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February 8, 2012

Perpetuity Isn't Forever (If "Construed Liberally")

                                 By John S. Rosenberg

Japanese Garden CA.jpgMost people believe that "in perpetuity" means forever, or at least until hell freezes over. But not the University of California at Los Angeles, which is now proceeding to sell a Japanese garden that it had accepted as a gift after promising to keep and maintain it "in perpetuity."

How, you may well ask, can they do that? Easy. By taking reading lessons from liberals, especially liberal lawyers. In an essay on this site a couple of weeks ago I provided chapter and verse of how statutory language that was "perfectly clear," "crystal clear," to a Supreme Court Justice, John Paul Stevens, for the first decade of his tenure on the Court became in subsequent years subject to interpretation that was completely opposite. By applying what he termed "a flexible approach to the law," Stevens, far from being unique, became the archetype of a liberal judge.

Those of us who believe that a promise is a promise, that "perpetuity" means forever, that words mean what they say are held in contempt as inflexible, close-minded, strict constructionists who are guilty of "reading literally." (Do lax constructionists believe the Constitution should be read figuratively?) We are the sort of people who believe, say, that a statute providing that a candidate can be replaced on a ballot up to 51 days before an election means that a candidate cannot be replaced 36 or 47 days before an election, that a statute requiring county election boards to submit certified results by 5 p.m. of the seventh day after the election actually imposed a requirement to submit results within seven days.

How naive, we were in effect told by the New Jersey Supreme Court when it allowed Democrats to substitute Frank Lautenberg for the discredited Robert Torricelli on U.S. Senate ballot well after the "deadline" provided by statute and by the Florida Supreme Court when in Bush v. Gore it added 12 days to a long-standing statutorily imposed "deadline" to submit certified election results. How could courts ignore the plain meaning of such unambiguous terms as "51st day" and "seventh day"? Again, easy. As the New Jersey Supremes helpfully explained [814 A.2d 1028.], "the election statutes should be liberally construed."

What is odd, and most dismaying, about judges ignoring clear and unambiguous text is that it's not odd at all. It's simply an expression of the currently conventional liberal approach to interpretation. Liberals, not surprisingly, are quite good at construing liberally. They are not so good, however, at simply reading. They dismiss statutory deadlines as "formal deadlines," as then New York Times Supreme Court reporter Linda Greenhouse did in writing about the New Jersey case. "Construing liberally," if it involves any actual reading at all, requires reading "loosely," as the Washington Post put it in an editorial ("The Supreme Court of New Jersey read quite loosely state election law...").

Now, demonstrating that campus-based liberal construers can liberally construe at least as well as liberal judges and journalists, UCLA is selling a Japanese garden donated to it on the condition that UCLA keep and maintain it "in perpetuity."

But what does "in perpetuity" really require in our post-modern society? "Perpetuity is a long time," a Los Angeles Times editorial somberly observed.

Today the university finds itself desperate for discretionary funds for its core academic programs, and the garden, officials say, serves no academic purpose. Public access is limited as well. Parking is nearly nonexistent. And the university has spent more than $1 million in the last decade to meticulously maintain the garden -- one reason its value remains intact. For all those reasons, a court is allowing UCLA to sell the garden.

So, when the Chronicle of Higher Education asks, "Does 'in Perpetuity' Mean 'Till the Price Is Right'?" the obvious answer is: Why not? If a plain reading of unambiguous text would prevent us from doing what we want to do, then what we must do is find a judge skilled in the art of construing liberally. Unfortunately, as UCLA discovered, that's not hard to do.

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John S. Rosenberg is a lapsed historian blogging at Discriminations.



Comments (2)

Dismalist:

The U of C should be able to breach the contract. Circumstances change. But the other side must be compensated. [Such a case is very different from a judge not adhering to a law.]

bob sykes:

No university or college president or administrator recognizes any obligation to abide by the terms of any gift, and all gifts are looted and diverted to other purposes as soon as possible, meaning as soon as the donors and their immediate heirs are gone.

No one should ever donate anything to a university or college. If you are so moved, set up a trust fund in a bank, and let the bank dole out the money.

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