Letter From the Editor
I apologize for the slowness of the latest edition of the newsletter. The conversion from paper documents to web documents has been a bit more challenging than expected. The change, however, is one that will benefit the newsletter and, more importantly, you the reader. Your patience is appreciated.
I believe this edition is well worth the wait. Jack Stark is back with his usual lucid prose that illuminate the challenges of drafting and the problems associated with simplistic approaches to drafting. Jack is joined by Lisa Mecklenberg Jackson who manages to make the topic of legislative history fun. And the state news will keep you informed of your colleagues' experiences.
Explore Legislative Histories with The King
By Lisa Mecklenberg Jackson, Legislative Staff Attorney
When you’re an Elvis Presley fan, you can manage to tie Elvis, his music, his movies, his moves, to almost anything – parties, food, wardrobe, etc. But legislative history and legislative intent – isn’t that a bit of a stretch?
Au contraire, says the biggest Elvis fan in the Montana Legislative Branch and the individual writing this article. So, don’t be a hound dog. Read on to see the importance of legislative intent by way of the music of The King himself, Mr. Elvis Aron Presley.
One Brief Statutory Sentence
By: Jack Stark
As everyone who has written them for a living knows, statutes are dense and complicated. Therefore, it is not surprising that examining a brief statutory passage will reveal a good deal about the art of writing statutes. To test this hypothesis let us imagine a drafter at work on a bill that creates a committee. It is necessary to say something about procedures, specifically about the need for a quorum. The drafter's initial plan is to write “there shall be a quorum.” However, that might not be the best course of action.
The drafter's initial reaction to that solution is uneasiness, which is exacerbated if he or she remembers that the primary function of statutes is to direct behavior. In essence, this first attempt at writing a statute is a direction to a quorum that it should exist. The drafter's unease is well founded. Neither the recipient of the direction nor the direction itself makes any sense. A quorum is an abstraction, not a human actor that can be expected to respond to a direction. Moreover, entities either exist or they do not exist; they cannot reasonably be expected to follow a direction to exist. The best clue to the second problem is that the verb is a form of “to be” not an action verb. That statutory sentence must be rewritten.
The first way to get at the problem caused by this statutory sentence is to remember with more particularity the functions that most statutes perform. As I have written before for this publication, most statutes perform one of three behavioral directives: forbidding, which is accomplished with "may not" or "shall not"; authorizing, which is accomplished with "may" and requiring, which is accomplished with "shall," or they perform one of two ancillary functions: stating conditions that determine whether a behavioral directive applies and stating the consequences of obedience or disobedience to a behavioral directive. "There shall be a quorum" does not perform any of the five main statutory functions. Rather, it states a condition precedent: a condition that must be fulfilled.
The best correction of that misstep is to create a conventional statutory condition and to connect it firmly to a behavioral directive. A common signal that a conventional condition is being created is the presence of "if," so let us begin a revision with that word. One possibility that appears to work is "if a quorum is present, the committee may conduct business." That is a significant improvement over the first attempt, but the drafter may still feel uneasy. The cause of that feeling is not immediately evident. However, the drafter ought eventually to realize that the situation in which a sentence about quorums is most likely to apply is one in which there is no quorum. That is the state of affairs when a question about whether the conduct of business by the committee is valid will occur. Recognizing that fact leads to the conclusion that an alternative that is still better is "the committee shall not conduct business if a quorum is not present." The drafter has moved from creating a condition precedent to creating a conventional condition and authorizing and then to creating a conventional condition and forbidding.
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State News
Each issue includes "State News" describing events,
recent laws passed, and litigation that involves state legislatures
and state government. Current news from 13 states including:
E-Learning and Webinars
by Debbie Haskins, Co-Chair of Program Committee
The Legal Services Staff Section (LSSS) helped lead the way in developing educational programs through NCSL’s webinars this past year. With the current economy preventing legislative staff from traveling to professional development seminars, several staff sections of NCSL, including LSSS, decided not to hold professional development seminars in 2010. To help this situation and explore new ways of learning, the Legislative Staff Coordinating Committee (LSCC) created an "E-learning grant program" to provide funds to NCSL staff sections and standing committees for webinars. Eight webinars were produced from November 2009 to April 2010, and 1,706 legislative staff participated as a result of these grants. Two of those eight webinars were developed and sponsored by LSSS.
The first webinar on "Ethics for Legislative Drafters" was held Dec. 1, 2009. Bruce Feustal, senior fellow in NCSL's Legislative Management program, used case studies to address the typical problems drafters face in working for legislators. Almost 400 people participated in the webinar, including representatives from 32 states. In addition, several states participated in a conference room with a group signed on with one connection. At that time, this webinar was the largest ever put on by NCSL. It attracted many participants from our section who had never attended a professional development seminar before. Participants were able to vote electronically on options for addressing the legislative dilemmas in the case studies. Participants could also submit comments or questions. At one point, the comments were coming in so fast that Bruce and Kae Warnock were not able to read them as they scrolled across the screen. A third of the audience responded to an online webinar evaluation and gave us very positive feedback on the program. Many appreciated the opportunity to have free CLE that related to their legislative work. Ninety-nine percent of the respondents indicated that they would like to participate in a future LSSS professional development seminar.
Buoyed by that positive response, the Program Committee applied for a second e-learning grant with the Legislative Effectiveness Committee, a standing committee of NCSL. On March 26, 2010, Bruce Feustal taught "Creating Great Legislation: How Legislators and Drafters Work Together." This class covered common problems and tension areas that exist in the legislator/drafter relationship, including the expectations that each have for the other and challenges faced by each. Bruce drew on the experiences of legislative staff members and legislators to provide tips and practice points. This class was also well-received and had 153 participants. It awas designed to qualify for CLE in most states.
Several staff sections, including LSSS, contributed $100 each to host a third webinar on April 15, 2010, on "Writing for the Legislative Audience," taught by Stan Stenerson, who has provided writing workshops for NCSL and other organizations for several decades. Stan has taught technical writing and composition. He spent most of his career with the U.S. Government Accountability Office (GAO), where he specialized in helping analysts develop reports and testimony for the United States Congress. An amazing 934 people participated in this webinar, surpassing the total set by the earlier ethics seminar. This program was also interactive with visual reminders of the principles that Stan was teaching. The best comment I heard about this webinar was from a director of a legislative information office who said that he has seen better writing from his staff as a direct result of attending this webinar.
All three of these webinars are archived on the LSSS page on the NCSL website at www.ncsl.org. They are also under the multi-media center portion of the website. I would encourage you to take some time to view the archived webinars.
If you have specific suggestions or topics for future webinars, please contact the current co-chairs of LSSS Program Committee, Debbie Haskins at debbie.haskins@state.co.us or Frank Arey at Frank.Arey@arklegaudit.gov.
At the Legislative Summit in Louisville, Ky., the LSCC will be discussing whether to fund additional e-learning grants for another year. The LSSS Program Committee and the Executive Committee will be making a decision later in the year about the feasibility of holding a professional development seminar in 2011. Stay tuned for future e-learning and live-learning professional development opportunities.
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