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Daily Journal: Is Negotiating Procuring?
Daily Journal: Is Negotiating Procuring?
Daily Journal: Is Negotiating Procuring?
Reasonable certainty is all that is required. A statute will not be held void for
uncertainty if any reasonable and practical construction can be given its
language. It will be upheld if its terms may be made reasonably certain by
reference to other definable sources." Wachs v. Curry, 13 Cal. App. 4th 616,
627-28 (1993) (internal citations and quotations omitted).
The TAA's defenders use Wachs to silence its critics, noting how, "[n]one
of these commentators have suggested, however, the term 'procure' is so lacking
in objective content as to render the Act facially unconstitutional."
A lawsuit brought by the National Conference of Personal Managers is
working through the 9th U.S. Circuit Court of Appeals, claiming, among other
things, that Section 1700.4(a) is in violation of the due process clause of the 14th
Amendment to the U.S. Constitution. The appellees' principal brief, submitted
by Attorney General Kamala Harris for Labor Commissioner Julia Su, in part
depends upon Wachs reliance of a basic dictionary definition to solidify their
position: "As the court in Wachs recognized, the term 'procure' is not an 'esoteric
or complicated term [ ] devoid of common understanding.' United States v.
Osinger, 753 F.3d 939, 945 (9th Cir. 2014)." The brief notes how the Wachs
court found that to "'procure' means 'to get possession of: obtain, acquire, to
cause to happen or be done: bring about.' Id. at 628; see also Black's Law
Dictionary (10th ed. 2014) (defining 'procure' as 'to obtain (something)')."
The attorney general's brief notes how, "[b]ecause the terms 'procuring'
and 'employment' are not defined in the TAA, courts must construe them
"according to [their] ordinary, contemporary, common meaning." Human Life of
Wash. Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (citations omitted).
Likewise, the term "negotiate" is neither esoteric nor complicated, devoid
of meaning, and thus should be construed according to its common meaning: to
"(1) try to reach an agreement or compromise by discussion with others "his
government's willingness to negotiate" synonyms: discuss terms, talk, consult,
parley, confer, debate. (2) find a way over or through (an obstacle or difficult
path). "there was a puddle to be negotiated" synonyms: get around, get past, get
over, clear, cross." Oxford Dictionary of Current English (2009).
These two terms are clearly different: "Procure" is related to getting,
bringing about, creating an opportunity, while "negotiation" has to do with
refining and finding agreement to the specific terms of an opportunity that has
already solicited. Thus, as borne out by a simple check of a thesaurus, the terms
"procure" and "negotiate" are in no way synonymous (see, e.g.,
http://www.thesaurus.com/browse/negotiation).