1. THINGS TO KNOW BEFORE YOU START TO DRAFT

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Know What a Rule Is

A rule, by law, is "every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure." (Minnesota Statutes, section 14.02) In plainer English, you are writing a rule if you are writing
a statement of your agency
that will be binding on everybody that fits its terms
from the time it takes effect
AND
that is meant to relate to your agency's LAW in a specific way:
to IMPLEMENT it, or put it into practice, or to make its
requirement SPECIFIC.

Whenever this sort of statement is adopted, amended, suspended, or repealed, you are doing rulemaking.

Although the definition has many parts, for most drafters the stress is on the word "specific." Your task is to begin with the law and to give readers enough specific information to comply with it.

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Know the Law that Provides Your Statutory Authority

In order to begin with the law, you have to know what it is. The legislature may have given your agency a specific mandate to write rules to address a particular situation - say, establishing a procedure for accrediting continuing education courses for real estate brokers. This sort of rulemaking authority appears in Minnesota Statutes, section 82.22, subdivision 13. In that case, your directions are very clear and clearly limited. If the statute establishes time limits, the rules must be consistent with them. If the statute establishes requirements for course content, the rules cannot require less, or more. If it sets special procedures, the rules must fit them.

Your rules might also be based on a very general statute in the chapter that sets up your agency. Statutes of this type probably give your agency authority to make rules about anything in its purview. An example of general rulemaking authority appears in the commerce department law:


45.023 RULES

The commissioner of commerce may adopt, amend, suspend, or repeal rules in accordance with chapter 14, and as otherwise provided by law, whenever necessary or proper in discharging the commissioner's official responsibilities.

Whether your authority is general or specific, you cannot go beyond the statements in the law.

It is also possible to base rules on the authority of the Administrative Procedure Act (APA) itself. The APA contains two standing grants of rulemaking authority: Minnesota Statutes, sections 14.06 and 14.388. Section 14.06 addresses agency policies and procedures, while section 14.388 provides authority for the special process called "exempt rules." (Before 1996, the analogous process was called "emergency rulemaking.")

Section 14.06, paragraph (a) orders agencies to adopt rules "setting forth the nature and requirements of all formal and informal procedures related to the administration of official agency duties to the extent that those procedures directly affect the rights of or procedures available to the public."

Paragraph (b), new in 1995, addresses the situation of agencies that have amassed a body of law by applying the APA's contested case procedures for a number of years. The legislature ordered agencies to make that law accessible to the public by putting it through the rulemaking process rather than allowing it to remain unpublished agency precedent. The requirement applies "[u]pon the request of any person, and as soon as feasible and to the extent practicable..." It requires agencies to "adopt rules to supersede those principles of law or policy lawfully declared by the agency as the basis for its decisions in particular cases it intends to rely on as precedents in future cases." One specific agency is exempted: the public utilities commission. For other agencies, a request to put precedent into rules will let you invoke the authority in this paragraph.

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Know the Laws that Determine How Your Rule Will Be Read

Experience has taught lawmakers that, in order to avoid disputes, they need standard ways of interpreting certain phrases. In Minnesota, those standard ways are in Minnesota Statutes, chapter 645. The chapter applies to rules as well as to laws, so rule drafters need to be familiar with it. It codifies standard rules of statutory interpretation that apply.

Basic Concepts

Chapter 645 states when laws become effective (645.02), how amendments are read together (645.29 to 645.33), how repeals work (645.34 to 645.43), how time is computed (645.071, 645.14, 645.15, 645.151), how references to subdivisions and paragraphs work (645.46, 645.47), what "to" means in range references (645.48), and which law controls when amendments to the same section cannot be reconciled (645.28). All these matters are basic to drafting. Other matters that are also important but that do not affect every draft are the provisions about special laws (645.021 to 645.024), penalties (645.24, 645.241), and surety bonds (645.10).

Definitions

In day-to-day drafting, the things next in importance in chapter 645 are its lists of definitions. Unless a different definition is provided in a draft, the definitions in chapter 645 will control. The list of terms defined includes technical matters like "final enactment" and everyday concepts like "child." Drafters need to know which terms are there.

They also need to know that many other definitions of general application are found in the statutes, but outside of chapter 645. Examples include the definitions of "rule" in section 14.02 and the definition of "official newspaper" in section 331A.01. The main heading DEFINITIONS in the index to Minnesota Statutes can help a drafter learn whether there is a general definition that might apply to a draft.

Rules of Construction

Besides drafting basics and definitions, chapter 645 also contains a collection of well-known rules about statutory construction. These rules are of three basic types: rules about language, rules about the application of laws, and rules about legislative intent.

Mandates on language use in drafting.

Some of the rules of construction in chapter 645 answer questions that are purely linguistic or grammatical - for example, "Roman and Arabic numerals are parts of the English language" (645.09) and "Provisos [expressions that begin with "provided that"] shall be construed to limit rather than to extend the operation of the clauses to which they refer" (645.19). A number of these provisions are sometimes cited as mandates governing drafting, but not all drafters see them as absolutes. Here are the most important linguistic or grammatical concepts, with some annotations to show how they actually apply:

  1. "The singular includes the plural, and the plural, the singular..." (645.08). Most drafting texts advise drafters to use the singular when possible. See Reed Dickerson, The Fundamentals of Legal Drafting, pp. 124-125.

  2. "Words of one gender include the other genders" (645.08). The policy of the revisor's office is to draft in a gender-neutral style. The revisor has the authority to change statutes and rules editorially to remove gender-specific words that are not essential to meaning. Drafters are advised to avoid the various forms of "he" and "she" unless they are essential. See chapter 3 of this manual for more information on gender-neutral drafting.

  3. "Shall" is mandatory; "may" is permissive (645.44). In practice, some drafters also use "must" as a verb of mandate even though it is not defined by statute.

    A complication that is almost a contradiction is that "shall" is often construed as directory rather than mandatory; and "may" in some contexts is construed as mandatory. Context nearly always determines the meaning more surely than does the verb alone. While drafters should know that the definitions in chapter 645 exist, they should not rely on them as a substitute for care in drafting. For advice on choosing wording for mandates, directions, permissions, and entitlements, see Reed Dickerson, Materials on Legal Drafting (West Publishing, 1981), p. 182.

  4. Provisos and exceptions (645.19). Even though the statute tells how to construe them, drafters would do well not to draft provisos. Most of them are really conditions, which should begin with "if", or exceptions, which should begin with "except that." See Dickerson, Fundamentals, pp. 128-129.

  5. Headnotes are catchwords, not part of the statute (645.49). See In re Dissolution of School District No. 33, 239 Minn. 439, 60 N.W.2nd 60 (1953). But, in the Uniform Commercial Code, the headnotes are made part of the act by section 336.1-107 and are available as an aid to statutory construction.

    Readers make use of headnotes even if judges may not, and the point of having a headnote is to use it as a finding aid. Drafters should write headnotes that help readers. There is no rule that headnotes should be single words. For advice about writing headnotes, see chapter 3 of this manual; and Daniel Felker et al., Guidelines for Document Designers, (Washington, 1981), pp. 17-20.

Status and application of laws.

Another group of provisions in chapter 645 deals with legal ideas about the status and application of laws. Among these are:

  1. Severability (the question of whether sections that were passed together remain valid individually if one of them is declared unconstitutional) (section 645.20).

  2. Retroactivity (the question of whether a section can apply to cases that arose before it was passed) (section 645.21).

  3. Saving clauses (clauses designed to preserve certain rights, duties, or privileges that would otherwise be destroyed by an enactment). The sections in chapter 645 prohibiting retroactive effect and governing amendments and repeals contain many general savings provisions. Those sections make it unnecessary to draft special savings clauses in most cases. See also State v. Chicago Great Western Railway Co., 222 Minn. 504, 25 N.W.2d 294 (1946) and Ogren v. City of Duluth, 219 Minn. 555, 18 N.W.2d 535 (1945).

  4. The application of laws to the state (section 645.27).

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Know the Common Problems of Construction

The words of chapter 645 do not guarantee the way a specific rule will be read. Readers of statutes, and courts in particular, take a variety of approaches to the text. They can decide whether the statute has a "plain meaning" or needs to be construed. They can choose whether to supplement their understanding of the text with other materials: things said and done during the proceedings of the law's passage, the history of the amendments to the text, statutory precedents, the views of an administrative agency, and common knowledge. Even if they limit themselves to the text of the statute alone, they have a choice of many, sometimes opposing, canons of construction.

A good source for the study of all these matters is Statutes and Statutory Construction, an exhaustive multivolume set. The work is commonly cited as Sutherland Statutory Construction after its original author.

Some other comprehensive works on interpretation are these:

Dickerson, Reed. The Interpretation and Application of Statutes. Boston: Little, Brown, 1975.

Hart, Henry M., and Albert M. Sacks. The Legal Process: Basic Problems in the Making and Application of Law. Cambridge: tentative edition 1958.

What Makes a Law Unclear?

Although judges can declare any statute plain, they will always have a rich fund of ways to declare it unclear. English has a multitude of ways to be vague, or over-general, or ambiguous, or all three, although the differences are important.

Ambiguity exists when words can be interpreted in more than one way. For example, is a "light truck" light in weight or light in color? Vagueness exists when there is doubt about where a word's boundaries are. If a law applies to the blind, who exactly is blind? What degree of impairment counts? Over-generality exists when the term chosen covers more than it should. If a law applies to "communicable diseases," is it really meant to cover the common cold? Legislatures sometimes choose to be vague or general and to let administrative agencies supply the specifics. They rarely choose to be ambiguous.

Readings on ambiguity and vagueness:

Dickerson, Reed. "The Diseases of Legal Language," 1 Harvard Journal on Legislation 5 (1964).

Christie, George C. "Vagueness and Legal Language," 48 Minnesota Law Review 885 (1964).

Evans, Jim. "Ambiguity" (chapter 4) and "Vagueness" (chapter 5), in Statutory Interpretation: Problems of Communication, Oxford University Press 1988.

Readings on specific problems leading to ambiguity:

Dickerson, Reed. "Substantive Clarity: Avoiding Ambiguity" in Fundamentals of Legal Drafting, 2nd ed., 1986.

Child, Barbara. "Choosing Language: Vagueness, Generality, and Ambiguity," in Drafting Legal Documents: Materials and Problems, West Pub. Co., 1988.

Of course, not every case of ambiguity, vagueness, or over-generality arises from drafting errors. The many participants in the legislative process, and the need for compromise among them, sometimes produce indefinite wording. A case in point is the 1991 Civil Rights Act (105 Stat. 1070, 1991); its passage was complicated by a fight to create competing legislative histories to bend later interpretation of language left uncertain (New York Times, Nov. 18, 1991).

Sometimes, too, new ideas, inventions, and situations appear that the legislature did not foresee, so that they are not clearly included under a statute, or are included when reason says they should not be. A classic example of this sort of unclarity is an ancient law of Bologna, forbidding the spilling of blood in the streets. Logically it forbids emergency surgery at the scene of an accident, but history tells us that violence, not surgery, is what its drafters had in mind.

Language-related Canons of Construction

Besides the text of the laws itself, judges can make use of canons of construction. Some of the language-related canons are codified in chapter 645 and were discussed above. Others are not codified, but are useful for drafters to know:

Noscitur a sociis (associated words). The meaning of doubtful words may be determined by their reference to associated words.

Readings: Sutherland Statutory Construction, sec. 47.16; State v. Suess 236 Minn. 174 52 N.W.2d 409 (1952).

Ejusdem generis. General words following a listing of specific words are interpreted to be limited to the same sort of words specifically listed. This canon is codified at section 645.08.

Readings: Sutherland Statutory Construction, sec. 47.17 to 47.22; State v. Walsh 43 Minn. 444 45 N.W. 721 (1890); but see also Olson v. Griffith Wheel Company, 218 Minn. 48, 15 N.W.2d 511 (1944).

Last antecedent. When a series of words of general meaning is followed by words of limitation - grammatically, a relative clause or phrase - their limitation will apply to the last antecedent on the list. For instance, in a statute providing "Licensees may hunt moose, deer, geese, and ducks which are not on the endangered species list," the words "which are not on the endangered species list" will apply only to ducks, the last antecedent on the list.

Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.

Readings: Sutherland Statutory Construction, sec. 47.24; Northern Pacific Ry. Co. v. Duluth, 243 Minn. 84, 67 N.W.2d 635 (1954).

By now it should be clear that sentences in law can be slippery and that drafters always run the risk of being misunderstood. Knowing this is an excellent inducement to ask for assistance in drafting rules. The revisor's office provides this help.

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Be Aware of the Problem of Unacceptable Discretion

Weasel Words

Sometimes the hardest thing about trying to bind people with words is that you are not free to rely on "common sense." Suppose a rule reads this way:

The swimming pool, swimming pool equipment, and appurtenances shall be maintained in a satisfactory operating condition.

Who is it who has to be satisfied? The agency's inspector? If so, that person has discretion to decide what "satisfactory" means, and the decisions might not be the same for all similar cases. The phrasing leaves the door open for unequal enforcement.

Here is one more example:

The commissioner may grant a license if the candidate meets appropriate educational requirements.

This statement doesn't set a clear standard. How do applicants know how to qualify? Moreover, it gives the commissioner the authority to grant or deny the license, which could mean unequal enforcement, and which could allow the agency to circumvent the APA. Words like "satisfactory," "required," "reasonable," "appropriate" and other words that call for judgment - called "weasel words" by one experienced drafter - need to be avoided.

May and Discretion

Another word that needs care is may. Some teachers of drafting ask students to circle every may and think about its implications. Consider:

The commissioner may deny benefits to an applicant who fails to submit a completed application within 30 days. The commissioner may extend this 30-day period if good cause is shown.

An official who has authority to deny benefits also has authority not to deny them. If "good cause" is shown, the commissioner has permission to extend the period, but also has permission not to do so. To specify what is allowed, these sentences need shall or must.

Be especially careful of sentences on the pattern "A person may do this or that." It is normal in English to use may when you want to show that a person is free to do one thing or its alternative, although the person has to do one or the other. However, this type of may can also be interpreted to mean that the person is free not to do either. It may look like a perverse interpretation, but it can easily be avoided: Write "A person shall do this or that," which makes it clear that the person has to choose one course or the other.

Permissible Discretion, Limits to Specificity

At this point drafters may be wondering if there is any room at all for agency discretion and judgment in their regulatory scheme. There is some: If absolute specificity is simply impossible given the matters your agency regulates, then absolute specificity is not required. A situation of this type is discussed in Can Manufacturers Institute, Inc. v. State, 289 NW2d 423. In that case, which concerned solid waste generation, the court decided that it was "unlikely that the regulations could be more precise in this kind of regulatory scheme."

Finally, if the authorizing statute gives the agency discretion, then discretion can be used in the rules. Always begin by knowing the underlying law.

Legal Questions and the Revisor's Review

The Office of Administrative Hearings is charged with approving or disapproving the substance of rules. However, if an agency asks for drafting help from the revisor's office, an attorney there can help identify problems that might cause rules to be disapproved and that could be corrected in the drafting stage. The revisor's office tries to answer a number of basic questions: Are these rules within the agency's statutory authority? Are they specific enough to tell people what is prohibited, to provide standards for enforcement, to let a reviewing body judge the agency's actions, and to be consistently applied? Do they give the agency too much discretion?

Certain words and phrases that raise red flags are discussed in this manual, but there are many more possibilities. It can be timesaving to have rules drafted in the revisor's office so that the more common drafting problems, problems of both form and substance, can be corrected early.


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