Judges are human, too. However, they’ve had all sorts of legal training, and that presumably includes logic. So it is rather distressing to see them cheat to come up with rulings that they want, instead of what the law, and the rules of judicial construction, say they should.
Now, by “cheat” here, I don’t mean the stronger definition: “to practice fraud or deceit”. It’s more along the lines of “to violate rules or regulations“. I’m not even sure it is deliberate.
But the effect is the same.
This is the story of Sarah Feldt. Back in the early 1970s, she went into a Hot Shoppe Jr. in the District of Columbia, got her food, and sat down to eat.
Believe it or not, the original name of the Marriott Corporation was Hot Shoppe, Inc. That’s how they got their start.
Anyways, while Sarah was eating, the manager came up to her and told her she would have to leave. After a bit of an argument (after all, she was still eating the food that she had just purchased), she politely told him:
Will you, please, go to hell.
A gal after my own heart!
Anyways, the police were called, she refused to leave on principle, and she was arrested for criminal trespass.
However, when she appeared in court the next day, the charges were dropped.
Oh, and why had the manager asked her to leave? Why, she was barefoot. (You knew that was coming, right?) Now, it was not as if the restaurant had a sign or anything, it was something that the manager just made up on the spot.
But Ms. Feldt took things a bit farther. She sued them for false arrest. While it is true that businesses can order you to leave and if you don’t, it is criminal trespass, as a general rule, if you have a privilege to be there, they cannot order you to leave. And that is what Ms. Feldt relied on.
For one thing, she’d paid for her food without a problem. She now had a contract to be able to eat it. Now, this one isn’t quite so strong, because existing case law said that the proper remedy for this was not a privilege to stay, but the right to sue for breach of contract.
But it was the other reason that led the judges in the case to cheat. You see, the District of Columbia had (and still has) a fairly strong civil rights statute. Section 47-2902(a) says
(a) It shall not be lawful for the keeper, proprietor, or proprietors of any licensed hotel, tavern, restaurant, ordinary, sample room, tippling house, saloon, or eating house, to refuse to receive, admit, entertain, and supply any quiet and orderly person or persons, or to exclude person or persons on account of race or color.
(I’ve added the emphasis.)
That looks pretty clear. Sarah Feldt was a quiet and orderly person (well, at least until provoked by the manager). It was not lawful for the restaurant to refuse to receive her.
But that’s not what the court said. The court said
[T]here was no racial discrimination here and we do not think the requirement to serve any quiet or orderly person prevents a restaurant from having reasonable requirements as to the dress of its customers, such as a requirement that all male customers wear coats and ties or, as here, that all customers wear shoes.
So she lost her case, Feldt v. Marriott, 322 A.2d 913 (D.C. Court of Appeals, 1974).
Let me say a few words about judicial construction. There actually quite a few rules of judicial construction, and they go by names like Ejusdem Generis and Noscitur a Sociis. But the primary one is that
Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.
(Ex Parte Cobb, 703 So.2d 871 (Alabama 1996))
The words in that statute are quite clear, and are in plain language. The restaurant has to serve a quiet and orderly person. As long as they are not breaking some other law, they can stay. Yes, the statute also includes race, but that is part of an “or”, not an “and”.
There is another rule of statutory construction, and that is
Statutory construction requires that words in statutes should not be construed to be redundant, nor should any words be ignored. Statutory language must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.
(Stancourt v. Worthington City School District Board of Education, 2005-Ohio-6750 (Ohio App. Dist.10 12/20/2005))
The court in this case treated that phrase about quiet and orderly persons as completely superfluous, simply to enforce its own prejudice about bare feet. That’s cheating.