28 Oct Researching Uncodified Law for Appellate Briefs
If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing. In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.
It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws. Not so. Legislatures enact many laws that are not codified at all or are codified only in part. Common examples include:
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Preambles and recitals. See generally Arkansas State Police Comm’n v. Davidson, 253 Ark. 1090, 490 S.W.2d 788, 789-90 (1973); Ky.Op.Atty.Gen. 82-566 (Nov. 5, 1982); Wesley Chapel Bluemount Ass’n v. Baltimore County, 347 Md. 125, 699 A.2d 434, 435 (1997) (statement of “legislative policy undergirds and pervades the Act and necessarily sets the general direction for its interpretation”); Newspapers of New Hampshire, Inc. v. City of Concord, 13 MediaL.Rep. 1685 (N.H.Super. 1986) (“Reasonableness on the part of all parties in complying with the preamble to the statute is expected.”); State ex rel. Mason v. State Employment Relations Board, 133 OhioApp.3d 213, 217-18, 727 N.E.2d 181, 184 (1999) (“The Ohio legislature specified its intent and purpose in enacting the current Sunshine Law in the preamble.”); 1A Sutherland, Statutes and Statutory Construction §§ 20.3-20.5 (N. Singer 7th ed. 2010); 2B Sutherland, Statutes and Statutory Construction §§ 56.1 et seq. (N. Singer & J.D.S. Singer 7th ed. 2008); Winckel, The Contextual Role of a Preamble in Statutory Interpretation, 23 Melb.U.L.Rev. 184 (1999); Note, The Legal Effect of Preambles–Statutes, 41 Cornell L.Q. 134 (1955).
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Provisions that have only local or regional application (e.g., multiple federal laws governing the Mississippi River, Central Valley Water Project in California).
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Provisions that may apply for a limited time. E.g., Maynard v. Eaton Corp., 119 Ohio St. 3d 443, 445, 895 N.E.2d 145, 147 (2008): “As defined by the Ohio Legislative Service Commission, uncodified law is ‘[l]aw of a special nature that has a limited duration or operation and is not assigned a permanent Ohio Revised Code section number.’ A Guidebook for Ohio Legislators (10th Ed.2007-2008) 145. ‘[U]ncodified law is part of the law of Ohio and is filed in the office of the Secretary of State. However, because it is not a law of a general and permanent nature, it does not appear in the statutes in codified form.’ Id. at 68.”
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Provisions that may apply to a limited number of circumstances. E.g., Roe v. Doe, 193 Md.App. 558, 998 A.2d 383 (2010), aff’d, 419 Md. 687, 20 A.3d 787 (2011) (limited retroactive application of statute).
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Other uncodified provisions. E.g., Carter v. Department of Veterans Affairs, 38 Cal.4th 914, 925 (2006) (“An uncodified section is part of the statutory law. (See County of Los Angeles v. Payne (1937) 8 Cal.2d 563, 574, 66 P.2d 658 [‘The codes of this state . . . have no higher sanctity than any other statute regularly passed by the [L]egislature’].”).
Uncodified provisions may sometimes be found in notes to the codified law when deemed relevant by those creating the notes. E.g., Dittman v. State of California, 191 F.3d 1020 (9th Cir. 1999), cert. denied, 530 U.S. 1261 (2000) (addressing an alleged violation of section 7(a)(1) of the Privacy Act (uncodified), 5 U.S.C. § 552a (note), Pub.L. No. 93-579, 88 Stat. 1896 et seq.). Often, however, uncodified provisions are not referenced at all in the primary codes. These provisions may be found in the Statutes at Large for federal law and in the session laws, chaptered bills, enrolled bills, acts of the legislature, or other named collection of all enacted laws of a particular state. Among other sources, these are available at http://www.lawsource.com/also/.
Always keep in mind that the common law is traditionally uncodified. The business judgment rule, laches, estoppel, a variety of equitable rules, and numerous other doctrines that are “the law” are often not codified.
A brief that relies on uncodified provisions should include authorities establishing the applicability and weight of the provisions in the specific jurisdiction.