Scrivener's Error in Arkansas?

posted by Curt, on October 11, 2007 09:43 am

If I remember correctly from my statutory interpretation class, a scrivener's error occurs when there has been an obvious clerical error in a legal document -- whether it be a contract or a statute or whatever. In those cases many (and perhaps everyone, but I doubt it) believe that a court should go ahead and ignore the literal meaning of the language and interpret the document according to what its obvious meaning is -- in other words, rewrite the document to correct the error. The key question is obviously a what point does the error become obvious.

An interesting article showed up on CNN this morning. Apparently, there seems to have been some kind of scrivener's error in an Arkansas statute that defines the age when a child is allowed to marry. This error (which was due to an unnecessary or misplaced "not" in the statutory language) allows persons of any age to marry in Arkansas, so long as they have their parent's permission. It seems like just about everyone in the legislature (as well as the governor) sees this as a mistake. However, the governor didn't call in the legislature to change the law, her simply referred it to a revision commission that exists to correct scrivener's errors. The commission made the correction, but a woman sued about it. The case went to the courts, and the court held that the commission could not correct the law, because the correction changed the law's meaning. Instead, the law has to go back to the legislature and be re-written. Apparently, the judge didn't think the law was as obviously erroneous as everyone else did . . . or at least that it wasn't within his judicial authority to say so.

Anyway, I thought it was interesting. I've never been sure how I feel about scrivener's errors. I think it has to be pretty obvious that the legislature messed up before courts, or other non-legislative bodies, should be given authority to re-write the law. I'm not sure you can conclude that a mistake such as this is obvious in a short statute. I think that, generally speaking, there would have to be a large statutory scheme where one word is so obviously out-of-step with the rest of the statute that one could only conclude it was used as a mistake. My suspicions are that this was not the case here, and so I think I'm with the judge on this one.

Add New Comment

Your Name:
Your Comment:

Security Code: