IN RE: IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FOR ACCESS TO CERTAIN SEALED COURT RECORDS

Filing 29

IN RE: IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FO...TAIN SEALED COURT RECORDS29 Doc.

STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID C. RODEARMEL, Plaintiff, v. HILLARY RODHAM CLINTON, et al., Defendants. Memorandum of Professors of Linguistics as Amici Curiae in Support of the Defendants' Motion to Dismiss the Complaint This memorandum is submitted on behalf of seven professors of linguistics-- Hana Filip, PhD.; Georgia M. Green, PhD.; Jeffrey P. Kaplan, PhD., J.D.; Jason Merchant, PhD.; Barbara Partee, PhD.; Roger Shuy, PhD.; and Thomas Wasow, Ph.D.--for the purpose of challenging the plaintiff's argument that Secretary Clinton's appointment violated the plain meaning of the Ineligibility Clause. More particularly, we will show that on the point at issue here, the meaning of the Ineligibility Clause is not plain. The plaintiff's interpretation represents only one of several possible readings. The clause can also be reasonably read in a way that permits a Senator or Representative's eligibility for appointment to be restored by reducing the salary of the position in question to what it was when the Senator or Representative's term began. The ambiguity in the Ineligibility Clause relates to the phrase shall have been encreased. Plaintiff's argument assumes that a position's salary has been increased during a Senator or Representative's term if at any point in that term the salary went up, even if it later went back down by the same amount. This interpretation corresponds to what No. 1:09-cv-00171-RBW-JR Hon. Karen LeCraft Henderson Hon. James Robertson Hon. Reggie B. Walton

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linguists would refer to as an EXPERIENTIAL reading. But the language can also be understood to have a RESULTATIVE reading. On the latter interpretation, the salary can be said to "have been increased" only if it went up and stayed up through the time of the appointment. This reading of have been encreased is comparable to the interpretation of I have caught a cold as meaning that the speaker had gotten sick and was still sick. The resultative reading of the Ineligibility Clause is the same in substance as the government's "on net" interpretation; the difference is merely a matter of how the interpretation is described. What we hope to do here--or at least one of the things--is to explain why this interpretation is a plausible one and therefore why the Ineligibility Clause is ambiguous. Interest of Amici Amici are professors of linguistics--the science of language. Hana Filip, PhD. is Assistant Professor of linguistics at the University of Florida. Georgia M. Green, PhD. is Professor, emerita, of linguistics at the University of Illinois at Urbana-Champaign and Professor, emerita, Beckman Institute. Jeffrey P. Kaplan, PhD., J.D. is Professor of linguistics and Chair of the Department of Linguistics and Asian/Middle Eastern Languages at San Diego State University. Jason Merchant, PhD. is Associate Professor of linguistics at the University of Chicago. Barbara H. Partee, PhD. is Distinguished University Professor Emerita of Linguistics and Philosophy at the University of Massachusetts. Roger W. Shuy, PhD. is Distinguished Research Professor of Linguistics, Emeritus, Georgetown University. Thomas Wasow, PhD. is Clarence Irving Lewis Professor of Philosophy and Professor and Chair of Linguistics at Stanford University.

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In cases, such as this one, where a court must interpret a legal text, linguistics can augment the judge's toolkit by providing methods and insights that do not usually play a role in legal analysis. The analysis we set out here can be helpful to the Court in deciding what interpretations the text of the Ineligibility Clause can reasonably bear. Statement of the Case The Ineligibility Clause--also known as the Emoluments Clause--prohibits the appointment of Senators or Representatives to "any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during [the time for which they were elected.]"1 Plaintiff seeks a declaration that this provision renders Hillary Clinton ineligible to serve as Secretary of State because Cabinet secretaries (along with other federal employees) received cost-of-living increases in their salaries during Ms. Clinton's most recent Senate term. The increases in the Secretary of State's salary were wiped out by statute before Ms. Clinton's appointment, so that the Secretary's salary was returned to what it had been when Sen. Clinton's term began. But the plaintiff insists that Ms. Clinton nevertheless remained disqualified from being Secretary of State and that her appointment to that position violated the Constitution. The plaintiff contends that the reduction in the Secretary's salary is constitutionally irrelevant because it does not change the "historical fact" that the previous increases had occurred.2 That position was stated in greater detail by Prof. Michael Stokes Paulsen

1. U.S. Const., Art. I, § 6, cl. 2. 2. Judicial Watch, Rodearmel v. Clinton, http://www.judicialwatch.org/rodearmel-v-clinton (visited May 30, 2009).

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in an article about the appointment of Lloyd Bentsen as Secretary of the Treasury under similar circumstances:
The text of the [Ineligibility] Clause could not be plainer: The disability arises by virtue of the emoluments for the office having "been encreased" "during" "the Time for which [Bentsen] was elected." There is no proviso for annulling the violation by decreasing the emoluments at some later time.... [T]he statute cannot repeal history; it cannot undo the fact that the emoluments of the office had been "encreased" during the period for which Bentsen had been elected to the Senate.3

Under this reading, the statement "the emoluments...have been encreased" is true if there occurred during the relevant time period what we will call an EVENT OF INCREASE--i.e., an action increasing the emoluments. However, a competing interpretation has also been advanced, beginning at least 100 years ago. Under this interpretation, the emoluments of a position are understood to "have been encreased" only if the higher salary resulting from an event of increase remained in effect at the time of the Senator or Representative's appointment to a civil office. This view was first expressed by Representative Marlin Olmstead in 1909.4 More recently, at least two prominent legal scholars--Eugene Volokh and Laurence Tribe-- have at least tentatively expressed the same view.5

3. Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 908­09 (1994) (emphasis in the original; paragraph break omitted). See also John F. O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 135­41 (1995). 4. 43 Cong. Rec. 2411 (1909) (remarks of Rep. Olmsted), quoted in Memorandum for the Attorney General, from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause 4 (May 20, 2009) (Ex. 1 to Gov't Memo. in Support of Mtn. to Dismiss). 5. Eugene Volokh, Hillary Clinton and the Emoluments Clause, Volokh Conspiracy, http:// volokh.com/posts/1227548910.shtml (posted Nov. 24, 2008; last visited June 17, 2009); Larry Tribe, Is Hillary Clinton Unconstitutional?, Balkinization, http://balkin.blogspot.com/ 2008/12/is-hillary-clinton-unconstitutional.html (posted December 2, 2008; last visited June 17, 2009).

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Argument While Plaintiff's interpretation of the Ineligibility Clause is reasonable, it is only one of several reasonable interpretations. There are in addition two separate but related readings of the Ineligibility Clause under which the reduction of the Secretary of State's salary was effective in eliminating any bar against appointing Sen. Clinton as Secretary of State. Under the first interpretation, the word encreased is understood as a verb and the phrase shall have been encreased is interpreted as an instance of the resultative perfect. Under the second, encreased is understood as an adjective, and the state of increase that it describes is understood as obtaining at the time of the appointment. A. The phrase shall have been encreased during such time can be interpreted "resultatively"--i.e., as meaning that the state of increase continued in existence through the time of Sec. Clinton's appointment. 1. The phrase shall have been encreased is in what is conventionally called the
FUTURE PERFECT TENSE.
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This is a compound tense, which means that it has two

components: FUTURE and PERFECT. The use of a future tense places the action described by the verb (encrease) at a point later in time than when the statement was made. And the use of a perfect tense places that action at a point in the future that is earlier than some other future time that serves as a reference point. Thus, the Ineligibility Clause concerns salary increases occurring after the Constitution was adopted (the adoption being regarded as the time the statement was made), but before the hypothesized appointment

6. Not all linguists would agree with this terminology. Some would regard the perfect as coming under the rubric of ASPECT rather than tense. E.g., Bernard Comrie, Aspect ch. 3 (1976). In addition, some linguists would argue that while there are various ways in which the English language allows us to refer to a future time, the language does not, strictly speaking, have a grammatical category that can be described as a future tense. E.g., Rodney Huddleston & Geoffrey K. Pullum, The Cambridge Grammar of the English Language 208­10 (2002).

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of a particular Senator or Representative to a "civil Office" (that appointment being the reference point). For the purposes of this case, what is important is the use in the Ineligibility Clause of the perfect tense, not the use of the future tense. This is the case because it is the use of the perfect that affects the reader's understanding of the relationship in time between the increase and the appointment. Thus, the ambiguities that we will discuss affect both the future perfect and the present perfect.7 We will therefore focus on the various ways in which perfect-tense constructions, can be interpreted, without distinguishing between the future perfect and the present perfect. 2. The perfect tense can be used in English to convey a variety of different meanings. 8 As a result, Plaintiff's interpretation of the Ineligibility Clause represents only one of several ways in which the Clause can reasonably be understood. As we have noted, the plaintiff's interpretation represents what linguists generally refer to as the experiential reading. In such a reading, the event described by the verb is understood only as having occurred at a point in time earlier than the reference point.

7. See, e.g., Renaat Declerck, Tense in English 375 (1991); Anita Mittwoch, The English Resultative perfect and its relationship to the Experiential perfect and the simple past tense, 31 Ling. & Phil. 323, 325 (2008). 8. E.g., Robert I. Binnick, Time and the Verb 98­99 (1991); Comrie, Aspect, supra n. 6, at 56­ 60; The Cambridge Grammar of the English Language, supra n. 6, at 141­46; Ilse Depraetere, On the resultative character of present perfect sentences, 29 J. Pragmatics 597, 597­98 (1998); Sabine Iatridou et al., Observations about the form and meaning of the Perfect, in Artemis Alexiadou et al., Perfect Explorations 153, 154­56 (2003); James McCawley, Tense and time reference in English, in Studies in Linguistic Semantics 97 (Charles Fillmore & D. Terence Langendoen, eds. 1971); Anita Mittwoch, The English Resultative perfect and its relationship to the Experiential perfect and the simple past tense, 31 Ling. & Phil. 323, 323­ 24 (2008); Roumyana Pancheva, The aspectual makeup of Perfect participles and the interpretations of the Perfect, in Artemis Alexiadou et al., Perfect Explorations 277, 277­78 (2003); Paul Portner, The (Temporal) Semantics and (Modal) Pragmatics of the Perfect, 26 Linguistics & Philosophy 459, 459­66 (2003).

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Sentences using the experiential perfect include example (1), which comes from the complaint: (1) "Plaintiff also has had numerous teaching assignments, including serving as an Assistant Professor of Political Science at the U.S Air Force Academy, and as an Instructor of International Law, U.S Constitutional Law, and other legal areas for the Defense Institute of International Legal Studies and the University of Maryland Berlin Education Center."9

All that this sentence conveys about the teaching assignments is that at some point before the complaint was filed, they occurred. The sentence gives no reason to think that these occurrences brought into existence some resultant state that continued through the filing of the complaint. But now consider two other sentences--also taken from the complaint--in which the perfect tense is used to convey a different meaning: (2) (3) "Plaintiff has remained true to his oath throughout his career...."10 "Plaintiff has been a commissioned U.S Foreign Service Officer in the U.S Department of State since 1991."11

Unlike (1), which refers to the occurrence in the past of discrete and self-contained events, the use of the perfect tense in these sentences indicates that some specified state (remaining true to an oath, being a commissioned officer) existed throughout the period identified in the sentence, and was still in existence when the sentences were written. This type of interpretation is referred to as the UNIVERSAL or CONTINUATIVE perfect. A third interpretation--the one that is consistent with the government's on-net interpretation--is the resultative reading. This reading combines aspects of both the

9. Compl. ¶ 6. 10. Compl. ¶ 8. 11. Compl. ¶ 6.

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experiential and universal/continuative interpretations. Like the experiential perfect, the resultative perfect is understood as indicating that a discrete event occurred at some point prior to the reference time; in the case of the resultative perfect, that event must be one that results in a change of state of some sort (for example, increase, break or melt). And as with the universal/continuative perfect, that changed state is understood to continue through the reference time. A classic example of the resultative perfect is I have caught a cold, which in most contexts is interpreted to mean that the speaker caught a cold and still has it, not that there was at least one time in his life when he caught a cold. The state resulting from the event of catching a cold--namely, having a cold--is understood as continuing in existence through the time that the sentence is uttered. Real-life examples of the resultative perfect are all around us. Here are some that we found on the website of the organization representing Plaintiff in this case: (4) (5) "In the past decade Judicial Watch has become the nation's `True Independent Counsel.'"12 "The Constitution thus prohibits members of Congress from being appointed to a civil office (such as a cabinet post) during the term for which they were elected (even if they have resigned), if the salary for that post was increased during that term."13 "The Obama administration has now nominated four more members of Congress to cabinet positions which will require the "Saxbe Fix" to attempt to avoid the Constitution's Disability Clause: Senators Hillary Clinton (State), Ken Salazar (Interior), Judd Gregg (Commerce), and Representative Hilda Solis (Labor)."14

(6)

12. Judicial Watch, Our Programs, http://www.judicialwatch.org/programs.shtml (last visited June 14, 2009) (underlining added). 13. Judicial Watch, Q & A: Rodearmel v. Clinton at 1, http://www.judicialwatch.org/documents/ 2009/rodearmel-v-clinton-faq.pdf (last visited June 14, 2009) (underlining added). 14. Id. at 1­2.

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Example (4) is understood (and most likely intended) to mean not only that there was a point when Judicial Watch became the nation's True Independent Counsel, but that it still retains that status. In (5), the hypothesized state of having resigned is necessarily understood as continuing through (and beyond) the time the sentence was written, because once a Senator or Representative resigns, he or she cannot un-resign. And in the case of (6) it is understood that as of the time of the writing, the nominations had not been withdrawn. The resultative perfect was also in use at the time of the Framing, as shown by these examples from James Madison's notes of the debates at the Constitutional Convention: (7) "Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills he did not wish to make it worse by expunging the present Section."15 "Nothing can be more ideal [= imaginary16] than the danger apprehended by the States, from their being formed into one nation. Massts. was originally three colonies, viz old Massts. Plymouth-& the province of Mayne. These apprehensions existed then. An incorporation took place; all parties were safe & satisfied; and every distinction is now forgotten. The case was similar with Connecticut & Newhaven. The dread of union was reciprocal; the consequence of it equally salutary and satisfactory. In like manner N. Jersey has been made one society out of two parts...."17 "As to the 1st. point [that state legislatures had no authority to ratify a new constitution], he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then

(8)

(9)

15. 2 The Records of the Federal Convention of 1787 at 287 (Max Farrand, ed. 1911) (underlining added; available on Google Books) 16. See 1 New Shorter Oxford English Dictionary 1303 (1993)(sense A3). 17. 1 The Records of the Federal Convention of 1787 at 462 (Max Farrand, ed. 1911) (underlining added; available on Google Books).

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thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint."18 Like the examples from the Judicial Watch website, each of these sentences is understood (and presumably intended) to mean not only that the event described by the verb had occurred, but that the resulting state--the perceived badness of the proposed constitution, the unity of New Jersey, the acceptance of the ratification of the Articles of Confederation by state legislatures--was still in existence when the statement was made. The Ineligibility Clause, too, can be understood resultatively. Under such an interpretation, one could say that the Secretary of State's salary "has been increased" during Sec. Clinton's most recent Senate term only if (1) the salary went up during that term and (2) the higher salary was still in effect when Sec. Clinton was appointed. In concluding that this interpretation is possible, we are relying on more than just our intuitions as speakers of English. First, the conclusion is supported by a recent article that spells out conditions in which a resultative interpretation will generally be unavailable.19 None of those conditions applies here, so to the extent the list is exhaustive, one would expect that a resultative interpretation would be possible here. Second, the availability of a resultative reading is to be expected based on the nature of the event described by the verb encreased.20 As used in the Ineligibility Clause,

18. 2 The Records of the Federal Convention of 1787 at 91 (Max Farrand, ed. 1911) (underlining added; available on Google Books). 19. Anita Mittwoch, The English Resultative perfect and its relationship to the Experiential perfect and the simple past tense, 31 Ling. & Phil. 323, 328­33 (2008) (reproduced in Appendix A to this memorandum). 20. The discussion in this paragraph of the text draws on a concept known as EVENT STRUCTURE. For an overview of the theoretical work on that subject, see, e.g., Beth Levin & Malka Rappaport Hovav, Lexical Conceptual Structure § 5, to appear in Semantics: An International Handbook of Natural Language Meaning (Claudia Maienborn, Klaus von Heusinger & Paul Portner, eds., forthcoming 2009) (draft available at http://www.stanford.edu/~bclevin/

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the verb encrease describes an event that is actually composed of two sub-events: (1) the action by the Congress providing for the salary to increase, and (2) the resulting change in the amount of the salary. That is to say, both sub-events are needed in order to provide the conditions on which one could truthfully say, Congress has increased the emoluments or The emoluments have been increased by Congress. Thus, the concept of a changed result state, which is central to the resultative perfect, is LEXICALIZED, meaning that it is inherent in the meaning of the verb as it is used in the Ineligibility Clause. (This is not the case when the verb is used intransitively, as in the salary increased; in that case, the only event described by the verb is the change of state.) This concept of verbs as describing events and sub-events helps to explain what makes an experiential interpretation differ from a resultative interpretation. An experiential interpretation (such as the interpretation advocated by the plaintiff here) highlights the action sub-event, as well as perhaps the moment of transition. In a resultative interpretation, on the other hand, neither sub-event is highlighted at the expense of the other. Third, the conclusion that a resultative reading is available is supported by the evidence of actual usage. By using Google, one can find examples of word strings such as shall have been increased during and then evaluate them to see whether increased is being used resultatively. We have undertaken that exercise, and the results show, we think, that language such as is used in the Ineligibility Clause is in fact used and understood resultatively. More particularly, we have found sentences in which the relevant language is used in a way (and in a context) that in our view is understood and probably

hsk08rev.pdf) and Carol Tenny & James Pustejovsky, A History of Events in Linguistic Theory, in Events as Grammatical Objects 3 (Carol Tenny & James Pustejovsky, eds. 2000) (available at http://www.cs.brandeis.edu/~jamesp/articles/history-of-events.pdf).

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intended resultatively. A few of these examples are reproduced below, and more can be found in Appendix B. (10) "With the completion of the Columbia, a large twin-screw ship for the Glasgow-New York service, and the Olympia for the Indian service, now on the stocks in Scotland, the Anchor Line fleet will have been increased during the year by four large passenger steamships, a record, it is claimed never before made."21 "The mains, which extended for a length of 10 miles in the previous year, have been increased during the year 1891 to 12½ miles."22 "Beacon hill and the eminences west of it were levelled, and their materials served to fill up the millpond, which the mill proprietors (the successors of Henry Simons, &c. see p. 124) obtained the consent of the town to do, May 14, 1804.... When the pond is wholly filled up, the area of the peninsula will have been increased about 43 acres."23 [Regarding a bill introduced in the House of Commons to provide for compensating tenants for substantial improvements they make to the property:] "It proposed to give equally to tenants holding from year to year and on lease, compensation for the erection of new buildings and the repair of old ones, and for planting and raising fences; and `for effecting permanent improvements by draining, quarrying, reclaiming, inclosing, spadetrenching, or any other means by which the value of such lands shall have been increased.'"24 "When at any time, under the operation of this order, the number of captains absent from a corps of the line, shall have been increased beyond two, no other captain shall be taken from such corps for the staff or other

(11) (12)

(13)

(14)

21. New Anchor Liner Here; The Perugia to Ply Between New York and Italian Ports, New York Times, September 11, 1901, page 11 (underlining added; available on Google Books). 22. Board of Directors, Kensington & Knightsbridge Electric Co., Report by the Directors presented at the fifth ordinary general meeting, in IX The Electrical Engineer (New Series) 262 (March 11, 1892) (underlining added; available on Google Books). 23. Caleb Hopkins Snow, A history of Boston: the metropolis of Massachusetts, from its origin to the present period; with some account of the environs 325­26 (2d ed. 1828) (underlining added; available on Google Books). 24. 2 George Lewis Smith, Ireland: Historical and Statistical 442 (1847) (underlining added; available on Google Books).

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detached employ, till the number of its absentees in that grade be reduced to one."25 (15) [From a letter from Samuel Johnson to James Boswell:] "Dear Sir, "Apologies are seldom of any use. We will delay till your arrival the reasons good and bad which have made me such a sparing and ungrateful correspondent. Be assured for the present that nothing has lessened either the esteem or love with which I dismissed you at Harwich. Both have been encreased by all that I have been told of you by your self or others, and when you return, you will return to an unaltered and I hope unalterable friend."26

Given these examples, one would expect that the phrase shall have been encreased during that Time can similarly be understood on a resultative reading. And it is easy to think of contexts in which a perfect-tense use of increase would in fact be interpreted in that way. Suppose that a job applicant asks about the potential for future salary increases and in response is told, "I can't predict the future, but during the past three years, the salary has been increased 5% each year." The applicant would surely feel misled if, after taking the job, she learned that each increase had been a temporary one lasting only two weeks. And her anger would hardly be assuaged if the employer were to argue that the statement was true on an experiential reading, in that events of increase had in fact occurred each year. B. Encreased can also be understood as an adjective, and under such a reading it can be interpreted resultatively. As we have noted, increased can be interpreted as an adjective as well as a verb. Under such an interpretation, it is subject to much the same ambiguity as the verbal
25. Order regarding absence of regimental captains on staff employ (issued May 25, 1835) in 18 East India Company, The Asiatic Journal and Monthly Miscellany 238 (New Series, 1835). 26. Letter from Samuel Johnson to James Boswell dated Jan. 14, 1766), in 1 The Letters of Samuel Johnson 261 (Bruce Redford, ed. 1994) (underlining added; available on Google Books).

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interpretation. An adjectival reading is therefore consistent with the conclusion that Secretary Clinton's appointment was valid.27 Increase is one of the many verbs whose past participle can be used as an adjective: (16) (17) a. the temperature increased b. an increased temperature a. somebody closed the door b. a closed door

When used adjectivally like this, the word denotes the state resulting from the event described by the verb. The two usages are easy to tell apart when the word occurs before the noun it modifies, because verbs seldom appear in that position. But adjectives can also appear in phrases that follow the noun, in constructions such as the door is closed. When such constructions are used, it is harder to tell the adjectival interpretation from the verbal, because the two meanings are similar to one another. Therefore, a given instance of this construction may be ambiguous between the two interpretations. The language of the Ineligibility Clause is such an instance; indeed, the government's argument emphasizes the possibility of an adjectival reading more than that of a perfect-tense verbal reading.28 While we tend to think that the latter reading is the more natural one, an adjectival reading is certainly possible. What is important for purposes of this case is that even if encreased is used in the Ineligibility Clause as an adjective, the

27. The linguistic literature on the issues discussed in this section includes Cambridge Grammar of the English Language, supra n. 6, at 78­79; David Embick, On the Structure of Resultative Participles in English, 35 Linguistic Inquiry 355 (2004); and Anna Kibort, The Ins and Outs of the Participle­Adjective Conversion Rule, in Proceedings of the LFG05 Conference, University of Bergen 205 (Miriam Butt & Tracy Holloway King, eds. 2005), available at http:// csli-publications.stanford.edu/LFG/10/lfg05kibort.pdf (last visited June 8, 2009). 28. Gov't Mem. in Support of Mtn. to Dismiss 22­24.

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phrase shall have been encreased during that Time can still be interpreted to mean that the state described by the adjective is understood as continuing in existence through the reference time. This conclusion is supported by the examples in the government's memorandum29 (and the additional examples we provide in Appendix C), in all of which increased can be interpreted as an adjective and in all of which a resultative or continuative interpretation seems more natural than an experiential interpretation. This can be explained at least in part by the fact that when encreased is interpreted as an adjective, phrases such as shall have been encreased remain perfect-tense constructions. Specifically, when encreased is understood as an adjective, have been represents the perfect-tense form of be. That being so, the phrase can be understood as an example of the continuative perfect. Such a reading of the Ineligibility Clause would be consistent with the government's position in this case, because it would mean that the clause would be triggered only if the increased state of the salary remained in effect through the appointment date. Conclusion For these reasons, the Court should find the Ineligibility Clause to be ambiguous. Respectfully submitted, /s/ Neal Goldfarb Neal Goldfarb, No. 337881 Butzel Long Tighe Patton, PLLC 1747 Pennsylvania Ave., N.W., Suite 300 Washington, D.C. 20006 [phone] [e-mail] Attorney for Amici

29. Gov't Mem. in Support of Mtn. to Dismiss 23­24.

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Appendix A

Appendix B

Appendix B Examples of the resultative perfect Historical examples (17th­19th centuries) 1. Thus the seeds of genuine character will be developed ; and when the soil shall have been prepared by judicious management, and chastened by exposure to the genial rains and dews of knowledge, to the rays of brightening science, and above all to the light of Christianity, and the beams of religion and virtue, the true light from whose reflection alone it is that any object can appear lucid; the natural richness and fertility of the soil will have been increased, and it will have become capable of bearing other fruits, and maturing other principles, which if attempted to have been implanted at first, must necessarily have perished. 2 William Newnham, The principles of physical, intellectual, moral, and religious education 468 (1827) (underlining added; available on Google Books) The volume of the voice may be but a thread, and but a span in extent; but the slender column of sound will rise from the chest round, pure, and free from flaw: its bulkier portion will be subdued to the proportions of its slenderer parts, which will have been increased in size and strength by careful culture; there will be no straining of weak notes or shouting on loud ones--no vain endeavour to reach above or below the ascertained limits of its compass. Anon., Notes of a Music Student: English Singers and Singing, 43 New Monthly Magazine 442 at 451 (1835) (underlining added; available on Google Books). In express contradiction, then, to Dr. Adam Smith, Mr. M'Culloch tells us that players, singers, opera dancers, and buffoons, are productive labourers. He does not tell us that gamblers, fortune-tellers, and dancing bears, are productive labourers; and yet, if the former are productive labourers, so also are the latter. They are, in fact, one and all of them, obtainers of wealth, but they are not producers of it. Madlle. Jenny Lind, for example, sang a few songs at four concerts, which were given in Scotland in the month of September last, for which she received the sum of £1600. Now, the actual value of all the wealth in existence was precisely the same before she commenced singing, and after she had concluded, so far, at least, as her songs had any influence on that value: the only real difference resulting from her performances being, that before they took place, £1600 worth of marketable property existed in the hands of other people, whilst immediately after they were over, this wonderfully-gifted lady had obtained that value from its previous owners, upon terms and conditions mutually agreed upon, and therefore equitably. But let an equal sum of money be expended in the employment of a number of shipbuilders, for instance, and the result will be, that the sum total of wealth existing in the country will have been increased, and that to the precise amount of the difference between the value of the wealth created, and that of the wealth consumed by the ship-builders during the period of their engagement.

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John Gray, Lecture VII. Professional men, the nature of their avocations considered with reference to Money--Pecuniary provision for the conducting of such Retail and other Business as may be wholly unconnected with the proposed Standard Manufacturing and Commercial system-- Fallacies of Messrs. J. R. M'Culloch and Richard Cobdeu, in Lectures on the Nature and Use of Money: Delivered Before the Members of the "Edinburgh Philosophical Institution" During the Months of February and March, 1848, 199 at 209­10 (1848) (underlining added; available on Google Books) 4. A sudden increase of credit afforded to particular branches of trade may sometimes be the occasion of overstocking the market with their productions. When one class fabricates more than the usual quantity of its peculiar goods, and the other classes, not having fabricated more of their peculiar goods, have not acquired an enlarged power of purchasing, the supply of this first kind of goods will have been increased beyond the demand, and its producers' expectations of profit be disappointed. 1 Joseph Salway Eisdell, A Treatise on the Industry of Nations, Or, The Principles of National Economy and Taxation 508­09 (1839) (underlining added; available on Google Books) If any further argument were required in confutation of the opinion, that the heat excited by friction is derived from a change of capacity, it might be obtained from Mr. Davy's experiment on the mutual friction of two pieces of ice, which converted them into water, in a room at the temperature of the freezing point: for in this case it is undeniable that the capacity of the water must have been increased during the operation; and the heat produced could not, therefore, have been occasioned by the diminution of the capacity of the ice. Thomas Young, A Course of Lectures on Natural Philosophy, and the Mechanical Arts (1807), reprinted in XII The Critical Review (3d Series) 7, 14 (1808) (underlining added; available on Google Books) The relics of his patrimony were conveyed into strange families by the marriages of his four aunts; and his personal honours, as if they had been legally extinct, were revived by the patents of succeeding princes. But there still survived a lineal descendant of Hugh the first earl of Devon, a younger branch of the Courtenays, who have been seated at Powderham castle above four hundred years from the reign of Edward the third to the present hour. Their estates have been encreased by the grant and improvement of lands in Ireland, and they have been recendy restored to the honours of the peerage. 7 Edward Gibbon, The Decline and Fall of the Roman Empire 390 (1805) (underlining added; available on Google Books) In this manner, according to the saying of the criminals themselves, prisons are schools where all sorts of vices are taught. The malefactors become friends, and form projects, to be executed when they are liberated; they organise bands, and prepare to pursue with greater audacity their former criminal life. [¶] The greater B2

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number of malefactors who are liberated, are incapable of gaining their livelyhood. Their immoral habits, their idleness, and even sometimes their intemperance, have been encreased during their confinement, and nothing can be more natural, than that they should yield again to their animal dispositions. Johann Gaspar Spurzheim, A View of the Elementary Principles of Education: Founded on the Study of the Nature of Man 315­16 (1821) (underlining added; available on Google Books) 8. This difficulty might be obviated if the Basle Society should succeed in establishing a Bible Depository in France, from whence Bibles might easily be forwarded to the Departments beyond the Alps. In this case, several worthy men, both of the clergy and laity, would gladly undertake their distribution. The Society could not expect to sell many copies, as the necessitous situation has been much increased during the last twenty years by wars, earthquakes, inundations, and failure of their crops. From the Report made to the German Bible Society in Basle, by a Swiss Gentleman who travelled in Italy in the Summer of 1812, in Ninth Report of the British and Foreign Bible Society 67 at 68 (1813) (underlining added; available on Google Books) Our maior was sent for by a letter to appeare before the king and counsell the weeke before Xmas; some chief brewers of Norwich and excisemen had accused him for putting downe some alehouses, and denying to licence others, and hindring the kings profitt. Butt when hee had shewen that he did butt what the law required of him, that there were still an unreasonable number of alehouses, and that they were a great occasion of debaucherie and povertie in the towne, so that the rates to the poore [a tax levied for the relief of the poor] have been encreased eight hundred pounds more then formerly, hee was dismissed with commendations. Letter from Thomas Browne to Edward Browne dated Jan. 9, 1681­2, in 1 Sir Thomas Browne's Works, Including his Life and Correspondence 322, 323 (Simon Wilkin, ed. 1836) (underlining added; available on Google Books) He said that when the demands of Britain should cease to be covered by the magnitude of that expenditure, and by the vast annual influx of money in the shape of loans, a state of things would arise "eminently worthy of early and serious consideration on the part of those who exercise the powers of government." The loans have ceased; the establishments have been reduced; the taxes are stationary, or nearly so, for though the assessed taxes and other imposts have been repealed since the war, several duties have been increased. The tea tax, coffee tax, paper tax, malt tax, tobacco tax, and glass tax have been encreased. It would be interesting to know the exact amount of the taxes repealed since the War, and the taxes imposed. Michael Staunton, Hints for Hardinge 24­25 (1830) (underlining added; available on Google Books)

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It was at length perceived that the Society might advantageously have recourse to measures, without vaunting itself, which would give greater publicity to its proceedings, and be the means of enlarging its sphere of action. In June, 1810, a Committee was appointed to consider and report the best method to be adopted for increasing the Society's influence, and for inviting a more general cooperation. The formation of District and Diocesan Committees was the expedient proposed and resorted to; and the result has been so favourable, that in less than fourteen years, the funds of the Society have been encreased more than four-fold. 1 The Quarterly Theological Review and Ecclesiastical Record 324 (1825) (underlining added; available on Google Books)

Modern examples 12. If you have access to high quality analog sources such as 15/30 ips Dolby Spectral recordings (SR), or high quality microphones in quiet studios, then a higher bit rate is highly desirable; even if your finished recording is going to be 16 bit. This is because headroom will have to be allowed at the time of recording to prevent digital overload. Quite likely a few levels will have been increased during postproduction. This means that you can end up delivering the equivalent of a 12-bit recording! Roger Derry, PC audio editing with Adobe Audition 2.0: broadcast, desktop and CD audio production 215­16 (3d ed. 2006) (underlining added; available on Google Books) Over the past decade, community college fee levels for credit courses have fluctuated between $11 and $26 per unit. (There continues to be no charge for noncredit courses.) The state currently has no official policy for setting CCC fees. Often, fees have been increased during fiscally challenging periods, and reduced when budget situations improve. California Legislative Analyst's Office, 2009-10 Budget Analysis Series: Higher Education Fees and Financial Aid, http://www.lao.ca.gov/analysis _2009/highered/highered_anl09003005.aspx (underlining added) The number of watchtowers around the camp perimeter was probably larger than claimed by witnesses. The original number of three towers at the corners (with the exception of the northwest corner by the main gate) and one in the camp itself, must have been increased during the reorganization/rebuilding of the camp in June July 1942, prior to the increased extermination activity which began on August 1 and the employment of 1,000 `work Jews' in the camp. Evidence of three small wooden structures at 55 m. intervals along the eastern fence indicates the probable position of such additional watchtowers. Robin O'Neill, Belzec: Stepping Stone to Genocide; Hitler's answer to the Jewish Question Ch. 15, http://www.jewishgen.org/yizkor/belzec1/bel150 .html (underlining added) The Roman period evidence from the settlement indicates to what extent the elite of Pembrokeshire were influenced by Roman fashions and culture; they used a B4

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range of manufactured goods not previously available, but they continued to build and live in roundhouses, and store grain in granaries. The scale of production, and perhaps local taxation and tribute, seems to have been increased during the late Iron Age and Roman period, perhaps to allow exchange of the manufactured goods, and also to pay taxation to the Roman authorities after the conquest. Harold Mytum Castell Henllys: Iron Age Fort and Native Settlement of the Roman Period, http://www.york.ac.uk/depts/arch/staff/sites/henllys /interim.htm (underlining added) 16. The United States' Strategic Petroleum Reserve (SPR) is the largest reserve of its kind, with 700 million barrels of unrefined crude oil housed in man-made, underground facilities in Texas and Louisiana. That is about as much oil as the entire world consumes in nine days. By 2015, total SPR capacity will have been increased from 730 million to one billion barrels. Kenneth D'Amica, A Strategic Petroleum Reserve Primer, http://www. aier.org/research/commentaries/309-a-strategic-petroleum-reserve-primer (posted June 11, 2008) (underlining added) There are certain aspects of the HTML Dog redesign that have probably hindered usability to a tiny degree, in particular the graphical header and logo but the idea is that although usability has been compromised slightly, the end result is something that should be more successful long term (as discussed recently). On the other hand, the CSS file has been reduced by around 25% and many graphical elements have been pulled out so pages should load even faster and in that respect usability will have been increased. HTML Dog, Redesign: Usability, Dog Blog, http://www.htmldog.com/ptg/ archives/000033.php (posted Feb. 23, 2004) (underlining added)

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Appendix C

Appendix C Examples of adjectival use (may be ambiguous between adjectival use and use as resultative perfect) 1. [From a letter from George Washington to the Marquis de Lafayette:] The last letter, which I had the pleasure of writing to you, was forwarded by Mr. Gouvernour Morris. Since his departure from America, nothing very material has occurred the minds of men, however, have not been in a stagnant State. But patriotism, instead of faction, has generally agitated them. It is not a matter of wonder, that, in proportion as we approached to the time fixed for the organization and operation of the new government, their anxiety should have been encreased, rather than diminished. Letter from George Washington to Marquis de Lafayette dated Jan. 29, 1789, in 4 The Documentary History of the First Federal Elections, 1788­ 1790 at 154 (Gordon DenBoer, ed. 1989) (underlining added; available on Google Books). [From an observation of a patient in a mental hospital:] He was by no means violent in his demeanour, nor in a state of insensibility; he talked freely, and not altogether irrationally; he told us he was aware of his own situation, and of his occasional violence, and confessed that he was not fit to be trusted without some restraint, as he could not answer for himself, and that he might otherwise do mischief to somebody, as he had tried to do before; his mind, therefore, was not in such a state as to render him insensible to his situation, nor to deprive him of all social enjoyments; and in proportion as his mind was rational, his suffering must have been increased during his long and dreadful confinement." Great Britain Parliament, House of Commons, Report of the Committee on Mad-Houses in England 138 (1815) (underlining added; available on Google Books). It was now six years since these affectionate brothers had beheld each other; and as they were precisely those years in which the form is most altered and increased, most probably they would not have known each other, had they met in any other place; but the affections of their boyish years had been increased during their absence, for esteem was now added to love, and friendship was engrafted on the ties of nature; so that it is scarcely possible to conceive two young, warm hearts more united in affection than theirs, or two people rendered more happy in meeting, after a long and affecting separation. Barbara Hofland, The merchant's widow and her family 219 (1814) (underlining added; available on Google Books) From the general principles already stated, by which all variations in the value of any commodity are regulated, it follows, that an extension of demand for, or a diminution of the quantity of a commodity, are the only occurrences that can

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possibly raise its value. Now instead of the demand for gold and silver having been increased during the last two years, or the quantity of these metals having been diminished, it is evident that the demand must have been diminished, and the quantity increased. James Maitland Lauderdale, The Depreciation of the Paper Currency of Great Britain Proved 57 (1812) (underlining added; available on Google Books)

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