last updated: 1/31/2012 2:38 PM

Legislative Drafting Style Manual

Foundational 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.m 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."c

If unreadable, a statute may be misinterpreted or fail to capture a necessary element.m"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." c

"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."c

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."c

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

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.c 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.m A good outline, if comprehensive, minimizes later editing and redrafting. In developing an outline, a drafter should consider provisions in the following areas.

Main Theme: Set forth the core purpose of the legislation, such as creating a duty or establishing an agency.
General
Application: Establish a requirement or procedure that accomplishes the core purpose, including the scope and nature of a prohibition or grant of authority.
Special Rules: Further define a requirement or procedure by providing for an exception, limitation, or condition to a rule of general application.
Remedies: Create civil or criminal penalties for failure to comply with the law.

The National Conference of Commissioners on Uniform State laws provides the following suggested order of arrangement:

  • Short title
  • Definitions
  • Scope, applicability, exceptions, exclusions, if any
  • Administrative and procedural provisions
  • Substance - positive requirements in order of time, importance, or other logical sequence
  • Prohibitions and penalties
  • Uniformity of application and construction clause
  • Relation to other laws
  • Savings and transitional provisions, if any
  • Severability, if needed
  • Repeals, if needed
  • Effective date, if needed.c

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.c 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:

  • importance;
  • chronology;
  • frequency of when a provision occurs;
  • familiar before unfamiliar;
  • rules before exceptions;
  • what before how; and
  • substance before procedure.m

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.c 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.m 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?"c

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.

  • Sections similar in substance should be similarly arranged and outlined. Parallel structure improves accessibility and promotes consistency. Sentences should be arranged so that parallel ideas look parallel, especially in a list.
  • See Example
  • Express parallel points using numbered clauses. For example, if there are multiple conditions or exceptions, a drafter should consider placing exceptions in a separate subsection and refer to this subsection before stating the general rule. Also, a drafter may place an enumerated list at the end of the sentence after the general rule has been statedAvoid placing together two or more prepositional phrases. Word order becomes confusing when prepositional phrases are placed together.c
  • See Example
  • Avoid placing together two or more prepositional phrases. Word order becomes confusing when prepositional phrases are placed together.c
  • See Example
  • Use a simple and consistent paragraph structure within a section. A long sentence or phrase should be divided into a shorter, more readable paragraph when amending existing code or writing new law. Do not create "dangling" paragraphs, i.e., a paragraph where it is unclear whether the paragraph applies to the last clause of a list or to multiple clauses in the list.
  • See Example
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.c

In General

An experienced legislative drafter suggests that in crafting a legislative sentence it is important to:

  • identify the action, actor, and consequences before putting pen to paper;m
  • not be formulaic in how you arrange the elements of a sentence, use your judgment;m
  • keep the actor near the action, and if the action has an object, keep the object near the action;
  • use a sentence that is generally short or medium in length, e.g., 20-25 words;c
  • convey one major point with a sentence and avoid a sentence that is compound or has complex clauses;
  • if there are several or complex qualifiers, state the rule first and then the qualifiers in more than one sentence;
  • draft a sentence in a manner that emphasizes the concept that is most important; and
  • arrange words with care.c

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."c

When possible, a legislative drafter should follow a general guideline of not stringing more than two to three sentences together without subdividing.c

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:

  • Use short words, e.g., words of three syllables or less.c
  • Omit a word if it can be omitted and the meaning retained.c
  • Do not use jargon, slang, technical language, "legalese," or foreign phrases, unless it is a term of art or its use is supported by substantial case law.c
  • Do not use abstract words. Statutory language should be precise, using simple and concrete terms.
  • See Example
  • Do not use superfluous or indefinite words. These type of words include "real," "actual," "true," "duly," "whatsoever," "hereby," and "therewith."
  • Do not use provisos. A proviso, such as "provided, that," is archaic and creates confusion. Rearranging a sentence generally eliminates the need for a proviso. Click here for further discussion of provisos.
  • Avoid using an indefinite pronoun as a reference.c Indefinite pronouns can result in confusion as to whom a condition or duty applies. If a pronoun could refer to more than one person in a sentence, repeat the name of the person. Use of pronouns also raises issues regarding drafting in gender neutral language. Click here for further discussion of pronouns. Click here for further discussion of gender neutral drafting.
  • See Example
  • Avoid compound constructions or expressions.c Examples of cumbersome expressions to be avoided are found in Appendix A, Problematic Words and Phrases. Legally redundant expressions should also be avoided, such as "advise and consent," "force and effect," "null and void," or "true and correct."c Other arguably redundant expressions include:c
    [a distance of] two miles join [together] [rate of] speed
    each [separate] provision [as to] whether [different] kinds
    [a period of] a week [general] public recur [again]
    [empty] space [at a] later [date] during [the course of]
    all [of the] materials [close] scrutiny refer [back]
    eradicate [completely] merged [together] during [the month of] May
    alongside [of] combine [together] revert [back]
    few [in number] never [at any time] each [and every]
    appreciate [in value] depreciate [in value] [separate] entities
    [foreign] imports postponed [until later]
    descend [down]
  • Avoid a noun chain such as a "working animal trainer."c
  • Be careful in listing or characterizing multiple actors. The following advice may be helpful.
    "

    If a statute is 'applicable to only two or three actors, they can be listed in a simple series (a county, city, or town may issue bonds). If, however, the list contains so many actors that the readability of the provisions will be adversely affected . . . an alternative to the simple listing should be adopted. The first alternative is to list a single word that would include each member of the series and then define the word to include all of the members. . . . Another alternative is to tabulate the series.'"c

Consistency

Consistent use of terminology is a hallmark of drafting.c

"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."c

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."c
  • Do not use different words to denote the same meaning. The same word, especially if included in a definition section, should be used with the same meaning throughout a piece of legislation and throughout any related existing statutory provisions.
  • See Example
  • Do not use the same word to denote different meanings.
  • See Example
Examples of synonyms that may creep into drafting include:
  • attorney, lawyer, counsel;
  • case, action, suit, proceeding;
  • decide, determine, rule; and
  • person, individual, party.
Another way variations occur is when a compound term is defined, but then not consistently used in the draft, e.g., "receivership court"; is defined, but "court" is used in the draft. Consistency is of greater importance when using defined terms.

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:

  • draft in present tense;
  • clearly express time relationships; and
  • avoid terms like "now," "present," and "yet."

Present Tense

A statute continually "speaks" to the person reading the statute.c Therefore, a statute should be in the present indicative, not in the subjunctive; and in the present perfect, not in the future perfect.c

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.c

See Example

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.m A drafter's use of the active voice forces the drafter to name an actor as the subject of a sentence.c

"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."c

See Example

A legislative drafter should not use the passive voice. Rare exceptions include a circumstance when:

  • no identified principal is involved; or
  • the active voice is awkward.

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.c An action verb is shorter and more direct.c There are at least three tools in using action verbs.

  • if you can visualize a person taking the action described by the verb, it probably works; if you cannot, it probably does not work;
  • do not "'verb' a noun"; and
  • do not "'noun' a verb."c
See Example

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.c 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."m

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,c being careful to:

  • not use the singular and the plural interchangeably; and
  • use the singular even if the statute encompasses both the singular and the plural.
Using the singular avoids the problem of whether a law applies separately to each member of a class or to the class as a whole, or whether an act is criminal if only one person commits the act.

See Example

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."c

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?"c

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?"c

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

Utah's construction statute provides that the singular includes the plural and the plural includes the singular.c A phrase like "person or persons" is unnecessary.

Third Person

When drafting legislation, a legislative drafter should:

  • use the third person, "person" or "individual"; and
  • not use the first person "I," or the second person "you."c

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.c

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."m

Word Placement

How the word "fits" within the sentence is almost as important as its selection.m Three examples of potential problems in the placement of words within a sentence are:

  • placing qualifying language in a sentence if it is unclear who does what when;
  • using modifiers in a sentence when it is unclear what is being modified; or
  • using multiple actors, actions, objects, or qualifiers in a sentence without helping the reader wade through the detail.
Each of these issues is discussed in literature concerning legislative drafting.

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. "c

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.

  • A legislative drafter should avoid placing a modifier between two terms in a way that it could be interpreted to refer to either term. e.g., "' persons, if they are more than 12 years old, may hunt ducks.' The age requirement probably was intended to refer to 'persons,' but it could be read to refer to 'ducks.'"c A legislative drafter should strive to know the relation between modifier and the term to which it refers.m
  • A legislative drafter generally should also avoid placing a modifier between "shall," "may," or "may not" and the accompanying verb.c
  • A legislative drafter should be careful in using a modifier with terms in a series so that it is clear whether the modifier applies to all the terms in a series or only to one.See Stark, The Art of the Statute, p. 74 (1996).
  • A legislative drafter should be careful in the use of chains of adjectives, because it may be unclear whether the modifiers in combination describe the collective quality of the term or indicate that separate terms are involved, each possessing one of the qualities described, e.g., the distributor will supply red, white, and blue caps.c
  • A legislative drafter should avoid a dangling modifier. A modifier dangles if a reader cannot identify what the modifier refers to in the main clause of a sentence, e.g., "if alive but incompetent at the time of death, a child's guardian shall inherit the deceased parent's estate for his continued care and keeping."m An example of an even more troubling dangling modifier is when a sentence is placed after an enumerated list, making it unclear whether the sentence modifies only the last item on the list or the entire list.
  • A legislative drafter should avoid a squinting modifier. "A modifier squints if the reader cannot determine whether it modifies the preceding or the following phrase, e.g., If a buyer determines the goods are defective within 20 days the seller shall replace them."c

Gender Neutral Language

A gender-based distinction is rarely appropriate and gender neutral language should be used when possible.c However, Utah Code Ann. 68-3-12 provides that words in one gender comprehend the other gender.m 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.

  • Repeat the subject of the sentence or the word that would have been the pronoun's antecedent reference. In some instances the possessive noun may be repeated.
  • See Example
  • Substitute a noun for a pronoun.
  • See Example
  • Omit the pronoun or the phrase that would include the pronoun, if the pronoun or phrase is not essential.
  • See Example
  • Use an article such as "a," "an," "the," or "that" instead of the pronoun.
  • See Example
  • Reconstruct or rewrite the sentence to avoid the need for a pronoun. The following are examples of methods of restructuring a sentence:
  • See Example

The following are examples of preferred gender neutral terms.m

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 titlem 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

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.c There are narrow exceptions for legislative statements of intent that are related to the limited purposes of:

  • bonding;
  • specific state appropriations, including distribution and expenditure;
  • coordination clauses;
  • revisor instructions;
  • studies;
  • directing state agencies to take specific acts, including those related to administrative rules;
  • clarifying issues related to the constitutionality of a statute, e.g., stating a statewide public purpose; or
  • others authorized by legislative general counsel.
If, however, a legislative statement is included in a bill, it should be codified. Exceptions to this general rule is a legislative statement related to a specific, time-limited action to be taken by the Legislature, legislative staff, or executive branch agencies that is not generally binding on the public such as one related to:
  • a specific state appropriation, including distribution and expenditure;
  • a coordination clause;
  • a revisor instruction;
  • a study; or
  • direction to a state agency to take a specific act, including one related to administrative rules.

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.c

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:

Redundancy: A statement that mirrors the body of a bill is redundant and adds little clarification to the bill.
Conflict: If a statement is inconsistent with substantive provisions in a bill, it may cause more harm than good in later interpretations of the law. Moreover, if a statute accompanying a statement is later amended without amending the statement, the statement may not reflect the most current position of the Legislature.
Ambiguity: A statement that uses broad, undefined language creates ambiguity.
Advocacy: Language used in a statement may advocate the merits of a bill and lead to an interpretation by courts or administrative agencies that is broader or different than that intended by the Legislature.
Unpredictability: Undefined, promotional language in statements may lead to unforseen consequences.
Creation of right/duty/etc.: Broad language in statements may be interpreted as creating a right or stating a legal principle rather than merely describing the circumstances that give rise to a bill.
Lack of support: It may be unclear whether there is factual or legal support for a statement.
Change: Circumstances, legal principles, and legislative goals or intent may change after passage of a statement. This reality would require constant review and updating of a statute, or lead to potential conflicts or inaccuracies.

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.c If a legislative statement is included in a bill, a court might use that statement to discern legislative intent.c 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:

  • recodifies a statute, but is not intended to make substantive changes;
  • is likely to be challenged as unconstitutional; or
  • is passed in response to a court decision.

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 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:

  • the legislative statement should be consistent with the substance of the bill;
  • the legislative statement should not grant a right, prohibit an action, establish a standard, etc.;
  • the legislative statement should be specific to a particular law;
  • the legislative statement should not be so narrow that it fails to address the entire bill or the portion of the bill to which the legislative statement is intended to apply;
  • the language of the legislative statement should not be equivocal or ambiguous; and
  • any facts included in the legislative statement should not be susceptible to significant change, which could cause the legislative statement to become out-of-date or misleading.

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:

  • long title of the bill under "Highlighted Provisions"; and
  • boldface of the codified section.

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.m 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

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.m

"One of the most useful tools of a legal drafter is the definition.. . . It avoids repetition and thereby reduces the number of words in [legislation]. It avoids inconsistency by defining the word only once. It aids in precision by not leaving it up to the reader to define the word. It also permits the drafter to control what a word means, and not leave it up to a dictionary."

When to use a Definition

A definition is not necessary to define a common word that is used in its usual dictionary meaning.c 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.c 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."c

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."c Although the positions are different, they both highlight the critical role of definitions. The following are examples of proper uses of definitions:

  • creating a shorthand identity to a term or concept, or creating an economy of expression;
  • resolving ambiguity in a term that has more than one possible meaning;
  • clarifying a term that has a definitional meaning, but that meaning is vague;
  • adding to or subtracting from a definitional meaning; and
  • specifying a statute's application, including closing loopholes.c

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.c 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

Also, a definition should not be used to create a meaning that is significantly different than the generally understood meaning of a term.c

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.c 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:

Adjudicative proceeding Oath Review commission
Administrator Person Review council
Advisory board Personal property Road
Advisory commission Personal representative Signature
Advisory council Policy board State
County executive Policy commission Swear
County legislative body Policy council Testify
Depose Population United States
Executor Process Utah Code
Guardian Property Vessel
Highway Real estate Will
Land Real property Writ
Month Review board Writing

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.

  • A definition should be alphabetized.c
  • A definition section should immediately follow the section containing the title of the applicable title, chapter, or part, if any, to maximize access for the reader.cSimilarly, if a definition is included in a section, the definition should be placed at the beginning of the section.
  • A definition should be introduced with a statement explaining to which portion of the Utah Code the definition is applicable.c In introducing a definition section, a legislative drafter should use the phrase "as used in this [title, chapter, part, or section]" and not use the phrase "as used in this act," which is not a precise term. Look here for further discussion of the use of the term "act."
  • Definitions should be listed in a series of sentences even if the series of sentences appear within a single subsection of a section of the Utah Code.
  • A definition generally should not include the term being defined as part of the definition.c
  • A legislative drafter should incorporate a definition by reference only if there are significant advantages in incorporating the definition and the drawbacks are minimal.c
    • Circumstances when it may be appropriate to incorporate a definition by reference include:
      • when the statute incorporating the definition is subordinate or dependent on the statute containing the definition, e.g., Utah Code Ann., Title 59, Revenue and Taxation, reliance on the federal tax law; or
      • when the definition relied upon rests within the purview of a state agency with special expertise, e.g., a definition within Utah Code Ann., Title 31A, Insurance Code.
    • In making the determination of whether or not to incorporate a definition by reference, a legislative drafter should consider:
      • whether the substantive context of the definition being incorporated is consistent with the substance into which the definition is being incorporated;
      • See Example
      • whether interpretations of the definition being incorporated could lead to unintended consequences with the substance into which the definition is being incorporated;
      • whether the definition being incorporated is likely to be amended or repealed; and
      • whether incorporating the definition by reference buries the definition too deeply for a reader to understand.
    • Delegating authority to define a term to an entity other than the Legislature raises other issues.
  • If a defined term can be used as more than one part of speech, e.g., a noun and a verb, a legislative drafter should consider the need to use of limiting language such as "used as a [noun/verb]."c
  • If a definition states in addition to what a term means, what the term "does not mean", "includes", or "does not include", a legislative drafter should organize each part into a separate sentence and subsection, e.g., (1)(a) "X" means . . . . (b) "X" does not mean . . . .

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."c 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.c 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.c Three examples include:

  • clarifying the application of a new provision to a specific class of event or person (e.g., this bill applies to a cause of action filed on or after [specific date]);
  • phasing in the implementation of the new provision (e.g., a license issued before [specific date] is valid until it expires, is subject to new operational rules, and is to be renewed under the new licensing scheme); or
  • directing an implementing agency to take certain acts (e.g., if rulemaking authority transferred to a new agency, the agency is to use the existing administrative rules until new rules are made).

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:

  • long title of the bill under "Highlighted Provisions"; and
  • boldface of the codified section.
A transition or savings clause is not a "special clause" for purposes of a long title. A transition or savings clause should be described in an introductory caption in the same manner as any other substantive code section.

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:

  • a statement as to what portion of the law is subject to transition (e.g., "the amendments made by this bill" v. "this chapter");
  • a date on or after which the new provision applies; and
  • a statement as to what event triggers application of the new provision (e.g., the date on which the cause of action arises).

See Example

A transition clause that phases in implementation generally includes:

  • a date on or after which the new provision applies to a class of event or person;
  • a statement of what events or persons are subject to the transition period (e.g., persons licensed on June 30, 2013);
  • a statement as to what provisions apply during the transition period; and
  • a statement as to when the transition period ends, if necessary.

See Example

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.

Utah Constitution: If a transition or savings clause is needed, it generally should be included in the resolution passed by the Legislature, but not in the actual language of the Utah Constitution. The clause should be discussed in the voter information pamphlet.
Legislative rules: The need for, and treatment of a transition clause should be handled on a case-by-case basis.
Court rules of procedure and evidence: In general, if a transition clause is needed, it should be included in the actual language of the rule.

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.c 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:

  • long title of the bill under "Highlighted Provisions"; and
  • boldface of the codified section.
A severability clause is not a special clause for purposes of a long title. A severability clause should be described in an introductory caption in the same manner as any other substantive code section.

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:

Providing for Severability: XX-X-XX. Severability clause. If any [provision/chapter/part/section/subsection] of this [title/chapter/part/section] or the application of any [provision/chapter/part/section/subsection] to any person or circumstance is held invalid [by a final decision of a court of competent jurisdiction], the remainder of this [title/chapter/ part/section] shall be given effect without the invalid [provision/chapter/part/section/subsection] or application. The provisions of this [title/chapter/part/section] are severable.
Inseverability: XX-X-XX. Inseverability clause -- Severability not permitted. If any [provision/chapter/part/section/subsection] of this [title/chapter/part/section] or the application of any [provision/chapter/part/section/subsection] to any person or circumstance is held invalid [by a final decision of a court of competent jurisdiction], the remainder of this [title/chapter/ part/section] may not be given effect without the invalid [provision/chapter/part/section/subsection] or application. The provisions of this [title/chapter/part/section] may not be severed.m
A severability clause generally includes:
  • a statement that it is the intent of the Legislature that the invalid provision be severed;
  • a statement as to:
    • what portion of the law is subject to the severability clause (e.g., "the amendments made by this bill" v. "this chapter");
    • at what level the law can be severed (e.g., chapter, part, section, subsection, sentence, provision);
  • a statement that the severability clause applies if a provision or "the application" of the provision is found invalid; and
  • depending on the complexity of the bill, other issues such as:
    • who determines validity (e.g., a court of competent jurisdiction);
    • what is meant by invalid (e.g., unconstitutional, superseded, in conflict); and
    • whether the court is to determine whether the provisions that continue can be given effect without the invalid provision or application.

See Example

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.

Utah Constitution: A severability clause is rarely appropriate.
Legislative rules: A severability clause is rarely needed.
Court rules of procedure and evidence: In general, if a severability clause is needed, it should be included in the actual language of the rule.

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

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

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."m

  • on the day the governor signs the bill;
  • if the governor refuses to sign the bill, on the day after the last day the governor is constitutionally required to review the bill and either approve or veto the bill; or
  • if vetoed, on the day of a veto override.
In the case of a resolution other than a concurrent resolution, this means that the resolution takes effect when the resolution receives final approval from the appropriate legislative body. See JR4-1-302.This type of effective date is informally called an "immediate effective date."

See Example

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

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

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

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

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

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

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

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

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.c 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.c

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:

  • Use a colon to precede a series of separately listed subsections, sometimes called a list, tabulation, enumeration, or interlocked unit.c Look here for further discussion of this format.
  • Use a colon to precede a series of complete sentences when drafting definitions as described here. c
  • Use a colon to precede a series of complete sentences when using a phrase such as "the following:" or "as follows:". The Office of Legislative Research and General Counsel has adopted the pattern followed by the National Conference of Commissioners on Uniform State Laws that allows a series of complete sentences introduced by a phrase ending in a colon.c However, if the introduction statement to a series of complete sentences is a complete sentence, a period rather than a colon may be used.
  • Use a colon at the end of an enacting clause of a bill or a resolving clause of a resolution.
  • Use a colon to introduce a long quote.
A colon should not be used to introduce a proviso, which generally should not be used in drafting.c Look here for further discussion of provisos.

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,m

See Example

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

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.c For this same reason, a drafter should avoid using a proviso including the phrase "provided, however" or "provided, further."m

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:

  • a comma should not be used if it interrupts the thought of a sentence; and
  • a comma should be used if it makes the meaning clearer.

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.m This is known as a "serial" comma.

See Example

To Set Off Successive Adjectives

Use a comma between adjectives preceding a noun that are coordinating, qualifying words.c

See Example

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.c

See Example

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.c

See Example

Do not use a comma to set off a restrictive adjective clause.c 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.c

See Example

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

Normal usage permits placing a comma before a conjunction that connects two independent clauses, each having a subject and a predicate.c 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.c

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

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

To Set Off an Introductory or Transitional Word or Phrase

Use a comma to set off an introductory or transitional word or phrase.c This would include after an introductory participial or absolute phrase.

See Example

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

To Set Off a Contrasted Word or Phrase

Use a comma to set off a contrasted word or phrase.c

See Example

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.c

See Example

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.c

See Example

A comma is not needed if the day is omitted.c

See Example

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.c

See Example

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.c

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.c

See Example

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.c

See Example

Do not use contractions, such as "can't" and "doesn't." Do not confuse "its" with "it's" or "whose" with "who's."c

Hyphen

Although generally within the discretion of a legislative drafter, a hyphen should be used sparingly in drafting.c 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.

Appendix C, Hyphenation

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

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:

  • is before a capitalized word or compound term;
  • separates two "i"s or "a"s or a repeated term; or
  • aids in the understanding of a term.
The Chicago Manual of Style (15th ed. 2003) provides more detail as to when hyphenation is used in conjunction with a 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.c Examples of closed compound words used in drafting are "policymaking" and "rulemaking." Use hyphens in compound adjectives if there is a risk of ambiguity.c However, do not hyphenate a compound adjective if the first word ends in "ly."c

See Example

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.m

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

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

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

Punctuation within Quotation Marks

Punctuation is placed outside quotation marks, except for a period or comma, which is placed inside quotation marks.c 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

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.c 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:

  • the first word in a sentence;c
  • a month or day of the week;c
  • "Utah" or "United States," or a word used in conjunction with these terms such as "United States Government";c
  • a name of an institution, such as "Utah State Prison" and "University of Utah";c
  • an official name of a private entity, such as "Libertarian Party" or "Utah State Bar";c
  • an official name of a court or other government entity, such as those listed in State Organization Charts (prepared by the Office of Legislative Research and General Counsel and found at www.le.state.ut.us/lrgc/stateorganizationcharts.pdf );c
  • "Legislature" only when referring to the Utah State Legislature;c
  • "Senate," "House," "House of Representatives," or "Congress" only when referring to the Utah State Legislature or the United States Congress;c
  • a name, proper derivative of a proper name, a place, an historic event, or a holiday, as in "John Smith," "Utah Lake," "World War II," or "Easter";c
  • an official short title or popular name of an act, bill, code, or statute;c
  • "Title," "Chapter," "Part," "Section," "Subsection," or other major subdivision designation of a code, when accompanied by the number of that subdivision, as in "Chapter 35," when used in conjunction with the name of another code compilation, as in "Section 14 of the Federal Social Security Act,"but not used without a specific number, as in "as provided in this chapter";c
  • a name of a program, such as "Medicare," "Medicaid," and "Social Security";c
  • a specific reference to a state constitution or code, such as "Utah Constitution" or "Utah Code Annotated," but not when a general reference is used such as "this constitution";c
  • a proper name of an amendment, such as "Fourteenth Amendment," but not a general reference such as "the equal protection amendment" or "this amendment";c
  • a specific fund or account, such as the "General Fund" or "Mineral Lease Account";cand
  • "Social Security number."

When Not to Capitalize

The following should not be capitalized:

  • a generic political division, as in "state" or "county," except when it follows the name of the political division, as in "Salt Lake County";c
  • a title of a federal, state, local, or judicial official, as in "governor," "president," "commissioner," "representative," "director," "attorney general," "judge," "justice," "chief justice," or "treasurer," unless used to refer to a particular person as in "Governor Smith";c
  • "federal," "state," or "court" when not part of a proper name, except when "Supreme Court" refers to the Utah Supreme Court;c
  • a word only indicating geographic location, such as "northern Utah";c and
  • "general session, "unless it is used in conjunction with a specific year "2015 General Session."

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.c 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.c

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.c

See Example

Singular v. Plural

A number that is spelled out forms a plural in the same manner as other nouns.c However, a reference to dollars should use a singular verb.

See Example

Fraction

A simple fraction, such as one-half, is generally spelled out.c 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.c

See Example

Hyphenation

The following rules relate to hyphenation of numbers.m

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

Simple Fraction

A fraction is hyphenated when it is used as a single quantity.c However, if the numerator or denominator is a compound number requiring a hyphen, it is the only number hyphenated.

See Example

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

Nine and Under Rule

General

Spell out numbers nine and under when enumerating a common noun.c Express numbers 10 and above in Arabic numerals.

See Example

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.c 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

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

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

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.c

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

Measurement or Age

The nine and under rule is most used when referring to a measurementc or to age.

Measurement

The expression of a measurement generally requires the basic application of the nine and under rule.

See Example

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."c

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."c "Number" is used to refer to individual items, such as "the number of applicants exceed 500."c

"Less" and "Fewer"

The term "less" refers to something that is considered as a mass and applies to quality, size, and amount.c "Fewer" refers to individual items and applies to number and counting.c

See Example

"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."c 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."c 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.c

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

When referring to an effective date, use the actual date itself rather than ambiguous phrases such as "after this chapter takes effect."

See Example

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

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.c

Condition

A condition is generally a prerequisite for applying a provision.c 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.c The word "if" should be used to introduce the condition.c

See Example

Compound Expression or Redundant Phrase

A legislative drafter should avoid:

  • compound expressions, such as "as such time as" instead of "when"; or
  • legally redundant phrases, such as "force and effect."
Look here for a more detailed discussion of problematic phrases. See Appendix A, Problematic Words and Phrases for examples of alternatives.

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.c 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.c

See Example

If there are multiple exceptions, a legislative drafter should consider:

  • placing the exceptions in a separate subsection and referring to this subsection before stating the general rule; or
  • placing an enumerated list at the end of the sentence after the general rule is stated.c

See Example

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)."c An option available to a drafter is to break each step of the formula into a separate subsection in an enumeration or interlocked unit.c 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

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:

  • follow the general rule and be introduced with the word "but"; or
  • be provided in a separate sentence, which may require a cross reference using the phrase "subject to."m

See Example

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.c 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."c 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:

  • repetition of a noun or verb, particularly "shall" or "may";
  • use of "and" or "or" in a series with more than two items; or
  • a series when each item in the series has a substantial number of words.604 See Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 65-66 (2005).
However, there are risks to excessive use of interlocked units if by isolating each element of a legislative provision the flow of a sentence is lost.605 See Martineau and Salerno, Legal, Legislative, and Rule Drafting in Plain English, p. 66 (2005). Also, an experienced legislative drafter emphasizes two important things in creating an interlocked unit:
  • the list within an interlocked unit should be parallel; and
  • the interlocked unit should be drafted so that it is clear how many items on the list are to be satisfied for the statement expressed in the interlocked unit as a whole to be satisfied.c
An interlocked unit generally consists of a series of incomplete sentences, or enumerations, that are preceded by introductory language that states the general rule and is set off with a colon. An enumeration is followed by a semicolon with the next to last item in the interlocked unit followed by an "and" or an "or." If clarification is helpful, a phrase in the introductory clause of an interlocked unit may more clearly express how many of the items in the series are required, such as "any of the following," "one of the following," "all of the following," or "one or more of the following." An internal period in a paragraph of this type of interlocked unit should not be used.c

See Example

If an enumeration is a sentence, the introductory clause should either be:

  • a sentence which states the general rule and makes clear whether all, any one, or a combination of the conditions or exceptions apply; or
  • a phrase, such as, "shall comply with one or more of the following", making clear whether all, any one, or a combination of the conditions or exceptions apply.
Look here for further discussion of punctuation of an interlocked unit.

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.c

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."m This term is inclusive but not exclusive, allowing a court or agency to adopt additional meanings.c 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.
The same section states that:

"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."c

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

Conjunction

One of the more difficult issues when drafting an interlocked unit is the use of a conjunction.m 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.

Neither cumulative or alternative: "Problems are created when the listing is neither cumulative in the sense that all must be included, nor in the alternative in the sense that only one of the list may be required or chosen."c In these circumstances, two tools are helpful:
  • careful wording of the introductory caption, e.g., "one or more of the following"; and
  • using the term "or" and adding a last item that suggests combination of items is possible, e.g., "; or (d) a combination of acts permitted under Subsections (1)(a) through (c)."
Each level needs a conjunction: Often an interlocked unit will have more than one level, e.g., (1) level 1, (a) level 2, (i) level 3. A legislative drafter should be careful to include a conjunction, but only one, on each level. Problems a legislative drafter should avoid include:
  • having no conjunction on a level;
  • having more than one conjunction on the same level; and
  • having inconsistent conjunctions on a level.

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.c 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.c

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.c 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."c

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

Possessive

A legislative drafter should be careful in the use of possessive nouns.c

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.c 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.c

Symbol

Although in rare circumstances a symbol may be necessary,c in general a symbol that is not otherwise approved by this manual for use in drafting legislation, including, *, #, &, , and @, should not be used in drafting.

Alphabetizing

When alphabetizing is required or helpful, a legislative drafter should use the letter-by-letter system of alphabetizing.622 c 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.m If the intent is to apply to a single subject, a drafter should consider the use of the adjective "one" instead of an article.c

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.c.

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."c A legislative drafter should determine which term is correct.c However, even an experienced drafter has difficulty in making the distinction in all cases. c In determining whether or not "and" or "or" is appropriate, a legislative drafter must determine if a sentence is mandatory or permissive.c 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:

  • using a phrase similar to "or both" or "a combination of"; or
  • making the introductory language clear using phrases such as "one or more of the following."

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.c "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."m

Biennially, Biannually, Bimonthly, Semiannually, Semimonthly

Biennially means every two years.c Biannually and semiannually mean twice a year.c Bimonthly has been defined to mean both every two months and twice a month.c 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.c 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.c

See Example

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.c

Continual, Continuous

"Continual" means an action occurs repeatedly over a period of time. "Continuous" means an action that is an uninterrupted flow.c

Consider, Deem

A legislative drafter should avoid the word "deem." The term "consider" is generally the appropriate term.c 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. c

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.c 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.c

If, When

A legislative drafter should use "if" not "when" to express a condition.c Similarly, a legislative drafter should use "if" rather than a phrase such as "In the event of."c 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."c

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.c 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.c

See Example

A legislative drafter should place the word "only" as close as possible to the word that it modifies.c

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."c 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.c

See Example

Prior To

The word "before" is preferable to the phrase "prior to" or "previous to."c

Promulgate

An appropriate, simpler word like "issue," "publish," or "make" is preferable to "promulgate."c 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.c

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

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

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."c 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."c "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.c

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.m

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.c 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."c "May" is used when granting a right, privilege, or power, or indicating discretion to act.c Avoid a phrase such as "is authorized to" or "in [the actor's] discretion."c

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.c "Shall" is used when indicating an obligation to act.c

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.c "Must" may be used in the following circumstances:

  • an action or result is compelled by necessity;
  • an item is indispensable; or
  • an action or event is a condition precedent to:
    • the authority to act;
    • a prohibition;
    • the accrual or loss of a right; or
    • the imposition or removal of an obligation.
Though one definition of the term "must" is that "an action is required or mandatoryc," this form of the term should never be used.c This variation of the definition is only included in the Utah Code to account for abberations within the code. The term "shall" should be used in instead of "must" when the "required or mandatory" definition of the word is intended.c

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."c

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.c 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. c Additionally, "should not" should never be used to prohibit an act.c "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.c 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."c The term "should" may be used in the follwoing circumstances:c

  • to refer to a recommended action, including a provision that a person shall or may recommend whether an action "should" be taken;
  • to indicate an expected standard of knowledge, including a provision that a person "should" know:
    • whether a fact exists; or
    • that an action is likely to cause a specified result; or
  • refer to a determination as to whether an action "should" have occurred.c
Because this need is uncommon in drafting legislation, a legislative drafter should rarely use the terms "should" or "ought". In circumstances where these terms are used, "should" is usually preferrable to "ought", because "ought" is not defined for purposes of the entire Utah Code.

See Example

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.c "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

"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

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.c 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."c

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."c

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."c

Writing

Utah has adopted the Uniform Electronic Transactions Act which anticipates that commerce and government services could be conducted electronically.c 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.c

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:

  • numbered differently than a section or subsection;
  • referenced by stating its single or double-digit number; and
  • cited in descending order.
If the chapter cited is in the same title, cite only the chapter number. If working in a different title, cite both the title and the chapter number.

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

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

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

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.c 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

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

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

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

Citation to the Utah Constitution

Within the body of legislation, the Utah Constitution is cited by article and section.

See Example

Citation to Legislative Rule

A legislative rule is cited in legislation by indicating:

  • whether it is a joint, Senate, interim, or House of Representative rule;
  • its number; and
  • for joint and interim rules, that it is a legislative rule.

See Example

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

The Utah Code of Judicial Administration should be cited as shown in the following example:

See Example

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

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

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

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

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

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






Legislative Drafting Style Manual
Appendices