(Posted June 29, 2023) After two dry Thursdays, the Supreme Court resumes today the process of clearing its argument docket. The court decides a criminal appeal, Tomlin v. Commonwealth, that focuses on statutory construction.

I try to be as dispassionate as the next lawyer when evaluating appeals, but I’m not perfect. Here, see if you have the same reaction that I had upon reading this passage from today’s opinion describing the facts:

On April 24, 2020, an exterminator called 911 after he arrived at the Tomlin home to treat a bed-bug infestation and saw that Betty Tomlin, the defendant’s mother, needed urgent medical attention. He told the dispatcher that she was “in pretty bad shape” and was “being eat[en] up with bed bugs.”

First responder and firefighter Andy Tanner arrived shortly thereafter with another firefighter, and they entered the home where they found Betty lying on the floor just inside the door. Tomlin was standing nearby in the kitchen. Betty was “on her left side covered in feces and urine” with “what looked to be bed bugs crawling on her.” She had visible bug bites on her legs, and there was excrement on her nightgown and the floor nearby. Tanner asked Tomlin how long her mother had been lying there, and she said, “about two days.” When Tanner asked Tomlin why she hadn’t cleaned her mother up, she said, “I do not have time.” After removing her clothing and Depends, which were “well over saturated” with “urine and feces,” the firefighters wrapped her in a sheet and transferred her to the ambulance.

(Record citations omitted) At this point in the slip opinion – about halfway down page 2 – I’m already rooting hard against this defendant.

After a bench trial, a circuit court convicted the daughter of abuse or neglect of an incapacitated adult resulting in serious bodily injury. The daughter appealed to the Court of Appeals, which affirmed the conviction. Today the justices make it unanimous, holding that the evidence, in a light most favorable to the prosecution, made out a satisfactory case.

Justice Kelsey walks us through the statutory analysis in his opinion for the court. The issue is whether the language of the statute covers the kind of injuries that the mother sustained here. Here’s the relevant language: “‘Serious bodily injury or disease’ shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.”

The daughter admitted neglecting her mother, but argued that her mother’s injuries didn’t fall within the listed classes. She invoked familiar interpretive canons such as ejusdem generis and noscitur a sociis to argue that she couldn’t be found guilty of this felony.

Justice Kelsey points to the key statutory language that makes those canons inapplicable: shall include but not be limited to. This means that other kinds of serious injuries – even if they don’t include broken bones or mutilation – can support a conviction. The circuit court heard testimony from the first responder and from a physician’s assistant at the hospital; the latter witness explained how serious the mother’s ulcerated bedbug bites were. Today’s opinion lays out the Supreme Court’s view of this kind of statutory construction and the nuances implicit in phrases like “including but not limited to.”

The court received argument in the case in the February/March session. This opinion leaves undecided just four argued cases: two from the June micro-session, just three weeks ago, plus Monroe v. Monroe from March and Vlaming v. West Point School Board from way back in November. I fully expect a 100% clearance rate by the time The Robes reconvene for the September session.