Executive Orders

By George Hathaway, Perry Bullard, and Karen Willard

Last month we reviewed legislative resolutions and discussed comments that we obtained in a survey of readers' impressions of the way resolutions are written.

This month we will review readers' impressions of Governor's Executive Orders. These orders are written by the Governor's legal counsel. They are directions that the Governor makes to specific agencies within the administration. The format for executive orders has not changed in the last 100 years. It has always contained much legalese. (See Figure 1.) We are told that it is this way on purpose, because Michigan governors have never been confident that their orders carried as much weight as statutes, administrative rules, or case opinions. Supposedly, if the orders are filled with impressive-looking legalese, then the orders will seem more important and will have a better chance of being followed. But this is what critics of legal writing have always charged-that lawyers write legalese on purpose to make their writing look more complicated and impressive.

To see how readers feel about the way executive orders are written, we first determined:

• What does the writer of the executive order want to achieve? To get the agency to follow the order.
• Who are the readers? Primarily, the agencies that are affected by the order. But the orders are also published in the monthly Michigan Register, where they can be read by the general public.
• How will readers use the executive order? To follow or to learn about the order. We then asked ten members of the general public:
• Can you understand the following executive order?
• What is your impression of the way the executive order is written?
• Which of the two executive orders do you prefer (the one with legalese in Figure 1, or the one without legalese in Figure 2) and why?

Seven of the ten said they could understand the order, but only after they had read it several times. Eight of the ten said the order was written in an unsatisfactory way. All ten preferred the version without legalese. Some of the comments were:

• The legalese version is very hard to follow.
• The version without legalese is much easier to read and understand in less time.
• I don't really understand either order. I prefer the order without legalese only because after reading it I know I don't understand the reasoning behind the change ("best interest...citizens of Michigan" is too vague) nor the functions of the Board of Canvassers, which makes the order a mystery to me....With the legalese version, I mistakenly thought I did not follow it because of the legalese.

Governor's Executive Orders contain some of the worst legalese written in Michigan. The format for these orders has not changed, regardless of whether the person holding the office was Democrat, Republican, liberal, or conservative. It's time to change the format of these orders. The orders should use the same clear, direct, plain English format (but without the hereby) used by Presidential Executive Orders (Figure 3).

"Plain Language" is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar's Plain English Committee. The assistant editor is George Hathaway, chair of the Committee. The Committee seeks to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website. George Hathaway is a senior real estate attorney at the Detroit Edison Company and chair of the Plain English Committee of the State Bar of Michigan.