last updated: 1/31/2012 2:38 PM Legislative Drafting Style ManualFoundational Drafting Principles With the demands on a legislative drafter, it is easy to wonder where it is best to focus time and energy. Should a drafter focus efforts solely on substantive drafting, or worry about "style" issues? This debate has the familiar feel of "form over substance." In the literature of legislative drafting, the debate arguably is encompassed in a question of whether the goal of drafting is clarity or accuracy.mSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 9-12 (2005); Haggard, Legal Drafting in a Nutshell, p. 4-10 (2nd ed. 2003)("Although [accuracy] is more a function of substance than style, the two are inexorably linked."); Stark, The Art of the Statute, p. 1-5 (1996). However, the goal is achieving both clarity and accuracy. The joining of clarity and accuracy creates readability. "A law is unreadable if it is needlessly hard to read, understand, or use. A law may be unreadable without otherwise being uncertain: A single unmistakable meaning may well be in there somewhere, but it can be arrived at only after painful and tedious effort. Because, in a legal sense, a law that is unreadable may still be perfectly effective, a drafter may not be too concerned with the plight of the reader. This is a mistake, and a disservice to the client."cDorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 180 (2006). If unreadable, a statute may be misinterpreted or fail to capture a necessary element.mConfucius is quoted as saying that "if language is not correct, then what is said is not what is meant; if what is said is not what is meant, then what ought to be done remains undone." Crabbe, The Legislative Sentence, 10 Statute L. Rev. 94 (1989) (quoting Sir Ernest Gowers, The Complete Plain Words, p. 159 (Pelican Books, 1983 reprint). In stating seven rules of legal writing, one author encourages a drafter not to "ignore even the limited possibilities of precision. The price of sloppy writing is misunderstanding and creative misinterpretation." Mellinkoff, Legal Writing: Sense and Nonsense, p. xviii (1982). "Words can be unreadable if archaic or rare. Sentences can be unreadable if long or complex. Style can be unreadable if stuffy or unfamiliar. Organization can be unreadable if counterintuitive." cDorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 180 (2006). "Clarity . . . is promoted by using the active voice, writing with verbs instead of nouns, keeping subject close to verb and verb close to direct object, making the elements of a sentence parallel in structure, being careful in word choice and usage, and punctuating correctly."cHaggard, Legal Drafting In a Nutshell, p. 7 (2nd ed. 2003). Keys to Legislative Style The following discussion is designed to highlight common elements of legislative style that a legislative drafter should employ regardless of the substantive area in which the drafter drafts. Structure for Legislation Once a legislative objective is given by the sponsor, an initial step is framing the basic structure of the legislative proposal. This generally requires creating relationships between the one or more actors, actions, conditions, and consequences. "[M]ost statutes forbid, authorize or require, they may do so under certain stated conditions, and they may specify certain consequences that will follow from conforming or not conforming to the forbidding, authorizing or requiring. It follows that drafters must carefully and clearly identify the person who is, and the action that is forbidden, authorized or required, and must state accurately all relevant conditions and consequences and also accurately connect them to that person and that action."cStark, The Art of the Statute, p. 65 (1996). Effectively developing an organization or structure of a legislative proposal assists a legislative drafter in thinking through a policy objective. Effective legislative drafting requires a legislative drafter to see beyond the obvious to ensure that a draft is comprehensive.m"Drafts can be failures for two reasons: Some are failures of communication, while others are failures of imagination. Some who write about drafting focus only on failures of the first type. They reason that thinking and writing go hand in hand, so writing well also guide you into thinking well. That's fine as far as it goes, but it doesn't go far enough. . . . . When there is a failure to imagine, however, the draft is not adequate. The problem is not on the page and is invisible to the naked eye. The words look fine, but the thinking behind them is less than thorough. A failure to imagine cannot be cured by editing after the fact; it can be cured only by thinking through the policy." Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 111 (2006). Considerations that may influence the structure of legislation include a desire for simplicity and limiting duplication, but competing with this is the ability of a court, regulator, practitioner, researcher, or citizen to find relevant law.cSee Blackwell, Finally Adding Method to Madness: Applying Principles of Object-Oriented Analysis and Design to Legislative Drafting, 3 N.Y.U. J. Legis. & Pub. Pol'y 227 (1999/2000). Examples of tools that can be used to create a reasonable structure include an outline, sequential ordering, or a checklist. Outline The strength of an outline is that it creates a format or logical flow to the content of legislation. Without proper organization and arrangement, the major concepts of legislation may easily be lost.mPut another way by an experienced legislative drafter, "Nietzsche's remark that the most common cause of stupidity is forgetting one's goal certainly applies to drafters, and the second most common cause of drafting stupidity probably is never knowing one's goal." Stark, The Art of the Statute, p. 14 (1996). A good outline, if comprehensive, minimizes later editing and redrafting. In developing an outline, a drafter should consider provisions in the following areas.
The National Conference of Commissioners on Uniform State laws provides the following suggested order of arrangement:
An outline, at its best, assists a legislative drafter in both establishing a proper sequence to the provisions in legislation and determining whether necessary provisions to address the policy objectives of a legislative client are included in the legislation. Sequence Another tool of organization is to determine the sequence of the major components of legislation.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 204-206 (2006). To some extent, the Utah Code dictates the sequence of certain provisions such as the order in which common provisions appear such as a title or definitions. However, within the body of a statute there are several sequential possibilities such as:
A legislative drafter should choose the sequential order that best serves the legislative objectives. Checklist for Organizing a Legislative Proposal Although not technically an organizational construct, a checklist is a tool that helps a drafter determine whether the necessary elements are included in a draft.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 19, 21 (2005). A checklist may be most helpful when working with an existing draft, because it is easy to overlook a necessary item when a draft appears complete. A checklist can serve as a type of reality check, a helpful tool to determine whether or not legislation meets a desired objective.mSee, e.g., Stark, The Art of the Statute, p. 34-38 (1996) ("legislative drafters . . . will be more effective if they remember that work in the world of statutes, because it has real world consequences, should be subjected to a reality check."); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 127-131 (2006). Dorsey highlights two ways to test legal rules: the actor-action model and the if-then model. "To test a rule with the Actor-Action model, identify the actor, the action, and the qualifiers. If you can't figure out who the actor is (or what the action is), you and the client have some more thinking to do. When a rule fails to identify the actor or the action directly, the courts may struggle to figure out what the legislature intended.. . . . There is a completely different root idea that you also need in thinking through the policy, and that is the notion (referred to here as the If-Then model) that every legal rule can be expressed as a condition and a result. . . . . The value of the If-Then model is that it makes you focus on consequences - when you use this model, you often realize that you and the client haven't adequately considered what the consequences should be." Id. Each area of the law may require its own checklist and over time a drafter can develop a checklist that best works for that drafter. An example of a checklist consists of a series of questions: "1. How widely should the law apply? For instance, should it cover both individuals and corporations? 2. When is the law to take effect? If there are transitional problems, how are they to be solved? 3. How are the most important relevant terms to be defined? 4. Who will administer the law? Will any changes to the law, such as the creation of positions or an appropriation, follow from that decision? 5. Are penalties or other enforcement mechanisms needed?"cStark, The Art of the Statute, p. 14 (1996). Building the Basic Structure of Legislation Once a structure is formulated, a legislative drafter next starts to "build" the legislation. Legislation should be structured so that the legislation is logical and accessible. The arrangement and parallel construction of sentences or phrases become critical to the structure of legislation.
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Structure of a Legislative Sentence As with most writing, the core of a statutory unit is the sentence. A good guideline is to limit a sentence to a single idea or thought.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 61 (2005). In General An experienced legislative drafter suggests that in crafting a legislative sentence it is important to:
Agreement (Subject/verb and pronoun/antecedent) A basic, but at times forgotten, rule of drafting is the creation of agreement between subject and verb and between pronoun and antecedent. A pronoun like a noun has four basic properties, i.e., number, person, gender, and case, and must agree with its antecedent in number, person, and gender.417 See, e.g, The Chicago Manual of Style, 5.39 - 5.43 (15th ed. 2003). See Example
Using a Subdivision to Deal with Multiple Points One of the tasks of a legislative drafter is to aid a reader in processing the details of complex problems which could include multiple actors, actions, objects, or qualifiers. Including all the detail in a single sentence may make it more difficult to comprehend a statutory provision. The exact manner of subdividing a sentence or paragraph differs from statute to statute, and requires careful thought by a legislative drafter. As one experienced legislative drafter explains: "When to use smaller units is largely a matter of judgment. . . . What is important is that when you do subdivide, or don't, you do so for good reason. . . . In most cases, the reason to subdivide is simply to make the text easier to read. A series of smaller units is generally less taxing to read than a single block of undivided text. . . . Subdivisions create structure, and structure is used by courts to guide meaning."cDorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 209 (2006). When possible, a legislative drafter should follow a general guideline of not stringing more than two to three sentences together without subdividing.cSee Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 209 (2006). Choice of Language An effective legislative drafter uses familiar language that expresses the intended meaning according to common and approved usage. In General A term used in drafting should be easily understood, with those few exceptions defined. A balance must be struck between excessive technical terms and inappropriate conversational tone. A technical term can be used if properly defined. A statute should not be overly simplistic or informal. Principles that assist a legislative drafter in the choice of language include the following:
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Consistency Consistent use of terminology is a hallmark of drafting.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 105 (2006 ed.); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 183-184 (2006); Haggard, Legal Drafting in a Nutshell, p. 309-311 (2nd ed. 2003). "Consistency in this context means being repetitive, that is using the same word rather than a synonym. . . . In legal writing elegant variation is undesirable because of the construction problems it may create. In the drafting of [legislation], consistency in the use of language is an absolute necessity."cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 59-60 (2005). An experienced legislative drafter explains that: "[A] court expects each word and meaning used in a law to be used consistently. If you use a word or meaning in any inconsistent way, the court will assume you meant to do so, and will create a distinction where none was intended. Being consistent is not simply a matter of being consistent within a particular law. . . . a court reads a law in the context of other laws on related subjects. If those other laws give a certain term a specific meaning, be careful when you use that term and when you try to capture that meaning."cDorsey, Legislative Drafter's Deskbook, p. 183 (2006).
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A legislative drafter should define a term carefully and then use the term consistently. Click here for further discussion on the drafting of definitions. Basic Requirements for Effective Legislative Drafting Tense The law is to be drafted as if it is continuously in effect, which requires a legislative drafter to:
Present Tense A statute continually "speaks" to the person reading the statute.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 103 (2006 ed.); Haggard, Legal Drafting in a Nutshell, p. 351 (2nd ed. 2003). Therefore, a statute should be in the present indicative, not in the subjunctive; and in the present perfect, not in the future perfect.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 101 (2006 ed.); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 189 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 47-48 (2005); Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction, 21:10 (6th ed. 2002 revision). See Example
Utah Code Ann. 68-3-12(1)(d) provides that words used in the present tense include the future. In general there is no need to draft in any tense other than the present tense. One exception to this rule occurs in expressing time relationships. Time Relationship If a time relationship must be expressed, present facts may be used in conjunction with past facts.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 189 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 47-48 (2005). See Example A person who has been convicted of a felony may not apply for a permit. Combining present facts with future facts is generally not appropriate because the application of the law does not occur until the future fact, e.g., "A person who will commit a felony may not apply for a permit." This type of legislation has obvious difficulties. Voice Active Voice Whenever possible, use the active voice rather than the passive voice.mSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 188-189 (2006); National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 103 (2006 ed.); Haggard, Legal Drafting in a Nutshell, p. 345 (2nd ed. 2003); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 44 (2005) ("The most important legislative drafting principle and the one upon which most of the others depend is the command to use the active voice."). A drafter's use of the active voice forces the drafter to name an actor as the subject of a sentence.cSee, e.g., Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction, 21:7 (6th ed., 2007-08 Supp., 2002 revision). "With the active voice, the subject of the sentence is the one who acts ('The President submits the budget') with the passive voice, the subject of the sentence is the one being acted upon ('The budget is submitted by the President' or simply 'The budget is submitted'). There are several reasons to favor the active voice. Using the active voice forces you to name the actor, which is always useful and often essential. By naming the actor, you make known to the reader the person who is to receive the benefit or the burden of the law. The actor is put on notice (and so is the rest of the world). If the law imposes a command, you identify the person on whom it is imposed. As if that weren t reason enough, the active voice usually requires fewer words and is generally considered more readable, vivid, and interesting."cDorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 188-189 (2006). See Example
A legislative drafter should not use the passive voice. Rare exceptions include a circumstance when:
Action or Finite Verb Whenever possible, a legislative drafter should use an action verb instead of a participle, infinitive, gerund, or other noun or adjective verb form.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 190 (2006); Stark, The Art of the Statute, p. 68-69 (1996); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 46 (2005). An action verb is shorter and more direct.cSee, e.g., Haggard, Legal Drafting in a Nutshell, p. 346-347 (2nd ed. 2003). There are at least three tools in using action verbs.
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for examples of phrases that fall victim to turning a verb into a noun. Positive Voice In addition to drafting in active voice and using basic, concrete verbs, a legislative drafter should write positively.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 50-51 (2005); Haggard, Legal Drafting in a Nutshell, p. 362 (2nd ed. 2003); Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction, 21:9 (6th ed. 2002 revision). A drafter should avoid several negatives in one sentence. See Example
Indicative Mood A statute should be in the present indicative, not in the subjunctive; and in the present perfect, not in the future perfect. A common mistake in drafting legislation: "is the use of 'shall' or 'shall not' to declare a legal result rather than to give a command. For example, . . . 'The record for judicial review shall consist exclusive of' . . . 'A Government employee shall have a right of action against the Government . . .' This usage is known as a false imperative because it does not give a command to someone to do something but rather declares a legal result. [Legislation] is self executing. If it says something 'is,' it is. Thus, if in a [statute] a word has a certain meaning, it is only necessary to say that the word 'means . . . .' This usage is the indicative mood. . . . In addition to the use of shall in these circumstances being technically incorrect, the use of the indicative mood has two other advantages. Most important, it allows the use of shall only in those instances when the imperative mood is appropriate, this is when a command is given. . . . Elimination of the unnecessary shall, of course, also reduces the number of words in the provision."mMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 47-48 (2005). One author explains: "the indicative mood is the mood used to indicate - that is, to make a statement of fact. Use it for a stipulation ('This Act applies after the date of the enactment of the Act') or a condition ('If the Secretary determines X, then the Secretary may Y'). Do not use the subjunctive mood ('If the Secretary were to determine X, then the Secretary may Y')." Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 190 (2006). See also, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 103 (2006 ed.); Haggard, Legal Drafting in a Nutshell, p. 281-282 (2nd ed. 2003). Click below to see examples of how false imperatives can be changed to the indicative mood. See Example
Case Singular and Plural A legislative drafter should generally draft in singular,cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 103 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 36-37 (2005). being careful to:
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The importance of drafting in the singular is discussed frequently in literature about legislative drafting. Three examples follow: One author writes: "Use of the singular is important for several reasons. First, the singular makes the drafting process simpler because there is no need to worry about accidental shifting back and forth between the singular and plural in nouns, pronouns, or verbs. Second, the singular particularizes the effect of the provision being drafted on the individual rather than on the more anonymous group. Third, the singular makes it clear that the provision applies to each member of the class rather than only to the class as a separate group or body. Even though proponents of good legal writing have long advocated use of the singular, drafters of legislation and rules still use the plural to an astonishing degree."cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 36 (2005). Another author writes: "Plurals can create ambiguity, especially when used with 'and' or 'or.' If a law provides that 'individuals may not enter buildings A and B without appropriate security clearances,' does it apply to a single individual entering a single building with a single clearance?"cDorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 196 (2006). Another author provides the following example as demonstrating the need to draft in the singular: "'Employees with children qualifying for coverage must file affidavits of eligibility from persons listed below:' Does this apply only to employees with more than one child? Does it require more than one affidavit, presumably from all of the listed persons?"cHaggard, Legal Drafting in a Nutshell, p. 302 (2nd ed. 2003). If the legislative intent is to have the statute only read in the singular, a legislative drafter should make that express in statutory language. See Example In a city of the first class, the mayor, a commissioner, the recorder, and the treasurer shall administer only one office under the city government, except that the offices of recorder and auditor may be held by one person. Utah's construction statute provides that the singular includes the plural and the plural includes the singular.cSee Utah Code Ann. 68-3-12(1)(b). A phrase like "person or persons" is unnecessary. Third Person When drafting legislation, a legislative drafter should:
Compound Term In the unusual case that a legislative drafter must use a compound word in its plural form, the drafter should follow the rule that the significant word takes the plural.cSee, e.g., United States Government Printing Office, Style Manual, Rule 5.8 (2000). See Example
In the Utah Code, a legislative drafter should use the term "attorney fees" and not "attorneys' fees," "attorney's fees," or "attorneys fees."mThis pattern is consistent with how Utah courts and court rules cite to attorney fees. See, e.g., Utah Rules of Civil Procedure, Rule 73, Attorney fees; Gardner v. Board of County Comm'nrs, 178 P.3d 893 (Utah 2008). Word Placement How the word "fits" within the sentence is almost as important as its selection.mSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 188 (2006) ("Arrange your words with care. Word order affects meaning; it also affects readability."). Three examples of potential problems in the placement of words within a sentence are:
Qualifying Language A legislative drafter should avoid placing qualifying language between the actor and the action or the action and the object or complement, because this "separates the working words of the sentence making it difficult for the reader to see the relationship between the actor, the action, and the object or complement. "cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 62 (2005). See Example
Modifier A legislative drafter should be careful to only modify a word that is intended to be modified. This can arise when a provision includes multiple items only some of which are to be modified. See Example
Certain rules can assist a legislative drafter in the placement of modifiers.
Gender Neutral Language A gender-based distinction is rarely appropriate and gender neutral language should be used when possible.cSee, e.g., United States Archives & Records Administration, Drafting Legal Documents, Principles of Clear Writing, Sec. 18, (2007); National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 104 (2006 ed.) ("Virtually all states draft legislation in a gender-neutral form."); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 39-41 (2005); The Chicago Manual of Style, 5.43, 5.49, 5.51, 5.204 (15th ed. 2003); Haggard, Legal Drafting in a Nutshell, p. 10, 366-373 (2nd ed. 2003); Alabama Legislative Reference Service, Drafting Style Manual, Rule 4 (DATE); Alaska Legislative Affairs Agency, Manual of Legislative Drafting, p. 63 (2003); Arizona Legislative Council, Arizona Legislative Bill Drafting Manual, p. 87 (2007); Arkansas Bureau of Legislative Research, Legislative Drafting Manual, p. 43-44 (2006); Colorado Office of Legislative Legal Services, Legislative Drafting Manual, p. 11-6 - 11-10 (2003); Connecticut Legislative Commissioners' Office, Guide to Drafting Legislation, p. 12 (DATE); Kentucky Legislative Research Commission, Bill Drafting Manual, p. 20-21 (2004); Maine Office of the Revisor of Statutes, Maine Legislative Drafting Manual, Part III, Ch. 1, Sec. 14 (1998); Massachusetts Counsel to the Senate, Massachusetts Senate Legislative Drafting and Legal Manual, p. X (3d ed. 2003); Minnesota Office of the Revisor of Statutes, Minnesota Bill Drafting Manual, Sec. 10.33 (2002); Montana Legislative Services Division, Bill Drafting Manual, Sec. 2-11 (2004); North Dakota Legislative Council, 2007 Legislative Drafting Manual, p. 96 (2007); South Dakota Legislative Research Council, Legislative Drafting Manual, p. 23 (DATE); Texas Legislative Council, Drafting Manual, p. 97-98 (2006); Washington Code Reviser's Office, Bill Drafting Guide 2007, Part II, (11)(g) (2007). But see, West Virginia House Clerk's Office, Legislative Services, Senate Clerk's Office, Bill Drafting Manual, p. 27 (2006). However, Utah Code Ann. 68-3-12 provides that words in one gender comprehend the other gender.mSee Utah Code Ann. 68-3-12(1)(c). Section 68-3-12 provides further that "man" or "men," used either alone or with other syllables, includes "woman" and "women." Therefore, a phrase such as "he or she" is unnecessary in legislative drafting. A legislative drafter can use the following techniques to avoid using a gender specific pronoun or to avoid awkward or artificial wording.
See Example A person shall receive an exemption if [he] the person submits the application. See Example If [he] the individual submits an application, the division shall consider the application. See Example The director shall hold [his] office until a successor is appointed. See Example The person shall submit [his] an application. See Example
The following are examples of preferred gender neutral terms.mSee, e.g, The Chicago Manual of Style, 5.202 (15th ed. 2003) ("Chair is widely regarded as the best gender-neutral choice. Since the mid-seventeenth century, chair has referred to an office of authority."). See Example
Drafting Recurring Legislative Provisions Because some legislative provisions occur frequently, specific language has evolved in drafting these provisions to encourage consistency with the Utah Code and legislation in general. A legislative drafter should follow these standard forms to maintain consistency and to reduce ambiguities in the Utah Code. Title of a Title, Chapter, or Part A title or chapter in the Utah Code should contain a codified titlemA "codified title" is a title created in a specific section of the Utah Code. An "uncodified introductory caption" means boldface or a name of a part that is printed within the Utah Code, but is not created in a specific section of the Utah Code. For example, "Part 1. General Provisions" is an uncodified introductory caption, but Utah Code Ann. 9-1-801 ("This part is known as the 'Commission on National and Community Service Act.'") is a codified introductory caption. to provide easy identification of the title or chapter. A part within a chapter that is lengthy and can stand alone should also have a codified title. A title should be codified as the first section of the relevant title, chapter, or part. A legislative drafter should use the boldface description "Title" for the section creating the title. The language of the codified section should indicate that the title, chapter, or part "is known as" and then state the actual title of the title, chapter, or part, within quotation marks. See Example 58-63-101. Title. Legislative Statement of Intent, Purpose, or Finding Introduction Legislative statements should rarely be included in a bill to effectuate a provision of the Utah Code.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 501 (2006 ed.) (with limited revisions); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 186 (2006) (explaining concerns with statements of purpose). There are narrow exceptions for legislative statements of intent that are related to the limited purposes of:
Generally Do Not Include a Statment of Legislative Intent, Purpose, or Finding Inclusion of a legislative statement in a bill is discouraged for many reasons and a legislative statement should be included only for limited circumstances where there is a critical need to express the Legislature's intent.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 501 (2006 ed.) (with limited revisions); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 186 (2006) (explaining concerns with statements of purpose). General Concerns A well drafted bill ideally expresses legislative intent in the body of the bill itself, which makes a legislative statement unnecessary. Reasons why a legislative statement is not recommended include:
The Utah Supreme Court has held, that in construing legislation, a court's primary responsibility is to give effect to the intent of the Legislature.cSee, e.g., Neel v. State, 889 P.2d 922, 925 (Utah 1995); Sullivan v. Scoular Grain Co., 853 P.2d 877, 879 (Utah 1993) superceded by statute as stated in Bishop v. Gen Tec, Inc., 48 P.3d 218 (Utah 2002). If a legislative statement is included in a bill, a court might use that statement to discern legislative intent.cSee, e.g., Deseret News Publishing v. Salt Lake County, 182 P.3d 372 (Utah 2008) (see footnote 3). Because a legislative statement generally declares broad public policy objectives, a court may use a legislative statement to infer a legislative intent that is arguably not supported by the substantive provisions of the statute. In light of this risk, a legislative statement should be used only in limited circumstances, when the legislative statement may help a court or an implementing agency to determine the intent of the Legislature. These limited circumstances may include when a bill:
Special Concerns With Legislative Finding A legislative finding is of particular concern because it may include a statement of fact that is subject to change or a statement as to fact or other findings that suggest that the Legislature has made a study or in some other manner determined the accuracy of the "finding." Because of limited resources and time, the Legislature may not be able to conduct a study or other investigation that adequately supports a specific finding in connection with a bill. However, in narrow circumstances a finding may serve a very specific need such as when a future court interpretation may require a legislative finding. For example, certain First Amendment cases addressing regulation of lewd behavior may look to whether there are legislative findings of secondary effects. In drafting legislative findings, a drafter should be careful to make the findings as narrow as possible and exclude, whenever possible, facts that are susceptible to frequent change. See Example A broad legislative finding may raise concerns: (1) The Legislature finds that: (a) in-home or community based support services have not been sufficiently available for adults with long-term care needs; (b) many adults with long-term care needs are at risk of being or already have been placed in institutional settings, because in-home and community based support services or monies to pay for those services have not been available to them; and (c) a variety of agencies, facilities, and individuals should be encouraged to provide in-home and community based support services to adults with long-term care needs. A legislative finding meeting a specific legal need may be necessary: The Legislature finds that: . . . (3) school-age children are the primary beneficiaries of the choice in education program authorized in this part, and any benefit to private schools, whether sectarian or secular, is indirect and incidental; (4) the choice in education program authorized by this part is available to the parents of school-age children, solely on the basis of income level for the year immediately preceding the year for which a scholarship is sought, and not on the basis of sex, race, religion, national origin, or any other criteria; and (5) the choice in education program authorized in this part is: (a) enacted for a valid secular purpose of tailoring a child's education to that child's specific needs as determined by the parent; (b) neutral with respect to religion; and (c) limited in its assistance to a parent, who may choose to use the scholarship to offset tuition or fees charged by a private school, either sectarian or secular, in which enrollment of the parent's child is sought, solely as a result of the parent's genuine and independent private choices. A legislative drafter should always be carefully about unintentional interpretations. For example, although not intended by the Legislature, a finding might be interpreted to establish a right and consequently a liability to the state, e.g., the following could lead to a misinterpretation, "the Legislature finds that a child in the public schools is entitled to no more than 20 children per teacher." Alternatives to a Statement of Legislative Intent, Purpose, or Finding If a legislator insists on language related to legislative intent, purpose, or findings, a drafter can suggest at least two alternatives. In addition, a drafter is encouraged to consult with legislative general counsel for other options available under the specific circumstances of the relevant bill. Language Read into the Journal One alternative to a legislative statement is to have language read into the journal of each house as part of the official record of the Legislature (i.e. "spread upon the pages of the journa"), rather than including the legislative statement in the bill. In general, the language should include the number and title of the bill and a statement that the Legislature intends a certain interpretation or process, the Legislature makes certain findings, or that passage of the bill serves a specific purpose. For examples of legislative intent statements read into the journal see Appendix B, Examples of Intent Statements Published in a Journal. Convert the Language to an Active Mandate or Directive Language If a legislator wishes to include a legislative statement in a bill, it may be possible to convert the statement from passive language to an active statutory mandate. For example, rather than stating that: "It is the intent of the Legislature that this section be interpreted narrowly." The goal could be achieved by stating that: "A court shall interpret this section narrowly." See Example
Ambiguity may exist if a legislative statement includes both intent language and mandatory directives such as "It is the intent of the Legislature that [an agency] shall . . ." It may be helpful to convert the intent language to a description of the permissive or binding nature of the legislative provision. See Example
Drafting a Codified Statement of Legislative Intent, Purpose, or Finding In the limited circumstances when a legislative statement is included in a bill, the legislative statement should be drafted after the body of the bill has been written and should not become a "crutch" used to avoid resolving difficult substantive issues in the body of the bill. Substantive law belongs in the main body of the bill and not in the legislative statement. General Drafting Principles The following principles should be considered in drafting a legislative statement:
Long Title and Boldface A reference to a legislative statement and whether it is a statement of intent, purpose, or finding should generally be included in the:
Placement In general, when a codified legislative statement applies to a title, chapter, or part, it should be placed in a section that immediately follows the title of the applicable title, chapter, or part and immediately precedes the definition section, if any. If a legislative statement applies only to a section, it should be the first subsection in that section. If a legislative statement applies to an entire bill that affects several provisions of the Utah Code, the composition of the bill should be considered to determine the placement of the legislative statement. Drafting a Statement of Legislative Intent, Purpose, or Finding that Applies to an Action in a Specific Bill If a legislative statement applies to an action taken in a specific bill, the legislative statement should reference the bill or specific language in the bill that is to be impacted by the legislative statement. Because the legislative statement will then likely include a reference to "this bill" which might be difficult to track in subsequent years, the bill should also include revisor instructions directing the Office of Legislative Research and General Counsel to change the term "this bill" to the appropriate chapter reference in the Laws of Utah.mSimilar language may also be necessary for a relevant effective date. The change described in the revisor instruction is completed at the time the Office of Legislative Research and General Counsel prepares the Utah Code database for publication. Look here for further discussion of drafting revisor instructions. See Example Legislative statement of intent: Section 59-8-104. Rate -- Change of rate . . . . (2) It is the intent of the Legislature that, as a result of the tax rate decrease provided in Section 59-8-104 of this bill, all or a portion of any cost decrease received by a taxpayer as a result of the tax rate decrease be used in whole or in part for expenditures, scholarships, or grants that benefit the citizens of this state. Revisor Instructions: Section 3. Revisor instructions. It is the intent of the Legislature that, in preparing the Utah Code database for publication, the Office of Legislative Research and General Counsel shall replace the reference in Subsection 59-8-105(2) from "Section 59-8-104 of this bill" to the bill's designated chapter and section number in the Laws of Utah. Definition A definition is frequently used in drafting to define a word that has a different meaning than the ordinary dictionary definition or to reduce the length of the legislation by providing a shorter word or phrase for a repetitious designation or phrase.mSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 70 (2005) which states: When to use a Definition A definition is not necessary to define a common word that is used in its usual dictionary meaning.cSee, e.g., Haggard, Legal Drafting in a Nutshell, p. 376 (2nd ed. 2003). When possible, a drafter should use a word in its common meaning rather than define a term and use it in an unusual way. If a word is used only once or infrequently it may be defined where it appears in the legislation.cSee, e.g., Haggard, Legal Drafting in a Nutshell, p. 380-382 (2nd ed. 2003). When encouraging the use of definitions, an experienced legislative drafter notes that: "using [definitions] lavishly and composing them carefully are perhaps the most effective ways to make it more difficult for judges to misconstrue statutes. That is, defining the more important terms in a statute can leave to a judge s discretion defining only peripheral terms that have few possible meanings. That principle makes it essential for drafters to master the craft of writing definitions. . . . If drafters think of their work as an adversarial process in which the opponent is a judge, drafters will be more likely to close loopholes when they are creating a statute, before any harm can be done."cStark, The Art of the Statute, p. 87 (1996). In contrast, another scholar warns that "[d]efinitions are powerful medicine and drafters should use them sparingly and with care. A badly drafted definition will infect every portion of the document where the term is used."cHaggard, Legal Drafting in a Nutshell, p. 375 (2nd ed. 2003). Although the positions are different, they both highlight the critical role of definitions. The following are examples of proper uses of definitions:
When Not to Use a Definition A definition can be an effective tool in drafting precise language. However, a definition should simply define a term and should not include a substantive prohibition, requirement, or authorization.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 221 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005); Haggard, Legal Drafting in a Nutshell, p. 384-387 (2nd ed. 2003); Stark, The Art of the Statute, p. 94-95 (1996); Dickerson, Materials on Legal Drafting, p. 226 (1981). If a substantive prohibition, requirement, or authorization related to a definition is necessary, a legislative drafter should consider placing the substantive provision in a separate section or subsection after all definitions are listed. Examples of definitions that improperly contain a substantive prohibition, requirement, or authorization follows. See Example (5) (a) "Assisted living facility" means a residential facility that provides assistance with activities of daily living and social care to two or more residents who: Also, a definition should not be used to create a meaning that is significantly different than the generally understood meaning of a term.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 63 (2005). Existing Definitions in the Utah Code Definitions for Entire Code Some terms are used so frequently or have such universal application throughout the Utah Code, that they are defined for purposes of the entire code.cUtah Code 68-3-12.5 A drafter should be aware of these generally defined terms, because they can impact the meaning of any changes to the Utah Code. If a drafter intends for a generally defined term to apply to a provision that the drafter is drafting, there is no need to refer to the general definiiton. In fact, this practice is discouraged because it invites confusion regarding whether a generally defind term applies in a portion of the code where no reference to the genreal definition is made. If a drafter desires a different definition for a generally defined term in a particular area of the code, the drafter must define it differently, being careful to state which portion of the code that the altered definition apples to. Following is a list of the terms that have been defined for the entire Utah Code:
Definitions for Other Portions of the Utah Code When drafting, it is important to be aware of terms that are already defined for the portion of the code that the drafter is adding to or changing. Failure to do this can result in the inadvertant use of a defined term that means something different than the drafter intends, or in the removal of a defined term that was used for an important purpose. Also, when changing a definiiton, the drafter should search the portion of the code that the definition applies to for each instance where that term is used. This helps ensure that the change does not affect the meaning of a code provision in a manner that is not intended. Creating a New Definition Creating a new definiiton raises many of the same issues as changing an existing definition does. The drafter should search the portion of the code to which the definition will apply for each instance where the newly defined term is already used to ensure that the definition does not change the meaning of a code provision in a manner that is not intended. Structure of a Definition Provision In addition to not including substantive law in a definition, when drafting a definition, a legislative drafter should comply with the following form rules.
Exclusive v. Inclusive Definition If a defined term is intended to be exclusive, i.e., have only one meaning, a legislative drafter should use the word "means."cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 301 (2006 ed.). The term "means" restricts a court or agency to the specific definition of the word. In drafting a definition, a legislative drafter must recognize that when the term "means" is used, the definition could be interpreted to exclude anything not expressly listed. This is the rule of construction known as "expressio unius est exclusio alterius," which means "expressing of one thing is the exclusion of another." A legislative drafter may avoid this construction by using the term "includes." If a definition is inclusive, a legislative drafter can use the word "includes," which allows a court or agency to adopt additional meanings.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 301 (2006 ed.). Do not use wordy, legalistic phrases such as "shall be deemed to include," "includes but is not limited to," or "means and includes." Utah Code Subsection 68-3-12(1)(f) makes it clear that the use of these phrases are uneccesary. Look here for additional discussion relating to the use of the term "includes." See also, Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 221 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 70 (2005). Transition or Savings Clause When a Transition or Savings Clause is Needed General Occasionally, a transition or savings clause may be necessary to address various issues raised when enacting or modifying a Utah Code provision.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 603 (2006 ed.) (with limited revisions). Three examples include:
Recodification of a Title, Chapter, or Part A recodification of a title, chapter, or part of the Utah Code generally raises the issue of the need for a transition or savings clause. Drafting a Transition or Savings Clause A legislative drafter should generally codify a transition or savings clause. The primary purpose of codification is to provide greater notice to the general public. An uncodified section is not published in the same manner as a codified section, making it less accessible, especially to someone using the Utah Code Unannotated. An exception to the rule that a transition or savings clause is to be codified is when the language affected by the clause is itself uncodified (e.g., an uncodified task force is being changed to another type of uncodified task force and there is a need to transition the membership from one to the other). Any other exception to this rule should be discussed with legislative general counsel before finalizing the bill. Long Title and Boldface A reference to a transition clause should be included in the:
Placement In general, when a codified transition or savings clause applies to a title, chapter, or part, it should be placed in a section at the end of the title, chapter, or part with the transition or savings clause preceding a severability clause. Whether a transition or savings clause should be in a stand-alone section or merged with other provisions depends on the context and the ease of access. If the transition or savings clause applies only to a section, it should be the last subsection in the section with the transition or savings clause preceding a severability clause. If a transition clause applies to an entire bill that affects multiple provisions of the Utah Code, placement is determined on the basis of the circumstances of the bill. No Boilerplate Language There is no standardized language for a transition or savings clause because it is so dependent on the substance of the relevant bill. However, the following may be helpful in drafting transition clauses. A transition clause that clarifies application generally includes:
See Example 30-6a-111. Transitional provision. A transition clause that phases in implementation generally includes:
See Example 13-33-305. Transition of licenses. In addition to the provisions discussed above, a legislative drafter should consider whether or not to include an automatic repeal date for a transition or savings provision. With an automatic repeal date, when a transition or savings provision is no longer needed, it can removed from the Utah Code without the need for legislation. Look here for a more detailed discussion of repeal dates. Look in Appendix E for additional examples of transition or savings clauses. Revisor Instruction If a transition or savings clause refers to "this bill" or "the effective date of this bill" in describing to what the clause applies, a legislative drafter must include a revisor instruction in the bill. The revisor instruction permits the Office of Legislative Research and General Counsel to change the reference to "this bill" to the appropriate cite in the Laws of Utah or to use the actual effective date. Look here for further discussion of revisor instructions. Constitution, Legislative Rule, or Court Rule The need for, and treatment of a transition or savings clause when amending the Utah Constitution, legislative rules, and court rules of procedure and evidence raise additional issues to those raised when amending the Utah Code. A drafter should consult with legislative general counsel in resolving these issues. The following general principles may be helpful.
Severability Clause When a Severability Clause is Needed Utah does not have a general severability statute addressing whether a Utah Code provision is to be "severed" if a court finds a portion of the law unconstitutional or otherwise invalid. Case law suggests that courts look to whether the statute is operable and furthers the legitimate legislative purpose without the offending provision, and have considered whether the Legislature would have enacted the statute without the offending provision.cSee, e.g., Midvale City Corp. v. Haltom, 73 P.3d 334 (Utah 2003); Gallivan v. Walker,54 P.3d 1069 (Utah 2002). Because there is no bright-line test as to when to include a severability clause, a drafter should be flexible in advising a sponsor as to when to include a severability clause in light of the issues surrounding the bill. If a sponsor requests that a severability clause be included, a legislative drafter may specify that, if any part of a bill is held invalid, the Legislature intends that the offending provision be severed and the "valid" portions retained. Conversely, if the Legislature wants the entire enactment to stand or fall together, a drafter may specify that the entire law will fail if any part of it is held invalid. If a bill is particularly controversial or there is a greater risk that a court may not sever a bill because of the structure of the bill, a drafter may wish to make the severability clause more detailed than other general severability clauses. Drafting a Severability Clause A severability clause in a bill should be codified to provide greater notice to the general public. An uncodified section is not published in the same manner as a codified section, making it less accessible, especially to someone using the Utah Code Unannotated. An exception to this rule is when the language affected by the clause is itself uncodified. Any other exception from this rule should be discussed with legislative general counsel before finalizing the bill. Long Title and Boldface A reference to a severability clause should be included in the:
Placement In general, if a codified severability clause applies to a title, chapter, or part, it should be placed in a section at the end of the title, chapter, or part, with any transition clause preceding the severability clause. Whether a severability clause should be in a stand-alone section or merged with other provisions depends on the context and the ease of access. If the severability clause applies only to a section, it should be the last subsection in the section with any transition clause preceding the severability clause. If a severability clause applies to an entire bill that affects multiple provisions of the Utah Code, placement is determined on the basis of the composition of the bill. No Boilerplate Language There is no standardized language for a severability clause because it is so dependent on the substance of the relevant bill. However, the Office of Legislative Research and General Counsel has prepared basic language that can serve as a beginning point:
See Example 10-1-113. Severability clause. Revisor Instruction If a severability clause refers to "this bill" or "the effective date of this bill" in describing to what the clause applies, a legislative drafter must include a revisor instruction in the bill. The revisor instruction permits the Office of Legislative Research and General Counsel to change the reference to "this bill" to the appropriate cite in the Laws of Utah and to use the actual effective date. Look here for further discussion of revisor instructions. Constitution, Legislative Rule, or Court Rule The need for, and treatment of a severability clause when amending the Utah Constitution, legislative rules, and court rules of procedure and evidence raise additional issues to those raised when amending the Utah Code. A drafter should consult with legislative general counsel in resolving these issues. The following general principles may be helpful.
Effective Date, Repeal Date, or Retrospective Operation Effective Date The following provides general formats for drafting a delayed, early, or immediate effective date for a bill or resolution. Delayed Effective Date If legislation is to have an effective date later than the 60 days after the legislative session, it is often referred to as having a "delayed effective date." A delayed effective date that extends beyond the next general session is strongly discouraged because a delayed effective date creates a section with two histories and two different effective dates that must be addressed in future drafting. Look here for information regarding issues raised by amending a section with a delayed effective date. See Example Section 3. Effective date. Early Effective Date If it is desirable or necessary for legislation to take effect before the 60-day standard, an early effective date can be included in the legislation. See Example Section 5. Effective date. Immediate Effective Date If a bill is to be effective as soon as possible, the effective date should allow the bill to take effect "upon approval."mIn the case of a bill, this means that the bill takes effect: See Example Section 5. Effective date. An immediate effective date should generally be included in legislation prepared for a legislative special session because the underlying premise of a special session is the need to pass legislation to address a time-sensitive issue. Separate Effective Dates At times, different sections of a bill must take effect on different dates. If this is necessary, a legislative drafter should state the effective date of each section of the bill to prevent future coordination problems. Separate dates can be used with either an early or delayed effective date. See Example Section 14. Effective date. When drafting an effective date clause with split effective dates, always put the earliest effective date first, even if the later date applies to more sections than the earlier date. While this may result in a situation where the stated default effective date only applies to one section and a later effective date applies to several sections, it is necessary in order to ensure that the office's computer software correctly populates the conflicts and update tables. Section with Future Effective Date If a bill amends a section that has not yet taken effect, an amendment made to that section should take effect no sooner than the date on which the section takes effect. This generally requires an effective date that clarifies the effective date of the section and the effective date for the remainder of the bill. See Example Section 54. Effective date. Repeal Date A bill may also contain a repeal date. In general, a repeal date should be codified in either Utah Code Ann., Title 63I, Chapter 1, Legislative Oversight and Sunset Act, or Title 63I, Chapter 2, Repeal Dates by Title. A repeal date should be uncodified only if it applies to uncodified material. See Example If you are repealing a codified provision:
As Part of the Sunset Act If a sponsor requests that a statute be reviewed before repeal, the repeal date for the statute is to be inserted into Utah Code Ann., Title 63I, Chapter 1, Legislative Oversight and Sunset Act. This chapter provides the opportunity for a legislative review before the date set for repeal. Chapter 1, Part 1 sets out the process for the review, and Part 2 contains the repeal dates organized by title. Without Sunset Review If a legislative sponsor requests that a statute be repealed without requiring a formal sunset review, a legislative drafter should codify the repeal date in Utah Code Ann., Title 63I, Chapter 2, Repeal Dates by Title. Title 63I, Chapter 2 is structured so that a repeal date appears in the section numbered to reflect the number of the title where the provision being repealed is located, e.g., for Title 58 - Section 63I-2-258. By codifying the repeal date, it is easier for the Office of Legislative Research and General Counsel to locate the repealer in maintaining the Utah Code database. Repealing Codified Repeal Provision Because Utah Code Ann., Title 63I, Chapter 1, Legislative Oversight and Sunset Act, and Title 63I, Chapter 2, Repeal Dates by Title, are structured so that the section numbers reflect the title to which the repeal date applies, it is important to preserve each section listed by title. Therefore, in a circumstance where there is only one subsection in a section and a legislative drafter is asked to delete that subsection, the drafter should delete the language from the section and not repeal the section. By not repealing the section entirely, the section remains available so that repeal dates for that title can be codified in the future. Uncodified Material Although repeal dates should generally be codified, if a bill contains uncodified material that is to be repealed on a specific date, a repeal date should be included at the end of the bill as a special clause that follows the effective date, if any. The most common example of when an uncodified repeal date should be used is in a bill creating a legislative task force. In drafting an uncodified repeal date, the term "bill" should be used in a repeal date only if the entire bill is to be repealed. Otherwise, a legislative drafter should specifically state the provision that is subject to repeal in the repeal clause. See Example If repeal date applies to uncodified material: Section 5. Repeal date. This bill is repealed on July 1, 2015. Amending or Repealing an Uncodified Effective or Repeal Date When amending an uncodified repeal or effective date, it is critical that the amendment clearly state what provisions of uncodified material are affected. See Example Section 28. Laws of Utah 1994, Chapter 317, Uncodified Section 2, is amended to read: Although this issue does not arise when a repeal date for codified material is itself codified, if repealing a specific uncodified repeal date, the bill should state the impact of the repealer by specifically listing which statutes' repealers are being eliminated. This occurs rarely since codified material is normally repealed in Title 63I. See Example Section 17. Repealer. Retrospective Operation If the legislative sponsor requests that a law be applied retrospectively and it is constitutional to do so, a legislative drafter should consider including a special clause calling for retrospective application of an entire bill or some portion of a bill. A retrospective operation provision may also be combined with a specific effective date. See Example Section 3. Retrospective operation. Revisor Instruction Although a drafter should avoid using the term "bill" or "effective date" in statute, at times it is unavoidable. When those terms must be used, a legislative drafter must include a special clause in the legislation directing the Office of Legislative Research and General Counsel to change the term to the appropriate chapter reference in the Laws of Utah or to the specific effective date. This change can be done at the time the Office of Legislative Research and General Counsel prepares the Utah Code database for publication pursuant to revisor instructions. Therefore, a revisor instruction should be reviewed by the supervisor of the document technicians, who is primarily responsible for preparing the Utah Code database for the Office of Legislative Research and General Counsel. A revisor instruction is similar to a coordinating clause, except that it directs the Office of Legislative Research and General Counsel to make certain technical changes to a single piece of legislation as opposed to coordinating multiple bills. To assist the Office of Legislative Research and General Counsel in tracking these instructions, a legislative drafter should always refer to these special clauses as "revisor instructions." See Example Section 3. Revisor instructions. Look here for more examples of revisor instructions. Guidelines for Style and Usage This chapter provides legislative drafting style guidelines that enable a drafter to avoid ambiguity and to write in "plain English." Most of these guidelines are derived from generally accepted style and usage manuals - others are common sense. If this manual does not address an issue of style or usage, the Office of Legislative Research and General Counsel also uses as guides in drafting for the Legislature: The Chicago Manual of Style (15th ed. 2003), the Webster's Third New International Dictionary, and the abridgment, Merriam-Webster's Collegiate Dictionary. Punctuation Punctuation is an important part of legislation and should be used properly and uniformly.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 197-198 (2006). A drafter should know the rules of punctuation as well as the drafter knows the rules of construction and the format of legislation. Because courts look to the legislation as written to ascertain legislative intent, punctuation must be accurate.cSee, e.g., Department of Natural Resources v. Huntington-Cleveland Irrigation Co.,52 P.3d 1257 (Utah 2002). A legislative drafter should follow generally accepted, standard rules of punctuation in drafting legislation. A legislative drafter may also come across punctuation that does not conform to the following rules. A legislative drafter should conform existing statutes to proper paragraphing style if the technical changes do not cloud the meaning of the proposed legislation. Colon Next to a comma, a colon or semicolon is perhaps the most overused or misused punctuation in drafting. The following are basic rules that should be followed in using a colon:
Semicolon The following are basic rules that should be followed in using semicolons. Series The most common proper use of a semicolon is at the end of an enumeration in a list of separate paragraphs that are dependent clauses, incomplete sentences, includes a conjunction,mThe Chicago Manual of Style, 5.185 (15th ed. 2003) describes "or" as a disjunctive conjunction. preceded by a colon, and not capitalized. See Example (1) A person does not commit an offense under this section if the person: A drafter should not write a list in which a sentence is attached to a phrase or clause. If there is only one inserted sentence, a legislative drafter can move the sentence to the end of the list or convert the sentence into a dependent clause. It may be necessary to turn the list into a list of sentences so that the inserted sentence can directly follow the item it explains. Click here for an example. Unless there is a single definition at the beginning of a section, a definition should be drafted as a complete sentence introduced by a dependent clause regardless of whether the definition is placed in a separate section or in a subsection of a section. Look here for further discussion of the format of a definition. See Example 49-1-103. Definitions. Other Uses of a Semicolon In addition to use in a series, a semicolon is used in drafting to separate paragraphs of a resolution beginning with "WHEREAS," except that the last paragraph ends in a colon. In traditional legal writing, a semicolon is also used to separate two main clauses that are not joined by a conjunction, or elements, such as items in a series, which themselves contain commas. These uses in legislative drafting should be extremely rare. It is usually clearer to use separate sentences than to combine ideas using a semicolon.cSee Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 69-70 (2005). For this same reason, a drafter should avoid using a proviso including the phrase "provided, however" or "provided, further."m Look here for further discussion of the use of provisos. Comma General Rules A legislative drafter inserts a comma to separate a series of words, phrases, or clauses. When used properly, a comma is a useful drafting tool. However, the overuse or incorrect use of commas is a common error in drafting. A legislative drafter should observe two general rules:
Specific Rules In addition to the general rules, a legislative drafter should use the following specific rules. In a Series Use a comma to separate words and phrases in a series, including the word or phrase immediately before the conjunction.mSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 107 (2006 ed.); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 198 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 68 (2005); The Chicago Manual of Style, 6.15 (15th ed. 2003); Haggard, Legal Drafting in a Nutshell, p. 304-306 (2nd ed. 2003); Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction, 21:15 ( 6th ed., 2007-08 Supp. 2002 revision,); United States Government Printing Office, Style Manual, Rule 8.42 (2000). The Chicago Manual of Style 5.185 (15th ed. 2003) describes "or" as a disjunctive conjunction. This is known as a "serial" comma. See Example Data obtained pursuant to this chapter is not subject to a civil, criminal, judicial, administrative, or legislative proceeding. To Set Off Successive Adjectives Use a comma between adjectives preceding a noun that are coordinating, qualifying words.cSee, e.g., The Chicago Manual of Style, 6.39 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.37 (2000). See Example The budget document shall be a brief, simple, uniform report. To Set Off Nonrestrictive Appositives Use a comma to set off nonrestrictive appositives. These are nouns or pronouns placed next to other nouns or pronouns that add nonessential details about the noun or pronoun.cSee, e.g., The Chicago Manual of Style, 6.43 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.40 (2000). See Example The director, who is appointed by the governor, shall keep and maintain a record. To Set Off a Nonrestrictive Adjective Clause Use a comma to set off a nonrestrictive adjective clause. This is a clause that describes but does not limit the meaning of something.cSee, e.g., The Chicago Manual of Style, 6.38 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.40 (2000). See Example The county treasurer shall transfer from the fund account, which contains revenues from the fees collected, $150,000 to the General Fund. Do not use a comma to set off a restrictive adjective clause.cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.40 (2000). This is a clause that is needed to make the meaning clear. "Which" is used when a relative clause conveys additional information or is parenthetical. "That" is used when the clause is restrictive. Look here for further discussion of how to use "that" and "which." Between Parts of a Compound Sentence, When Needed Use a comma between the parts of a compound sentence when punctuation is needed for clarity or to provide an additional idea. A compound sentence contains two or more independent clauses connected by a conjunction.cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.34 (2000). See Example The division shall fund the program from its general operations budget, but it may not expend less than $100,000 on the program. If a dependent clause or introductory phrase precedes an independent clause, a comma is not needed after the dependent clause or introductory phrase. See Example The person who serves as the executive secretary of the commission may hire additional clerical assistance as necessary. Normal usage permits placing a comma before a conjunction that connects two independent clauses, each having a subject and a predicate.cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.43 (2000). Often, however, an independent clause is sufficiently long to justify making it a separate sentence. In this case, use two separate sentences rather than two independent clauses connected by a comma, because the use of two independent clauses makes the sentence too long and difficult to follow.cSee Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 68-69 (2005). See Example
Do not use a comma to separate the parts of a compound sentence if the clauses are short and closely related. See Example The director is the head of the division and shall be experienced in administration. Do not use a comma between the verbs of a compound predicate. This is a simple sentence that contains two or more verbs with the same subject. See Example The governor shall appoint a chair who is a member of the board and licensed under this chapter. To Set Off an Introductory or Transitional Word or Phrase Use a comma to set off an introductory or transitional word or phrase.cSee, e.g., The Chicago Manual of Style, 6.25 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.38 (2000). This would include after an introductory participial or absolute phrase. See Example In the case of an emergency, the governor may . . . Do not use a comma to set off restrictive participial phrases. This is a phrase that is essential to the meaning of the sentence. See Example A person seeking to practice in Utah shall apply with the division for a license. To Set Off a Contrasted Word or Phrase Use a comma to set off a contrasted word or phrase.cSee, e.g., The Chicago Manual of Style, 5.79, 6.46 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.41 (2000). See Example A meeting of the commission shall be set by a majority vote of the members, not by the chair. To Indicate that Qualifying Language Applies to a Preceding Clause Use a comma to indicate that qualifying language applies to all of a preceding clause. However, it may be preferable to place the qualifying language first.cSee Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 68 (2005). See Example The division may receive additional information from an applicant in writing or by oral testimony, unless the division decides that the information is duplicative. If the Day of the Month is Stated in a Date If the day of the month is stated in a date, use a comma before and after the year.cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.49 (2000). See Example This bill takes effect on July 1, 2012, and is repealed on June 30, 2014. A comma is not needed if the day is omitted.cSee, e.g., The Chicago Manual of Style, 5.79, 6.46 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.50 (2000). See Example July 2015 Look here for further discussion on dates. To Set Off Figures in Groups of Four or More Numerals Use a comma to set off figures in groups of four or more numerals.cSee, e.g., The Chicago Manual of Style, 9.59 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.48 (2000). See Example 1,000,000 For Clarity Use a comma to set off words, phrases, and clauses that would otherwise be unclear. See Example
Parentheses Avoid parentheses except for use in a table or chart. In general, a word or phrase should be set off by commas rather than by parentheses.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 107 (2006 ed.). Apostrophe or Possessive Use an apostrophe to indicate only the possessive, either in the singular or plural, as in "director's" or "workers'." If a noun is a compound term, the word nearest to the object being possessed should end in a possessive.cSee, e.g, The Chicago Manual of Style, 7.25 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.4 (2000). See Example attorney general's decision When you have two or more items in a series, which items end in a possessive depends on whether the items are so closely linked that they would be considered a unit. If the nouns are considered a single unit, only the last noun takes the possessive form. If the nouns are independent, each noun should take the possessive form.cSee, e.g., The Chicago Manual of Style, 5.28, 7.24 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 8.5 (2000). See Example the commission and division's joint agreement to . . . Do not use contractions, such as "can't" and "doesn't." Do not confuse "its" with "it's" or "whose" with "who's."cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.8 (2000). Hyphen Although generally within the discretion of a legislative drafter, a hyphen should be used sparingly in drafting.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 75 (2005); Alaska Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 80 (2007). When in doubt about the use of a hyphen consult The Chicago Manual of Style (15th ed. 2003), Webster's Third New International Dictionary, or Merriam-Webster's Collegiate Dictionary. Number Look here for information on hyphenation of a number. Time Period A hyphen is used in a period of time that is expressed in either Arabic numerals or spelled out to begin a sentence. However, a hyphen is not used when referring to an actual number of hours, days, weeks, etc. See Example 60-day period Prefix With some exceptions, a compound word formed with a prefix is generally spelled as one word without a hyphen. A hyphen is used after a prefix if the prefix:
Compound Word Compound words can be closed (one word), open (two words without a hyphen), or hyphenated and are ever changing, requiring flexibility in the rules that apply to compound words.cSee, e.g, The Chicago Manual of Style, 7.82-7.85 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 6.1-6.3 (2000). Examples of closed compound words used in drafting are "policymaking" and "rulemaking." Use hyphens in compound adjectives if there is a risk of ambiguity.cSee, e.g., United States Government Printing Office, Style Manual, Rule 6.4 (2000). However, do not hyphenate a compound adjective if the first word ends in "ly."cSee, e.g, The Chicago Manual of Style, 7.87 (15th ed. 2003). See Example ready-made readily The following are examples of compound words that should or should not be hyphenated. The Chicago Manual of Style (15th ed. 2003) provides detail on hyphenating a compound word.mAnother resource available to a legislative drafter is United States Government Printing Office, Style Manual, Chapter 6, Compounding, Chapter 7, Compounding Examples (2000). See Example
A Word that is Not a Compound Word In general, a word that is not a compound word is not hyphenated. Quotation Marks In General As a general rule, a legislative drafter should use quotation marks in only the following three situations. Enclosing a Defined Term Use quotation marks to enclose a term when being defined. Do not use quotation marks again to enclose a defined term in the body of the statute. See Example "Department" means the Department of Commerce. Enclosing the Title of a Title, Chapter, or Part Use quotation marks to enclose a title at the beginning of a Title, Chpater, or Part. However, as with a definition, quotation marks should be used only in the original reference. See Example This chapter is known as the "Utah Administrative Rulemaking Act." Enclosing the Contents of a Quote, Form, Sign, or Label Use quotation marks to enclose the contents of a quote, form, sign, or label. See Example The ballot at an election on a proposal to change the municipality's form of government shall: Punctuation within Quotation Marks Punctuation is placed outside quotation marks, except for a period or comma, which is placed inside quotation marks.cSee, e.g., United States Government Printing Office, Style Manual, Rule 8.141 (2000). However, when describing a form, sign, or label, a period or comma that is not part of the form, sign, or label should also be placed outside quotation marks. See Example . . . the word or phrase "Utah," or "United States," and words used in conjunction with them such as "United States Government"; For additonal information on punctiation within quotation marks, see The Chicago Manual of Style, 6.8, 6.9 (15th ed. 2003). Bracket Do not use brackets in legislative drafting except to indicate deleted material.cSee National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 107 (2006 ed.). Brackets found in the Utah Code, not those found in a bill, indicate a compiler's note and usually identify a misspelled or omitted word. A legislative drafter should correct an error if the drafter comes across it while drafting. Underlining Except for a long title, new language in a bill is underlined, regardless of whether the language is added by amending, enacting, repealing and reenacting, or renumbering and amending. Other use of underlining should not be used due to the obvious confusion that would result. Capitalization As with punctuation, a drafter should not overuse capitalization. Rules were developed to minimize the use of capitalization because historically capitalization was more expensive to print. Although expense is no longer an issue, traditional capitalization rules are familiar and easier to read. A legislative drafter should use the following capitalization rules. When to Capitalize The following should be capitalized:
When Not to Capitalize The following should not be capitalized:
Numerical Reference In General Begin a Sentence with a Number A drafter should always spell out a number if it begins a sentence or a paragraph.cSee, e.g., The Chicago Manual of Style, 9.5 (15th ed. 2003). If a number greater than 100 appears at the beginning of a sentence, it is always expressed in words and a legislative drafter should not include the word "and" between the numbers.cSee, e.g., The Chicago Manual of Style, 9.6 (15th ed. 2003) (The Office of Legislative Research and General Counsel elects to omit the "and."). See Example
Do Not Follow a Number with a Number in Parentheses When a number is spelled out, it should not be followed by a numeral in parentheses.cSee, e.g., Haggard, Legal Drafting in a Nutshell, p. 340 (2nd ed. 2003). See Example
Singular v. Plural A number that is spelled out forms a plural in the same manner as other nouns.cSee, e.g., The Chicago Manual of Style, 9.58 (15th ed. 2003). However, a reference to dollars should use a singular verb. See Example
Fraction A simple fraction, such as one-half, is generally spelled out.cSee, e.g., The Chicago Manual of Style, 9.15 (15th ed 2003). An alternative to a fraction is a decimal. If a quantity consists of a whole number and a simple fraction, it can either be spelled out or expressed in numerals. However, it is generally preferred to express the quantity in numerals.cSee, e.g., The Chicago Manual of Style, 9.16 (15th ed 2003). See Example one-half . . . Hyphenation The following rules relate to hyphenation of numbers.mSee, e.g., United States Government Printing Office, Style Manual, Rules 6.36-6.39 (2000). Compound Number from Twenty-one to Ninety-nine A hyphen is used when a number is spelled out to begin a sentence. This rule includes both a cardinal or ordinal number. See Example Twenty-one . . . Simple Fraction A fraction is hyphenated when it is used as a single quantity.cSee, e.g., The Chicago Manual of Style, 9.15 (15th ed 2003). However, if the numerator or denominator is a compound number requiring a hyphen, it is the only number hyphenated. See Example two-thirds . . . Mixed Number A hyphen is used when a mixed number is expressed in either Arabic numerals or spelled out to begin a sentence. See Example 1-1/2 Nine and Under Rule General Spell out numbers nine and under when enumerating a common noun.cSee, e.g., The Chicago Manual of Style, 9.6 (15th ed. 2003). Express numbers 10 and above in Arabic numerals. See Example four persons Exceptions Notwithstanding the general nine and under rule, a legislative drafter should always use Arabic numbers to express the following. Money Express money using Arabic numerals.cSee, e.g., Alaska Legislative Affairs Agency, Manual of Legislative Drafting, p. 63 (2003); Office of the Revisor of Statutes, Minnesota Bill Drafting Manual 2002, Chapter 12. A drafter should use the symbol "$" to express dollars, but spell out the word "cents" to express cents. See Example
Use decimals to express cents or tax-related figures such as a tax rate, assessment, or valuation. In these cases a decimal is preferred to a fraction, although at times a fraction may be the only way to express a tax rate. See Example $5.83 Do not use zeros after a decimal unless actual cents must be expressed. See Example
In listing monetary amounts in tabular form, however, use both decimals and zeros. See Example
Population Always express population using Arabic numerals. See Example 1,382,600 people Percentage Express a percentage using Arabic numerals, and use the percentage symbol instead of spelling out the word "percent."See, e.g., The Chicago Manual of Style, 9.19 (15th ed 2003). See Example 5% Group of Numbers If a number in a group of numbers exceeds nine, express the group using Arabic numerals. If all numbers in a group of numbers are nine or under, a drafter should spell out the numbers.cSee, e.g., The Chicago Manual of Style, 9.7 (15th ed. 2003); United States Government Printing Office, Style Manual, Rule 12.15 (2000). See Example
Numbers in Tabular Form When listing numbers in tabular form, use Arabic numerals. See Example
Reference to the Utah Code or Other Law A reference to statute is always drafted with numerals. Look here for a more detailed discussion concerning references to statute. See Example Utah Constitution, Article XIII, Section 2 Measurement or Age The nine and under rule is most used when referring to a measurementcSee, e.g., The Chicago Manual of Style, 9.14 (15th ed 2003). or to age. Measurement The expression of a measurement generally requires the basic application of the nine and under rule. See Example 40 gallons Age The expression of age can be ambiguous at times. The phrase "older than 18 years old" could mean the day after the 18th birthday or the day of the 19th birthday. "When expressing age, the drafter must remember that a person reaches an age on the person's birthday and thereafter is older than that age."cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 75 (2005). Either the term "old" or the term "of age" may be used when referring to a person's age. However, the term chosen should be used consistently throughout a piece of legislation. See Example
Word Used in Conjunction with a Number "Amount" and "Number" The term "amount" is used to refer to something as a mass, such as the "amount of oil."cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 89 (2007); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 52 (2006); Colorado Office of Legislative Legal Services, Colorado Legislative Drafting Manual, 11-13 (2008). "Number" is used to refer to individual items, such as "the number of applicants exceed 500."cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 89 (2007); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 52 (2006); Colorado Office of Legislative Legal Services, Colorado Legislative Drafting Manual, 11-13 (2008). "Less" and "Fewer" The term "less" refers to something that is considered as a mass and applies to quality, size, and amount.cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 89 (2007); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 49-50 (2006); Colorado Office of Legislative Legal Services, Colorado Legislative Drafting Manual, 11-17, 11-18 (2008); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.38 (2006). "Fewer" refers to individual items and applies to number and counting.cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 89 (2007); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 49-50 (2006); Colorado Office of Legislative Legal Services, Colorado Legislative Drafting Manual, 11-17, 11-18 (2008); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.38 (2006). See Example The requirements of Subsection (2) apply to a motor vehicle that weighs less than 1,000 pounds. "Funds,""Money, and "Monies" "Funds" should be used to refer to assets that are set apart for a specific purpose or in a specific account. "Money" should be used to refer to cash or a sum of money. "Monies" should never be used. "Money" is a plural term for which there is no singular. Date or Time When drafting, a legislative drafter will often need to express a date or time in statute. The following highlights the combinations of Arabic numerals and words used to express a date or time. Hour Never use the phrase "o'clock." Use "a.m." or "p.m." with the exception that "noon" and "midnight" should be used instead of "12:00 p.m." or "12:00 a.m."cSee, e.g., The Chicago Manual of Style, 9.43 (15th ed. 2003); Haggard, Legal Drafting In a Nutshell, p. 276-277 (2nd ed. 2003). Do not use a colon to express minutes unless actual minutes are indicated. See Example
Time Period To eliminate uncertainty in expressing a period of time, the first and last day of the period should be specified. Make clear the first day of the period. Do not use an imprecise term such as "from," "to," "by," or "until."cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 74 (2005); Haggard, Legal Drafting In a Nutshell, p. 268-273 (2nd ed. 2003). If an act must be done by the end of a time period, a drafter should indicate whether it should be done before the period begins or whether it must be done within the period.cSee, e.g., Mellinkoff, Legal Writing: Sense and Nonsense, p. 41-43 (1982). See Example
Date Express a date simply using common notation. Utah Code Ann. 68-3-12(2)(m) states that "month" means a calendar month. For a legislative drafter's purposes, "week" also means a calendar week. Day, Week, or Month If a date is expressed in a whole day, use "day" not "time." "Time" may be construed as referring to the exact time of day or night. See Example
A drafter may use a set day of the week to indicate a deadline or other time restraint. See Example A licensee shall renew a license each year on the first Monday of April. When referring to an effective date, use the actual date itself rather than ambiguous phrases such as "after this chapter takes effect." See Example After July 1, 2015, members shall serve two-year terms. Year If a time period is expressed in whole years and the context creates no special ambiguity, use the word "year." If a continuous two-year period is intended, use "for a two-year period" rather than "for two years." If legislation references a time period spanning years (e.g., fiscal years), include only the last two digits of the last year. See Example fiscal year 2015-16 Word Selection and Payment General Principles Abbreviation Avoid using an abbreviation, except to cite a law like federal statutes (et seq.) or to indicate a time of day (a.m., p.m.). Although a word such as "etc.," and "e.g." is always abbreviated, it should not be used in legislative drafting. Acronym A legislative drafter should avoid using an acronym in drafting.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 185 (2006). Condition A condition is generally a prerequisite for applying a provision.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005). If a condition is needed, the condition should be stated in simple terms. If only one or two simple conditions apply, the conditions can be stated first and the general rule can then follow.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005). The word "if" should be used to introduce the condition.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005). See Example If a person violates this chapter, that person is subject to prosecution. Compound Expression or Redundant Phrase A legislative drafter should avoid:
Exception A legislative drafter should state a general rule or category directly rather than describe the rule or category by stating its exception. See Example
However, at times it is necessary to state the circumstances under which a requirement or rule of a statute is not applicable.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005). When an exception is used, it should be stated in simple terms. If only one exception applies, the general rule should be stated first and the exception should follow. The term "except" should be used to introduce an exception.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 71 (2005). See Example
If there are multiple exceptions, a legislative drafter should consider:
See Example Except as provided in Subsection (1)(b), the director shall . . . Formula "Expressing a formula in the statutes is one of the more difficult drafting problems, because it requires translating one system of communication (mathematics) into another (prose)."cStark, The Art of the Statute, p. 97 (1996). An option available to a drafter is to break each step of the formula into a separate subsection in an enumeration or interlocked unit.cStark, The Art of the Statute, p. 97 (1996). A drafter must be careful to ensure that the order of each step of the formula follows the proper sequence, because if the formula mixes multiplication or division with addition or subtraction, the order matters. See Example The commission shall calculate the fee owed under this section by: Limitation A limitation should be avoided if possible. Generally, a rearrangement of sentences or wording will accomplish the objective without use of a limitation. If a limitation must be used, it should generally:
See Example "Applicant" means a person applying for a license, but does not include a public entity. List, Tabulation, Enumeration, or Interlocked Unit To provide access and readability, a legislative drafter should enumerate or list multiple exceptions or conditions in separate paragraphs.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 64-68, 71-72 (2005); Stark, The Art of the Statute, p. 53-63 (1996). Also, "[o]ne of the best techniques for the drafter to eliminate unnecessary words and to enhance clarity is to tabulate multiples of the actor, action, object, complement, or qualifiers of any of them."cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 64 (2005). This construct is called by a variety of terms such as lists, tabulations, enumerations, or interlocked units. Signs that creating an interlocked unit can be helpful include:
See Example This title does not apply to: If an enumeration is a sentence, the introductory clause should either be:
Modifier A legislative drafter must use care in the placement of a modifier in an interlocked unit, such as a time limitation or other qualifier.cSee Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 66 (2005). Look here for a discussion of issues raised by placement of modifiers. Exclusive v. Inclusive When drafting a list, a legislative drafter should be aware of possible inferences that may be drawn from the fact that a particular item is not included in the list. A person may infer that a list is intended to be exclusive (i.e. the statutory language only applies to the items listed). Conversely, a person may infer that a list is general in nature and is only intended to give examples of the types of items that the statutory language applies to. These principles are recognized in the rules of statutory construction. A rule of statutory construction can be overcome by a clear indication of contrary legislative intent or policy. For example, in Utah, a legislative drafter can create a non-exclusive list by the use of the word "includes."mSee, e.g., Darmstadter, Hereof, Thereof, and Everywhereof: A contrarian Guide to Legal Drafting, p. 4 (2nd ed 2008). According to Sutherland Statutory Construction, when "include" is used, "it is generally improper to conclude that [things] not specifically enumerated are excluded." Singer, Statutes and Statutory Construction, 2A Sutherland Statutory Construction 47.23 (6th ed. 2000). This term is inclusive but not exclusive, allowing a court or agency to adopt additional meanings.cSee Checkrite Recovery Services v. King, 52 P.3d 1265 (Utah 2002). Utah Code 68-3-12(2)(a) provides that the use of the phrase "but not limited to" after "include," "includes," or "including" is strongly discouraged. "Include," "includes," or "including" means that the items listed are not an exclusive list, unless the word "only" or similar language is used to expressly indicate that the list is an exclusive list."cUtah Code 68-3-12(1)(f) If necessary, a legislative drafter may list an item that is not to be included under a definition or enumeration. In such case, a legislative drafter may begin the list of exclusions with the phrase, "does not include . . . ." See Example (b) "Title loan" includes a title loan extended at the same premise on which any of the following are sold: Conjunction One of the more difficult issues when drafting an interlocked unit is the use of a conjunction.mSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 66-67 (2005). The Chicago Manual of Style 5.185 (15th ed. 2003) describes "or" as a disjunctive conjunction. In general, an "and" or an "or" should proceed the last item in the interlocked unit. "And" is used to create a cumulative effect. "Or" is used to indicate alternatives. In determining the proper use of a conjunction several issues arise.
Click here for an example. Look here for additional discussion relating to conjunctions. Numbered List with a Sentence Inserted If each item in an interlocked unit is an incomplete sentence, a legislative drafter may not insert a complete sentence in the middle or at the end of the interlocked unit.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 404 (2006 ed.). If each item in the interlocked unit is a complete sentence, an item can have more than one sentence. The placement of a complete sentence or modifier is critical because it may be unclear whether or not the modifier modifies or applies to each item in the interlocked unit or only the last item.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 404 (2006 ed.). Parallelism and Consistency It is important that an interlocked unit be consistent in structure. For example, the first word of each enumeration in the interlocked unit should be of the same class and appropriate to the introduction to the enumerated series.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 67 (2005). Moreover, "[i]f the language of the introductory text and [interlocked unit] comprise a single sentence, the introductory text and each individual paragraph, or other subdivision, must constitute a coherent, grammatically correct sentence."cNational Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 404 (2006 ed.). Official Title In referring to a public officer or agency, a legislative drafter should use the official and correct title of the person or agency. For example, a drafter should not call the executive director of the Department of Commerce, "director," or the commissioner of the Department of Financial Institutions, "executive director." For a listing of official titles of public entities in Utah, see State Organization Charts (prepared by the Office of Legislative Research and General Counsel, found at www.le.state.ut.us/lrgc/stateorganizationcharts.pdf ). Paragraph A legislative drafter should divide a long sentence or phrase into a shorter and more readable paragraph when amending existing code as well as when writing new material. A legislative drafter should avoid adding a paragraph without enumeration at the end of a section. See Example (1)(a) A person shall place a payment on a contract that is retained or withheld in an interest-bearing account. Possessive A legislative drafter should be careful in the use of possessive nouns.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.). Pronoun A legislative drafter should limit the use of pronouns in legislation because of the risk of ambiguity as to what noun a pronoun applies.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 197 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 39-41 (2005); Haggard, Legal Drafting in a Nutshell, p. 364 (2nd ed. 2003). In addition to the risks associated with clearly referencing the appropriate noun, use of a pronoun creates issues related to gender-specific language. Look here for further discussion of drafting in gender neutral language. Proviso A proviso is archaic and usually results in an unintelligible phrase.618 See, e.g., Haggard, Legal Drafting In a Nutshell, p. 279-280 (2nd ed. 2003). See also Singer, Statutes and Statutory Construction, 1A Statutory Construction, 21:11 (6th ed., 2007-08 Supp., 2002 revision). An expression like "provided, that," "provided further that," should not be used.619 See, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 72 (2005). In most cases, rearranging a sentence eliminates the need for a proviso. If a clause modified by a proviso is a complete thought, it should always be rewritten as a complete sentence. Look here for information regarding rewriting a proviso as an exception. Look here for information regarding rewriting a proviso as a condition. Relational Word A legislative drafter should avoid the use of relational words such as "now," currently," or "presently," because it is unclear as to what specific point of time is being referenced.cSee, e.g., Haggard, Legal Drafting In a Nutshell, p. 277-278 (2nd ed. 2003). Alphabetizing When alphabetizing is required or helpful, a legislative drafter should use the letter-by-letter system of alphabetizing.622 cSee, e.g., The Chicago Manual of Style, 18.57 (15th ed. 2003). In the letter-by-letter approach, alphabetization continues across a space or punctuation. The Chicago Manual of Style (15th ed. 2003) provides more detail on alphabetizing. Specific Term Many terms and phrases are difficult in meaning, spelling, or usage. Terms which commonly raise drafting problems are described in this section or in the list of problem words or phrases contained here. A, An, Any, All, Each, Every, The To avoid ambiguity in writing, a legislative drafter should use the singular subject. A legislative drafter should most commonly use the singular articles "a," "an," and "the" in listing a singular subject.mSee, e.g., Darmstadter, Hereof, Thereof, and Everywhereof: A contrarian Guide to Legal Drafting, p. 3 (2nd ed 2008); National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 196 (2006); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 38-39 (2005); Stark, The Art of the Statute, p. 80-83 (1996); For a discussion of when to use "a" or "the," see Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.) and Stark, The Art of the Statute, p. 80-83 (1996). If the intent is to apply to a single subject, a drafter should consider the use of the adjective "one" instead of an article.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 38 (2005). Sometimes the use of these articles creates an ambiguity, and on these rare occasions, a legislative drafter can use the indefinite pronoun "any" or "each." "Each" is used if imposing an obligation to act, and "any" is used if granting a right, privilege, or power. The term "every" should not be used. See Example
If the subject is plural, an article or indefinite pronoun is not needed. However, the singular expression is preferred. The terms "all" and "some" should not be used. Act The noun "act" should not be used except in the title of a title, chapter, part, or section. "Act," when referring to legislation, generally refers to the law once it is passed by a legislative body. Some rules of statutory construction state that the phrase "this act" in an amended section is generally held to refer to the whole bill as amended, and not merely to the amended portion.cSinger, Statutes and Statutory Construction, 1A Sutherland Statutory Construction 22:35 (6th ed.2002 revision). Confusion as to what "act" is at issue can arise when a statute is amended several times in different legislative sessions. A legislative drafter should use the word bill when referring to a bill before passage by the Legislature, but should avoid codifying the term "bill." See Example
Look here for further discussion of the term "bill." Affect, Effect "Affect" (almost always used as a verb) means to have an influence on something. "Effect," when used as a noun, means an outcome or result. When used as a verb,"effect" means to make something happen. See Example
And, Or Never use "and/or."cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); Haggard, Legal Drafting In a Nutshell, p. 265-268 (2nd ed. 2003); Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction, 21:14 (6th ed., 2007-08 Supp., 2002 revision). A legislative drafter should determine which term is correct.cSee, e.g., Stark, The Art of the Statute, p. 83-87 (1996). However, even an experienced drafter has difficulty in making the distinction in all cases. cSee, e.g., Haggard, Legal Drafting In a Nutshell, p. 259-265 (2nd ed. 2003); Dickerson, Materials on Legal Drafting, p. 235-253 (1981). In determining whether or not "and" or "or" is appropriate, a legislative drafter must determine if a sentence is mandatory or permissive.cSee, e.g., Dickerson, Materials on Legal Drafting, p. 238 (1981). If all the items in an enumeration are to be taken together, they may be joined at the last two items by the conjunction "and." If the items are to be taken in the alternative, "or" is used. If terms are to be taken both together and in the alternative, the "and/or" should not be used, but a legislative drafter should consider:
See Example
Look here for further discussion of the use of "and" or "or" in an interlocked unit or list. Assure, Ensure, Insure "Ensure" is the general term that means to make sure that something will or will not happen.cSee, e.g, The Chicago Manual of Style, 5.202 (15th ed. 2003); Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 90 (2007); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 52 (2006); Office of the Revisor of Statutes, Minnesota Bill Drafting Manual 2002, Chapter 12. "Insure" applies only to mean underwriting financial risk. "Assure" is used to indicate that others are made to feel better. Attorney Fees When drafting in the Utah Code, a legislative drafter should use the term "attorney fees" instead of "attorneys' fees," "attorney's fees," or "attorneys fees."mThis pattern is consistent with how Utah courts and court rules cite to attorney fees. See, e.g., Utah Rules of Civil Procedure Rule 73. Attorney fees; Gardner v. Board of County Comm'nrs, 178 P.3d 893 (Utah 2008). Biennially, Biannually, Bimonthly, Semiannually, Semimonthly Biennially means every two years.cSee, e.g., The Chicago Manual of Style, 5.202 (15th ed. 2003); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.38 (2006). Biannually and semiannually mean twice a year.cSee, e.g, The Chicago Manual of Style, 5.202 (15th ed. 2003). Bimonthly has been defined to mean both every two months and twice a month.cSee, e.g., Haggard, Legal Drafting In a Nutshell, p. 276 (2nd ed. 2003). To avoid confusion, instead of these words, a legislative drafter should consider using a phrase like "every two" or "twice a." Bill The term "bill" should be used to refer to a bill in its entirety. However, a drafter should avoid codifying the term "bill." At the time a bill is drafted it may be clear that in a bill the term "bill" refers to the whole bill even though the bill may affect several different titles of the Utah Code. However, the term "bill" is unclear after a bill is enacted and the affected sections are included in the Utah Code in their numerical place, because the sections may be scattered throughout the Utah Code. If it is necessary to use the term "bill" in codified language, a legislative drafter should consider including revisor instructions directing the Office of Legislative Research and General Counsel to change the term "bill" to the appropriate cite in Utah Laws. See Example
Look here for further discussion of revisor instructions. Compose, Comprise The word "compose" means - to make up, or to form the substance of, and "comprise" means - to be made up of or include.cSee, e.g., The Chicago Manual of Style, 5.202 (15th ed. 2003); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.38 (2006). Both involve the idea of containing, embracing, comprehending, or surrounding. "Compose" also means making or forming. "Comprise" suggests including or containing. The whole comprises the parts, the parts do not comprise the whole. "Comprised of" is a wordy expression and should not be used.cSee, e.g., The Chicago Manual of Style, 5.202 (15th ed. 2003); Bureau of Legislative Research, Legislative Drafting Manual for the State of Arkansas (Non-Appropriation Bills Only), p. 53 (2006). See Example The board is composed of 10 members. Consecutive, Successive Although "consecutive" or "successive" means following after, "consecutive" implies following immediately after without interruption, while "successive" requires only that it follow after and allows for there to be intervals or gaps between the events.cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 89 (2007). Continual, Continuous "Continual" means an action occurs repeatedly over a period of time. "Continuous" means an action that is an uninterrupted flow.cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 90 (2007); Office of Legislative Legal Services, Colorado Legislative Drafting Manual, p. 11-16 (2008); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.38 (2006). Consider, Deem A legislative drafter should avoid the word "deem." The term "consider" is generally the appropriate term.cSee, e.g., Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.). The term "deem" may be appropriate in the rare case that it is used to state that something is to be treated as true even if contrary to fact. cSee, e.g., Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); See also Alabama Legislative Reference Service, Drafting Style Manual, Rule 7 (DATE). Duly, Properly, True A drafter should avoid using as an adjective a term such as "duly," "properly," or "true," e.g., "duly licensed." Unless intended, the use of these terms could be interpreted as imposing an additional requirement beyond that imposed by use of the noun. For example, is "duly licensed" intended to mean more than "licensed." If the noun is sufficient, the use of these adjectives should be avoided. Ex Officio The term "ex officio" when used in the context of membership on a committee, commission, or other body means that the individual is a member of that body because the individual holds a specific office or position. For example, if a statute states that the executive director of the Department of Commerce is a member of a committee, the executive director is an ex officio member. "Ex officio" does not mean that a member is a nonvoting member.cSee, e.g., The Official Roberts Rules of Order Website, Frequently Asked Questions, Question 2, www.robertsrules.com/faq.html#2 (last visited 7/9/08). A drafter should avoid the use of this term. Farther, Further "Farther" is used for physical distance and "further" is used for a figurative distance and applies to time, quantity, or degree.cSee, e.g, The Chicago Manual of Style, 5.202 (15th ed. 2003); Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 90 (2007); Colorado Office of Legislative Legal Services, Colorado Legislative Drafting Manual, 11-17 (2008). If, When A legislative drafter should use "if" not "when" to express a condition.cSee, e.g., Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 202 (2006 ed.). Similarly, a legislative drafter should use "if" rather than a phrase such as "In the event of."cSee, e.g., Darmstadter, Hereof, Thereof, and Everywhereof: A contrarian Guide to Legal Drafting, p. 3 (2nd ed 2008); The Chicago Manual of Style, 5.202 (15th ed. 2003). A drafter uses the term "when" to refer to time or to refer to a specific act that is certain to occur such as "when this section takes effect."cSee, e.g., Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 202 (2006 ed.). See Example
Includes Look here for information on the use of the word "includes." Notwithstanding Avoid the use of the term "notwithstanding" unless referring to a specific provision of the Utah Code.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 255-256 (2006). See also Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 202 (2006 ed.). The term "notwithstanding" is often used as a shortcut to avoid conflicts with other laws. It is preferable for a drafter to rewrite the section so that there is no conflict. If a conflict cannot be avoided, a drafter should specify the existing section that is in conflict and indicate that the provisions of the bill supersede that section. It is important to be as specific as necessary to explain which provision is being superseded. Only if it is impossible to specify a section that is in conflict should a legislative drafter state that the section supersedes conflicting sections. See Example
Only The placement of the word "only" in a sentence may create ambiguity.cSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 188 (2006); Haggard, Legal Drafting in a Nutshell, p. 297-298 (2nd ed. 2003). See Example "Only the governor may appoint a person nominated by the commission. A legislative drafter should place the word "only" as close as possible to the word that it modifies.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 63-64 (2005). Person, Party, Individual, Entity "Use 'a person' to designate the actor in the provision unless there is some reason to limit the application of a provision . . . to a designated class. This term is the most general because it covers both natural and artificial persons and all types of entities no matter what their formal legal status."cMartineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 37 (2005). See also Utah Code Ann. 68-3-12 (defining "person"). The term "party" refers to a party in a legal action, and should not be used to denote a "person" who carries out an act or discharges a duty.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 37 (2005). See Example
Prior To The word "before" is preferable to the phrase "prior to" or "previous to."cSee, e.g., The Chicago Manual of Style, 5.202 (15th ed. 2003); Alabama Legislative Reference Service, Drafting Style Manual, Rule 7 (DATE). Promulgate An appropriate, simpler word like "issue," "publish," or "make" is preferable to "promulgate."cSee, e.g., Haggard, Legal Drafting in a Nutshell, p. 354 (2nd ed. 2003). An example of a circumstance when "promulgate" should not be used is when authorizing an agency to make an administrative rule. See Example
Provisions Of Use of the phrase "the provisions of" before a citation to a subsection, section, part, chapter, or title is superfluous and should not be used.cSee, e.g., Uniform Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.). See Example
An exception to this general rule is when a legislative drafter is distinguishing between different provisions of the same section, part, chapter, or title. See Example Notwithstanding the other provisions in this chapter, . . . Pursuant To A phrase like "pursuant to" is used to identify or refer to another provision of law. The following phrases are acceptable, but a legislative drafter should be consistent in their use. See Example pursuant to . . . Respectively, As The Case May Be "Respectively" and "as the case may be" are often used improperly. Because of the potential for confusion, the phrases should rarely be used. If a drafter desires to apply A to X, B to Y, and C to Z, that may be clarified by stating, "A, B, and C apply to X, Y, and Z, respectively." Here the three relationships are concurrent, not alternative. In such a statement, the verb should be plural. On the other hand, if a drafter desires to apply A if X occurs, B if Y occurs, and C if Z occurs, the correct statement would be "If X, Y, or Z occurs, A, B, or C applies, as the case may be." Here the three relationships are alternative, not concurrent. The verb should be singular in this situation. Rule, Regulation The phrase "rules and regulations" is an inaccurate statement in drafting Utah law. A "rule" is made by an administrative agency in this state and is referred to as such in official publications. A state agency does not make a "regulation."cSee, e.g., Utah Code Ann., Title 63G, Chapter 3, Utah Administrative Rulemaking Act. A legislative drafter, when referring to a rule made by a Utah agency, should only use the term "rule." The term "regulation" is generally used at the federal level and may be used to refer to a federal regulation. Said, Same, Such A legislative drafter should use "a," "an," "it," "that," "the," "them," "these," "this," or "those" instead of "said," "such", or "same."cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 208 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 38-39 (2005). "Such" is not preferred but its use is sometimes necessary to modify a preceding term or phrase. "Such as" and "such a" may be used to introduce an example.cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 208 (2006 ed.) Shall, May, May Not, Must, Shall Be Do not use expressions such as "is authorized to," "is empowered to," "has the duty to," "can," or "the Legislature intends that the director shall." "Shall" or "may" are more appropriate expressions.mSee, e.g., Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 190-193 (2006) (while acknowledging some ambiguity in how "shall" and "may" are interpreted, states that "[d]rafters should follow the convention: Use 'shall' to command and 'may' to allow."); Singer, Statutes and Statutory Construction, 1A Sutherland Statutory Construction 21:8 (6th ed. 2002 revision). Because some courts on occasion have interpreted "shall" to mean "may" and vice versa, it is imperative that a legislative drafter give careful consideration to the context.cSee Dorsey, Legislative Drafter's Deskbook: A Practical Guide, p. 192-193 (2006). If a problem of interpretation arises, a legislative drafter can add a sentence stating that an action inconsistent with the provision is void. The use and meaning of these terms are addrressed in Utah Code 68-3-12. Creating Authority or Permitting an Act "'May' means that an action is authorized or permissive."cUtah Code 68-3-12(1)(g). "May" is used when granting a right, privilege, or power, or indicating discretion to act.c660 See, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 203 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 49-50 (2005); Stark, The Art of the Statute, p. 78-79 (1996). Avoid a phrase such as "is authorized to" or "in [the actor's] discretion."cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 49-50 (2005). See Example
The use of the word "should" is strongly discouraged, except as provided in Utah Code 68-3-12(2)(c)(ii). The word "should" should never be used to create authority or permit an act. Requiring an Act "Shall" means that an action is required or mandatory.cUtah Code 68-3-12(1)(j). "Shall" is used when indicating an obligation to act.cSee, e.g., Haggard, Legal Drafting In a Nutshell, p. 268-273 (2nd ed. 2003); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 48-40 (2005); Stark, The Art of the Statute, p. 79 (1996). See also National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 203 (2006 ed.). See Example
Look here for a discussion of the misuse of the term "shall" in creating a false imperative. The use of the word "must" is strongly discouraged when the term "shall" can be used in its place.cUtah Code 68-3-12(2)(d). "Must" may be used in the following circumstances:
The use of the word "should" is strongly discouraged, except as provided in Utah Code 68-3-12(2)(c)(ii). Creating a Condition On occasion, "must" may be used if an action is intended to be a condition precedent to the accrual of a right or privilege being authorized or prohibited. However, "must" should not be used as a replacement for "shall."cUtah Code 68-3-12(2)(d). See also, e.g., Stark, The Art of the Statute, p. 80 (1996). This manual departs from the Drafting Rules of the National Conference of Commissioners on Uniform State Laws to a degree as to use of the term "must" or "must not." See, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 203, 204 (2006 ed.). Prohibting an Act Whenever possible, an obligation or discretion to act should be stated positively. However, if a right, privilege, or power is abridged and the sentence contains a negative subject, "may not" should be used.cUtah Code 68-3-12(1)(h) and (2)(a)(i). See also, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 203 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 41-42 (2005); Alabama Legislative Reference Service, Drafting Style Manual, Rule 8 (DATE); Alaska Legislative Affairs Agency, Manual of Legislative Drafting, p. 62 (2003); Maine Legislative Drafting Manual, Part III, Ch. 2, Sec. 1 (DATE); Office of the Revisor of Statutes, Minnesota Bill Drafting Manual 2002, Chapter 12; North Dakota Legislative Council, 2007 Legislative Drafting Manual, p. 96; South Dakota Legislature, Drafting Manual, p. 24 (DATE); Texas Legislative Council, Texas Legislative Council Drafting Manual, 7.30 (2006); Code Revisor, Washington Bill Drifting Guide 2007, Part IV, (1)(g) (except that permits limited use of "shall not"); West Virginia Legislature Bill Drafting Manual, p. 24 (2006). This is preferable to "shall not." A statute that includes the phrase "shall not" negates the obligation, but not the permission to act. "A person may not" also negates the permission to act and is, therefore, the stronger prohibition. cSee, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 203 (2006 ed.); Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 41-42 (2005). Additionally, "should not" should never be used to prohibit an act.cUtah Code 68-3-12(2)(a)(ii). "Should not" gives the actor the discretion to disregard an attempted prohibition. Negative Subject A phrase such as "no person may" or "no person shall" should not be used in drafting legislation.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 41-42, 50 (2005). For example, "no person shall" literally means that no one is required to act. The negative is best used with the action and not the actor. See Example
Should, Ought A legislative drafter should not use the term "should" or "ought" instead of the term "shall," "must," or "may."cUtah Code 68-3-12(2)(c)(i).See also, e.g., National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 205 (2006 ed.). The term "should" may be used in the follwoing circumstances:cUtah Code 68-3-12(2)(c)(ii).
See Example A vender shall notify the department within a reasonable time after the vender discovers or should have discovered that the item is stolen. State of Utah Except in the enacting clause of a bill or resolution, reference to "the state of Utah" is unnecessary. Utah cannot legislate for another state. When it is necessary to refer to the state of Utah, use "state," "this state," or "Utah." That, Which The terms "that" and "which" are not interchangeable. The choice between these terms is determined by the type of clause that follows the terms.cSee, e.g., Wydick, True Confessions of a Diddle-Diddle Dumb-Head, 11 Scribes J. Legal Writing 57 (2007); National Conference of Commissioners on Uniform State Laws, Drafting Rules, Rule 201 (2006 ed.); The Chicago Manual of Style, 5.202 (15th ed. 2003); Haggard, Legal Drafting in a Nutshell, p. 299-301 (2nd ed. 2003). "That" is used to introduce a restrictive clause, or a clause that provides information necessary for full comprehension of the sentence. A restrictive clause is not set off by commas. See Example Any monies that are not restricted lapse. "Which" is used to introduce a nonrestrictive clause, or a clause that provides nonessential or parenthetical information. A nonrestrictive clause is set off by commas. See Example The division, which is responsible for licenses, shall by rule provide a filing procedure. Look here for further discussion of the use of a comma in a sentence. To, Through, Between, By, Until "Through" means "to and including" and should be used instead of "to" to reference a series of three or more statutory provisions.cSee, e.g., Arizona Legislative Council, The Arizona Legislative Bill Drafting Manual, p. 93 (2007). The "to" may also be problematic in drafting a range of dates. A drafter generally should use the terms "after" and "before" instead of "to," "until," "by," or "between."cSee, e.g., Haggard, Legal Drafting in a Nutshell, 268-271 (2nd ed. 2003); Office of the Revisor of Statutes, Minnesota Bill Drafting Manual 2002, 10.10. See Example
Verbal, Oral "Verbal" means to use words. If a drafter wants to indicate that something is to be communicated by word of mouth, a legislative drafter should use the word "oral."cSee, e.g., The Chicago Manual of Style, 5.202 (15th ed. 2003). Where, When "When" is preferred to "where" except when dealing with a specific place. However, "if" is the preferred term to "when" to express a condition. See Example
Willful, Willfully There are multiple spellings of the word "willful." A drafter in the Office of Legislative Research and General Counsel should use the spelling "willful" and "willfully."cSee United States Government Printing Office, Style Manual, Rule 5.2 (2000) Writing Utah has adopted the Uniform Electronic Transactions Act which anticipates that commerce and government services could be conducted electronically.cSee Utah Code Ann. Title 46, Chapter 4, Uniform Electronic Transactions Act. In light of this, a drafter should be careful to draft in a media neutral way to allow for electronic transactions. However, the Utah Code has defined the term "writing" to include electronic writings.cSee, e.g., Utah Code Ann. 46-4-502. Citation in Legislation Citation to, and Organization of, Utah Code Currently, the Utah Code is divided into titles, chapters, parts, sections, and subsections. Title, Chapter, or Part A title, chapter, or part is:
See Example
If a citation is to an entire title, chapter, or part that has a title, a legislative drafter should include the title in the citation. See Example Title 70A, Utah Uniform Commercial Code When citing to two or more chapters, if a drafter uses the conjunction "and" or "through," the words "chapter" or "part" should be plural. If a legislative drafter uses the conjunction "or," the words "chapter" or part" should be singular. See Example Title 7, Chapters 1, 2, and 19 Section A section is the fundamental unit of the Utah Code. A section is numbered in three parts offset by hyphens. When recodifying or creating a title or chapter, a section in the chapter should have as the last number in the section number a three-digit number. This system provides greater ease in adding new sections. See Example Section 59-3-101 Legislation should be drafted using the subsection numbering method shown in the example below. A legislative drafter should make every effort to not use a subsection level beyond the level of a capital letter, e.g., (A). A legislative drafter should be even more cautious using a subsection level lower than a capital letter followed by a lower case letter, e.g., (Aa). A legislative drafter may not use a subsection level beyond those designated below without discussing the issue with legislative general counsel. Click here for an example. Currently, a drafter is permitted and encouraged to renumber within an existing definitional section to alphabetize the section. In other circumstances, a drafter should not reorder subsections within a section because this type of reordering makes it difficult to compare sections by computer to look for potential conflicts. Also, it is possible that by rearranging the sections, the change inadvertently alters the substance of the section and the change in meaning may be difficult to catch. If a legislative drafter is amending a section of the Utah Code in which the subsections are numbered in a manner that does not comply with the basic rules and the drafter intends to make the numbering compliant, the drafter should check cross references to determine if that particular subsection is referenced in another section of the Utah Code. A legislative drafter must then change all other references to conform with the new numbering. A legislative drafter should also check relevant case law to determine whether that specific subsection is mentioned in a court opinion. If that is the case, a legislative drafter may want to consider leaving the whole section and the impacted subsection as it is currently numbered to preserve the legal history of the subsection even though it is inconsistent with this general drafting guideline. A reference to another provision of law is by inference to another section of the Utah Code unless otherwise stated. Therefore, a reference to the "Utah Code Annotated" or a phrase like "of this code" is superfluous. See Example
Never refer to other portions of the Utah Code with "above," "below," "hereinafter," "hereinbefore," or similarly vague terms.cSee, e.g., Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 73 (2005). Always cite the specific designation. References to single or multiple sections throughout the Utah Code should be as shown in the following example: See Example
Do not use the phrase "Section 59-10-101 to Section 59-10-110" because it is ambiguous. Use the phrase "Sections 59-10-101 through 59-10-110" instead. Do not use the phrase "the provisions of" before a citation to a section or subsection because the language is superfluous. See Example
When practical, a brief description of a cited statute can be included in the reference so the reader will not be forced to turn to the provision to see what it addresses. See Example The division shall use a procedure that is the same as that used in Section 13-1-1, concerning consumer grievances. Subsection A subdivision within either a section or subsection is called a "subsection." Although a legislative drafter should generally cite only to a section, a drafter can cite to a subsection when it is needed to avoid confusion. A subsection is cited within parentheses. A legislative drafter should avoid citing a provision in a unit smaller than the second level of subsections, i.e., (1)(a) or (14)(b). If further division is necessary, cite to the level necessary. A reference to a subdivision is always to "subsection," to avoid confusion and to maintain simplicity. See Example Subsection 58-1-1(2) Within the Same Section When a subsection is referred to within the section where it is created, only the subsection reference is necessary. The phrase "of this section" should not be used. See Example
If citing to a subsection within the same section, a legislative drafter should refer to the complete subsection reference to avoid ambiguity or confusion with other subsections of that section (i.e., even within Subsection (1) refer to Subsection (1)(a) and not to Subsection (a)). See Example (1) (a) The director shall appoint a deputy. In a Different Section If a subsection is referred to in another section of the Utah Code, cite the section number with the subsection. The phrase "of Section 58-1-1" should not be used. See Example
Citation to Laws of Utah Sometimes a bill is not codified into the Utah Code Annotated (1953), and the only reference available is to the Laws of Utah. In that case, refer to the chapter and year of the session law involved. If a bill passes during a special session, the special session is also cited. In general, it is only necessary to refer to the most recent legislative session in which the law is enacted or amended, unless the intent is to refer to a specific action taken during a specific legislative session. A citation to the Laws of Utah should be as specific as necessary to achieve the intent of the Legislature. However, a basic format has been developed by the Office of Legislative Research and General Counsel. See Example Laws of Utah 2007, Chapter 288, Sections 25 and 26 Citation to the Utah Constitution Within the body of legislation, the Utah Constitution is cited by article and section. See Example Utah Constitution, Article XIII, Section 2, Subsection (2) Citation to Legislative Rule A legislative rule is cited in legislation by indicating:
See Example Legislative Joint Rule 4-1-101 Citation to Court Rule The Utah Rules of Evidence, Utah Rules of Civil Procedure, Utah Rules of Criminal Procedure, Utah Rules of Appellate Procedure, and Utah Juvenile Court Rules of Practice and Procedure may be cited in legislation and have the force of law to the extent they are not contrary to statute. See Example Utah Rules of Civil Procedure, Rule 65B The Utah Code of Judicial Administration should be cited as shown in the following example: See Example Utah Code of Judicial Administration, Rule 7-201 Citation to a Federal Law Federal Statute Whenever possible, a legislative drafter should cite federal statute by reference to the United States Code. If a cite to the United States Code is not practical, a legislative drafter may use the Public Law or Statutes at Large cite. The key principle is making it easy for an average reader of the Utah Code to find the federal law. The term "et seq." may be used in citing federal law but not Utah Code. A phrase such as "of the laws of the United States" should not be used. Reference to both the short title and to the United States Code citation is acceptable to enable a person to easily identify the federal law in question. However, reference to the United States Code or the Public Law should always be used. See Example Basic format: One exception to the rule that a short title alone should not be used is when citing a well-known or often changed federal law, such as the Social Security Act or the Internal Revenue Code. When referencing the Internal Revenue Code, a legislative drafter should always refer to the cite as "section" and not "subsection." See Example Title XIX of the Social Security Act, 42 U.S.C. Sec. 1396 et seq. In determining whether or not to indicate that a future amendment to a federal statute is incorporated because of a citation to the federal statute, a legislative drafter should consider the discussion of possible legal issues with regard to the delegation of legislative authority. See Example Mineral Lands Leasing Act, 30 U.S.C. Sec. 181 et seq., as amended through May 3, 1999. Federal Regulation When citing a federal regulation, the cite should be to the Code of Federal Regulations. Similar to a citation to federal statute, a cite to the short title or common name of a federal regulation is not required, but may be included with the cite to the Code of Federal Regulations. However, a federal regulation should not be cited only by its short title. It is unnecessary to include a phrase such as "of the Code of Federal Regulations." See Example 9 C.F.R. Sec. 201.97 Federal Constitution Within the body of legislation, a cite to the Constitution of the United States should include the relevant article and section. See Example United States Constitution, Article II, Section 3 Citation to Case Law In the rare situations where it is necessary to cite to case law in the text of a statute, a legislative drafter should include the name and citation of the case without underlining or italics. See Example (v) "Uintah and Ouray Reservation" means the lands recognized as being included within the Uintah and Ouray Reservation in: |  Legislative Drafting Style ManualFoundational Drafting PrinciplesKeys to Legislative StyleStructure for LegislationOutlineSequenceChecklist for Organizing a Legislative ProposalBuilding the Basic Structure of Legislation Structure of a Legislative SentenceIn GeneralAgreement (Subject/verb and pronoun/antecedent) Using a Subdivision to Deal with Multiple PointsChoice of LanguageIn GeneralConsistencyBasic Requirements for Effective Legislative DraftingTensePresent TenseTime RelationshipVoiceActive VoiceAction or Finite VerbPositive VoiceIndicative MoodCaseSingular and PluralThird PersonCompound TermWord PlacementQualifying LanguageModifierGender Neutral LanguageDrafting Recurring Legislative ProvisionsTitle of a Title, Chapter, or Part Legislative Statement of Intent, Purpose, or FindingIntroductionGenerally Do Not Include a Statment of Legislative Intent, Purpose, or FindingGeneral Concerns Special Concerns With Legislative FindingAlternatives to a Statement of Legislative Intent, Purpose, or FindingLanguage Read into the JournalConvert the Language to an Active Mandate or Directive LanguageDrafting a Codified Statement of Legislative Intent, Purpose, or FindingGeneral Drafting PrinciplesLong Title and BoldfacePlacementDrafting a Statement of Legislative Intent, Purpose, or Finding that Applies to an Action in a Specific BillDefinitionWhen to use a DefinitionWhen Not to Use a DefinitionExisting Definitions in the Utah CodeDefinitions for Entire CodeDefinitions for Other Portions of the Utah CodeCreating a New DefinitionStructure of a Definition ProvisionExclusive v. Inclusive DefinitionTransition or Savings ClauseWhen a Transition or Savings Clause is NeededGeneralRecodification of a Title, Chapter, or PartDrafting a Transition or Savings ClauseLong Title and BoldfacePlacementNo Boilerplate LanguageRevisor InstructionConstitution, Legislative Rule, or Court RuleSeverability ClauseWhen a Severability Clause is NeededDrafting a Severability ClauseLong Title and BoldfacePlacementNo Boilerplate LanguageRevisor InstructionConstitution, Legislative Rule, or Court RuleEffective Date, Repeal Date, or Retrospective OperationEffective DateDelayed Effective DateEarly Effective DateImmediate Effective DateSeparate Effective DatesSection with Future Effective DateRepeal DateAs Part of the Sunset ActWithout Sunset ReviewRepealing Codified Repeal ProvisionUncodified MaterialAmending or Repealing an Uncodified Effective or Repeal Date Retrospective OperationRevisor InstructionGuidelines for Style and UsagePunctuationColonSemicolonSeriesOther Uses of a SemicolonCommaGeneral RulesSpecific RulesIn a SeriesTo Set Off Successive AdjectivesTo Set Off Nonrestrictive AppositivesTo Set Off a Nonrestrictive Adjective ClauseBetween Parts of a Compound Sentence, When NeededTo Set Off an Introductory or Transitional Word or PhraseTo Set Off a Contrasted Word or PhraseTo Indicate that Qualifying Language Applies to a Preceding ClauseIf the Day of the Month is Stated in a DateTo Set Off Figures in Groups of Four or More NumeralsFor ClarityParenthesesApostrophe or PossessiveHyphenNumberTime PeriodPrefixCompound WordA Word that is Not a Compound WordQuotation MarksIn GeneralEnclosing a Defined TermEnclosing the Title of a Title, Chapter, or PartEnclosing the Contents of a Quote, Form, Sign, or LabelPunctuation within Quotation MarksBracketUnderliningCapitalizationWhen to CapitalizeWhen Not to CapitalizeNumerical ReferenceIn GeneralBegin a Sentence with a NumberDo Not Follow a Number with a Number in ParenthesesSingular v. Plural FractionHyphenationCompound Number from Twenty-one to Ninety-nineSimple FractionMixed NumberNine and Under RuleGeneralExceptionsMoneyPopulationPercentageGroup of Numbers Numbers in Tabular FormReference to the Utah Code or Other Law Measurement or AgeMeasurementAgeWord Used in Conjunction with a Number"Amount" and "Number""Less" and "Fewer""Funds,""Money, and "Monies"Date or TimeHourTime PeriodDateDay, Week, or Month YearWord Selection and PaymentGeneral PrinciplesAbbreviationAcronymConditionCompound Expression or Redundant PhraseExceptionFormulaLimitationList, Tabulation, Enumeration, or Interlocked UnitModifierExclusive v. InclusiveConjunctionNumbered List with a Sentence InsertedParallelism and ConsistencyOfficial TitleParagraphPossessivePronounProvisoRelational WordSymbolAlphabetizingSpecific TermA, An, Any, All, Each, Every, The ActAffect, EffectAnd, OrAssure, Ensure, InsureAttorney FeesBiennially, Biannually, Bimonthly, Semiannually, SemimonthlyBillCompose, CompriseConsecutive, SuccessiveContinual, ContinuousConsider, DeemDuly, Properly, TrueEx OfficioFarther, FurtherIf, WhenIncludesNotwithstandingOnlyPerson, Party, Individual, EntityPrior ToPromulgateProvisions OfPursuant ToRespectively, As The Case May BeRule, RegulationSaid, Same, SuchShall, May, May Not, Must, Shall BeCreating Authority or Permitting an ActRequiring an ActCreating a ConditionProhibting an ActNegative SubjectShould, OughtState of UtahThat, WhichTo, Through, Between, By, UntilVerbal, OralWhere, WhenWillful, Willfully WritingCitation in LegislationCitation to, and Organization of, Utah CodeTitle, Chapter, or PartSectionSubsectionWithin the Same Section In a Different Section Citation to Laws of UtahCitation to the Utah ConstitutionCitation to Legislative RuleCitation to Court RuleCitation to a Federal LawFederal StatuteFederal RegulationFederal ConstitutionCitation to Case LawAppendicesAPPENDIX A, Problematic Terms and Phrases APPENDIX B, Examples of Intent Statements Published in a Journal APPENDIX C, Hyphenation APPENDIX D, Examples of Revisor Instructions APPENDIX E, Examples of Transition or Savings Clauses |