Alice Boler Ackerman is assistant director, Colorado Office of Legislative Legal Services. You may reach her by e-mail at: alice.ackerman@state.co.us.

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A tool-box approach to "shall"

One can most efficiently analyze the difficult legislative drafting problem of controlling judicial interpretations of laws that include "shall" by contemplating an example. Although a court* later arrived at an unintended meaning for it, a drafter competently drafted the following statute:

49.02 (5) (c) Except as provided in par. (d), a county is not liable for the costs of treatment or hospitalization provided under par. (am), unless:

lm. Within 3 working days after the patient is initially provided emergency medical treatment or hospitalization by a hospital or other health care provider an agent of the hospital or other health care provider has written notice of the treatment or hospitalization mailed or delivered to the general relief agency of the county which is liable under par. (ar). Each notice provided under this subdivision shall include the patient's name, address and county of residence, if any, and a statement about the nature of the illness or injury and the probable duration of necessary treatment and hospitalization. Each written notice provided under this subdivision shall also include a written statement by the attending physician certifying the need for the emergency medical treatment or hospitalization. [emphasis added]

The part of the statute this is relevant here uses phrasing that has been in the Wisconsin statutes for more than 40 years.

In the case in which that statute was an issue, the county argued that it should not have to pay for the medical expenses of the patient. The county offered three reasons. The judge easily disposed of the first two reasons because they had no basis in the statute. However, the third reason that the person who completed the form inadequately stated the probable duration of the necessary treatment and hospitalization troubled the judge.

The form that the hospital used to provide the notice that the statute required properly had an entry for a statement of the "probable duration of necessary treatment and hospitalization. " In that space someone had written "N.A. " The writer presumably intended the abbreviation to represent "not available" or "not applicable. " It would have been better to write something like "unpredictable. " However, neither the actual response nor the possible response fulfills the statutory requirement.

Objectively determining the ways in which the words and phrases are used in the statute and then overlaying the result of that inquiry onto the facts in the case lead to the conclusion that the hospital did not give the notice that the statute requires. Inevitably, then, the indigent woman is not eligible for general relief benefits for her hospitalization and treatment. Some, including the judge in this case, considered that to be a harsh result and wanted avoid it.

A judge, such as the one in this case, has at his disposal a box of tools, which he can use to disable "shall." First, he or she can interpret "shall" as "directory," not "mandatory." For example, the judge in this case could have decided that this statute specifies an act that should have been performed but that the patient does not become liable for if the health care provider or the hospital's agent does not perform it. The drafter's use of "unless" would make that tool difficult to use but would not necessarily impede a determined judge.

Second, the judge could interpret "shall" to mean "may." That totally distorts the statute, but judges, of course, have used that tactic.

Third, a judge could hold that the person who filled in the form had substantially complied with the statute, which perhaps requires stretching "substantially" to mean a semblance of compliance. The presence of something on the form's pertinent line makes this tool usable.

Fourth, a judge could declare the statute ambiguous and then examine legislative intent.

A fifth tool-the one that the judge in this case pulled from the box-is to find ambiguity and then to interpret the statute so as to avoid an "absurd" result. I have placed "absurd" in quotation marks to indicate that when they use that term while interpreting statutes judges often mean that they disapprove of the result to which a literal interpretation leads. The "absurdity" that a literal reading of the statutory requirement creates is not that the indigent must pay-arguing that would be conclusory and thus no argument at all-but that the statute requires a health care provider or a hospital's agent, soon after seeing a patient for the first time, to predict the duration of that patient's hospitalization or treatment and that failure to do so shifts liability for paying her health care bill.

Others will not see the absurdity of the requirement and the consequence; a doctor could have written something like "two to four weeks, unless unforeseen complications arise."

The large number of possible responses that a judge might make to statutory expressions that include "shall" causes problems. What can a drafter do to clarify the requester's intent?

Drafters, too, need a box of tools that they can use if the requester intends "shall" to be potent or not. Words are the first set of a drafter's tools. Some of them send indirect signals to a judge. For example, the drafter of the illustrative statute could have modified the requirement with a phrase like "the best estimate possible at the time."

Having minimized the requirement, the drafter perhaps would have left the impression that failure to fulfill it shifts liability for payment from the county to the patient. A drafter perhaps could also signal that the requirement should be taken seriously by making it more, not less, rigorous. For example, he could have written "the number of days, within a range of no more than 14 days, that the health care provider or agent estimates will be necessary for treatment or hospitalization."

However, foreseeing all of the future instances in which that requirement would play a part is even more difficult than predicting "the duration of hospitalization or treatment." It would have taken a superhuman effort to do so during the drafting of the statute. A drafter certainly could not have foreseen the facts in the case that resulted. The drafter probably thought that a healthcare provider or hospital agent certainly would write something that would state the duration of the patient's hospital stay.

But persons to whom statutes apply do unpredictable, even irrational things, which increases the difficulty of legislative drafting. The fact that both making the requirement less rigorous and making it more rigorous might result in inducing a judge to take it seriously indicates that sending indirect signals to a judge by modifying the required action probably is not the best strategy.

A drafter could also create a loophole. This tool works if the requester intends "shall" to be taken seriously but does not wish it to be much of an impediment. For example, the drafter of the illustrative statute could have modified the requirement with a phrase like "if the doctor or agent can predict that duration." Drafters have some middle ground here. For example, the statute could require either a statement of the duration or a statement of the reason why a prediction cannot be made. Alternatively, a drafter could state that the prediction may be in the form of a wide range of time. Also, this strategy is ad hoc and evades the general problem of distinguishing between requirements that have consequences and mere directions that have no consequences.

A drafter can also reserve "shall" for requirements that are intended to have consequences and use another word or phrase for directions that are not intended to have consequences. Phrases like "it would be appropriate if" convey the requirement's lack of seriousness, but their awkwardness and feeble encouragement of compliance argue against using them. The drafter of the statute that was at issue in the case could have written something like "the form is to contain" to delineate "directory" requirements, but that gambit would have failed to make anyone responsible.

Drafters in some states have used "must" to express "directory" requirements. But that creates problems. For example, "must" is roughly synonymous with "shall," so that judges might interpret it as mandatory. Also, because it is roughly synonymous with "shall," one wonders exactly what meaning it conveys. Finally, I suspect that "must" usually appears in expressions like "the form must contain" so that the statute in which it appears charges no one with performing the desired action. This tool does not work. It fails partly because there does not seem to be a word or phrase that accurately and succinctly specifies that an action should be considered directory. More important, it fails because it derives from judges' dichotomy of mandatory-directory. That is, drafters who use that alternative fall into the trap that they ought to be trying to avoid. Drafters need a tactic that derives from a different paradigm.

Fortunately, one can deduce a better paradigm. The statute's drafter shrewdly used "unless" to convey the notion that the county must pay the expenses only if all the requirements that the statute enumerates are fulfilled.

In other words, the drafter connected those requirements to a consequence. More fundamentally, the drafter recognized-or at least drafted as though he recognized- that nearly all statutes forbid, authorize or require and that many of them connect those functions to conditions or consequences. That is the clue that a drafter needs. A drafter will most likely effect the desired intent if he carefully connects a statement of a requirement-a phrase that should include "shall"-to the consequences. The most effective tool pertains to the structure of the statute or of its sentences. Specifically, a drafter can use to his advantage one of the unique features of the legislative language game: the fact that statutory units comprise legislative prose. A drafter could make one minor structural change that might have helped to induce the judge in this case to absolve the county of liability if that was the statute's intent: putting each of the requirements alone in a statutory unit. Because of its proximity to the "unless," the first requirement specified in s. 49.02 (5) (c) lm. m. seems to be absolute. Conversely, because of their separation from "unless," the other requirements that the statutory unit specifies might appear to be less important, and violating them might therefore appear to have less weighty consequences, or no consequences at all.

Moreover, neglecting to identify the person who has to fulfill some of the requirements implies that failure to fulfill those requirements has no consequences. Also, "shall" appears in only some of the statements of requirements and in the statements of other requirements "shall" is connected to an entity that cannot fulfill the requirement. An example of the latter is "the form shall include."

In short, although the drafter of this statute did well, it could be improved by determining the desired consequences of failing to fulfill each of the specified requirements. Next, a drafter could use the two principles just mentioned:

• A statute ought to identify the person who is responsible for fulfilling each of the requirements that it specifies.
• A statute ought to connect its directives to the consequences of failing to fulfill the directives.

In this instance I suggest that a drafter write three main statutory units. The first would consist of an introduction something like "The agent of the hospital or other health care provider that provides medical treatment under par. (am) shall fulfill all of the following requirements:" and a list of the requirements that, if they are not fulfilled, make the county financially liable, each of those requirements appearing alone in a subsidiary statutory unit. The second main statutory unit would be a statement that if all of the requirements under the first main statutory unit are fulfilled the county shall pay the costs of the medical care. The third main statutory unit would include an introduction virtually identical to the introduction to the first main statutory unit and a list of requirements that have no bearing on the county's financial liability, each of those requirements appearing alone in a subsidiary statutory unit.

Such a statute would be difficult for a judge to misinterpret, because it will have been built with tools that are almost as effective as those that a judge has in his statutory construction tool box. However, drafters need to recognize that they do not have the final chance to use tools. A judge does. Drafters cannot guarantee that a judge will interpret a statute as its requester would wish it to be interpreted. Nevertheless, legislative drafters would do well to put as many as possible high-quality tools in their drafting boxes in order to increase the odds that a judge will do so.

Jack Stark is assistant chief counsel at the Wisconsin Legislative Reference Bureau.

______________________

Koller vs. Pierce County Dept. of Human Services, 187 Wis.2d 1, 522 N.W.2d 240 (Ct. Appl., 1994).

News from the States

Legal Editor Pinky Kimlinger retired and was replaced by Jill Bryson who was the assistant legal editor for Ms. Kimlinger. Patty Rose is now the assistant legal editor. A former attorney general has filed a lawsuit challenging the timing of veto overrides by the Legislature.

The Legislature is working on education finance reform and welfare reform. The Legislative Council is now printing most bills instead of sending them out. Alexis Stanton is a new staff attorney in the office.

One of the major bills facing the Colorado General Assembly is welfare reform. Several competing bills, including one initiated by the Governor, have been introduced to address the issue of TANF benefits. A key issue is whether the state will have uniform cash benefit levels or whether counties will be able to be flexible with the benefit amounts. Separate bills have been introduced on child support enforcement requirements and benefits for immigrants.

Consumer protection measures are also being considered. One bill would require credit agencies to let consumers know when reports have been requested, provide free copies of reports to consumers, and correct inaccurate reports. Another bill seeks to limit the denial of treatment by managed care plans.

Another bill concerns the adjustment for inflation of caps on damages. These caps on the amounts recovered in tort actions were enacted in the mid-80s during tort reform and the limits have not been increased. An exemption from the criminal drug paraphernalia laws has been introduced to encourage the use of needle exchange programs as a way to decrease the spread of infectious disease.

The state's child abuse registry may be eliminated under a bill to phase out the registry. The rationale is that not many matches are made during checks of prospective employees and that the same information could be obtained through the Colorado Bureau of Investigation. Also, it is argued that the due process protections recently enacted in response to complaints regarding reporting are too costly.

Actions by the legislative committee that reviews executive branch agency rules received a lot of attention in the press when the committee voted that the following rules lacked statutory authority: Rules concerning the supervision of unlicensed personnel by pharmacists; rules governing the reporting of unexplained deaths and injuries in nursing homes and hospitals; and a rule increasing a gaming tax. Bills to clarify the statutes have been introduced on the first two issues.

Hispanic plaintiffs challenging a state legislative district of the San Luis Valley on the basis of the federal Voting Rights Act won in the 10th Circuit Court of Appeals. The state is filing a petition for certiorari in the U.S. Supreme Court because the decision seems to conflict with most of that Court's recent decisions. Whether the state will need to start redrawing the district and adjoining districts and who would draw the new districts (the old reapportionment commission, a newly-appointed commission, or the general assembly) is unclear at this time.

A challenge to a term limits amendment adopted by the voters in November, containing a "scarlet letter" clause for elected officials who refuse to support term limits, has been filed. It is pending Colorado Supreme Court review. The Committee on Legal Services authorized the attorney general's office to represent the General Assembly in the matter.

Provisions to overhaul the state's no-fault insurance law have been proposed, including constitutional amendments and statutory revisions.

Revision of the means of calculating pension benefits for legislators and elected officers, in order to make them less generous to former legislators who become appointees, is being discussed.

Same-sex marriage is still controversial. In August, a trial court could not find a compelling state interest for the prohibition of same-sex marriage, and likelihood of an overthrow of that verdict is slim. There has been a constitutional amendment to prohibit same-sex marriage that failed at the polls, but subsequent elections revisiting the issue are quite possible.

The attorney general has contended that some constitutional amendments were passed without the provision of the proper notice and the use of proper procedures.

Although Kentucky's Constitution requires a regular session only once every two years, the General Assembly is holding a series of special and organizational sessions. From December to May, the Legislature will have convened three times.

In December, Governor Paul Patton called a special session to revise Kentucky's laws on workers' compensation. During this session, the Legislature adopted H.B. 2, which reduces the amount of litigation for workers who file claims. Arbitrators, rather than judges, will make some decision on the extent of worker's injuries, and disputed claims will be referred to specialists from the states' medical schools.

The bill created several employer-sponsored insurance funds to save a state fund from bankruptcy.

The session on workers' compensation ended on December 12, and on January 2 legislators returned to Frankfort for an organizational session in which they chose leaders and received committee appointments.

The governor has announced that he will call another special session in May. This time, the topics may include health care and higher education.

Due to 1996 legislation, the manner for establishing definitive statutory text in Kentucky has changed. Until 1997, official editions were printed by two private publishers. Under a law that took effect on January 1, the legislature's internal electronic version has become the official version, and a publisher may seek to have its edition designated as certified if specific standards are met.

Robert Jenkins, who previously worked with the Committee on Health and Welfare, has been named a full-time Assistant Revisor of Statutes, joining Ann Zimmer and Bill Van Arsdall.

With sadness, we report the death of Vic Hellard, Jr., who was the director of the Legislative Research Commission for 18 years. He retired from the commission in 1995, and he died at his home on September 18, 1996.

The Nebraska Constitution was amended in 1996 to eliminate a requirement that every bill be read at large before final passage. The Legislature adopted rules to implement the constitutional change in January. The rules provide that upon a three-fifths vote of the members elected to dispense with the reading of the bill, the final vote on passage of the bill shall be taken without reading and three minutes shall pass before the vote is recorded. This change will eliminate the need to read very long bills which in the past have taken several hours of legislative time.

The Nebraska Legislature has installed a chamber automation system that uses laptop computers for each senator. The system provides access to bills, resolutions, amendments and related legislative documents on the floor, and replaces large bill books that contained paper copies of the documents.

Volumes 4, 4A and 5 have recently been reissued and are available for purchase, and a new general index will be available soon.

In 1971, the Legislative Council first published a bill drafting manual, which contained guidelines and rules for preparing bill drafts for submission to the Legislative Assembly. In 1976, and before every regular session since, the Legislative Council staff has conducted a legislative drafting seminar for attorneys and others involved in drafting bills and resolutions for submission to the Legislative Assembly. The seminar includes a review of constitutional, statutory and legislative rules relating to the drafting of bills, the practical application of those rules, and an outline of material in the legislative drafting manual. Beginning in 1980, the North Dakota Commission on Continuing Legal Education has granted continuing legal education credit for the seminar. The 1996 Legislative Drafting Seminar on October 7 included discussion of legislative ethics. (The Legislative Assembly adopted a code of ethics at its organizational session Dec. 3-5, 1996.)

Senate Bill No. 2154 would provide for a nonvoting tribal delegate in the Senate and a nonvoting tribal delegate in the House from each of four tribal jurisdictions in the state. Senate Bill No. 2316 would require the governor to call a special session for the purpose of reconsidering legislation vetoed after the Legislative Assembly has adjourned.

At the November general election, the voters defeated two proposed constitutional amendments that imposed term limits on state executive officials, legislators and members of Congress. At the same election, the voters approved a constitutional amendment placed on the ballot by the Legislative Assembly that increased the terms of state representatives from two years to four years. The House of Representatives has passed House Bill No. 1081 to place representatives on the same four-year schedule as senators. North Dakota has 49 senatorial districts, from which one senator and two representatives are elected. Representatives and senators in odd-numbered senatorial districts would run for four-year terms in 1998. Representatives from even-numbered senatorial districts would run for two-year terms in 1998 but would then run for four-year terms when the senators from even-numbered districts are up for election in 2000. The 1995 Legislative Assembly gave the Legislative Council's Administrative Rules Committee authority to void administrative rules (North Dakota Century Code Section 28-32-03.3). This authority has been used sparingly, but committee members have expressed confidence that it improves legislative oversight and agency consideration of public comment during the rulemaking process.

The Administrative Rules Committee has used its power to void rules for at least three reasons: to encourage agencies to reconsider controversial rules, to work with affected groups, or to provide more information to the committee. When this approach has been used, the committee has approved a subsequent agency suggestion for rule modification. Committee members and agency representatives have found that the law authorizing the voiding of agency rules promotes conciliation in the rules process.

Jennifer S. Clark has joined the Legislative Council legal staff as an attorney. She was formerly a staff attorney for Legal Aid of Western Missouri and a law clerk for the North Dakota Supreme Court.

On February 6, a court overturned the state's campaign finance reform measure that had passed by the people (Ballot Measure No. 1).

This year the Legislature decided to eliminate legislative committee meetings for the month prior to the session. They also decided to give each legislator an opportunity to file up to three priority bills. These bills are drafted and numbered first, before other bill requests. They also shortened the time frame in which bills could be requested without floor approval. The result was several hundred less bill requests and more bills drafted the first week and ready for introduction than ever before.

In February 1996, most members of the Senate met in a "joint caucus lunch." Attorneys from the Office of the Attorney General advised the Senate to close the meeting, which they did, and then briefed senators on potential litigation and legal issues associated with statutorily prohibiting gay and lesbian clubs from being formed in public schools. The ACLU filed suit against the Senate and 25 of 29 senators (unnamed) on behalf of three plaintiffs, claiming violations of the state's Open and Public Meetings law. The Senate and senators filed a motion to dismiss based on legislative immunity and nonjusticiability. The state district court held the Senate was not immune and that the state constitutional provision requiring all sessions of the Legislature to be public, together with the Open and Public Meetings law required certain procedures to be followed in any meeting of senators.

A confusing twist to this case came when an interlocutory appeal to the Utah Supreme Court was granted, then several weeks later, denied, without comment.

The parties agreed to a stipulated judgment in the district court in which the Senate acknowledged a violation of the Open and Public Meetings law, to the extent the law applies. Plaintiff's claims for an injunction and joinder of individual senators, and all other claims were dismissed with prejudice.

For the first time in a long while, we now have a Republican House and Senate and a Democratic governor. The Legislature has already had a property tax reform measure vetoed by the governor, though a compromise bill was passed a few days later. Other issues are juvenile sentencing and responsibility, other law enforcement including two-strikes measures, welfare reform, long-term care, and social issues such as parental consent and rights, reaffirmation of traditional marriage (passed by the Senate in February), parental notification for abortions, English as the official language, and constitutional and statutory spending limits.

The Wisconsin Supreme Court recently reinforced a previously articulated limitation on the Wisconsin governor's item veto power, which is generally regarded as the most extensive of any governor. The Court ruled that, in a non appropriation provision within an appropriation bill, the governor cannot veto a number and substitute another lower number. In the case at bar, the governor had vetoed an increase in the authorized bonding level for a program and had substituted a lesser amount of increase. In its decision, the Court, which has already recognized the power of the governor to "write down" appropriations in this fashion, limited the power to appropriations only. Ostensibly "appropriations-related" provisions are not subject to the governor's power to reduce appropriation levels.

Do you have the time, interest and inclination to advise a foreign government about bill drafting? Recent articles in this newsletter have described short-term drafting workshops sponsored by the Legal Services Staff Section (LSSS) and the American Bar Association-Central and East European Law Initiative (ABA-CEELI), but there are additional opportunities out there for persons interested in working with bill drafters in a foreign country. The placements are often of two to three month's duration, but some are shorter and some longer. Although the sponsoring organizations sometimes call NCSL for suggestions for placements, those organizations often need to fill openings very quickly.

If you wish to be considered for some of these placements, send a resume describing your drafting, teaching and foreign experience and your foreign language skills, together with a cover letter describing your interest and availability for foreign bill drafting placements, to the following persons:

Mark Dietrich
ABA/CEELI
740 15th Street NW
Washington, DC 20005-1009

or

Thomas R. Reynders
Checchi and Company Consulting
1899 L Street NW, Suite 800
Washington, DC 20036-3804

ABA/CEELI has been our partner on five international bill drafting workshops and several individual placements in the former Soviet Union and Eastern Europe, and they have been excellent partners. While we haven't worked directly with Checchi, they have provided consultants throughout the world and are experienced in projects to improve the legal framework.

LSSS members who have worked on foreign placements have had fascinating and rewarding experiences, so we urge you to contact these representatives.

For more information:
contact Kae Warnock, NCSL Liaison to the Legal Services Staff Section. Phone: 303/856-1553
E-mail: kae.warnock @ncsl.org