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Yes, but would it not be the logical conclusion that we should attempt to find a way in which there was no conflict in the first place? Would this not be the most desirable solution?

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Yes Omega, it certainly would be, but as you have pointed out my utopian beliefs do not necessarily fit with the way the world works.

Law and language are imprecise things much at are the humans who created both.

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Oh, yes, sitting. The great leveler. From the mightiest Pharaoh to the lowliest peasant, who doesn't enjoy a good sit?
~C. Montgomery Burns

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The above statutes conflict. Whereas section 102.111 is mandatory, section 102.112 is permissive. While it is clear that the Boards must submit returns by 5 p.m. of the seventh day following the election or face penalties, the circumstances under which penalties may be assessed are unclear.

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Legislative intent -- as always -- is the polestar that guides a court's inquiry into the provisions of the Florida Election Code. Where the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the Code. As noted above, however, chapter 102 is unclear concerning both the time limits for submitting the results of a manual recount and the penalties that may be assessed by the Secretary. In light of this ambiguity, the Court must resort to traditional rules of statutory construction in an effort to determine legislative intent.

First, it is well-settled that where two statutory provisions are in conflict, the specific statute controls the general statute. In the present case, whereas section 102.111 in its title and text addresses the general makeup and duties of the Elections
Canvassing Commission, the statute only tangentially addresses the penalty for returns filed after the statutory date, noting that such returns "shall" be ignored by the Department. Section 102.112, on the other hand, directly addresses in its title and text
both the "deadline" for submitting returns and the "penalties" for submitting returns after a certain date; the statute expressly states that such returns "may" be ignored and that dilatory Board members "shall" be fined. Based on the precision of the title
and text, section 102.112 constitutes a specific penalty statute that defines both the deadline for filing returns and the penalties for filing returns thereafter and section 102.111 constitutes a non-specific statute in this regard. The specific statute controls the non-specific statute.

Second, it also is well-settled that when two statutes are in conflict, the more recently enacted statute controls the older statute. In the present case, the provision in section 102.111 stating that the Department "shall" ignore returns was enacted
in 1951 as part of the Code. On the other hand, the penalty provision in section 102.112 stating that the Department "may" ignore returns was enacted in 1989 as a revision to chapter 102. The more recently enacted provision may be viewed as the clearest and most recent expression of legislative intent.

Third, a statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision. In the present case, section 102.112 contains a detailed provision authorizing the assessment of fines against members of a dilatory County Canvassing Board. The fines are personal and substantial, i.e., $200 for each day the returns are
not received. If, as the Secretary asserts, the Department were required to ignore all returns received after the statutory date, the fine provision would be meaningless. For example, if a Board simply completed its count late and if the returns were going to be ignored in any event, what would be the point in submitting the returns? The Board would simply file no returns and avoid the fines. But, on the other hand, if the returns submitted after the statutory date would not be ignored, the Board would have good reason to submit the returns and accept the fines. The fines thus serve as an alternative penalty and are applicable only if the Department may count the returns.

Fourth, related statutory provisions must be read as a cohesive whole. As stated in Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992), "all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another." In this regard we consider the provisions of section 102.166 and 102.168.

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I'm not a lawtalker, but that sounds oddly like English common law based on precident.

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Oh, yes, sitting. The great leveler. From the mightiest Pharaoh to the lowliest peasant, who doesn't enjoy a good sit?
~C. Montgomery Burns

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"The distinction between past, present, and future is only a stubbornly persistent illusion."
--Albert Eistein

Now, this wasn't very clear, but I'm going to go out on a limb here and assume you're saying that, while my statement of the most desirable way to resolve the situation WAS correct, there is no such way to resolve the situation. Correct my assumption if this is not what you meant.

Now, continuing, there is such a way, and you know it. Simply look up the word "may" in the dictionary, and apply the appropriate definition to the code in question.

"Law and language are imprecise things much at are the humans who created both."

"Shall be ignored" is hardly imprecise.

"While it is clear that the Boards must submit returns by 5 p.m. of the seventh day following the election or face penalties, the circumstances under which penalties may be assessed are unclear."

So then the problem is where? The boards must submit their returns by the stated time or they will be ignored. Simple enough. Just because a prehipheral clause is unclear doesn't give the court the authority to throw out the ENTIRE law, and replace it with their own.

*goes to URL*

*grumbles*

OK, the Florida state website has apparently seen fit to up and move. Annoying...

Anyway...

"The specific statute controls the non-specific statute."

But not when they are not in contradiction, which they are not, according to the legal definition of "may".

But even if you choose to ignore that, 102.111 does not deal with the penalties imposed upon the counties because 102.111 deals with the actions of the state government. 102.112 deals with the counties. The issue is completely indigenous to 102.112, and therefore it can not be used to override the unrelated clauses of 102.111.

102.112 does mention punishments of late counties, whereas 102.111 doesn't. Therefore, ON THAT ISSUE, 102.112 obviously overrules the non-existant provisions in 102.111. However, the deadline is a completely seperate clause, and therefore CAN NOT be overridden on that basis.

"the more recently enacted statute controls the older statute."

Again, only when they're in conflict, which these two are not.

As for their third point, I would say that they may, in fact, have a legitimate argument here. However, i believe their conclusion is incorrect. It seems to me that this "may" may have been meant to deal with the even that a county failed to file ANY returns before the deadline. The county would probably rather pay the fines than be disenfranchised. However, they would not do so for a simple recount. Of course, you have to trust the SecState to judge whether late-filed returns are tainted or not, but that is her job, after all. Under any circumstances, the question is moot, for the reason stated below.

Even if you assume that the laws are contradictory, and even if you assume that 102.112 does, in fact, override 102.111 on this issue, you still have to deal with the fact that this supposed discresionary ability resides with Katherine Harris, as SecState of Florida. There is NO provision that states that she may not reject said returns arbitrarily. The supreme court of Florida just, as JK might say, pulled that out of their collective a**. Katherine Harris had every legal right to reject late-filed recounted returns, regardless of reason. She "may" do so, after all.

I am unable to respond to their fourth point, as the Florida website that I was reading no longer seems to exist or is down, and I therefore do not have access to 102.168.

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"You know, you--you let a wolf save your life, they make you pay and pay and pay..."
- Fraser, "due South"

First, let's say, just for the sake of argument, that SecState does, in fact, have discresionary ability over whether late-filed returns are counted or not. I'll give the court that, just for the sake of this post.

The courts don't have the authority to write new law. Period. I doubt anyone would disagree with this. Even so, they wrote a new deadline and usurped Katherine Harris's authority as FL SecState to accept or reject late returns, thus writing new law. THAT, my friends, is the ultimate point, not all of the legal wrangling that we've been engaged in for the last page.

Will this question spark the Second Civil War...
I doubt it.

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**...****...**

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Oh, yes, sitting. The great leveler. From the mightiest Pharaoh to the lowliest peasant, who doesn't enjoy a good sit?
~C. Montgomery Burns

"Does giving a different interptation(sp?) of the law, one you don't like, count as writing a new law?"

Of course it wouldn't, but that's not what they did here. How can creating a COMPLETELY NEW deadline be considered an interpretation of a law? How can adding a qualification that was not even implied by an interpretation? It can't be. It's an addition. Thus they wrote new law.

Ah, your burning sarcasm has made me see the light! How DARE I question the government! The sheer AUDACITY of it! And what's more, it's not even MY government!

Think about it, man. I have every right to challenge their decision. Just because the so-called supreme court said it doesn't make it true, nor does it make it law. Don't you realize that blind acceptance of ANYTHING is dangerous? Analyze the points, not their source.

quote:

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Don't you realize that blind acceptance of ANYTHING is dangerous?

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AAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHH!!!!!! This from the guy who sees no problem with the intermingling of Dinosaurs & Humans, a 3000 year old Earth, and a timespan of 7 days to create the earth!!

Does anyone else but me want to bludgeon Omega to death after reading hypocritical shit like this?

At this point though you need to concede that there are several people on the Florida Bench who have had more study in law than you or I. Such is the system we have. And that you, who have had no study in law think that you know better than they.

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Oh, yes, sitting. The great leveler. From the mightiest Pharaoh to the lowliest peasant, who doesn't enjoy a good sit?
~C. Montgomery Burns

Does Gods day equal one of ours?
Is the Pope closer to God than any of us?
Does the Pope have the right to change the day of worship?
Is AIDS a sound of one of the Trumpets, an opening of a Vial, or a reading of an angelic Scroll?

Omega, this is a battle for you, oh well spoken one.

In my opinion, the Bible is a guide, having been re-written for to suit kings, ie King James, and for lay people to grasp.

Here, read this guide to better living.

Thank You.

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Well, it's done, yes, the deed is done.

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Well, it's done, yes, the deed is done.

UM: I almost *always* want to throttle Omega ... except during that Jack Ryan thread in Officer's Lounge, we actually had a rational discussion ... fascinating ...

Besides, isn't the question rather moot now that Bush has been certified?

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Star Trek Gamma Quadrant
Rated 7 out of 10 Smileys by Fabrux