The Worth of a Comma.

I railed against the Blue Book and the somewhat ridiculous world of the infinite minutiae in legal citations in a previous post. But I have to admit that the story below in the New Standard (thanks to Saurav for introducing me to the news source, by the way) has me rethinking my ridicule:

Arizona questions workers’ comp for undocumented immigrants
The future of workers’ compensation benefits for undocumented immigrants in Arizona could hang on a comma.

Earlier this month, a three-judge state appellate court panel declined to address Jose Luis Gamez’s Workers’ Compensation claim and upheld a lower-court ruling that denied the benefit on medical grounds.

But attached to the decision was a concurring opinion by Arizona Appellate Court Judge Daniel Barker that said Gamez’s claim is not only illegitimate on medical grounds, but also because Gamez is ineligible for workers’ comp benefit because he is in the country illegally. Baker noted that Arizona’s 1925 compensation law failed to carry a comma in a key portion spelling out which groups of workers qualify for compensation.

As written, "aliens and minors legally or illegally permitted to work for hire" are eligible for compensation. According to Baker’s assessment, the law "makes plain the legislature’s intent that ‘legally or illegally’ modifies ‘minors’ but does not modify ‘aliens.’" Therefore, Baker concluded, workers’ comp eligibility does not extend to undocumented immigrants.

Though Baker’s concurring opinion does not set precedent for lower courts, the Arizona Star reported, the Arizona State Compensation Fund is seeking to have the Baker opinion erased, saying it could cause confusion for employees, employers, and state officials. [link]

Aside from the obvious concern regarding the ramifications of a case that denies undocumented workers the right to workers' comp protection at the workplace based on protection status, there are a couple of other real concerns here.

First, the fact that a whole class of workers could be denied benefits and protection based on the basic grammatic rule used by an Appellate Court Judge to push forward a ideological perspective is worth taking note. While non-lawyers imagine the legal profession as a test of oral advocacy skills, I'm learning quickly that it is more about our command of language in the written form that is most often and severely tested and honed through law school and practice. This is reinforced in the way that our assignments and papers are graded. I've even heard of professors who have taken the time to correct spelling and punctuation in exams, even though the final grade did not depend on that precision. Words, and the proper use of language, have been called our tool kit, our metaphoric equivalent to a field doctor's black bag.

I'm still quite scared at how a comma can wield such power in the hands - or on the page - of the right person. It reminds me of an old friend who once told me (in middle school of all places) that he can make a weapon out of anything...

Second, and more of a general observation based on recent readings for 2 classes, is how even a concurring opinion in a case, which we were originally led to believe in class was just the privilege given to members of a court to add to or focus on a particular aspect of a case or underlying legal concept, can be adopted as the analytical rule for future cases. For example, the Katz principle, which has been one of the most important analyses concerning the Fourth Amendment rights against unreasonable searches and seizures because it's applied even still, came from a concurrence by Justice Harlan, not the main opinion. I was initially taught that opinions other than that of the actual decision, are just opinions, and not legally binding. But what I didn't think of was when the additional opinions (or more precisely, the ideas within the opinions) are cited in the decision of a future court, they suddenly become law. And such is the power of words, and the reason why dissents, concurrences, and other opinions are carefully written - because someone somewhere sometime may pick it up and say "that's it!"

Hell, even footnotes in decisions can take on incredible importance - the most immediate one that comes to mind is famous footnote four in the United States v. Carolene Products (1938) decision, in which the concept of the standard of judicial review for legislation concerning "discrete and insular minorities" was first introduced. This concept was built upon and heavily influenced equal protection jurisprudence in the progressive Warren Court. All from a footnote (which is rumored to have been written by a law clerk).

So I guess my obsessive compulsive nature about grammar (not evident from these posts, of course) is a plus in this crazy profession. And I guess (even more) that I shouldn't be immediately dismissive of the prospect of a judicial clerkship somewhere, were I to be accepted. The clerks, and their turns of phrases in the opinions they author for judges, could indirectly plant a seed that can grow under the guidance of subsequent courts into full-blown, unforeseen jurisprudence, protections, or rights. Yeah, but it still doesn't seem like my cup of tea.