Thursday, July 19, 2012



We can (probably) all agree that DISGRUNTLED is an authentic word, an adjective, meaning: displeased and discontented; sulky; peevish. 

But what about GRUNTLED as the obverse?
Perhaps not a pressing legal question but one which reared its linguistic head during oral argument at the U.S. Supreme Court on Nov. 3, 2009 in the case of Hemi Group, LLC et al., Petitioners,  v. City of New York (which involved cigarette taxation: lots of money at stake).  Using our time machine let’s pop back to that late Fall day and listen in as Randolph H. Barnhouse, Petitioners’ attorney, begins his oral argument —

    Thank you, Mr. Chief Justice, and may it please the Court:

    The city of New York alleges that it only collected 40 cents on the dollar and it wants to collect 300 cents on the dollar from my clients but the city lacks standing to sue because the city’s claim that it lost the sovereign opportunity to tax is not an injury to business, and it’s not an injury to property.

    (ellipses and brackets not included)

Chief Justice Roberts immediately poses a question — 

    Q. Why – why isn’t the property money?

    Attorney Barnhouse responds,

    A.     Money in the bank would be property, Mr. Chief Justice Roberts, but an opportunity to collect money is an inchoate [i.e., not fully developed] interest, and so it would not be property at that point.  It would be the opportunity to collect it.
    Q.     Well, isn’t a lawsuit with a potential recovery regarded as property of an individual?

    A.     The lawsuit would be – the lawsuit itself would be property, but the – but any recovery would not be property until choate, until there was an amount of money assigned to it.   

    Justice Scalia chimes in,

        There is no such adjective – I know we have used it, but there is no such adjective as “choate.”  There is “inchoate,” but the opposite of “inchoate” is not “choate.” ... It’s like “gruntled.”

Was Justice Scalia’s scolding of Mr. Barnhouse—albeit done in a jesting fashion: laughter in the courtroom noted in the transcript—was the scolding well founded? 

The (on line) Urban Dictionary unabashedly defines gruntled as: “The opposite of disgruntled.  To be happy.”  And P.G. Wodehouse, in his 1938 Code of the Woosters, penned: “If not actually disgruntled, he was far from being gruntled.”  (To add some obfuscation to the mix, the Oxford English Dictionary defines gruntle as: “to grumble, murmur, complain”; and references Robert Bruce sermonizing in 1589: “It becomes us not to have our hearts here gruntling upon this earth.”)

However, there doesn’t seem to be similarly strong support for choate as the opposite of inchoate, although use of choate in that context is not without precedent.  As far back as 1896 Oliver Wendell Holmes lamented its inclusion in a California court opinion—he felt it was a legal barbarism.  And further atrocities followed.  The court in Quail v. Municipal Court (1985) 171 Cal.App3d 572 opined: “But it did render choate another part of Blackstone’s and Marshall’s definition of an Englishman’s in forma pauperis right.”; and from Boyle v. Hawkings (1969) 71 Cal.2d 229: “Plaintiff’s right ... to interest became “choate on the date of judgment ...”

A parting thought — If gruntled is a word so shouldn’t sheveled be?

John S. Spencer
Litigation & Mediation
Sausalito CA