No. 29700_State of West
Virginia v. Ottis Ray Euman
McGraw, Chief Justice, concurring:
I
agree with the majority that affirmance in this case is appropriate because
W. Va. Code § 17B-4-3(b) (1999) “clearly state[s] that
a person who drives a vehicle on the public highways of this state when the
privilege to do so has been lawfully revoked for driving under the influence
of alcohol is guilty of driving on a revoked license.” I write separately
merely to clarify the reach of the canon of statutory construction implicitly
relied upon by the appellant in this case.
Appellant's argument in
this case is that since the Legislature specifically provided in subsection
(a) of W. Va. Code § 17B-4-3 that an out-of-state driver's
license suspension or revocation could serve as a predicate for the offenses
set forth in that subsection, but did not so provide with respect to the offenses
contained in subsection (b), it must therefore have intended to prohibit
use of non-West Virginia revocations in the latter context. Although not expressly
stated, appellant is relying upon the canon of statutory construction expressio
unius est exclusio alterius, which in this context instructs that “explicit
direction for something in one provision, and its absence in a parallel provision, implies an intent to negate it in the second context.” Clinchfield
Coal Co. v. FMSHRC, 895 F.2d 773, 779 (D.C. Cir. 1990). This Court has previously
recognized that “[i]n the interpretation of statutory provisions the
familiar maxim expressio unius est exclusio alterius, the express mention
of one thing implies the exclusion of another, applies.” Syl. pt. 3,
Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984); see
also State ex rel. Riffle v. Ranson, 195 W. Va. 121, 128,
464 S.E.2d 763, 770 (1995) (“Expressio unius est exclusio alterius
(express mention of one thing implies exclusion of all others) is a well-accepted
canon of statutory construction.”) (citing Brockway Glass Co. Inc.,
Glassware Div. v. Caryl, 183 W. Va. 122, 394 S.E.2d 524 (1990); Dotts
v. Taressa J.A., 182 W. Va. 586, 591, 390 S.E.2d 568, 573 (1990)).
The expressio unius maxim is premised upon an assumption that certain
omissions are intentional. As the Court explained in Riffle, “[i]f
the Legislature explicitly limits application of a doctrine or rule to one
specific factual situation and omits to apply the doctrine to any other situation,
courts should assume the omission was intentional; courts should infer the
Legislature intended the limited rule would not apply to any other situation.”
195 W. Va. at 128, 464 S.E.2d at 770. Importantly, expressio
unius is not a rule of law, but merely an aid to construing an otherwise
ambiguous statute. See 2A Norman J. Singer, Sutherland Statutory Construction
§ 47:23, at 315 (6th ed. 2000). And even in
this limited capacity courts have frequently admonished that “[t]he maxim
is to be applied with great caution and is recognized as unreliable.”
Director, Office of Workers' Compensation Programs v. Bethlehem Mines Corp.,
669 F.2d 187, 197 (4th Cir. 1982). The feebleness of the rule stems from the
very nature of the inference that underlies it. As one commentator stated,
the expressio unius maxim “is a questionable one in light of the
dubious reliability of inferring specific intent from silence.” Cass
R. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev.
2071, 2109 n.182 (1990); see also Max Radin, Statutory Interpretation,
43 Harv. L. Rev. 863, 873-74 (1930) (calling canon “one of the most fatuously
simple of logical fallacies, the 'illicit major,' long the pons asinorum
of schoolboys”) (citation omitted). Thus, as the Seventh Circuit Court
of Appeals succinctly observed, “Not every silence is pregnant; expressio
unius est exclusio alterius is therefore an uncertain guide to interpreting
statutes . . . .” Illinois Dep't of Public Aid v. Schweiker,
707 F.2d 273, 277 (7th Cir. 1983) (citations omitted). What appellant is attempting
to do here is create an ambiguity in subsection (b) of § 17B-4-3
where none in fact exists. In this case, the text of subsection (b) makes
it an offense for a person to drive a motor vehicle when his or her driver's
license has been revoked for, among other things, driving under the influence
of alcohol. Subsection (b) uses the broad phrase “lawfully revoked”
without further limitation as to the source of such action, meaning that the statute may clearly be understood to apply to both in-
and out-of-state license revocations. Consequently, in the absence of an ambiguity
in the statutory text, the expressio unius maxim simply does not apply.
(See footnote 1)
See State ex rel. Van Nguyen v. Berger, 199 W. Va.
71, 76-77, 483 S.E.2d 71, 76-77 (1996) (stating that “because [the penal
statute] is not vague or ambiguous, there is no need to construe the statute,
and we need not turn to the rules of statutory construction, including the
maxim of expressio unius est exclusio alterius”). I therefore readily concur
with the majority opinion in this case.
Footnote: 1