Copyright 2012 Carolina Academic Press, LLC. All rights reserved. PLAIN ENGLISH FOR DRAFTING STATUTES AND RULES

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1 PLAIN ENGLISH FOR DRAFTING STATUTES AND RULES

2 LexisNexis Law School Publishing Advisory Board William Araiza Professor of Law Brooklyn Law School Ruth Colker Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law Ohio State University, Moritz College of Law Olympia Duhart Associate Professor of Law Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law David Gamage Assistant Professor of Law UC Berkeley School of Law Joan Heminway College of Law Distinguished Professor of Law University of Tennessee College of Law Edward Imwinkelried Edward L. Barrett, Jr. Professor of Law UC Davis School of Law Paul Marcus Haynes Professor of Law William and Mary Law School Melissa Weresh Director of Legal Writing and Professor of Law Drake University Law School

3 PLAIN ENGLISH FOR DRAFTING STATUTES AND RULES ROBERT J. MARTINEAU DISTINGUISHED RESEARCH PROFESSOR OF LAW, EMERITUS UNIVERSITY OF CINCINNATI ROBERT J. MARTINEAU, JR. COMMISSIONER TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION

4 ISBN: Library of Congress Cataloging-in-Publication Data Martineau, Robert J. Plain English for drafting statutes and rules / Robert J. Martineau, Robert J. Martineau, Jr. p. cm. Includes index. ISBN Legal composition--united States. 2. Bill drafting--united States 3. Legislation--United States. 4. Administrative regulation drafting--united States. 5. Law--United States--Interpretation and construction. 6. Statutes--United States. I. Martineau, Robert J., Jr. II. Title. KF250.M dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2012 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) Standard copyright and notice to readers stuff. NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2012 Pub.3341)

5 FOREWORD For the third time Professor Martineau, now joined by his son Robert J. Martineau, Jr., as co-author, has prepared a guide for drafting a statute or rule in Plain English. This book arises out of the experiences of both authors in the teaching of legislative drafting skills to both law students and professional drafters and extensive experience in drafting constitutional provisions, statutes, and administrative and court rules at all levels of government federal, state, and local. It is based on the principles of Plain English as well as rules that govern the preparation of statues and rules. While the basic approach of Plain English continues in this book, it incorporates substantial differences from the previous books as well as other advocates of Plain English. First, it expressly builds on the work of Jeremy Bentham, who first developed the core principles of drafting statutes in Plain English at the end of the 18th century, as well as that of E. B. White and William Zissner in 20th Century, who stressed the importance of the simple declarative sentence as a key component of clear writing. We address this book to two audiences. The first is law students who are introduced to legal writing in their first year but usually are never called upon to engage in the discipline of structured writing that statute and rule drafting requires. The second is the lawyer (or even non-lawyer) who drafts a statute or rule as a staff member of a legislative committee, legislative drafting service, government agency, private organization, bar association, or private client. In the modern world, statutes and rules play an ever-increasing role in the lives of almost every person. For this reason it now more important than ever for those who draft these statutes and rules to be able to make them as readable and understandable as possible. That is the goal of this book. This book could not, of course, been written without the assistance of a number of people. At the University of Cincinnati College of Law, Dean Louis Bilionis was most supportive both financially and in offering encouragement. Assistant Dean James Schoenfeld was generous in ironing out practical details, and recent graduate Sarah Dwider, who assisted in the early research. A special note of thanks is due to our research assistant, University of Cincinnati law student Krista Johnson. Not only did she do the usual type of research, she did much more editing, finding examples of poorly drafted statutes and rules for the drafting exercises. She was also invaluable in converting all of the written material into the documents that were sent to our publisher. All of this did promptly and efficiently, while continuing as both a law student and law review staff member. Robert J. Martineau Robert J. Martineau, Jr. (Disclaimer note: The view express in this book are those of the authors only and do not necessarily reflect those of the State of Tennessee or its Department of Environment and Conservation.) iii

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7 DEDICATION To our families, especially our wives Connie and Pam, without whose love and support this book could not have been written v

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9 TABLE OF CONTENTS PART I WHY STATUTORY AND RULE DRAFTING IS SO POOR AND HOW TO IMPROVE IT Chapter 1 THE NEVER ENDING STRUGGLE A. THE HISTORIC PROBLEM OF POOR LEGAL DRAFTING B. EFFORTS TO IMPROVE LEGAL DRAFTING C. THE SPECIAL PROBLEMS OF STATUTORY AND RULE DRAFTING... 5 D. CRITICS OF PLAIN ENGLISH IN DRAFTING STATUTES AND RULES. 8 E. OUR VIEW PART II Chapter 2 THE SPECIAL ENVIRONMENT OF DRAFTING STATUTES AND RULES HOW STATUTES GET MADE IN A LEGISLATIVE BODY A. THE DRAFTING PROCESS B. THE ENACTMENT PROCESS The Formal Process The Political Process Chapter 3 FEDERAL ADMINISTRATIVE AND COURT RULEMAKING A. FEDERAL ADMINISTRATIVE RULEMAKING History of Agency Rulemaking Source of Rulemaking Authority The Rulemaking Process a. Introduction i. The Informal Rulemaking Process ii. Commencing the Rulemaking Process Advanced Notice of Proposed Rulemaking iii. Preparation of the Proposed Rule iv. Preparation of the Final Rule v. Exemptions from Informal Rulemaking Requirements Statutory Constraints on The Rulemaking Process a. Congressional Review b. Paperwork Reduction vii

10 Table of Contents c. Plain English d. Small Business Impacts e. Unfunded Mandates f. Information Quality g. Environmental Impacts Executive Orders and Rulemaking Procedures a. Cost vs. Benefit b. Tribal Consultation c. Energy Supply Implications d. Federalism e. Children and Environmental Health Risks f. Environmental Justice g. Property Rights and Takings Judicial Review of Agency Rulemakings B. FEDERAL COURT RULES Chapter 4 STATE RULEMAKING A. ADMINISTRATIVE RULEMAKING Introduction The Model State Administrative Procedure Act a. Introduction b. General Provisions c. Public Access to Agency Law and Policy d. Rulemaking Proceedings: Procedural Requirements i. Introduction ii. Commencing the Rulemaking Process Advanced Notice of Proposed Rulemaking iii. Notice of Proposed Rulemaking iv. Final Rule Issuance v. Petition for Rulemaking e. Executive Review of Agency Rulemaking f. Legislative Oversight of Agency Rulemaking g. Judicial Review of Agency Rulemaking Local Government Rulemaking B. COURT RULES Sources of Authority and Subjects Covered Rulemaking Process viii

11 Table of Contents Chapter 5 STATUTES AND RULES IN THE COURTS A. THE MEANING OF STATUTORY INTERPRETATION OR CONSTRUCTION B. THE IMPORTANCE OF STATUTORY AND RULE INTERPRETATION TO THE DRAFTER C. STATUTORY RULES OF INTERPRETATION D. THE LITERATURE ON STATUTORY INTERPRETATION E. CANONS OF CONSTRUCTION LIMITED TO STATUTORY OR RULE TEXT F. CANONS OF CONSTRUCTION CONCERNING SOURCES OUTSIDE THE TEXT G. LEGISLATIVE HISTORY PART III CONSTITUTIONAL AND LEGISLATIVE RULES GOVERNING STRUCTURE OF A BILL Chapter 6 MANDATORY FORM AND LANGUAGE A. FEDERAL B. STATE C. CONTENT REQUIREMENTS Identification and Numbering System a. Federal b. State First Words Title and Single Subject Enacting Clause Amendments to Existing Law Municipal Examples of Bills and Ordinance Chapter 7 ARRANGEMENT OF BILL SECTIONS A. MANDATORY PROVISIONS B. OPTIONAL PROVISIONS Short Title Purpose, Policy, or Findings Statement C. IMPLEMENTING PROVISIONS Placement in Existing Code Severability Saving Clause Effective Date ix

12 Table of Contents 5. Emergency D. SUBSTANTIVE SECTIONS E. SUBDIVISION BY LETTERS AND NUMBERS PART V Chapter 8 PRINCIPLES OF DRAFTING STATUTES AND RULES IN PLAIN ENGLISH THE EFFECT OF STRUCTURE AND STYLE ON SUBSTANCE A. TO WRITE IS TO THINK B. THE RELATIONSHIP BETWEEN STRUCTURE, STYLE, AND SUBSTANCE Chapter 9 THE DRAFTING PROCESS Chapter 10 PLAIN ENGLISH PRINCIPLES ON WORD CHOICE A. USE COMMON AND KNOWN WORDS B. ACHIEVE BREVITY AND CLARITY BY ELIMINATING UNNECESSARY WORDS C. USE SIMPLE RATHER THAN COMPOUND EXPRESSIONS D. ELIMINATE LEGALESE E. USE THE SAME WORD TO EXPRESS THE SAME THOUGHT THE NECESSITY FOR CONSISTENCY Chapter 11 AMBIGUOUS AND OTHER TROUBLESOME WORDS A. IMPORTANCE OF UNDERSTANDING WHAT TROUBLESOME WORDS ARE AND THE DIFFERENCES BETWEEN THEM B. AMBIGUOUS WORDS C. VAGUE WORDS D. GENERAL WORDS E. THE DIFFERENCES BETWEEN VAGUE AND GENERAL WORDS F. INTENTIONAL USE OF A VAGUE OR GENERAL WORD G. CONFUSING AMBIGUITY WITH OTHER TYPES OF POOR DRAFTING H. HOW TO ELIMINATE AMBIGUITY, UNINTENDED VAGUENESS, AND OVER AND UNDER GENERALITY I. COMMONLY MISUSED WORDS AND PHRASES No Person Shall, Shall Not, and This Act (section) Shall Not Be Construed to Assure, Ensure, and Insure x

13 Table of Contents 3. Share Only Chapter 12 PLAIN ENGLISH PRINCIPLES AND RULES ON DRAFTING A SENTENCE A. BASIC PRINCIPLES The Simple Declarative Sentence The Drafter s Best Friend Use Short Sentences B. GENERAL RULES ON CRAFTING THE SUBJECT AND PREDICATE Make the Subject a Singular Rather Than a Plural Noun Use the Verb in the Predicate in the Active Rather Than Passive Voice Put the Verb in the Present Rather Than the Future Tense Use the Finite Verb Rather Than Its Noun Version Draft the Sentence in the Positive Rather Than the Negative Form Follow the Verb With an Object or Complement C. FURTHER RULES TO AID CLARITY The Subject a. Identifying the Subject b. Use an Article Rather Than an Adjective as the Subject s Modifier c. Minimize Use of Pronouns The Predicate a. The Verb i. Place the Negative With the Verb in the Predicate Rather Than With the Noun in the Subject ii. Use May to Create a Right or to Grant Authority or Discretion b. Use Shall to Require an Action Rules Applicable to Both Subject and Predicate a. Place a Qualifier Before the Subject or After The Predicate and as Close as Possible to the Word Modified b. Punctuate With Care c. Tabulate for Clarity Chapter 13 RULES ON DRAFTING SPECIFIC PROVISIONS OR WORDS A. INTRODUCTION B. DEFINITIONS When to Define Placement of Definition The Difference Between Means and Includes Do Not Include Substantive Provisions With the Definition xi

14 Table of Contents 5. Exclude the Word Defined from the Definition Include Only Words That are Commonly Understood to Fit Within the Word Defined C. CONDITIONS AND EXCEPTIONS Conditions If, When, or Where a. If b. When c. Where Exceptions Establishment of a Governmental Entity or Position Penalty Age, Day, Date, Number, and Time a. Age b. Day and Date c. Number Capital Letters Hyphen Cross Reference Appendix EXAMPLES OF BILLS AND ORDINANCE xii