STATUTES

I was reminded again of the importance of each word we use in drafting legislation and how closely the changes we make are analyzed by a recent article in 'Benchmarks,' the District Court Judge's Association newsletter. In the article, the author discusses a recent statutory amendment changing 'shall have' to 'has' and argues that the change in tense affects the applicability of the provision. I cannot speak to the Legislature's intent regarding this specific issue, but as part of our continuing effort to use plain language principles, we often make this type of change in drafting amendatory bills. The fact that this was raised as an issue illustrates that, even when editing using plain language principles, we need to consider how each word we change may affect the meaning of the law, sometimes in unforeseen ways.

We, the Legal Division of the Legislative Service Bureau, are a nonpartisan staff within the Legislature consisting of 22 attorneys and 18 support staff who provide bill drafting and related legal services to members of the Michigan Senate and House of Representatives. The support staff includes four editors/proofreaders who review documents for accuracy as well as sentence construction, grammar, and spelling. Unlike some states that have a revisor of statutes to correct errors in and improve the clarity of statutes after they are passed, the Legal Division has the responsibility of determining the form and style of the statutes as we go through the process of creating or amending statutes.

The Legal Division also drafts Joint Resolutions that propose amendments to the State Constitution of 1963. Because of the nature and historical significance of this document, we rarely edit existing provisions of the Constitution. We do, however, use plain language principles in proposed new language as we do in the statutes.

Through the years, we became more aware of the plain language movement through various publications and seminars by such experts as Reed Dickerson and Bryan Garner. As a result of our exposure to these ideas, it is now the Legal Division's policy to use plain language principles in drafting new statutory language and, if possible, to edit old statutory language as we amend it. Because most of the Legislature's bills propose amendments to current law, the improvement of archaic and unclear language is being accomplished incrementally. It is, however, a lengthy, ongoing process that will continue for many years to come.

As part of our efforts to make the Michigan statutes more readable and understandable, we recently modernized the format of bills for introduction in the Senate and House of Representatives. We also conformed our citations to the more commonly used style provided in the Michigan Uniform System of Citation, effective February 10, 1987, and The Bluebook: A Uniform System of Citations (Cambridge: The Harvard Law Review Association, 16th ed, 1996).

The style used in the titles of amendatory bills changed from this:

A bill to amend sections 520 and 522 of Act No. 281 of the Public Acts of 1967, entitled

'Income tax act of 1967,'

section 520 as amended by Act No. 245 of the Public Acts of 1995 and section 522 as amended by Act No. 55 of the Public Acts of 1996, being sections 206.520 and 206.522 of the Michigan Compiled Laws.

To this:

A bill to amend 1967 PA 281, entitled

'Income tax act of 1967,'

by amending sections 520 and 522 (MCL 206.520 and 206.522), section 520 as amended by 1995 PA 245 and section 522 as amended by 1996 PA 55.

In editing existing statutes, we are constantly aware of the potential ramifications of our changes. Since the courts may occasionally look at grammatical construction in interpreting the law,¹ we select our words with great care. We try to follow basic plain language principles and use the present tense, use the active rather than the passive voice, avoid archaic words and phrases, avoid the subjunctive mood, eliminate false imperative, avoid using the same word for different things, trim verbose prose, and eliminate redundancies.

All of these changes are not always possible, though, for several reasons. Political considerations, such as a prior agreement on specific language by interested groups, may prevent editing. Interstate compacts are not edited by agreement. Portions of certain laws, such as worker's compensation and labor relations statutes, have been judicially construed or are written to conform to federal law and are carefully edited, if at all. An attorney general opinion or administrative rule may already provide an interpretation of existing language that is necessary to preserve. Additionally, amendments are often added on the Senate or House floor that have not been seen or written by any of our attorneys and that may not conform to the plain language style.

The following is an example of the editing we did, in addition to some substantive changes required, to an older statute (MCL 211.62) in a House Bill of this legislative session:

From this:

Sec. 62. It shall be the duty of the county clerk, on the filing of the said petition, to at once present the same to the circuit judge of the county in which said delinquent tax lands are situated, and it shall be the duty of said circuit judge to make an order in the form herein prescribed, which order, when so made and signed by the circuit judge, shall be countersigned by the county clerk as register in chancery, and recorded by him in the proper books of his office, and thereupon it shall be the duty of said county clerk to immediately make a true copy of said order, and transmit the same to the auditor general. Said order shall be substantially in the following form: . . .

To this:

Sec. 62. If a petition is filed, the county clerk shall present the petition to the circuit court of the county in which the delinquent tax property is located and the circuit court shall enter an order as prescribed in this section. The county clerk shall countersign the order, record the order in the proper books of his or her office, and transmit a true copy of the order to the state treasurer. The order shall be substantially in the following form: . . .

In creating new statutes, the task of adhering to plain language principles is generally easier. Our attorneys often start from scratch and strive to use those principles in the original draft. The work product of each of our attorneys is checked by another attorney for issue-spotting, as well as for plain language principles. We also occasionally receive drafts of new acts from outside sources. Unfortunately, outside authors are sometimes offended that we do not just accept these drafts without changes. We must, however, make all bills conform to our drafting style, including plain language principles, wherever possible.

The Legal Division is very proud that several of our attorneys have received Clarity Awards for new acts they have written. We are also very proud of the fact that we are slowly but surely making the Michigan Compiled Laws some of the most easily readable state statutes in the country through a continuous editing process using plain language principles.

ADMINISTRATIVE RULES

The Legislative Service Bureau is directed by the Administrative Procedures Act of 1969 to approve administrative rules and regulations proposed by executive branch agencies if it considers the proposed rules and regulations to be proper 'as to all matters of form, classification, arrangement, and numbering.'² In carrying out this statutory duty, the Bureau reviews drafts of proposed rules and regulations prepared by state agencies according to established editorial standards, many of which advance plain English principles. In applying these standards, the attorney-editor must assure that the proposed rules and regulations are not only legally accurate and sufficient, but also that they are capable of communicating effectively to a wide range of regulated audiences.³

During its review, the Bureau may:

• Clarify, simplify, and shorten rules while retaining their substance, sense, and meaning

• Eliminate obsolete and redundant language

• Modernize language to correspond to current drafting style for legislative bills, including rules for syntax, spelling, and punctuation

• Renumber rules and parts of rules, transfer rules, and divide and combine rules so as to give to distinct subject matters a separate rule number in the interest of organizational clarity⁴

The formal editorial requirements for drafting administrative rules are set out in A Manual of Style and Procedure prepared by the Legislative Service Bureau. The manual is designed to facilitate the preparation of administrative rules for approval by the Legislative Service Bureau, the Office of Regulatory Reform, and the Joint Committee on Administrative Rules. Though many of the drafting requirements set forth in this manual are mandatory, they are neither doctrinaire nor procrustean in nature or in purpose. The goal of such requirements is, simply, to achieve clarity, order, uniformity, and consistency in the drafting and publication of Michigan administrative rules. Specific examples of editorial requirements for proposed rules include the following:

• Tense. Use the present tense of verbs.

• Voice. As a general rule, use the active voice rather than the passive voice.

• Number. Use the singular rather than the plural whenever possible.

• Vague or ambiguous references. Do not use any of the following vague or ambiguous terms to refer to specific rule provisions, which are not acceptable substitutes for specific references to rule provisions.

Above Hereinabove

Aforementioned Hereinafter

Aforesaid Hereinbefore

Foregoing Heretofore

Hereafter Preceding

Herein

For example, compare the following:

• Capitalization. As a general rule, do not capitalize a proper noun that can be used as a common noun. For example, in the name "state of Michigan," the word "Michigan" is never used as a common noun and is, therefore, capitalized; the word "state," however, can be used as a common noun in other instances and is, therefore, not capitalized.

The review of proposed rules and regulations by the Legislative Service Bureau is only one step in the process leading to their promulgation, but it is the step at which the readability of the proposed document is subjected to the greatest scrutiny.

Footnotes

¹ Spielmaker v Lee, 205 Mich App 51, 54; 517 NW2d 558 (1994). Girard v Wagenmaker, 437 Mich 231, 242; 470 NW2d 372 (1991).

² MCLA 24.201 et seq.

³ Redish, 'How to Write Regulations and other Legal Documents in Clear English,' American Institutes for Research, Document Design Center, Washington, D.C. (September 1991).

⁴ MCLA 8.43.