and this last one, which i think may be a legal term (Sparteye?? can you elaborate?)
ex silentio - from silence: basing an argument on the lack or absence of evidence, data, firm proof, etc.I don't think the term
ex silentio is in common use, although
sub silentio is ....
Under silence; without any notice being taken. Passing a thing sub silentio may be evidence of consent.The concept is embodied in legislative acquiescence, a doctrine of statutory interpretation. An example:
In 1935, the Michigan Legislature enacted the police and firefighters civil service act, MCL 38.501
et seq, to protect police officers and firefighters from arbitrary and unjust discharge from their jobs. Included in the act is a section which provides in part that
The tenure of each person holding an office, place, position, or employment under this act shall be only during good behavior and efficient service, and any person may be removed or discharged, suspended without pay, and deprived of vacation privileges or other special privileges by the civil service commission for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, a violation of this act or of the rules of the commission, or for any other failure of good behavior, or for any other acts of misfeasance, malfeasance, or nonfeasance in office. However, a member of any fire or police department encompassed by this act shall not be removed, discharged, reduced in rank or pay, suspended, or otherwise punished except for cause, and in no event until he or she has been furnished with a written statement of the charges and the reasons for the actions. In addition, all charges shall be void unless filed within 90 days after the date the violation occurred, except in the case of a probationer,... MCL 38.514
You can see the full text of the provision here:
http:// http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-38-514In the 1970s, a series of cases arose in which the notice required by this provision was not given within 90 days of the date of the violation. The problem presented was whether a muncipal employer could discharge a police officer based upon illegal conduct even later than 90 days after the conduct occurred on the basis that the employer did not know of the conduct until after the period had expired. In
Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975), for example, in April 1972 an officer “borrowed” $120 from a prisoner and brought the prisoner a pack of beer, and later made an admittedly false felony report. The city did not learn of the misconduct until July 11, 1972, and in a document dated August 2, 1972, the city notified the officer of the charges and of its decision to discharge him. The officer brought suit, and asserted that the discharge was invalid because the charges had not been brought within 90 days of the misconduct. The reviewing court applied the common law concept of a discovery period to permit discharge under the circumstances. That is, traditionally, in applying limitations periods to claims, the period of limitation begins to run from the date the plaintiff knew or should have discovered the claim, and that traditional rule was engrafted onto the police and firefighters civil service act. As a result, notice of the charges within 90 days of the employer’s discovery of the misconduct was held to be timely under the act. See also,
Solomon v Highland Park CSC, 47 Mich App 536; 209 NW2d 698 (1973), and
Werner v Macomb County, 77 Mich App 533; 258 NW2d 548 (1977).
The law thus remained for years. In 1986, the Legislature rewrote substantial portions of the act, but reenacted the above-quoted provision without amendment.
And this is where the concept of legislative acquiescence comes in: it says, given the opportunity of time, and in this case, of actually reenacting the pertinent provision without addressing the pertinent issue, if the Legislature disagreed with the judicial interpretation of the act it would have amended it to alter that interpretation. Having not done so, the Legislature is understood to have acquiesced in that construction.
This concept was put to the test in 1995 in
Goodridge v Ypsilanti Twp Board, 209 Mich App 344; 529 NW2d 665 (1995), and
Command Officers Assoc v Allen Park, 210 Mich App 485; 534 NW2d 258 (1995). In
Goodridge, the plaintiff fire chief hired firefighters using eligibility lists he knew were fraudulent. The lists were compiled on April 7 and April 21, 1986. The fraud was discovered in July 1986, and in a letter dated October 16, 1986, the defendant township board charged the plaintiff with malfeasance and terminated his employment. The plaintiff brought suit, asserting violation of the police and firefighters civil service act. Departing from the 1970s decisions, the majority of the
Goodridge court concluded that the discharge was untimely. This majority was applying a strict, textualist approach to interpretation of the statute. The dissent noted, among other things, that the majority was failing to acknowledge legislative acquiescence.
Goodridge was followed a short time later by
Command Officers Assoc, supra, but only because that court was required to follow the rule announced in
Goodridge because of a new administrative order which prohibited conflicts among panels of the Court of Appeals.
Goodridge was reversed by the Supreme Court.
Goodridge v Ypsilanti Twp Board, 451 Mich 446; 547 NW2d 668 (1996), which noted that the 1986 amendments to the act did not substantively change the pertinent provision, and agreed that the provision should continue to be construed as it had since the 1970s. Interestingly, the author of the reversed
Goodridge opinion is now on the Supreme Court, and his textualist approach is now in favor on that court.
So, there is more that you ever wanted to know about some Michigan cases. But the circumstance, I hope, illustrates the concept of legislative acquiescence.
