Ken Lammers needs an English language expert for an appeal he’s writing. The argument is about the meaning of a statute, so I imagine this problem could have been avoided if the Virginia legislature had worded their law a little more carefully. Instead, someone’s freedom may depend on how restrictive clauses are supposed to be introduced in sentences.
Update: I did a little research.
An excerpt from the “Misused Words and Expressions” chapter of Strunk and White:
That. Which. That is the defining, or restrictive pronoun, which the nondefining, or nonrestrictive. See Rule 3.
The lawn mower that is broken is in the garage. (Tells which one)
The lawn mower, which is broken, is in the garage. (Adds a fact about the only mower in question)
Ths use of which for that is common in written and spoken language (“Let us now go even unto Bethlehem, and see this thing which is come to pass.”) Occasionally which seems preferable to that, as in the sentence from the Bible. But it would be a convenience to all if these two pronouns were used with precision.
So it looks like Strunk and White agree with the judge as a preference, but acknowledge that actual usage is less precise. Note the presence of commas. There is more about this in Strunk and White‘s Rule 3:
3. Enclose parenthetic expressions between commas.
[…]
Nonrestrictive relative clauses are parenthetic, as are similar clauses introduced by conjunctions indicating time or place. Commas are therefore needed. A non-restrictive clause is one that does not serve to identify the defining antecedent noun.
The audience, which had at first been indifferent, became more and more interested.
In 1769, when Napolleon was born, Corsica had but recently been acquired by France.
Nether Stowey, where Coleridge wrote The Rime of the Ancient Mariner, is a few miles from Bridgewater.
In these sentences, the clauses introduced by which, when, and where are nonrestrictive; they do not limit or define, the merely add something. In the first example, the clause introduced by which does not serve to tell which of several possible audiences is meant; the reader presumably knows that already. The clause adds, parenthetically, a statement supplementing that in the main clause. Each of the three sentences is a combination of two statements that might have been made independently.
The audience was at first indifferent. Later it became more and more interested.
Napoleon was born in 1769. At the time Corsica had but recently been acquired by France.
Coleridge wrote The Rime of the Ancient Mariner at Nether Stowey. Nether Stowey is a few miles from Bridgewater.
Restrictive clauses, by contrast, are not parenthetic and are not set off by commas. Thus,
People who live in glass houses shouldn’t throw stones.
Here the clause introduce by who does serve to tell which people are meant; the sentence, unlike the sentences above, cannot be split into two independent statements.
So, although there is a rule regarding the use of that and which, the rule is not as firm as the use of commas to set off the nonrestrictive clause. I would say that the use of commas is definitive. Actually, the definitive test is whether the sentence can be split into two independent sentences, but I think that’s what Lammers is trying to prove: That the statute’s language does not allow for the sentence to be split, as evidenced by the use of punctuation and relative pronouns.
If I had to make this argument, I would argue that the commas are the definitive indicator, and that which is sometimes used to introduce restrictive clauses in flowery language such as the Bible or, presumably, statutes. Since Strunk and White is practically the catechism of modern English writing style, my argument would probably convince an English teacher, but I don’t know if it will help with a judge.
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