A Justice of the Minnesota Supreme Court Might Want to Consider the Rhetorical Function of “Best”

Last month the Minnesota Supreme Court issued its opinion in In re Petition of S.G., 828 N.W.2d 118 (Minn. 2013) (PDF copy here). This opinion doesn’t involve a contract dispute. Instead, what caught my eye is what is, to my mind, a misunderstanding on the part of the judge writing the concurring opinion. Why bother pointing it out? Because it’s a misunderstanding that rears its heading when practitioners, and English judges, consider the phrase best efforts (aka best endeavours).

Here’s the background, largely cribbed from the headnotes: Two adoption petitions with respect to two girls, one by the girls’ foster parents and one by their grandparents. The district court considered both petitions and found that it was in the best interests of the girls to be adopted by the foster parents and accordingly granted their petition. The grandparents appealed to the Minnesota Court of Appeals, which upheld the district court’s decision. The grandparents then appealed to the Minnesota Supreme Court and again lost.

Here’s the statute language at issue (emphasis added):

In reviewing adoptive placement and in determining appropriate adoption, the court shall consider placement, consistent with the child’s best interests and in the following order, with (1) a relative or relatives of the child, or (2) an important friend with whom the child has resided or had significant contact.

Here’s how the court assessed the dispute:

The grandparents contend that the district court did not follow the proper procedure and ignored the plain language of [the statute] by considering the grandparents’ and foster parents’ petitions side-by-side, rather than considering the grandparents’ petition in its entirety before addressing the other petition. What the court should have done, according to the grandparents, was consider their petition first and, “if it determined that placement with [the grandparents] was consistent with the children’s best interests, stopped there.” The court should only have moved on to consider the foster parents’ petition, the grandparents argue, “if it found that placement with [the grandparents] was not consistent with the children’s best interests.” Additionally, the grandparents contend that without special weight being given to the relative preference in [the statute], foster parents will have an enormous advantage over relatives in situations where children are already living with the foster parents.

The foster parents argue that the best interests of the children is the primary issue in all adoptions and we should not lose sight of that when interpreting [the statute]. The foster parents further argue that the district court is required to make  an individualized determination of the children’s needs based on the statutory placement factors in [the statute], rather than applying a broad policy favoring the placement of children with relatives.

In his concurring opinion, Justice Anderson countered the dissent’s suggestion that the grandparents’ petition should have been considered first. He did so as follows (a citation to the statute omitted):

As I read the statute, the phrase “best interests,” by definition,  requires comparison. See The American Heritage Dictionary of the English Language 172 (5th ed. 2011) (defining best as “surpassing all others in excellence, achievement, or quality”); see also Nat’l Hells Canyon Ass’n v. Fed. Power Comm’n, 237 F.2d 777, 784, 99 U.S. App. D.C. 149 (D.C. Cir. 1956).9

9 In English grammar, “best” is the superlative form of the comparative adjectives good, better, and best. See Bryan A. Garner, Garner’s Modern American Usage 171 (3d ed. 2009). Strictly speaking, the superlative is only needed when more than two objects are being compared. Id. However, use of the superlative with two objects is ubiquitous, e.g., “best of the pair.” Id. And the use of the superlative in the context of the adoption statute makes sense given that the statute contemplates the court’s review of multiple petitions.

In the context of this statute, the relevant comparison is between the competing petitions for adoption. Accordingly, the district court must “consider placement . . . with (1) a relative or relatives of the child, or (2) an important friend with whom the child has resided and had significant contact.” Under the plain meaning of the statute, the court must  exercise its discretion to determine which placement is consistent with the child’s best interests by, at a minimum, employing the statutory factors set forth in [the statute]. When doing so, the statute dictates that the court conduct a comparative analysis.

But I think that Justice Anderson is mistaken in saying that “the superlative is only needed when more than two objects are being compared.” In the phrase your best interests, the word best provides a rhetorical flourish—it tells the listener, Hey, I care! Saying instead your interests would convey essentially the same meaning.

And best doesn’t require comparison. If I tell my daughter, “It’s in your best interest that you learn to drive,” that doesn’t imply a direct comparison to, for example, riding a bicycle. Instead, it simply connotes a general consideration of the circumstances.

I wouldn’t dream of assessing the significance of Justice Anderson’s misunderstanding as regards resolution of this dispute. And I wouldn’t dream of wading into the question of how you determine the best interest of a child—it’s an issue with an enormous amount of baggage.

Instead, I just want to point out that thinking that best implies superiority over something else is what dogs understanding of the phrase best efforts (and best endeavours) by practitioners and some (English) judges. The fix for that is not using those phrases.

If you want more on that subject, the most comprehensive and up-to-date account is in MSCD chapter 8, but you could also search for best efforts on this blog.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.