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5 Catt. 1: In re China Garden

2012 January 4

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., delivered a dissenting opinion.

China Garden (“CG”) is not a food truck. It is a restaurant in Rosslyn, VA. On Saturdays and Sundays, it serves dim sum “by cart to your table.” The sole issue before this Cart is whether CG falls within our jurisdiction and therefore may be reviewed by the Justices.

Rule of Procedure 1-2 provides the following:

The jurisdiction of the Cart shall extend to all mobile gastronomic enterprises situated throughout those parts of (a) the County of Arlington, Virginia, (b) the District of Columbia, and (c) the City of Alexandria, Virginia, which are reasonably proximate to public transportation of a reasonably rapid and efficient character.

For this Cart to have jurisdiction over CG, three separate elements must be met. First, CG must be a “mobile gastronomic enterprise[].” Second, CG must be located in Arlington, Alexandria, or DC. Third, CG must be “reasonably proximate” to the metro or other form of public transportation.

The second and third elements are easily met. CG is located on Wilson Boulevard in the Twin Towers building. There is no serious question that CG is “situated [in] the county of Arlington, Virginia.” Furthermore, CG is “reasonably proximate to public transportation.” According to Google Maps, CG is a mere 5-minute walk from the Rosslyn metro station. (It is debatable whether the metro is “of a reasonably rapid and efficient character,” especially on the weekends when track maintenance is being performed. However, this does not destroy CG’s reasonably proximate situation to public transportation.)

Dim Sum Cart

The first element requires more analysis. Is CG a “mobile gastronomic enterprise”? CG qualifies as an “enterprise,” since a restaurant is a form of a business organization. Moreover, CG is “gastronomic” in nature. As a provider of dim sum and other Chinese dishes, CG is related to the activity of eating. So, the question is, is CG “mobile”? Although CG’s restaurant is not mobile (given that it’s fixed in a large office building), CG’s dim sum is mobile. After all, the dim sum travels to the diner’s table via pushcarts. Is this the type of mobility that Congress envisioned? The answer, of course, is no. Congress did not intend for this Cart’s jurisdiction to extend to intra-restaurant mobility. Otherwise, would it not then extend to food that traveled within a restaurant on a tray upon a waiter’s arm? Would it not also extend to sushi delivered by a conveyer belt within a restaurant? Where, oh where, would our jurisdiction ever end? Because it would not, and because it must, the use of pushcarts cannot push CG into this Cart’s jurisdiction. Therefore, we are unable to consider the merits of China Garden’s dim sum, yummy as it may have been.

Finally, I will address my brother’s points. He is absolutely correct to scold me for turning to our Rules of Procedure before the Judiciary Act of 2011 (Cartiorari Act). I have no excuse for this horrific oversight. (I will say, though, that perhaps if Congress had authorized an appropriations bill allowing this Associate Justice to also have law clerks, a diligent legal mind could have caught my mistake. But, alas, as it is now, the Chief Justice has multiple clerks while I have none. Reader, take note that I am trying to employ a clerk at my own expense and am still accepting applications. See In re Sâuçá, 4 Catt. 3 (2011).)

It is no matter, for I can discuss the Cartiorari Act now. This statute grants the Supreme Cart “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments.” In part, my brother uses the canon of ejusdem generis to interpret this statutory language. Under ejusdem generis, when Congress lists specific things and then refers to them more generally, the general statement is limited to the same type of things specifically listed. However, the appropriate canon of construction here is noscitur a sociis. Under this canon, terms in a statute should be clarified by the other words in the same statute. Therefore, the meaning of “food carts [and] trucks” is made clear by the words that follow them: “transitory alimentary establishments.” A food cart is not within our jurisdiction simply because it is a food cart; it must also be an establishment. An establishment is a place of business, something that is settled or somewhat permanent. (My law clerk will add a citation for this definition once I hire him/her. The Chief Justice’s clerks undoubtedly are the source of the many citations in his dissenting opinion.) CG’s pushcart is not an establishment. It is a mere vehicle. Therefore, according to our statute, it falls outside our jurisdiction.

My brother complains that my interpretationremoves from our jurisdiction an entire class of cases and controversies that now may find no tribunal in which to be heard.” In re China Garden, 5 Catt. 1 (2012) (Jeremy, C.J., dissenting). Sir, if Congress so desires to have a tribunal for pushcarts, it may create one. Pushcarts have no place in this tribunal.


JEREMY, C.J., dissenting.

My sister turns first to a Rule of Procedure of this Supreme Cart to define the scope of our jurisdiction. Were that a reasonable place to begin, even an unlawful Rule of Procedure would be a reasonable place to start and this Cart could effectively define the scope of its own jurisdiction. Instead, we must begin always with the text. Not with the text of a Rule of our own creation, but with the Act of Congress by which this august body exists.

Section 2 of the Judiciary Act of 2011 (Cartiorari Act) states that “the Supreme Cart shall have exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments within those portions of the District of Columbia or the part thereof retroceded to the Commonwealth of Virginia by Act of this Congress assembled in the year of our Lord 1847.” It is from this phrase, “food carts, trucks, and other transitory alimentary establishments,” that our own term “mobile gastronomic enterprise” derives its meaning.

My sister concedes that CG’s dim sum travels to the diner’s table by cart, a means of conveyance clearly authorized by the plain meaning of our organic statute, and yet concludes that such carts are without our jurisdiction. My sister so concludes by looking to congressional intent. (Oddly, she looks to the congressional intent behind a Rule of Procedure of this Cart.) But as we know, “[a] legislature certainly has no intention whatever in connection with words which some two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, different ideas and beliefs.” Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870 (1930). That is, there is no readily discernible disembodied congressional “intent.” As Justice Scalia has put it, “[w]e look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.” Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed., 1997). She looks to congressional purpose, forgetting that “[t]here is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” United States v. Am. Trucking Assns., Inc., 310 U.S. 534, 543 (1940). The intent and purpose of Congress, if such exists at all, is best found in the plain text of the rules Congress enacts, and not in the pragmatic musings of a wayward judiciary trotting out a parade of horribles it presumes would result from an application of the statute’s plain meaning. I remind my sister, that where the meaning of a statute is plain, we must apply its plain meaning to the case before us. See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).

My sister looks to a Rule of Procedure over the text of our guiding statute. Were she to look at the statutory text, she would quickly learn that her ad absurdum argument is itself absurd. She asks, “would [the Cart’s jurisdiction] not then extend to food that traveled within a restaurant on a tray upon a waiter’s arm,” without explaining how this means of transport could fit within the statutory category “food carts, trucks, and other transitory alimentary establishments.” The term “other transitory alimentary establishments” is easily limited to non-human vehicles through the canon of ejusdem generis. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

In this case, we look to the plain meaning of the word “cart.” Johnson defines a cart as “[t]he vehicle in which criminals are carried to execution,” which clearly has no relevance in this case or we would be a dismal tribunal indeed. The word is defined more broadly as “[a] carriage in general.” We are also directed to “car,” under which we find the following definition: “In poetical language, any vehicle of dignity or splendour . . . .” Would my sister deny that CG’s heaping “pushcarts,” piled high with har gau, shaomai, char siu bao, jin deui, and especially egg custard tarts are indeed “vehicle[s] of dignity or splendour”? I should think not. Turning to a more modern source, Merriam-Webster defines a “cart” as “a small wheeled vehicle.” Would she deny that CG’s carts are “small wheeled vehicle[s]”? Again, I should think not. Applying the plain meaning of the statute, we therefore find that CG’s carts are “carts” and are thus well within the scope of our jurisdiction.

But even were I to engage in my sister’s spurious mode of interpretation, see generally Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REV. 379 (1907), focused as it is on an acontextual analysis of a term of our own invention, I would still find CG to be within our jurisdiction. My sister finds “mobile” to modify “enterprise,” such that the enterprise itself must be mobile. But why does she not interpret “mobile” to modify “gastronomic,” such that so long as the food arrives by an unusual mode of transport, it is within our purview? My sister might contend, again, that this would extend the term’s meaning so far as to include a mere waiter’s arm. But we must, if possible, “give effect to every clause and word” of the Rule. See United States v. Menasche, 348 U.S. 528 (1955) (quoting Township of Montclair v. Ramsdell, 107 U.S. 147 (1883)). To interpret “mobile gastronomic enterprise” to extend to any enterprise in which food is moved from Point A to Point B, to include even a mere waiter’s arm, would be to eviscerate the regulatory term, emptying it of all real significance. Instead, I would interpret it to include only those enterprises whose allure lies in the mobility of its gastronomy (e.g., dim sum). Admittedly, this might include conveyor belt sushi (though I myself prefer sushi boats), but it certainly would not include a mere waiter’s arm.

In this case, my sister removes from our jurisdiction an entire class of cases and controversies that now may find no tribunal in which to be heard. My sister invokes the spirit of a law over its text, in the spirit of Holy Trinity, willfully overlooking the fact that laws have no spirits. This is indeed a sad day for legal reasoning, a travesty of justice, a flaunting of the rule of law, and a return to the basest form of judicial activism there is.

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