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Commentary By Marie Gryphon

The Justices Get Creative On 'Honest Services'

Governance Civil Justice

The U.S. Supreme Court decided last month in Skilling v. U.S. that a federal law purporting to criminalize the act of depriving another of “the intangible right to honest services” actually criminalizes only “bribes and kickbacks,” although neither the word “bribe” nor the word “kickback” appears in the statute. This narrow view of the troublesome law is sensible as a matter of public policy but muddled as judicial precedent. The Court has confused the distinction between interpreting a law and making up its meaning. Invalidating the law entirely would have been a better course.

The words “vague or ambiguous” appear together often, but they are not synonyms, and the task of judicial interpretation is usually simpler in cases of ambiguity. An ambiguous law has two or more specific, distinct meanings. For example, a statute might prohibit “the possession of arms in a public library.” The word “arms” may refer either to firearms or to human limbs, making the statute ambiguous. To interpret the statute, a court may choose between these possibilities based on context, on the likely understanding of the average citizen, and (arguably) on the legislative history of the law.

Vagueness presents a more difficult problem for judges. For example, when is physical danger “immediate,” under a law that requires police protection for those in immediate danger? Immediacy is one of those qualities — like “tall” or “old” — that simply does not have any clear cut-off. Is 6 feet, 2 inches tall? Is a day or two immediate? To interpret vague terms courts must choose a threshold on a spectrum of possibilities.

In Skilling (and in two other honest services cases, Black v. U.S. and Weyhrauch v. U.S. , the Supreme Court faced the unenviable task of interpreting language that had both problems. The word “right,” for example, is ambiguous. Does it refer to a legal right under existing state law? Under existing federal law? Or did Congress mean to assign it some inchoate meaning unique to the honest services law itself? The phrase “honest services” is hopelessly vague. Does visiting Facebook at work constitute a scheme to deprive your employer of honest services? A prison sentence of up to 20 years suggests that this surely can’t be right, but the “honest services” language provides no indication of where the line must be drawn.

The Court understandably wished to avoid this Herculean interpretive task, but it declined to simply hold the statute unconstitutional and invite Congress to clarify its meaning. Instead, the Court looked for the “overlap” between the lower courts’ various interpretations over a period of decades. The Court then held that the statute criminalizes only “bribery and kickbacks” because these two forms of conduct seemed to fall within every lower court’s interpretation of the statute.

But it isn’t an act of interpretation to determine the “overlap” between several existing interpretations of a statute and then decide that the statute refers only to that overlap. For example, suppose a school teacher must interpret an instruction to give a test to all of the “exceptional older students” in her classroom. One fellow teacher had thought the instruction referred to honor students over the age of 10, while another thought the instruction referred to students with special needs over the age of 11. It wouldn’t be sensible for the third teacher to give the test only to the one 12-year-old student in the class who was both an honor student and had special needs. It would be silly. And yet, that is the course that the Court has taken, even though it — like the teacher in our example — would have been better advised to go back to Congress (or the principal) to ask for clarification.

The fractious history of the honest services law illustrates well why the Court might have been reluctant to take the obvious course. The statute was enacted by a careless earlier Congress in a fit of pique following the Court’s effort to clarify vague federal fraud laws in a 1987 case called McNally v. U.S. Congress did such a bad job of responding to the McNally decision that no jurist could relish the prospect of inviting them to try again, and public officials and businesspeople will be justifiably relieved by the relatively clear and narrow meaning that the Court has assigned to the honest services statute. The Court would have been truest to its interpretive role, however, to declare this law unconstitutional instead.

This piece originally appeared in Notre Dame Journal of Law, Ethics, and Public Policy

This piece originally appeared in Notre Dame Journal of Law, Ethics, and Public Policy