The problem I posed was how one might or should talk about the uncertainty
of the following proposition: roller skates are motor vehicles for purposes
of an ordinance that prohibits the operation of a motor vehicle in a park on
Sunday.
Jason Palmer wrote (in part):
>There was presumably a reason the ordinance was enacted, for example it
might have been thought that motor vehicles disturb the peace that a park is
supposed to possess. In that case to determine whether or not roller skates
are motor vehicles, we should determine whether or not skating disturbs the
peace. The difficulty in deciding the roller skate question presumably comes
from the difficulty in deciding whether or not roller skating is a
disturbing activity. <
Alas, Jason Palmer's suggestion makes the business of interpretation of
legal rules such as ordinances and statutes much more simple than it
actually is. Consider: there is often only sparse "legislative history," the
legislative history that exists often points in different directions, it is
often not clear what sorts of phenomena count as evidence of "legislative
intent," some observers believe that it is inappropriate or impossible to
look behind the words of an ordinance or statute for the actual or true
intent of the legislator or legislators, some observers believe that
interpreters should assume that the legislator had reasonable intentions or
would not have wished to produce invidious or harmful or irrational results,
some observers believe that the common law background (in the U.S.) must be
taken into account (at least sometimes) when the words of a statute or
ordinance are construed, some observers simply assert that words in a
statute or ordinance should be given a reasonable construction, etc., etc.,
.... And the validity of all of these and many other approaches to the
interpretation of legal material such as ordinances and statutes is the
subject of much debate ... and the empirical benchmarks (if any) that any
one of these approaches (incoclusively!) suggests or implies are often or
always inconclusive and, worse yet, they are often non-existent, unknown, or
unavailable.
***
To be a bit more concrete:
imagine the possible interpretive complications & issues if any one of the
following conditions holds:
1. Some city council members ("CCMs") on the city council that enacted the
"motor vehicle in the park on Sunday" ordinance said (at one point, in any
event) that the purpose of the ordinance was to keep noise levels down
while some other CCMs said (at one point) that the purpose of the ordinance
was to limit air pollution
while other CCMs said that the purpose was to minimize the risk of physical
harm to users of the park on Sunday
whereas other CCMs entertained (at one point but not at anther point) rather
catholic views of the purposes of the ordinance and said that the ordinance
had all of the purposes mentioned at one time or another by other CCMs.
2. CCM-1 said in city council chambers that the purpose of the ordinance was
to keep noise levels down in the park on Sunday but in a news conference
CCM-1 said that she voted for the ordinance only because the religious
sensibilities of her constituents are offended by motorized traffic in the
park on Sundays.
3. Steel roller skates make much more noise than plastic roller skates but
Honda Accords make less noise than a pair of either type of roller skate.
Everyone agrees (let us suppose) that the operation of Honda Accords in the
park on Sunday violates the ordinance -- unless, of course, a Honda Accord
is operated by a police officer on duty, by an EMT, or, _possibly_, by an
ordinary citizen rushing his pregnant wife to the hospital with the definite
but mistaken belief that birth is imminent.
Municipal garbage trucks can be operated in the park on Sundays. No city
council member mentioned garbage trucks before the ordinance was enacted. No
one knows if any city council members even thought about garbage removal in
parks on Sunday.
4. Police offers have not ticketed users of motorized wheelchairs in the
park on Sundays. The wheelchairs thus far operated in the park on Sundays
have electric motors. It is not clear how police would react to wheelchairs
powered by loud gasoline motors or to wheelchairs that can travel 35 miles
per hour.
5. Police officers have not ticketed drivers of vehicles with "handicapped"
plates who drive slowly through the park on Sunday.
6. Vehicles powered by electric motors emit almost no pollutants during
their operation and some of them are extraordinarily quiet. But some
vehicles powered by electric motors make loud clattering noises, some of
them travel very quickly, and some of them -- for example, city buses -- are
very large and occupy large swaths of space that might otherwise be used by
pedestrians, prams, and pram pushers. (N.B. Is a pram a motor vehicle? Does
it matter whether the pram has a motor? Does it matter whether a pram is
carrying sand rather than a baby?)
7. The state's motor vehicle registration statute does not require the
registration of any vehicle whose maximum motorized speed (on level ground)
is below 20 m.p.h. (There are ambiguities here as well. Let me count the
ways. No, let me not!)
8. The ordinance was enacted after newspaper articles reported that several
small children were hit in the park on Sundays by Yellow Cabs.
9. When asked -- and even when not asked --, some citizens say, "I am
disturbed by roller skaters in parks." Other citizens say, "Roller skaters?
What they do makes no difference to me." Other citizens say, "Roller skaters
make parks so romantic. I love them on any occasion and anywhere." Yet other
citizens say other things about roller skating in response to various kinds
of questions. Some (irascible? malevolent? demented?) citizens have been
seen throwing gravel on the park paths that roller skaters use.
10. People over the age of 40 routinely frown and grimace at the sight or
sound of skateboarders in the park on Sunday.
11. Etc., etc., ...
Sincerely,
Peter T
