Protected Game Animals § 9-11-30(a), Ala. Code 1975 and Rules of Statutory Construction


Blankenship v. Kennedy, [Ms. 1180649, May 29, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Mitchell, J.,; Parker, C.J., and Stewart, J., concur; Bolin, Shaw, Wise, Bryan and Mendheim, JJ., concur in the result; Sellers, J., dissents) issues a plurality opinion that hybrid white tail deer artificially inseminated with mule-deer semen are not, according to the plain meaning of § 9-11-30(a), Ala. Code 1975, “protected game animals” based solely on the fact that they are the offspring of white tail deer. The Montgomery Circuit Court’s Order on a motion for a judgment on the pleadings holding otherwise was in error.

The issue arose because of a letter from the Alabama Department of Conservation and Natural Resources advising Alabama game breeders that hunting mule-deer hybrids is prohibited by § 9-11-503, Ala. Code 1975.

The opinion analyzes two competing principles of statutory interpretation – the series-qualifier principle and the rule of the last antecedent – to discern the plain and unambiguous meaning of § 9-11-30(a). The series-qualifier principle is “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” Ms. **8-9, quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 19, at 147 (Thomson/West 2012). The rule of the last antecedent is “[a] pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.” Ms. *9, quoting Scalia & Garner, Reading Law § 18, at 144. Relying upon Lockhart v. United States, ___ U.S. ___, 136 S. Ct. 958 (2016) for guidance on how to determine which of the rules of statutory construction to apply (Ms. **10-16), the Court holds that the rule of the last antecedent applies such that the phrase “and their offspring” in § 9-11-30(a) does not modify “white tail deer” so that the hybrid deer are not “protected game animals” based solely on the fact that they are offspring of white tail deer.

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