Carranza v. United States

Justice NEHRING,

dissenting:

T 27 I respectfully dissent. The majority's conclusion that an unborn fetus is a "minor child" as used in Utah Code section 78-11-6 1 *919is wrong because (1) the plain meaning of "minor child" does not include a fetus, (2) a wrongful death cause of action may only be recognized through clear legislative direction, and (8) a construction of "minor child" that encompasses an unborn fetus creates absurd results under our laws.

I. THE PLAIN MEANING OF "MINOR CHILD" DOES NOT INCLUDE AN UNBORN FETUS

128 At the time of the relevant events, Utah Code section 78-11-6 provided that "a parent or guardian may maintain an action for the death or injury of a minor child when the injury or death is caused by the wrongful act or neglect of another.2 The majority concludes that the meaning of "minor child" in section 78-11-6 creates a cause of action for the wrongful death of a fetus3 I disagree.

29 Plain language analysis has two essential characteristics: (1) the definition of the term at issue must be accessible to the average English speaker4 and (2) the "plain" definition must actually be used by English speakers.5 The majority's definition fails on both counts. First, its definition is within the easy reach only of persons with an interest in wrongful death jurisprudence. More critically, the majority's definition of "minor child" is never used by English speakers in day-to-day conversation.

1 30 I challenge the assertion in Chief Justice Durham's opinion that "minor child" "in general usage ... may refer to ... a fetus."6 We previously recognized that the seope of the term "child" mandates an independent existence from a mother in Alma Evans Trucking v. Roach.7 In that case, we held that a fetus was not yet a child for purposes of death benefits, and stated:

We believe that the legislature used the word "child" in its ordinary and usual sense, viz., a child which has been born. ... Until the child is born, it is usually referred to as a child in utero or a fetus. While the legislature hafs]l the power to award benefits to a child in utero, it clearly did not do so. It limited its award to children.... The unborn child in the instant case was [not] ... a "child" until she was born.8

T 31 I concede that the definition of a word used in one context may be simply wrong when used in other contexts. Thus, as an academic matter, the definition of "child" used in Aima Evans Trucking might, in fact, include a fetus in another context. But in Alma Evans Trucking, we determined that, absent specific evidence to the contrary, the definition of "child" in any context means a person who has been born. This is the "ordinary and usual" definition. To conclude that "child" means "fetus" is to adopt a definition that is both out of the realm of the ordinary and the usual.

132 Contrary to Chief Justice Durham's assertion regarding the general usage of the term, I believe that our State's populace would find the reference to a fetus as a "minor child" quite bizarre. In fact, the usage of "minor child" to refer to a fetus is far from being general. It is unique. It is usage specific to anti-abortion political rhetoric-an issue with which we are not concerned here.

133 Chief Justice Durham's opinion fails to observe that "our plain language analysis is not so limited that we only inquire into *920individual words ... in isolation."9 Instead, the opinion parses the word "minor" from "child" and proceeds to analyze each word independently.10 The majority concludes that the only purpose of the word "minor" when used in combination with "child" is to fix an upper age limit beyond which one is no longer a "minor child."11 Paradoxically, the majority declares that the word "child" has no lower age-limit.12 Thus, reasons the majority, when the two words are combined, "minor child" is merely a temporal definition that means "beginning at conception" and enduring until the statutory age of majori-1337.13

1 34 I am troubled by Chief Justice Durham's reliance on, what is in my view, a peculiar dictionary definition of "child" that extends childhood to a pre-viable fetus. Recently there has been much discussion about how we, as a court, go about the important work of ascertaining whether a word or phrase is "plain" and, if it is, how we come to know what it means. While dictionary definitions may be a useful starting point in plain language analysis, they are not determinative, and their use should not be indiserimi-nate.

1 35 The need for caution against overreliance on dictionaries found support in the June 13, 2011 edition of the New York Times. In an article by Adam Liptak titled Justices Turning More Frequently to Dictionaries, and Not Just For Big Words, the Times recounts the growing appearance of dictionary definitions in United States Supreme Court opinions.14 Ironically, Mr. Liptak cites a 1988 survey of the lexicographic staffs of five publishers who concluded that the press is "the single most powerful influence in constituting the record of the English lexicon." While it would not be appropriate to place great reliance on the New York Times' usage of "minor child" or "minor children," given the press's influence on dictionary definitions, it merits noting that since 1851, the term "minor child" has appeared in the pages of the Times 2,886 times without ever referring to a fetus.

136 When "minor child" is properly read as a "harmonious whole,"15 it becomes clear that the term comprehends something more than a time period. Instead, "minor child" must necessarily include a child-an independent being capable of life outside of its mother's womb. Only after establishing this independent existence may a child's minority begin. Until that point, a fetus's fate is unquestionably tied to that of its mother, and, so too, its recognition as a separate being. I believe that "minor child" is a commonly understood term that contemplates a child born and capable of a separate existence, and I see no reason to depart from that general usage here.

II. A WRONGFUL DEATH CAUSE OF ACTION SHOULD BE EXTENDED TO AN UNBORN FETUS ONLY UPON CLEAR LEGISLATIVE DIRECTION

[ 37 Because I conclude that "minor child" is not synonymous with fetus, I find it improper for the majority to stretch the meaning of this term to create a cause of action for the wrongful death of a fetus. The State has a legitimate interest in protecting the "life of [a] fetus that may become a child.16 Yet, there is a distinction between fetus and child, and while the former may develop into the latter, neither encompasses the other. Despite this distinction and without any discussion of viability, the majority's interpretation of "minor child" expands childhood to encompass embryos that are incapable of an *921independent existence and life. However, this policy determination should be left to the legislature to explicitly so provide.17 Our expansion of the term "minor child" to encompass such an interest is unwise and unwarranted.

38 Our legislature has proven to be very adept and conscientious in making its intentions clear when its goal is to expand and protect the interests of fetuses. When that is the objective, our legislature unambiguously refers to "unborn" and not to "minor" children. Given this explicit difference and advised choice of words, it is by no means evident to me how reliance on Utah's Criminal Code, and in particular its commitment to protect the "unborn," helps answer the question of whether "minor child" includes a fetus in the context of Utah's wrongful death statutes.18 While a cause of action for the wrongful death of an unborn child may "fall[ ] in line" with other policies explicitly provided for by the legislature,19 this supposition does nothing to inform our interpretation of the unequivocally distinct language contained in our wrongful death statute.

T 39 I am reluctant to make this point. I recognize that on occasion our legislature unintentionally creates ambiguities in statutes by not clearly stating its intentions in statutory text. But it is dangerous for us to interpret a statute in a way that assumes that had the legislature drafted the statute correctly, it would have manifested our intention at the expense of another. We do not interpret statutes by assuming which rights the legislature should want to protect. The more principled and prudent approach would be to interpret "minor child" in a manner that does not create new causes of action and to thereby alert the legislature to the interpretive dilemma and invite a legislative response. However, until the legislature acts to provide a different direction, we are bound by the language contained within the statute, which indicates that a wrongful death action may be maintained on behalf of a "minor" but not an unborn child.

III, CONSTRUING "MINOR CHILD" TO INCLUDE A FETUS LEADS TO ABSURD RESULTS

40 I find no principled way to interpret "minor child" to include a fetus, and doing so affects not only the statute at issue, but also a vast swath of other Utah laws. Attempting to avoid the implications of construing "minor child" as including a fetus, the majority asserts-that such an interpretation yields no absurd result.20 It claims that such an approach is justified because "the legislature has adopted different formulae [for defining 'minor child'] in different statutes." 21 I disagree. The majority cites no evidence that the legislature intended such an unreasonably expansive definition of "minor child" in our wrongful death statute as opposed to the *922term's supposedly more limited use in other contexts. Moreover, even the legislature's ability to vary the meaning of a word is bound by the rational limits of the English language. Otherwise, the law as expressed by language would be rendered meaningless, and our interpretive tool of plain language analysis would be useless.

T41 The purpose of our plain language analysis is to give effect to legislative intent as expressed by language according to its common and ordinary usage.22 When a term is ascribed its plain, common, and ordinary meaning, there is a presumption that the term is similarly understood in other contexts. Yet when the majority's interpretation of "minor child" is imported to other statutes utilizing the same term, the absurdities abound.

{42 For example, Utah's law governing property and homestead rights of married individuals states:

Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, ... and if a husband or wife abandons his or her spouse, that spouse is entitled to the custody of the minor children, unless a court of competent jurisdiction shall otherwise direct.23

T 43 Under the majority's interpretation of "minor child," woe to the pregnant woman who abandons her husband and thereby must surrender her fetus and, presumably, adjacent anatomical structures to the custody of her husband. Given that a fetus does not have a separate existence outside the womb until birth, custody of the "minor child" could not be secured without granting a father custody of the womb in which it resides.

1 44 A similarly absurd result would occur under the Public Safety Retirement Act. Section 49-14-503(1) states that "If an inactive member who has less than 20 years of public safety service credit dies ... if there is no spouse at the time of death, the member's minor children shall receive a refund of the member's member contributions or $500, whichever is greater." 24

4 45 An absurd interpretation of this statute arises in the hypothetical cireumstance where an active member dies after impregnating a woman not his spouse. If "minor child" is construed to include a fetus, a decedent's fetus carried by a woman not married to the decedent would be entitled to a refund of the decedent's contributions to the retirement fund. This would be the case whether or not the fetus was actually born and could potentially create an estate subject to probate for a fetus that does not survive full-term, but dies sometime between conception and birth. The idea that an unborn fetus can own property or may have an estate subject to probate even though the fetus was never born is unprecedented in our case law.

46 I do not cite these examples for the purpose of commenting on the underlying policy, nor "to preserve consistency across various volumes of state code." 25 Rather, I cite these curious seenarios as a means of demonstrating that Utah law has, to this point, never considered the usual meaning of "minor child" to include a human embryo from the time of conception. In contrast, assigning "minor child" its ordinary and common meaning of a child born alive works no absurdity.

147 Justice Lee's opinion asserts that the statute provides perverse incentives and functions absurdly if it disallows a parent to recover for the death of a fetus but allows recovery for prenatal injuries to a child born alive.26 While this may or may not be true, policy as expressed in legislative language and the weighing of the incentives it creates is not this court's prerogative. We are tasked with construing statutes as written, according to the ordinary and common meaning of the language used. If the legislature intends to protect the rights of a fetus, it certainly has the linguistic skills to do so. *923However, interpreting "minor child" to achieve that goal strains the rational limits of the English language.

CONCLUSION

48 Because the plain meaning of "minor child" contemplates only a child that has been born, I would not extend a claim for wrongful death to a fetus. If the legislature chooses to provide such a cause of action, it has the power to do so. But it has not done so here. The legislature did not contemplate "minor child" to include a fetus as evidenced by the term's use throughout our laws and the absurd results that such an interpretation would create. It is not this court's role to expand the law's reach as means of rectifying what may be deemed perverse incentives or bad policy.

. Utah Code Ann. § 78-11-6 (Supp.2006). As noted above, this statute has been renumbered and substantively altered since the relevant events. See supra ¶ 1 n. 1.

. Utah Code Ann § 78-11-6 (emphasis added).

. See supra ¶ 2.

. Salt Lake City v. Ohms, 881 P.2d 844, 850 n. 14 (Utah 1994) (''The rule which should be applied is that laws, and especially foundational laws ..., should be interpreted and applied according to the plain import of their language as it would be understood by persons of ordinary intelligence and experience." (internal quotation marks omitted)).

. O'Dea v. Olea, 2009 UT 46, ¶ 32, 217 P.3d 704 ("'When discerning the plain meaning of the statute, terms that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage." (internal quotation marks omitted)).

. See supra ¶ 10.

. 714 P.2d 1147 (Utah 1986).

. Id. at 1148 (emphasis added).

. Anderson v. Bell, 2010 UT 47,¶ 9, 234 P.3d 1147.

. See supra ¶¶ 10, 24-26.

. See supra ¶¶ 10, 24-26.

. See supra ¶¶ 10, 24-26.

. Supra ¶ 14.

. Adam Liptak, Justices Turning More Frequently to Dictionaries, and Not Just For Big Words, N.Y. Times, June 14, 2011, at All.

. Anderson, 2010 UT 47, ¶ 9, 234 P.3d 1147 (quoting Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099).

. See Planned Parenthood v. Casey, 505 U.S. 833, 846, 112 S.Ct 2791, 120 L.Ed.2d 674 (1992).

. Only six states extend liability for the wrongful death of a pre-viable fetus. They include Georgia, Illinois, Louisiana, Missouri, South Dakota, and West Virginia. With the exception of West Virginia, each state has done so pursuant to express legislative direction. Compare Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 534 (1995) (construing statute that permits recovery for the wrongful death of a "person" to include the wrongful death of a nonviable unborn fetus), with 740 Ill. Comp. Stat: 180/2.2 (2010) ('The state of gestation or development of a human being ... at death, shall not foreclose maintenance of any cause of action ... arising from the death of a human being caused by wrongful act, neglect or default."), and S.D. Codified Laws § 21-5-1 (2010) (allowing a cause of action '[wlhenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act"), and Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100, 102 (1955) (allowing parent to recover for the "homicide of a child" when "child" is statutorily defined as a fetus that is "'quick' or capable of moving in its mother's womb"), and Danos v. St. Pierre, 402 So.2d 633, 638 (La.1981) (allowing cause of action for wrongful death of fetus supported by legislative instruction that "a human being exists from the moment of fertilization and implantation"), and Connor v. Monkem Co., 898 S.W.2d 89, 91 n. 6 (Mo.1995) (construing wrongful death of a "person" to include that of a fetus where the state constitution provided that "laws ... shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons").

. See supra ¶ 12.

. See supra ¶ 12.

. See supra ¶¶ 11, 26

. See supra ¶¶ 11, 22 n. 6.

. Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147.

. Utah Code Ann § 30-2-10 (2007) (emphasis added).

. Id. § 49-14-503(1) (Supp. 2011) (emphasis added).

. See supra ¶ 22 n. 6.

. See supra ¶ 22.