The last antecedent rule of comma use. The name alone could put you to sleep before you learn what it is, like it did in grade eight. But go get a coffee: ignorance in this case is not somnolent bliss. Consider: which would you confess – I love eating children and books, or I love eating, children, and books? And are you talking TO children in the second case, or saying you like them? At law, construing commas can prove costly – most recently that Avondale Lockhart goes to prison for at least ten years.
That’s what the U.S. Supreme Court said, six judges to two, on March 1. Before them was a section of the U.S. Code increasing prison sentences for sex offenders with prior convictions “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Lockhart had pleaded guilty to possessing illegal pornography. He had a previous conviction for first-degree sexual abuse of his 53-year-old girlfriend, but said he was not subject to the increased prison term because the earlier conviction did not involve a minor or ward. He argued that the last phrase of the section, “or abusive sexual conduct involving a minor or ward,” applied to the everything in the section – that it was triggered only if you had previous convictions involving the young or the incompetent. And the series qualifier rule of grammar supports this: the final phrase in a series with commas refers back to everything before it.
The court disagreed, ruling that, by virtue of the last antecedent rule, the last comma before the last clause means that clause stands apart from the others: “minor or ward” applies only to that bit after the second comma, such that Lockhart’s prior conviction, for abusing an adult, triggers the “enhanced” term of imprisonment.
On first reading the majority opinion, you wonder if the spirit of Justice Scalia lives on, bending grammar and syntax to a foregone conclusion. But it is written by Sonia Sotomayor, of the court’s left wing, concurred in by the demonstrably liberal Ruth Bader-Ginsburg, and on second and third thought, it seems that their reading is as strong as Lockhart’s – but not that he should serve the extra time.
There is law in Canada that supports the majority view. Most notorious is the “million-dollar comma case,” in which the Canadian Radio and Telecommunications Commission considered on what terms Rogers Communications could use Bell Aliant’s utility poles. Their agreement said it was “effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.” Wanting to charge more money as soon as possible, Bell argued that the last phrase meant it could terminate the agreement at any time, on a year’s notice. Rogers said that the series qualifier rule applied (the last phrase modified everything), such that Bell could terminate only after five years. The CRTC ruled in Rogers’ favour. On appeal, however, it relied on the French version of the provision, which had no comma before the “unless and until terminated” bit, meaning that the termination clause applied only after five years. The last antecedent rule won the day, at last, but – and this is important – only after the second comma was dropped.
A couple of years later, the Alberta Court of Queen’s Bench considered a contingency fee agreement between a lawyer and client, who happened to be the lawyer’s assistant and who handled these sorts of agreements constantly. Alberta court rule 616 said that all such agreements (whereby lawyers get a percentage of damages in successful lawsuits) must specify the lawyer’s “maximum fee payable, or the maximum rate calculated, after deducting disbursements.” Yep, two commas again. The province’s law society interpreted the rule to mean that, no matter whether the client opted for the maximum fee or the maximum rate payable, disbursements (office expenses and other costs that aren’t legal work per se) were to be deducted before the fee was calculated. That is, “after deducting disbursements” applied to the whole series of clauses.
But the court interpreted the rule as though there were no second comma: the client was responsible to pay the lawyer 35% of his maximum fee, including disbursements. While it was arguable that the series qualifier rule applied, Justice Mason said, the client-protection policy behind the rule, the agreement, and the client’s understanding of it suggested different, such that the ambiguity was to be construed in her favour. Justice Mason noted, “Had Rule 616 been phrased: ‘… a contingency fee agreement must contain a statement about the fee payable after deducting disbursements or the maximum rate calculated after deducting disbursements,’ this case would likely not be before me.”
This is more or less what the dissent holds (reasonably) in the Lockhart – given that either the series qualifier or last antecedent rule might apply, the clause is too ambiguous to be interpreted against the offender.
In each of these cases, more careful drafting would have prevented undue expense, lost court time, and perhaps an unreasonably harsh prison sentence. If Congress had in fact wanted to impose a mandatory minimum sentence for any repeat sexual assault, on any person, it could have said so clearly: “The enhanced sentence applies where the offender has been convicted of a crime relating to sexual abuse or aggravated sexual abuse on any person.” No comma necessary.