In Re Markus E. - Concurring

Case Number

I concur in the Court’s judgment reversing the termination of parental rights as to both Mother and Father, and I join nearly all of Justice Kirby’s opinion for the majority. In particular, I agree with the majority’s conclusion that this case presents circumstances that call strongly for application of the prior-construction canon. I would hesitate to apply the canon if only one or two intermediate appellate courts had interpreted the language at issue. Here, however, the Court of Appeals had issued at least eight opinions interpreting “knowing” in a uniform manner before the General Assembly’s reenactment of that language. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (finding “the uniformity of . . . judicial precedent construing the [statutory] definition significant”); Kentucky v. Biden, 57 F.4th 545, 554 (6th Cir. 2023) (noting that the force of the prior-construction canon is “stronger when the lower courts uniformly adopt a particular interpretation of an oft-invoked statute”); cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 243 (2011) (declining to apply canon where “widespread disagreement exist[ed] among the lower courts”).

Authoring Judge
Justice Sarah K. Campbell
Originating Judge
Judge Philip E. Smith
Date Filed
Dissent or Concur
This is a concurring opinion
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