The RELACS Report

2/18/2022
RELACS
Research Editorial Legal and Committee Staff

Welcome to The RELACS Report, the online journal of the Research, Editorial, Legal and Committee Staff (RELACS) professional association of NCSL.

This is the place to find articles on topics relevant to the various roles you, the association members, perform for your state legislatures, to get news from state legislatures across the country and to learn about the professional development opportunities provided by RELACS and NCSL.

The editorial board invites you to contribute your own knowledge and expertise! Please see our submission guidelines for more information.

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(This article originally appeared in The Legislative Lawyer in Nov. 2014. It is reprinted, with permission from the author.)

By Jery Payne, Staff Attorney, Office of Legislative Legal Services, Colorado

Power linesMany of the residents of the town of Bow Mar were mad.

They were mad at the town’s trustees, who had raised taxes to bury electric and telephone cables. To do this, the trustees had used a statute to create a special district. The citizens got lawyered up and sued the trustees.

Among other claims, they argued that the special-district statute didn’t apply to the cables because the cables were owned by private, not public, companies. They got this idea from the statute’s definition of public utility: “…one or more persons or corporations that provide electric or communication service to the public by means of electric or communication facilities and shall include any city, county, special district, or public corporation that provides electric or communication service to the public ….”[1]

The residents argued that the phrase “and shall include” meant that the list, “city, county, special district…” was exhaustive. That is, by naming specific things the legislature meant to exclude others. A maxim of statutory interpretation is expressio unius est exclusio alterius, which means to express one is to exclude others. So the special-district statute didn’t authorize the burial of a private corporation’s cables.

The court wasn’t persuaded. The residents appealed all the way up to the Colorado Supreme Court, who agreed that “the word ‘include’ is ordinarily used as a word of extension or enlargement, and we find that it was so used in this definition. To hold otherwise here would transmogrify the word ‘include’ into the word ‘mean.’[2]

The United States Supreme Court has also interpreted “shall include.” In this case, they were construing this statute: “‘creditor’ shall include anyone who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.”[3] The court held that “It is plain that ‘shall include’ … cannot reasonably be read to be the equivalent of ‘shall mean….’”[4]

How did these cases arise? It was because sometimes drafters need to add examples to a statute. For example, they may want a statute to apply to fruit, so they write “Fruit means the edible part of a plant developed from a flower.” They then become concerned that a court won’t include peas or tomatoes. So they add a comma and “including peas or tomatoes.” Then, the exclusio maxim makes drafters fear that listing peas and tomatoes will make a court think they mean only peas and tomatoes. So they add “but not limited to” and end up with this:  “Fruit means the edible part of a plant developed from a flower, including, but not limited to, peas and tomatoes.”

But Sutherland’s Statutes and Statutory Construction has a different take: “The word ‘includes’ is usually a term of enlargement, and not of limitation….”[5] And a review of Colorado cases suggests that the phrase “but not limited to” isn’t necessary:

  • Colorado Common Cause v. Meyer: “The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement when used in a statutory definition"[6]
  • Cherry Creek School Dist. #5 v. Voelker: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included.”[7]
  • Arnold v. Colorado Dept. of Corrections: “The word ‘including’ is ordinarily used as a word of extension or enlargement and is not definitionally equivalent to the word ‘mean.’”[8]
  • DirecTV v. Crespin: "Nothing in §605(d)(6) indicates that Congress intended to depart from the normal use of “include” as introducing an illustrative—and non-exclusive—list of entities …."[9]
  • Southern Ute Indian Tribe. King Consol. Ditch Co: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included. The word ‘include is ordinarily used as a word of extension or enlargement.”[10]

It turns out that judges speak the same English as you and I do; they understand the meaning of “includes” and “including.”

We didn’t find any Colorado cases that went the other way. So we cast the net a little wider and found Shelby Cnty. State Bank v. Van Diest Supply Co. This case dealt with a lien in “all inventory, including, but not limited to, agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor ….”[Emphasis added.][11] In this case the 7th circuit held that "it would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole." So the court did interpret the word “including” as limiting, and the judges didn’t care that the contract used the phrase “but not limited to.”[12] So this phrase isn’t a guarantee anyway; you probably shouldn’t get much comfort from it.

You may want to see if the cases in your state are similar to Colorado’s cases. And if there is still heartburn over the issue you may want to consider what some other states have done:

  • Maryland has a statute that says, “‘Includes’ or ‘including’ means includes or including by way of illustration and not by way of limitation.”
  • Texas has a similar statute, “‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.”[13] (Hat tip to Jeff Archer.)
  • Utah has one: “‘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.”[14] (Hat tip to Tom Vaughn.)
  • So does Vermont: “The terms ‘include,’ ‘includes,’ and ‘including’ mean that the language following the term is illustrative and not exhaustive, and shall have the same meaning as though the term were followed by the words ‘but not limited to.’”[15]  (Hat tip to Michael Chernick.)

Think of how many trees your state could save by cutting out this unnecessary bit of legalese.

 

[1] Lyman v. Bow Mar, 188 Colo. 216, 221 (Colo. 1975)

[2] Id. at 222 (Colo. 1975)

[3] 11 U. S. C., § 1. See American Surety Co. v. Marotta, 287 U.S. 513 (U.S. 1933)

[4] Id. at 516-517 (U.S. 1933)

[5] N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition)

[6] Colorado Common Cause v. Meyer, 758 P.2d 153, 163-164 (Colo. 1988)

[7] Cherry Creek School Dist. #5  v. Voelker, 859 P.2d 805, 813 (Colo. 1993)

[8] Arnold v. Colorado Dept. of Corrections, 978 P.2d 149, 152 (Colo. App. 1999)

[9] DirecTV v. Crespin, 224 Fed. Appx. 741, 748 (10th Cir. 2007)

[10] Southern Ute Indian Tribe. King Consol. Ditch Co. 250 P.3d 1226, 1233 (Colo. 2010.)

[11] Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 834-835 (7th Cir. Ill. 2002)

[12] Id. at 837

[13] Code Construction Act, Tex. Gov't Code § 311.005 (13)

[14] Utah Code Ann. § 68-3-12 (1)(f)

[15] 1 V.S.A. § 145

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