-
Chief Justice Durrant’s concurrence rely on dictionaries, they are
relying on the corpus analysis of others, as dictionaries are com-
piled through corpus analysis, and cite corpus examples to give
readers an idea of usage. See “Illustrative Examples” in Guide to
the Dictionary, in THE AMERICAN HERITAGE DICTIONARY XXV (5th
ed. 2011) (“In this dictionary there are tens of thousands of illus-
trative examples that follow the definitions and show the entry
word in typical contexts. . . . The examples are taken from our files
of electronic and printed citations showing patterns of word usage
by a broad group of educated speakers in a wide array of publica-
tions”). Thus, it may be that the shoot notion of discharge “applies
specifically to firearms while the [empty notion] encompasses the
more general concept of unloading cargo or emptying a contain-
er.” Supra ¶ 36. But this conclusion is based on corpus linguistic
analysis presented in the cited dictionary. THE AMERICAN
HERITAGE DICTIONARY cited by the Chief Justice does not limit the
empty notion of discharge to a container or “ship.” It just gives an
example of a real-world use of language in which this sense of the
word is used—in a sentence speaking of the discharge of a ship.
That is corpus analysis.
14 See State v. Canton, 2013 UT 44, ¶ 27 & n.6, 308 P.3d 517 (inter-
preting the phrase “out of the state” in Utah Code § 76-1-304(1)
based on an analysis of the use of that phrase in newspaper arti-
cles compiled through a Google News search); Carranza v. United
States, 2011 UT 80, ¶ 24, 267 P.3d 912 (plurality opinion of Lee, J.,
joined by Durrant, J.) (interpreting “minor child” in Utah Code
section 78-11-6 to include a fetus based, in part, on the fact that
“the term ‘child’ is used extensively in the popular press to refer
to the unborn”); id. ¶ 35 (dissenting opinion of Nehring, J.) (assert-
ing the need for “caution against overreliance on dictionaries”
(continued…)
34
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
proach.15 And judges have long analyzed the meaning of legal
words and phrases by seeing how other courts have used them.16
That too is corpus analysis.
¶64 I would employ this sort of tool in resolving this case. In
part II.A. below, I present the results of a Google News search.
The results of that search demonstrate that the verb discharge as
used in conjunction with a firearm is almost always used in the
sense of a single shot (and not the emptying of all of the bullets
available in the magazine).
¶65 I would also take this analysis a step further, however. For
reasons described below, there are reasons to look beyond Google
News to consult an additional tool for understanding the notion
of discharge of a weapon as that phrase is commonly used in writ-
ten or spoken English. In part II.B., I present a parallel analysis
employing an online tool for analyzing a large online collection of
written and spoken English—the Corpus of Contemporary Amer-
ican English (COCA), available at corpus.byu.edu/coca. The
search results from this analysis confirm this same understanding
and asserting that “since 1851, the term ‘minor child’ has ap-
peared in the pages of the [New York] Times 2,866 times without
ever referring to a fetus”).
15 See, e.g., Muscarello v. United States, 524 U.S. 125, 129 (1998)
(opinion of the court per Breyer, J.) (interpreting federal sentenc-
ing enhancement for one who “carries a firearm” in relation to a
drug trafficking crime, 18 U.S.C. §924(c)(1), in light of results of an
online search of “computerized newspaper databases,” which in-
cluded “thousands of … sentences” using the phrase to “convey
the meaning at issue here, i.e., the carrying of guns in a car”).
16 See, e.g., Moskal v. United States, 498 U.S. 103, 114–117 (inter-
preting phrase “falsely made” in 18 U.S.C. § 2314 by reference to
the use of this phrase in common-law decisions); Morissette v.
United States, 342 U.S. 246, 263 (1952) (“[W]here Congress borrows
terms of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each borrowed word in
the body of learning from which it was taken and the meaning its
use will convey to the judicial mind unless otherwise instruct-
ed.”).
35
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
of discharge of a weapon, but with greater transparency and relia-
bility.
A
¶66 A natural place to go for access to a large body of linguistic
data is the internet. Most all of us (even judges) are familiar with
this source of data, and with the search tools for accessing it. And
thoughtful analysis using the results of a common search engine
can generate data we may use as an empirical check on our (im-
perfect) linguistic intuition.17
¶67 Judges on this court and elsewhere have begun to access
this resource as we tackle problems of lexical ambiguity. Over the
past few years, members of this court have authored several sepa-
rate opinions presenting internet search results in support of our
construction of ambiguous statutory text.18 More recently, in State
v. Canton, 2013 UT 44, 308 P.3d 517, we employed such an ap-
proach in an opinion of the court. Our unanimous Canton opinion
resolved an ambiguity in a tolling provision for our criminal stat-
utes of limitations, Utah Code section 76-1-304(1). The critical
statutory phrase tolls the statute of limitations during any period
in which the defendant is “out of the state.” And we resolved a
critical ambiguity in that phrase—as to whether it referred to
physical absence beyond a state’s boundaries, or mere unavaila-
bility for legal process—by use of a Google News search.
17 See THE ROUTLEDGE HANDBOOK OF CORPUS LINGUISTICS 6
(Anne O’Keeffe and Michael McCarthy, eds., 2010) (touting the
“potential of the entire world-wide web as a corpus, with its tril-
lions of words, a veritable treasure trove of linguistic phenomena
accessible at the click of a mouse”).
18 See Carranza, 2011 UT 80, ¶ 24 (interpreting “minor child” in
Utah Code section 78-11-6 to include a fetus based, in part, on the
fact that “the term ‘child’ is used extensively in the popular press
to refer to the unborn”); id. ¶ 35 (dissenting opinion of Nehring, J.)
(asserting the need for “caution against overreliance on dictionar-
ies” and asserting that “since 1851, the term ‘minor child’ has ap-
peared in the pages of the [New York] Times 2,866 times without
ever referring to a fetus”).
36
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶68 In Canton we concluded that “[d]ictionaries [we]re . . . in-
sufficient by themselves to resolve the interpretive task before
us.” Id. ¶ 20. And we therefore indicated a need to “look else-
where to determine the ordinary meaning of the language of the
tolling statute.” Id. The “elsewhere” was a Google News search,
which we employed to assess the “way the full phrase [‘out of the
state’] is typically used in common parlance.” Id. ¶ 26. The results
of that search confirmed that “[w]hen the phrase ‘out of the state’
is used in its full context, it refers to the physical territory of a
state, not its political power or influence.” Id. ¶ 27.
¶69 We described the search and its results as follows:
This conclusion is based on results of a Google News
search, http://news.google.com, considering 150 instances
in which the phrase “out of the state” was used in news
stories published in May 2013—27 of which involved refer-
ences to the relationship between a person and the state.
Not one of those 27 relevant references use “out of the
state” in a manner involving absence of a person from the
legal authority or influence of a state. Every single one of
them makes unequivocal reference to the physical confines
of a state.
Id. ¶ 27 n.6. On the basis of these search results, we concluded that
“although Canton’s construction” of the Utah tolling provision
was “semantically plausible based on dictionary definitions of
‘out of’ and ‘the state,’ it cannot be reconciled with the uniform
understanding of the extended statutory phrase ‘out of the state.’”
Id. ¶ 27. Because “[t]hat phrase is not used in the way that Canton
construes it,” we rejected it as incompatible with the ordinary
meaning of the statutory text. Id.
¶70 I would follow the Canton model in this case. Because both
sides are able to marshal dictionary definitions in support of their
view of discharge, we must reach beyond the dictionary to resolve
this case. And, as in Canton, a Google News search confirms the
conclusion that the majority adopts but cannot justify on the basis
of the dictionary, or etymology, or mere intuition.
¶71 Google is a widely used, well-known search engine. As
most people know, this search engine can do more than search the
world-wide web. It may also be employed to search an extensive
body of published newspaper articles.
37
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶72 Such a corpus is a reliable resource for assessing the ordi-
nary meaning of a statutory term. Published newspaper articles
are a useful body of natural language due to their size.19 The
Google News corpus, moreover, is both well-understood by the
public (including judges and lawyers) and easily adapted for
analysis (in that a search may be time-delimited and the search
results may be reviewed in a systematic, transparent way). Unlike
a dictionary, moreover, a Google search allows for analysis of
phrases—or key words in a particular context—and not just indi-
vidual words.
¶73 A Google News search confirms the single shot sense of
discharge when that term is used in connection with a firearm. On
a search conducted on June 4, 2015, the phrase “discharge a fire-
arm” generated 43 hits for newspaper articles published between
March 1 and June 4, 2015. Fifteen of those hits were inconclusive
in terms of the intended sense of “discharge.” I omitted those hits
from my analysis. Of the remaining 28 articles, none of them
clearly support Rasabout’s notion of discharge involving emptying
all bullets in a gun’s magazine.20 And 27 clearly employ the single
shot sense of the term.
19 See THE ROUTLEDGE HANDBOOK OF CORPUS LINGUISTICS, supra,
31-32 (explaining the importance of size in assembling a reliable
corpus, noting that “for most questions that are pursued by cor-
pus researchers, the question of size is resolved by two factors:
representativeness (have I collected enough texts (words) to accu-
rately represent the type of language under investigation?) and
practicality (time constraints)”).
20 I found one article that vaguely supports Rasabout’s view. See
Colorado Man Ends Battle with Computer by Shooting it 8 Times, NBC
News (April 21, 2015), http://www.nbcnews.com/news/us-
news/colorado-man-ends-battle-computer-shooting-it-8-times-
n345841. This article recounts the story of a “Colorado Springs
man” who “was hit with a municipal violation after he ended a
long-running battle with an uncooperative computer by blasting it
eight times with a handgun.” And it notes that the man “was giv-
en a violation for discharging a weapon inside city limits.” This
vaguely suggests a sense of discharge as encompassing the eight
shots from a handgun. But only very vaguely. In context, it is not
(continued…)
38
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶74 The 27 relevant hits linked to articles cited below.21 Each of
them conclusively indicates that when we speak of discharging a
at all clear whether the referenced “violation” was one count or
eight. And in any event that question is a legal one—of the num-
ber of counts charged under the Colorado law, not the ordinary
sense of a statutory phrase.
21 The 27 articles supporting the single-shot notion of discharge
of a firearm are listed below, in the same order generated by my
Google news search:
1. http://www.mccookgazette.com/story/2193311.html
2. http://www.news-gazette.com/news/local/2015-05-
18/10-year-review-shots-fired-few-and-far-between.html
3. http://www.wpxi.com/news/news/local/2-charged-
shooting-showered-6-year-old-glass/nmCNS/
4. http://www.smh.com.au/nsw/police-shoot-a-
knifewielding-gosford-man-20150418-1mnsnt.html
5. http://www.officer.com/article/12070687/citizens-guide-
to-armed-defense-book-review
6. http://www.nbcmontana.com/news/missoula-police-
investigate-shooting-death-of-dog/33216176
7. http://fox5sandiego.com/2015/04/15/bill-would-impose-
stricter-penalties-for-making-school-threats/
8. http://www.newsweek.com/man-shot-fbi-boston-could-
have-ties-isis-338334
9. http://www.dailycamera.com/boulder-county-
news/ci_28248557/officials-elk-shot-illegally-rocky-
mountain-national-park
10. http://www.coloradoan.com/story/sports/outdoors/201
5/06/04/elk-shot-rocky-mountain-national-
park/28456193/
11. http://www.adn.com/article/20150501/east-anchorage-
swat-standoff-suspect-charged
12. http://elkodaily.com/news/police-arrest-felon-for-
firearm-possession/article_8e8341b6-65f9-5542-8ede-
8f559de77ecf.html
13. http://www.tuscaloosanews.com/article/20150530/news
/150539979
(continued…)
39
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
firearm, we are talking about a single shot, and not a complete
emptying of a gun’s magazine. In nine of the articles it is clear
from the context that only one shot was fired. In two, each dis-
charge is described as a separate event. In ten others, the term dis-
14. http://www.wlky.com/news/police-investigate-
officerinvolved-shooting-at-i265-and-brownsboro-
rd/32355560
15. http://www.wacotrib.com/news/environment/missing-
killed-pets-prompt-concern-from-waco-residents-about-
coyotes/article_7fb2a4df-017b-5e63-88b0-
15af2496f7b5.html
16. http://postonpolitics.blog.palmbeachpost.com/2015/04/2
3/state-republican-lawmakers-approve-of-provision-to-
outlaw-back-yard-firing-ranges/
17. http://www.spokesman.com/stories/2015/apr/26/no-
shootings-at-hospitals/
18. http://www.azcentral.com/story/claythompson/2015/04
/20/birds-pests-pigeons-guns/26085253/
19. http://www.azcentral.com/story/claythompson/2015/04
/16/pigeons-pests-control-birds-prevention/25905255/
20. http://www.mississauga.com/news-story/5575267-video-
police-respond-to-criticism-over-spate-of-cop-shootings-in-
peel/
21. http://tbo.com/news/florida/florida-could-soon-place-
limits-on-drone-use-20150428/
22. http://www.therecord.com/news-story/5638717-siu-
evidence-gathering-complete-in-guelph-general-hospital-
shooting/
23. http://www.coastreporter.net/news/local-news/council-
kills-goose-shooting-in-sechelt-1.1812362
24. http://news.stv.tv/west-central/1320084-man-shot-and-
mowed-down-by-mitsubishi-4x4-in-targeted-hit-is-named/
25. http://www.cknw.com/2015/04/09/71448/
26. http://www.magnoliareporter.com/news_and_business/l
ocal_news/article_42d4f490-df3e-11e4-8bd9-
9342377a4a21.html
27. http://www.inquisitr.com/2022402/ian-gibson-trampled-
while-hunting-elephant-hunters-death-cheered-by-
conservationists/
40
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
charge is used in close connection with the terms shoot, fire or simi-
lar words describing a single firing of a gun. And in the remaining
six, the use of discharge simply doesn’t make sense grammatically
if read as a reference to multiple shots.
¶75 I would employ the above corpus analysis to sustain the
conclusion that each single shot is a separate discharge of a weapon
under Utah Code section 76-10-508(1)(a). That is the conclusion
suggested by my linguistic intuition. But, more transparently, it is
also confirmed by an analysis of the use of natural language in
current newspaper articles.
B
¶76 Most any analysis of public sources of real-world language,
in my view, is better than a judge’s take-my-word-for-it assertion
of ordinariness. But not all searches are created equal. A Google
News search bears some of the key hallmarks of reliable analysis.
It is certainly more transparent and easier to replicate than a
judge’s intuition.
¶77 Yet a Google News search is hardly unimpeachable.22 The
Google algorithm is proprietary and thus not fully transparent. So
we cannot tell exactly what factors affect the results of any given
search on Google News.23 Another concern goes to the replicabil-
ity of a given search. My search terms and results are memorial-
ized in the above footnotes. But because the Google algorithm is
hidden, and the results of any given search may be affected by
factors unknown to (or particularized for) an individual user,
22 See Adam Kilgarriff, Googleology Is Bad Science, 33
COMPUTATIONAL LINGUISTICS 147 (2007) (touting the benefits of
using the web “as a data source” for corpus analysis, but discuss-
ing the limitations of Google as a corpus search engine).
23 See id. at 148 (noting that Google “hits are sorted according to
a complex and unknown algorithm (with full listings of all results
usually not permitted) so we do not know what biases are being
introduced,” such that “[i]f we wish to investigate the biases, the
area we become expert in is googleology not linguistics”).
41
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
there is no guarantee that the same search performed at another
time on another computer will generate identical results.24
¶78 These problems will be heightened—and others added to
them—in a broader Google search of the world-wide web (as op-
posed to the Google News database). A search for relative hit
counts is especially problematic. Consider the Seventh Circuit’s
analysis in United States v. Costello, 666 F.3d 1040, 1044 (7th Cir.
2012). In Costello the court was faced with the question of the
scope of the crime of “habor[ing]” an illegal alien under 8 U.S.C. §
1324(a)(1)(A)(iii) (2012). Judge Posner, writing for the court, con-
ducted a Google search to try to resolve an ambiguity—of wheth-
er the statute used harbor in the sense of “to give shelter or refuge
to” (see WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, sense
1a(1)) or “to receive clandestinely and conceal” (id., sense 1a(2)).
To Judge Posner’s credit, the Costello opinion acknowledged the
limits of dictionaries. It noted that “[d]ictionary definitions are . . .
contextual, whereas the meaning of sentences depends critically
on context, including all sorts of background understandings.”
666 F.3d at 1042. And the court’s instincts were generally in line
with the tools and methods that I propose. Instead of purporting
to resolve the lexical ambiguity by resort to a dictionary, Judge
Posner sought to do so by means of a corpus analysis of the
world-wide-web—via a Google search.
¶79 Yet Judge Posner’s search highlights some deficiencies in
standard Google internet searches. His search, as described in the
Costello opinion, was as follows:
A Google Search . . . of several terms in which the word
“harboring” appears—a search based on the supposition
that the number of hits per term is a rough index of the fre-
quency of its use—reveals the following:
24 See id. (noting that search engines like Google “will give you
substantially different counts, even for repeats of the same query,”
while recounting an experiment in which “queries repeated the
following day gave counts over 10% different 9 times in 30, and a
factor of two different 6 times in 30,” while explaining that “que-
ries are sent to different computers, at different points in the up-
dated cycle, and with different data in their caches”).
42
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
“harboring fugitives”: 50,800 hits
“harboring enemies”: 4,730 hits
“harboring refugees”: 4,820 hits
“harboring victims”: 114 hits
“harboring flood victims”: 0 hits
“harboring victims of disasters”: 0 hits
“harboring victims of persecution”: 0 hits
“harboring guests”: 184 hits
“harboring friends”: 256 hits (but some involve harboring
Quakers—“Friends,” viewed in colonial New England as
dangerous heretics)
“harboring Quakers”: 3,870 hits
“harboring Jews”: 19,100 hits25
¶80 From these results, the Costello opinion concludes that “[i]t
is apparent . . . that ‘harboring,’ as the word is actually used, has a
connotation—which ‘sheltering,’ and a fortiori ‘giving a person a
place to stay’—does not, of deliberately safeguarding members of
a specified group from the authorities, whether through conceal-
ment, movement to a safe location, or physical protection.”26 And
on that basis the court reversed the conviction under review, con-
cluding that there was no evidence to support the conclusion that
Costello had “harbored” her boyfriend, an illegal alien, in the
sense of seeking to conceal him from the authorities.
¶81 The Costello opinion is a step in the right direction. But it al-
so highlights some deficiencies of Google web searches as a basis
for assessing ordinary meaning. The Costello analysis is vulnerable
for reasons noted above—that hit counts are unreliable because
the Google algorithm is unknown, as underscored by the fact that
different searches at different times on different computers may
reveal very different results.27
25 Costello, 666 F.3d at 1044.
26 Id.
27 See supra ¶ 77 n.24.
43
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶82 But the Costello approach is also vulnerable to other attacks.
One is that Judge Posner’s choice of search terms seems arbitrary.
To assess the ordinary meaning of harbor, he searches only the
present participle form of the verb (harboring). And he chooses ob-
jects of the verb (fugitives, enemies, refugees, flood victims, victims of
disasters, victims of persecution, guests, friends, Quakers, and Jews) on
grounds that are not stated. (Curiously, the statutory object—
alien—is not included.)
¶83 These search terms are understandable. But they are
somewhat arbitrary (presumably based on Posner’s linguistic in-
tuition), and could easily skew the results. The use of intuition is,
again, understandable. But if the goal of this type of analysis is to
check the judge’s intuition, this move undermines a key benefit of
the approach.
¶84 These problems can be addressed by means of a more
transparent, reliable search tool. The tool that I would employ is
one developed by a renowned corpus linguist, Professor Mark
Davies. This corpus is known as the Corpus of Contemporary
American Usage (COCA). See Mark Davies, The Corpus of Contem-
porary American English: 410+ million words, 1990-present,
http://corpus.byu.edu/coca (2008-). COCA is “the largest freely-
available corpus of English, and the only large and balanced cor-
pus of American English. . . . The corpus contains more than 410
million words of text and is equally divided among spoken, fic-
tion, popular magazines, newspapers, and academic texts.” Id.
¶85 Like Google or Westlaw, the COCA search engine is easy to
use. But unlike Google, and to a lesser extent Westlaw, COCA is
also completely transparent, and it generates search results that
are easily replicable. COCA, moreover, avoids the shortcomings
of a Google web search as noted above, and illustrated in the Cos-
tello opinion. With the COCA search engine, there is no need for a
user to think up her own objects of the verb harbor. COCA allows
the user to generate a list of the most common words used near
harbor. Significantly, moreover, the user can search only for the
verb forms of harbor.28 So the COCA user can generate the most
28 This is because the COCA is a lemmatized corpus, meaning that
its words are coded for the type of speech they represent (noun,
verb, adjective, etc.).
44
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
common nouns near harbor as a verb, instead of guessing at what
they might be. That list of collocates (essentially, “word neigh-
bors”) in itself will give some insight into the ordinary meaning of
harbor.
¶86 COCA also allows the user to do more than get a simple
“hit count.” A COCA search yields a display of each use of harbor,
exactly like Google or Westlaw, in the context of each of its most
common word neighbors. By examining each instance of harbor
with its common word neighbors, we can assess the frequency of
each of the attested meanings of the verb.
¶87 COCA also facilitates transparency and replicability. A
search performed on the COCA site can be saved and linked for
future reference, allowing a party, counsel, or interested commen-
tator to review the search results and assess the court’s analysis.
¶88 I would accordingly utilize a COCA search to analyze the
meaning of discharge of a firearm. My search29 identified 86 in-
stances30 of the verb discharge within five words of the nouns fire-
arm, firearms, gun, and weapon. By examining the instances of dis-
charge in connection with these nearby nouns, I confirmed that the
single shot sense of this verb is overwhelmingly the ordinary
sense of the term in this context.
¶89 Twelve of the 81 hits in the COCA search clearly linked dis-
charge to a single bullet. In 16 other hits, the discharge was acci-
dental. I deemed those hits as also consistent with the single shot
sense of discharge, as it seems highly unlikely if not impossible that
an accidental trigger-pull could result in a release of all of the bul-
lets in a gun’s magazine. Fifteen other hits were a bit more am-
biguous; but on closer examination, the discharge in question
seemed to imply a single shot (based on the nature of the weapon,
the circumstance of the discharge, or description of the resulting
damage).
29 The COCA interface allows you to save your searches—a fea-
ture that enhances transparency and replicability. My search is
saved at http://corpus.byu.edu/coca/?c=coca&q=34104740.
30 The original list included 86 hits, but 5 were discarded as du-
plicates.
45
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶90 In 36 other instances I concluded that there was insufficient
detail to indicate whether the discharge at issue had reference to a
single shot or to the emptying of a magazine. One additional hit
was rejected as irrelevant (involving a patient being discharged
from a hospital, which happened to occur within five words of the
word gun).
¶91 In all, I found only one instance of discharge of a weapon
that seemed consistent with the firing of multiple shots. Based on
the context of this usage, it seemed likely that the discharge in
question referred to a stream or burst of bullets instead of a single
shot.
¶92 This COCA search accordingly confirms our linguistic intu-
ition and is consistent with the Google News analysis above. It
indicates that discharge of a weapon is used overwhelmingly in the
single shot sense. Of 81 hits, (44 that were conclusive and rele-
vant) only one seems consistent with Rasabout’s notion of a burst
of bullets (and even then, there is no basis for concluding that the
burst involved emptying the entire contents of a gun’s magazine).
Thus, almost every conclusive instance of discharge of a weapon
involves a single shot.
¶93 This provides strong confirmation of the basis of our hold-
ing in this case. And it does so on the basis of a transparent data-
base that is publicly available, created by linguists, and subject to
replication by anyone seeking to confirm (or reject) my analysis.
III
¶94 Novel tools for tackling old problems naturally prompt
skepticism. That reaction is all the more predictable when the new
tool implicates unfamiliar technology.
¶95 For decades lawyers used paper digests and other hard-
copy compilations to find judicial opinions to support their argu-
ments. When computer-searchable databases of opinions were
first introduced, some were dubious. For years some even pre-
dicted that computer-based research would undermine the law-
yer’s craft.31 Not many of us think that way now. The addition of
31 See, e.g., Barbara Bintliff, From Creativity to Computerese: Think-
ing Like a Lawyer in the Computer Age, 88 LAW. LIBR. J. 338, 339
(continued…)
46
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
the tool of computer-based research is widely viewed as an en-
hancement, particularly when used in combination with other,
traditional methods.
¶96 The point is not that corpus linguistic analysis is the next
Westlaw or Lexis. Its utility is obviously more narrow. But the
analogy is apt in that the tool I’m proposing would not replace
but add to existing methods, and it would do so in a manner that
takes advantage of technology available to us in the computer age.
¶97 That said, I accept many of the points raised by Chief Jus-
tice Durrant in his concurrence. I too see a need to proceed with
caution, supra ¶ 39, and to “weigh the potential usefulness” of
corpus analysis “against its potential cost.” Supra ¶ 38. And I cer-
tainly agree that this analysis “would be best employed by us, or
by other judges, . . . after the parties have raised it and argued it.”
Supra ¶ 37. That is true for anything we do. We depend on the ad-
versary process. Our opinions are better when adversary briefing
is complete and in-depth.
¶98 Yet I do not see these as barriers for employing corpus
analysis in this case. The parties have squarely presented the issue
of the meaning of discharge of a weapon for our resolution, and
they have given their best shot at offering linguistic analysis (us-
ing dictionaries and the lawyers’ own linguistic intuition) on that
issue. To some extent all members of the court have gone beyond
the parties’ briefing in deciding that issue. It is no affront to the
adversary system for us to do that, as it is not just inevitable but
entirely appropriate. (No one thinks that a careful judge should
(1996) (warning that computer-aided legal research will under-
mine the ability to think like a lawyer); Molly Warner Lien, Tech-
nocentrism and the Soul of the Common Law Lawyer, 48 AM. U. L. REV.
85, 85-86 (1998) (arguing that computer-aided legal research “may
be harmful to the process of legal reasoning” and that lawyers
should be aware of the “negative impacts” of using technology in
this way); Robert C. Berring, Legal Research and the World of Thinka-
ble Thoughts, 2 J. APP. PRAC. & PROCESS 305, 316 (2000) (declaring
that it “scares” the author “[i]f search engines like Google move
into legal information”); Scott P. Stolley, Shortcomings of Technolo-
gy: The Corruption of Legal Research, ABA’S APP. ADVOC. COMMITTEE
NEWSL. 39 (April 2004) (the title says it all).
47
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
suspend independent analysis.) And it adds mostly transparency
to extend our discussion to encompass the corpus analysis set
forth in my opinion.32
¶99 I concede that the Google News and COCA tools that I
have employed will be unfamiliar to many. But it is not the case
that my “rationale” is “different in kind from any argument made
by the parties,” or even from analysis presented by my colleagues.
Supra ¶ 17. Every member of this court is addressing the same is-
sue,33 and we all are engaged in the same basic analysis—of seek-
ing the ordinary sense of discharge when that term is used in con-
nection with a firearm. We can do that using our intuition and the
corpus-based information compiled in a dictionary (as my col-
leagues do), or we can extend the analysis (as I have) to look at
examples of real-world language compiled by a Google News or
COCA search. Neither approach is “subject to scientific review.”
Supra ¶ 16. And neither yields to Mr. Rasabout “a reasonable op-
portunity to present a different perspective,” supra ¶ 17, if by that
we mean the chance to engage with us at the opinion-writing
stage to respond to our arguments.
¶100 Parties never have that opportunity, however. And they
have no more opportunity to do that with regard to the majority’s
approach than with mine. The majority’s insistence that discharge
means shoot in this context is based on the majority judges’ lin-
guistic intuition—informed, no doubt, by the body of language
that they have encountered during their lifetime. Certainly that
32 There is a bit of a chicken-and-egg problem in the complaint
about a lack of briefing. Until judges convey openness to analysis
using a corpus like COCA, lawyers will not present it. My opinion
is aimed at opening the door to better briefing.
33 Certainly it’s true that “‘we would be ill-advised to reach a
decision regarding unsettled law without the benefit of adversari-
al briefing.’” Supra ¶ 17 n.30 (quoting St. Jeor v. Kerr Corp., 2015
UT 49, ¶ 14, __ P.3d __). But no one is reaching out to resolve an
additional question of law in this case, or an unpreserved issue.
48
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
analysis is not “subject to scientific review,” much less to
pushback from Mr. Rasabout.34
¶101 The majority’s remaining concerns are a bit more sub-
stantial, or at least deserving of a more fulsome response. In the
paragraphs below, I respond to the court’s charges (a) that corpus
analysis is a “scientific field of study” that is the domain of an ex-
pert witness and not a generalist judge, supra ¶¶ 18–19; (b) that
judges lack the expertise necessary to conduct reliable corpus
analysis, supra ¶¶ 19–21; (c) that the introduction of corpus analy-
sis will “place an unbearable burden” on the judicial system by
requiring “dueling linguistics experts” “in every case,” supra ¶ 19;
(d) that my approach ignores corpus analysis of “the text of the
Utah Code,” supra ¶ 21, and suggests that “ordinary meaning is
the exclusive tool available to us in our effort to effectuate legisla-
tive intent,” supra ¶ 10 n.16; and (e) that my corpus analysis is
problematic in that it discards a certain number of hits “as having
‘insufficient detail’” to be conclusive, supra ¶ 21.
A
¶102 The legal or ethical propriety of “sua sponte” corpus
analysis by a judge is a valid question. See supra ¶ 17. On a range
of scientific matters, we think of research or analysis as the do-
main of experts. And we rightly eschew a judge’s independent
attempts at his own scientific “findings.” Supra ¶ 20. Such analy-
sis, in fact, would be a breach of judicial ethics.
¶103 In Utah, our Code of Judicial Conduct provides that “[a]
judge shall not investigate facts in a matter independently, and
shall consider only the evidence presented and any facts that may
34 If the concern is for a chance for the parties to challenge our
analysis, my approach is less troubling. The main way that parties
raise concerns with our opinions is through petitions for rehearing.
A judge who presents a transparent corpus analysis opens the
curtain in a manner allowing the parties to review and analyze his
approach, and even challenge it on a petition for rehearing. No
such response is available under the majority’s approach. A take-
my-word-for-it assertion of linguistic intuition is as unscientific
and opaque as it gets. No party can challenge that kind of deci-
sion—on a petition for rehearing or otherwise.
49
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
properly be judicially noticed.” UTAH R. J. ADMIN. CODE Canon 2,
Rule 2.9(C). So the majority would be right to reject my corpus
analysis if it were a matter of independent factual investigation.
That is usually what is involved in the “scientific field[s] of study”
cited by the court. Supra ¶ 18. And on such questions, it would
undoubtedly be improper for us to “conduct scientific research”
or to “contrive of interesting research projects that require exper-
tise in fields in which we have no training.” Supra ¶ 18.
¶104 But that is not at all what I am engaged in. Independent
investigation is foreclosed only as to “facts,” not law. That is sig-
nificant. Judicial analysis of the meaning of language, using cor-
pus analysis or anything else, is aimed at interpreting the law.
That is the judge’s role. In performing the core function of decid-
ing what the law is or should be, we cannot properly be restricted
from consulting sources that inform our understanding.35
¶105 The operative rule makes that abundantly clear. It opens
the door to the consideration of “facts that may properly be judi-
cially noticed.” UTAH R. J. ADMIN. CODE Canon 2, Rule 2.9(C). To
the extent the analysis presented above encompasses “facts” (e.g.,
as to the way the verb discharge is typically used in our language
in connection with the noun firearm or its synonyms), moreover,
35 The majority claims that “[w]e regularly refuse to conduct le-
gal research, a field in which we are experts.” Supra ¶ 18. By that I
assume the court means only that we rely on adversary briefing
on legal issues, and do not take it upon ourselves to construct le-
gal arguments not presented by the parties. Fair enough. But that
only underscores the need to stay focused on the legal issues pre-
sented by the parties. And here the question of the meaning of the
unlawful discharge statute is undoubtedly and squarely raised.
On issues that are squarely presented, moreover, we regularly
do take it upon ourselves to conduct independent legal re-
search. No party would be surprised to read an opinion citing au-
thority not presented in the briefs, or analysis taking a somewhat
different angle than the parties. Our legal research is supposed to
be sua sponte, and not at all limited to the legal material cited to us
by the parties. Linguistic analysis is purely legal—aimed at un-
derstanding the terms of the law. So there is no bar on it being in-
dependent.
50
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
our law makes clear that we are free to consider them as a matter
of judicial notice. Otherwise my colleagues’ opinions also cross
the line, as they also consider evidence not presented in the briefs
regarding the ordinary meaning of discharge. A judge’s judicial
notice power is addressed by rule 201 of our rules of evidence.
That rule indicates that the limitations in the rule are addressed to
“an adjudicative fact only, not a legislative fact.” UTAH R. EVID.
201(a). And the advisory committee note explains the distinction.
It says that “[s]ince legislative facts are matters that go to the poli-
cy of a rule of law as distinct from the true facts that are used in
the adjudication of a controversy they are not appropriate for a
rule of evidence and best left to the law-making considerations by
appellate and trial courts.” UTAH R. EVID. 201 advisory commit-
tee’s note. Thus, this type of analysis is an appropriate method of
judicial analysis because it goes to “the policy of a rule of law as
distinct from the true facts that are used in the adjudication of a
controversy.”36 Id.
¶106 On reflection, moreover, this must be correct. A contrary
conclusion would call into question a wide range of opinions of
this court and many others. If we were foreclosed from consider-
ing outside material that informs our resolution of open questions
36 To  the  extent  courts  and  commentators  have  addressed  this
question, they  appear to  universally accept  the  propriety  of judi‐
cial  consideration  of  “legislative  facts”—of  outside  investigation
of matters of relevance to the resolution of an open legal question.
See  Bulova  Watch  Co.  v.  K.  Hattori  &  Co.,  508  F.  Supp.  1322,  1328
(E.D. N.Y. 1981) (asserting that “whether we explore the econom‐
ic,  political,  or  social  settings  to  which  the  law  must  be  applied
explicitly,  or  suppress  our  assumptions  by  failing  to  take  note  of
them, we cannot apply the law in a way that has any hope of mak‐
ing  sense  unless  we  attempt  to  visualize  the  actual  world  with
which  it  interacts,”  and  that  the  “courtʹs  power  to  resort  to  less
well known and accepted sources of data to fill in the gaps of its
knowledge  for  legislative  and  general  evidential  hypothesis  pur‐
poses must be accepted because it is essential to the judicial pro‐
cess”); see also ROBERT E. KEETON, JUDGING 38‐39 (1990) (discussing
distinction between legislative and adjudicative facts).
51
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
of law, we would be barred from engaging in historical analysis
relevant to a question of original meaning of a provision of the
constitution, or from considering social science literature in re-
solving a difficult question under the common law. Linguistic
analysis is no different; to the extent we charge our judges with
resolving ambiguities in language, we cannot (and do not) reason-
ably restrict their ability to do so on a well-informed basis—even
on grounds not presented by the parties, and not within the do-
main of judges’ professional training. Such a restriction, after all,
would not just foreclose corpus analysis; it would also prevent us
from consulting a dictionary or our own experience with lan-
guage.
B
¶107 It is likewise fair to question our ability to perform corpus
analysis properly. Most judges are generalists. And few if any
have specialized training in corpus linguistics. So I concede the
point that judges will not bring to bear the kind of training pos-
sessed by “linguistics experts” retained by the parties. Supra ¶ 19.
¶108 But that, respectfully, is not the point. We judges are ex-
perts on one thing—interpreting the law. And the fact that that
enterprise may implicate disciplines or fields of study on which
we lack expertise is no reason to raise the white flag. It is reason to
summon all our faculties as best we can, and to overcome any
weaknesses we may possess. This is not a matter of dreaming up
“interesting research projects.” Supra ¶ 18. It is a matter of doing
our job—of doing all we can to understand and implement the
will of the legislature as expressed in the terms of its statutes, and
to convey our grounds for doing so in a written opinion.
¶109 That job isn’t always easy. It involves not just linguistic
analysis but also historical inquiry—e.g., in finding original mean-
ing. Few of us have training in historical research. It may even be
said that lawyers and judges “are for the most part extremely bad
historians,” and may “make up an imaginary history and use cu-
riously unhistorical methods.”37 Yet judges of all stripes engage in
historical analysis, particularly in their interpretation of the consti-
tution. So the response to our lack of historical training is not to
37 MAX RADIN, LAW AS LOGIC AND EXPERIENCE 138 (1940).
52
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
back away from the enterprise; it is to arm ourselves with the
tools necessary to do the best history we can.
¶110 We face a parallel problem when it comes to our analysis
of the meaning of language. When it comes to training or experi-
ence in methods of linguistic analysis, most of us lack specialized
training. So there is certainly a risk, to paraphrase Max Radin, of
judges using curiously unscientific linguistic methods.
¶111 But the proper response to this risk is not the abandon-
ment of the enterprise of linguistic analysis. That enterprise is an
integral element of judging. Judges cannot do their job without
assessing the ordinary meaning of words. So the question is not
whether to engage in linguistic analysis; it is whether to do so with
the aid of—instead of in open ignorance of or rebellion to—
modern tools developed to facilitate that analysis.
¶112 We could continue to judge the ordinary meaning of
words based on intuition, aided by the dictionary. But those tools
are problematic, for reasons explained above. And the impact of a
judge’s mere gut intuition is entirely opaque. So it is our current
methodology and tools that involve bad linguistics produced by
unscientific methods. If the concern is reliability, the proper re-
sponse is to embrace—and not abandon—corpus-based analysis.
¶113 To do so well, we judges must seek to understand this
field better. We are not experts. At least I am not; I do not possess
a complete understanding of the methodologies at our disposal.
But I am convinced that the approach employed above is essential
to a more reliable, transparent fulfillment of this judicial task.
¶114 Corpus analysis, in all events, is not rocket science. At
some level we all do it intuitively in our minds. It’s a small leap to
check our intuition against examples of real-world language re-
vealed by a Google- or COCA-based38 search of a body of written
English. We don’t need much expertise to do that well.39
38 I concede that the COCA database is less familiar, and may
seem daunting. But my use of it—and the principal use for which
it can be employed by lawyers and judges—is quite rudimentary.
I am simply using it as an online database or search engine to find
examples of language—as a parallel to a Google News or Lexis-
Nexis search. COCA is no harder to use, and the output is no
(continued…)
53
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶115 Corpus analysis is like math—at one level it’s something
basic that everyone does; at another level it’s something compli-
cated that only “experts” can do. The type of corpus analysis I am
doing—and advocating—is the former. I just think we should be
using a calculator instead of doing it in our heads.
¶116 As to historical analysis, Justice Antonin Scalia and his
co-author Bryan Garner have aptly repudiated the charge that
“‘no one can reconstruct original understanding precisely’” with a
powerful reminder of the judicial task: “Our charge is to try.”40
The same can be said of linguistic analysis. It may not be possible
to resolve questions of ordinary meaning with absolute certainty.
But we must try. And in so doing we must bring to bear the
methods and tools developed in the 21st Century to better under-
stand the meaning of language for this crucial element of judging.
C
¶117 I see no reason to expect that the introduction of corpus
analysis in judging ordinary meaning will require “dueling lin-
guistics experts” “in every . . . case” where both sides present
plausible dictionary definitions to support their position. Supra
more difficult to read or understand. It’s just better than other
search tools for reasons explained above.
Admittedly a linguist would get more out of COCA than I can.
But the mere fact that someone with greater training and expertise
can use a tool in a way that lay people cannot does not deny the
lay person of the ability to use it. Otherwise, cars would be used
only by stunt drivers, knives would be used only by chefs, and
smartphones would be used only by teenagers.
39 The “fact that a jurist of Judge Posner’s intellect and stature is
capable of . . . missteps” in corpus analysis, supra ¶ 37, is no rea-
son to back away from this enterprise. Judge Posner’s opinion is a
helpful step in the right direction. We judges learn from each oth-
er incrementally over time. Past missteps in this field are no rea-
son to stop trying to forge ahead.
40 ANTONIN SCALIA & BRYAN GARNER, READING THE LAW: THE
INTERPRETATION OF LEGAL TEXTS 400 (2012) (quoting KENT
GREENAWALT, LEGAL INTERPRETATION: PERSPECTIVES FROM OTHER
DISCIPLINES AND PRIVATE TEXTS 168 (2010)).
54
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
¶ 19. First, as noted, this isn’t rocket science. Just as lawyers in
constitutional litigation have learned to present historical analysis
of original meaning, counsel in statutory cases can compile
Google- or COCA-based examples of the use of statutory phrases
in real-world written English. To do this well, lawyers will have to
inform themselves a bit in basic linguistic methodology. But law-
yers are crafty and ingenious. They learn new methods and tools
all the time. I see no barrier to their presentation of helpful analy-
sis in this field.
¶118 Perhaps there will be an occasional case where linguistics
expertise could be useful, and where a party may wish to retain
an expert. But even if an expert were retained in every case in
which corpus analysis were determinative, we would hardly see
experts in “every . . . case” in which the parties proffer dueling
dictionary definitions. Again the majority misunderstands my ap-
proach. Corpus analysis is something of a last resort. It comes into
play only if we find that the legislature is not using words in some
specialized sense, and only if we cannot reject one of the parties’
definitions based on the structure or context of the statute. See su-
pra ¶¶ 43–44. Corpus analysis comes in, in other words, as some-
thing of a tie-breaker where we find no better way of resolving the
matter. In my five years on this court, I have employed such anal-
ysis only a very few times.41 In the many other statutory cases that
come before us, I have disposed of the matter using more tradi-
tional tools of interpretation.
¶119 The “unbearable burden” imagined by the majority, supra
¶ 19, is a strawman. Lawyers can easily learn to present corpus
analysis in the vast run of cases that implicate this approach, and
the need for experts will at most be very occasional.
D
41 See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 88-105, 266 P.3d
702 (Lee, J., concurring in part and concurring in the judgment);
State in re J.M.S., 2011 UT 75, ¶ 40 & n. 3, 280 P.3d 410; Carranza v.
United States, 2011 UT 80, ¶ 24, 267 P.3d 912 (opinion of Lee, J.,
joined by Durrant, J.); State v Canton, 2013 UT 44, ¶ 27 & n. 6, 308
P.3d 517 (unanimous majority opinion).
55
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶120 The majority’s next criticisms of my corpus analysis—that
it ignores consideration of “the text of the Utah Code,” supra ¶ 21,
and suggests that “ordinary meaning is the exclusive tool availa-
ble to us in our effort to effectuate legislative intent,” supra ¶ 10
n.16—are based on misconceptions. First, a corpus analysis of the
“text of the Utah Code” would make sense if we were thinking of
discharge of a firearm as a legal term of art. In that case I would
agree wholeheartedly with the notion of searching for uses of the
statutory language to “identify . . . idiosyncrasies” in the way this
term is used in the “rule of law in this state.” Supra ¶ 21. But no
one (certainly not the majority) has proffered the view that dis-
charge is a legal term of art subject to specialized meaning in the
law. Everyone agrees that this term is being used in its ordinary
sense. So the critique for the lack of this kind of analysis is puz-
zling.
¶121 Second, I am not at all seeking to limit the enterprise of
statutory interpretation to a search for “ordinary meaning” in all
cases. None of my (unanimous) opinions string-cited dismissively
by the majority “suggest that ordinary meaning is the exclusive
tool available to us in our effort to effectuate legislative intent.”
Supra ¶ 10 n.16 (citing, in reference to this criticism, Barneck v.
Utah Dep’t of Transp., 2015 UT 50, ¶ 28, __ P.3d __; State v. Bagnes,
2014 UT 4, ¶ 13, 322 P.3d 719; Hi-Country Prop. Rights Grp. v. Em-
mer, 2013 UT 33, ¶ 18, 304 P.3d 851; State v. Canton, 2013 UT 44, ¶¶
12-13, 308 P.3d 517; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9,
248 P.3d 465). All of these opinions are in line with the approach I
have outlined here—of asking first about specialized meaning,
looking next for structural or contextual grounds for eliminating
one of the parties’ definitions, and resorting to ordinary meaning
only at the end of the interpretive road. None proposed a search
for ordinary meaning as “the only consideration” in statutory in-
terpretation. See also supra ¶ 43 n.1.
¶122 I have no quarrel, of course, with the goal of “giv[ing] ef-
fect to the intent of the Legislature.” Supra ¶ 10. That is the aim of
any thoughtful jurist on a matter of statutory interpretation. And
it is the enterprise that we are all engaged in here.
¶123 Sometimes we speak of a difference in the theory or
methodology for getting there. There is a purported division—
sometimes acknowledged in judicial opinions, and more often in
law journals—between judges who approach matters of interpre-
56
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
tation from the standpoint of “purposivism” and those who see
their enterprise as a matter of “textualism.”42 But these “label[s]
tend[] toward caricature”;43 “textualism and purposivism . . .
share more conceptual common ground than” is “sometimes em-
phasized.”44 “[N]o ‘textualist’ favors isolating statutory language
from its surrounding context, and no critic of textualism believes
that statutory text is unimportant.”45 So the overlap is significant.
Both approaches look for legislative intent, both seek to find it in
the statutory text, and both acknowledge the relevance of context
in interpreting the text.
¶124 In my opinions on statutory interpretation, I tend to
speak of our role in interpreting the text of the statute, as that is
what was voted on and signed into law by the legislature and the
governor.46 This is a basic premise of textualism. But my approach
42 See John F. Manning, What Divides Textualists from Purposiv-
ists?, 106 COLUM. L. REV. 70 (2006); Caleb Nelson, What is Textual-
ism?, 91 VA. L. REV. 347 (2005).
43 Nelson, supra, 91 VA. L. REV. at 348.
44 Manning, supra, 106 COLUM. L. REV. at 75.
45 Nelson, supra, 91 VA. L. REV. at 348.
46 See, e.g., State v. Clark, 2011 UT 23, ¶ 17, 251 P.3d 829 (opinion
of Lee, J., for a unanimous court) (“Any suppositions about what
the legislature may have intended cannot properly override what
it actually did.”); Schroeder Invs., L.C. v. Edwards, 2013 UT 25, ¶ 25,
301 P.3d 994 (opinion of Lee, J., for a unanimous majority) (“Given
the enactment of the [] statute, we are no longer tasked with ad-
vancing public policy as we see it. We instead must implement the
particular balance of policies reflected in the terms of [the] statute.
Those terms are the law . . . .”); Graves v. North Eastern Services,
Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (Lee, J., opinion of the court)
(“The governing law is defined not by our abstract sense of legis-
lative purpose, but by the statutory text that survived the consti-
tutional process of bicameralism and presentment. We may re-
solve ambiguities in the text of the law by reference to reliable in-
dications of legislative understanding or intent (as in legislative
history). But the invocation of extra-statutory intent as a matter
overriding the statutory text gets things backwards. The statutory
(continued…)
57
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
to interpretation is founded on the notion of legislative supremacy
and is aimed at finding legislative intent. And it acknowledges the
need to consider context—and even a carefully informed sense of
legislative purpose—in resolving ambiguities in statutory lan-
guage.47 To a large extent this is just a flipside of modern pur-
posivism.48
¶125 I have long understood my colleagues on the court to
share this essential view of our role. We may occasionally use dif-
ferent labels to describe our aims, but it has always seemed to me
that we are engaged in the same essential function.49 Thus, I have
language is primary; legislative history is of secondary signifi-
cance.”).
47 See Manning, supra, 106 COLUM. L. REV. at 78 (explaining that
“textualists recognize that meaning can never be found exclusive-
ly within the enacted text,” and “that evidence of purpose . . . may
also form an appropriate ingredient of the context used to define
the text”).
48 See id. at 87 (explaining that modern purposivism concedes
that “the semantic meaning of the text casts . . . the most im-
portant light [] on the purposes to be attributed to the legisla-
ture”).
49 That is not to say that there are no differences between the
two approaches. The different starting premises lead to some nu-
anced differences in emphasis. Textualists tend to “give prece-
dence to semantic context—evidence that goes to the way a rea-
sonable person would use language under the circumstances.”
Manning, supra, 106 COLUM. L. REV. at 76. And purposivists tend
to “give priority to policy context—evidence that suggests the
way a reasonable person would address the mischief being reme-
died” by the legislation in question. Id. “[P]ractitioners of each
methodology will consider both forms of contextual evidence in
cases of ambiguity. But textualists give determinative weight to
clear semantic cues even when the conflict with evidence from the
policy context. Purposivists allow sufficiently pressing policy cues
to overcome such semantic evidence.” Id.; see also Nelson, supra, 91
VA. L. REV. at 349 (explaining that purposivists tend to be more
accepting of “open-ended” sources for finding intent, while textu-
(continued…)
58
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
not viewed our court’s opinions as embracing “old-school” pur-
posivism—of a prerogative of “adjust[ing] the enacted text to cap-
ture what [the legislature] would have intended” if it had thought
about the issue before the court more carefully.50 My colleagues’
purposivism, as I understand it, is one that looks to statutory lan-
guage to find legislative intent, and is bound by the meaning of
those words as we interpret them.
¶126 I am comfortable that this is a close cousin to the textual-
ist approach that I have taken. So I have joined opinions authored
by my colleagues even though they do not speak in explicitly tex-
tualist terms. And my colleagues have joined my opinions even
though they are framed in textualist terms51 (and may even in-
clude corpus analysis52).
alists are more focused on “relatively rule-like” grounds for inter-
pretation).
50 Manning, supra, 106 COLUM. L. REV. at 71. This is “spirit of the
law” purposivism—the notion that courts should seek to vindi-
cate the law’s spirit even when it is incompatible with its text. It is
classically represented by the U.S. Supreme Court’s decision in
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). The
statute in that case prohibited “the importation and migration of
foreigners and aliens under contract or agreement to perform la-
bor or service of any kind in the United States, its territories, and
the District of Columbia.” Id. at 463. And despite the fact that the
statute exempted “professional actors, artists, lecturers, singers
and domestic servants” but not pastors or ministers, the court
concluded that a contract to pay for the migration of a church pas-
tor was not covered. Id. at 459-60. It based its conclusion, moreo-
ver, not on the terms of the statute but on its confident sense of
legislative purpose—that Congress was concerned only about the
importation of “an ignorant and servile class of foreign laborers,”
and not “brain toilers” like church pastors. Id. at 463-64. In further
support of that decision, moreover, the court cited extra-textual
evidence of purpose (in legislative history and its sense of our his-
tory as a “Christian nation”). Id. at 471.
51 Seesupra ¶ 43 n.1 & ¶ 121.
52 See Canton, 2013 UT 44, ¶ 27 n.6.
59
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶127 My textualism has never been about finding “ordinary
meaning” as the “exclusive tool available to us in our effort to ef-
fectuate legislative intent.” Supra ¶ 10 n.16. The court’s critique
along those lines is simply mistaken. In this case I’m asking the
exact same question the court is asking; I’m just resorting to an
additional tool for answering it.
¶128 The tool I employ (COCA) and the methodology I use
(corpus analysis), moreover, are not just for textualists. They are
for anyone who is interested in analyzing text. All judges—
textualists and purposivists and others—focus on the meaning of
statutory language. The question is how to do so—whether to
stick with using our intuition and dictionaries only, or whether to
check our intuition by searching a database of language. I see
more upside than downside to taking that step.
E
¶129 I welcome focused critiques of the corpus analyses I have
presented as grounds for my decision. A main point of my ap-
proach, after all, is to facilitate transparency and discourse. But
the majority’s criticism of my exclusion of 36 “inconclusive” hits
from my COCA analysis is puzzling, as is its challenge to the
“statisitical[] significan[ce]” of my conclusions. Supra ¶ 21. The
decision to exclude 36 of the hits in the COCA analysis is straight-
forward. I didn’t “ignore” them. Supra ¶ 21. I found “insufficient
detail to indicate whether the discharge at issue had reference to a
single shot or to the emptying of a magazine.” Supra ¶ 90.
¶130 I am unsure of the majority’s discomfort with that deci-
sion. If it thinks the 36 hits that I excluded cut against my conclu-
sion, it should say so. The sentences I analyzed are available to the
majority at the link I provided, so the majority could easily have
examined those 36 hits I left out to determine whether I did so
appropriately. Absent a specific critique, I will simply stand by
the above analysis.
¶131 The same goes for the “interpretive assumption[s]” that
led to my treatment of other hits. See supra ¶ 21. The COCA data
are preserved and available for review. Chief Justice Durrant ap-
parently reviewed them and was satisfied with my conclusions.
See supra ¶ 37 n.10 (indicating that he “found no . . . flaws” in his
“own examination” of my COCA analysis). The majority is free to
do the same. If it disagrees with my “interpretive assumption[s]”
60
Cite as: 2014 UT 72
LEE, A.C.J., concurring in part and concurring in the judgment
or my exclusion of inconclusive hits it should offer reasons for so
concluding.
¶132 I am unsure what the majority is looking for in terms of
statistical significance. I found only one sole instance of discharge
of a firearm that had arguable reference to multiple bullets. That
was out of 81 hits, or 44 hits after excluding those that were incon-
clusive or irrelevant. That is statistically significant under any
measure.53
53 See, e.g., TONY MCENERY & ANDREW HARDIE CORPUS
LINGUISTICS: METHOD, THEORY AND PRACTICE 251 (2012) (“A quan-
titative result is considered statistically significant if there is a low
probability (typically less than 5 per cent) that the figures extract-
ed from the data are simply the result of random chance . . . .“). To
the extent the majority is arguing that the 36 hits excluded for
ambiguity could have carried the same sense as the only one hit
did—making many more types of that kind of sense—it is draw-
ing the wrong baseline. The analogy would be to 36 of 81 people
fielding calls from a pollster indicating that they were undecided.
The 36 simply aren’t part of the baseline for determining statisti-
cally significant differences between two candidates.
The majority’s invocation of statistical significance highlights
broader conceptual problems not with corpus analysis, but with
the definition of ordinary meaning itself. Unlike so many other
legal terms (i.e., negligence or preponderance of the evidence),
ordinary meaning has escaped definition, perhaps because judges
have viewed the concept as self-defining. See also BLACK’S LAW
DICTIONARY 1128 (10th ed. 2014) (cross-referencing “ordinary
meaning” to “plain meaning,” and defining the latter as “[t]he
meaning attributed to a document (usu. by a court) by giving the
words their ordinary sense, without referring to extrinsic indica-
tions of the author’s intent”). The majority seems to embrace a
sense of ordinary meaning encompassing a principle of statistical
significance—that a sense of a word is more ordinary if it is statis-
tically significantly more common than another. But other defini-
tions seem possible—including that sense of a word is more ordi-
nary if it is merely more frequent than another (occurring more
than 50% of the time). I do not seek to define the correct sense of
ordinary meaning. But I do suggest that by any reasonable defini-
(continued…)
61
STATE v. RASABOUT
LEE, A.C.J., concurring in part and concurring in the judgment
¶133 In all events, the majority’s criticisms again are a boomer-
ang for its position. If the concern is for statistical significance, you
can’t get more insignificant than a data point of one—particularly
if the data point is not unbiased. The problem with the majority’s
analysis, at its core, is that it is rooted in the subjective linguistic
intuition of an individual judge (or a panel of them). The aspira-
tion for statistical significance is a good one, but that goal is hard-
ly advanced by the insistence on a judicial prerogative of resolv-
ing ambiguity based on pure intuition without resort to objective
means for testing it.
IV
¶134 The resolution of ambiguities in legal language is one of
the most important of all judicial tasks. It is also one of the most
opaque; for that reason it is fraught with the potential for bias and
error. We should do what we can to minimize those risks. The ap-
proach I have outlined is a step in that direction.
tion, the corpus findings here show that the ordinary meaning of
discharge (of a firearm) is that of a single shot.
62