Statutes with Limitations
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Statutes with Limitations

May 2012

It was the end of a long day at the office. I was relaxing with my favorite bourbon-and-oat-bran cocktail, rereading the salacious parts of the California Rules of Court.

A stranger suddenly appeared in the doorway. I was so surprised that my drink went up my nose.

"Sorry - did I startle you?" he said.

I sputtered in reply - it's hard to talk with oat bran in your epiglottis.

"Your office wasn't locked, so I just came in."

I started to point out that it was a home office, but I just got oat bran on the floor.

"I see you're an appellate specialist." He was gazing at an official-looking certificate - a reward for my persistence in assembling an application the length of a Tolstoy novel detailing my entire life story.

"I need your services. I've recently been convicted."

"Alas, my specialty is civil appeals," I said, finally able to talk. "If I do criminal appeals, my malpractice insurer will break my kneecaps." This was not strictly true; it's relatively rare that my insurer resorts to violence. But I was eager to be rid of this visitor.

"That's all right," he cut in. "I just need you to tell me what I've been convicted of."

"You don't know?"

"I have a vague idea. I deal in some highly portable and profitable pharmaceutical substances of questionable legality."

"That would explain why you're carrying the Uzi."

"And I was convicted of violating Health and Safety Code section 11378."

"So what don't you know?"

"Have you ever read Health and Safety Code section 11378?"

"Er, well, no. I'm waiting until it comes out as a movie." He gave me a dubious look, so I pulled up the statute on my computer, then took another swig of my drink as I started to read it (which was big mistake - I still haven't gotten the oat bran out of my sinuses):

Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

"Holy Finnegan's Wake," I thought to myself. Reading statutes is often like hacking through a muddy swamp on roller skates, but this one was breathtaking in its obscurity.

Many statutes and contract provisions try to do their jobs in a single sentence. A good many of those sentences inexplicably set out exceptions and qualifications before getting to the point, but this one did all that without imparting actual information. Instead, it told where the information could be discovered by someone able to discern from its tortured syntax which listed substances are exceptions and which are exceptions to the exceptions; it was not so much a statute as a sort of mystical index.

"I didn't realize you needed a law degree to be a drug dealer in California, or at least have finished a first-year legal research course," I said out loud.

"I thought about becoming a lawyer," my visitor mused. "But Mom said I'd only bring shame on the family." Whether because of the oat bran or the Uzi, I kept my retort to myself.

"Help me out," I said instead. "It definitely says that section 11056(g) either is or isn't a narcotic drug, but I can't tell which."

"Try reading it," he suggested.

So I read section 11056(g), and I'm going with is. I downloaded that section and the other statutes section 11378 mentions, assembling them into a 40-page document. "Holy War and Peace," I muttered. "It's nearly as long as my specialization application." Penal Code section 1170 is a tome in itself, a 2,300-word behemoth that discourses philosophically on sentencing after declaring that "the purpose of imprisonment for crime is punishment," enlightening anyone who might have thought imprisonment was an alternative to Club Med. It was all pretty narcotic; I'd have nodded off if the Uzi in the room hadn't kept me alert.

I suppose there's a theoretical advantage in having a statute's substance contained only in other statutes: It's automatically amended when those other statutes are amended. The reality is that this doesn't work. Section 11378's very first reference is to Business and Professions Code Division 2, Chapter 9, Article 7, "commencing with Section 4211." There is no Business and Professions Code section 4211. I'm guessing it did exist once but got repealed or changed to something else, leaving section 11378 high and dry and leaving my narcocapitalist friend unsure whether it instead refers to the current division 2, chapter 9, article 7, which comprises sections 4110 through 4126.5 and deals with the licensing of pharmacists and their duties. (The postcard he sent from Bogotá three weeks later said he still didn't know what he'd been convicted of, but he was convinced Colombian oat bran was the best in the world.)

Drug pushers are people like anyone else, and they deserve to know whether they're violating the law without having to read a badly edited book. Section 11378 could be rewritten to say something like, "It is unlawful to possess for sale any controlled substance listed below. This prohibition does not apply to licensed pharmacists performing their duties." Then set out the banned substances. Statutes should be informative, not mysterious and infuriating, especially if they're likely to infuriate guys who carry Uzis.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

Reader Comments

John Hamilton Scott - May 5, 2012
"Its automatically amended when those other statutes are amended"? Not so fast. You have neglected the famous (at least to me) Palermo doctrine: If a statute incorporates another by specific reference, it incorporates it as it exists at the time of incorporation, and not as it may be later modified. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal. 2d 53, 58-59.) So while B&P 4211 may not be found in the B&P, it lives on in H&S 11378. That means, of course, that one cannot figure out what 11378 means without having a copy of the B&P from 1985--"mysterious and infuriating" indeed.

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