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.

07

By Jery Payne

Image of a commaA 1st U.S. Circuit Court of Appeals' opinion begins, “For want of a comma, we have this case.”

The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.

Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.

Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?

  • Packing for shipment and packing for distribution; or
  • Any kind of distribution and packing for shipment.

The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.

The list starts with a series of gerunds, which is a five-dollar word for a noun created by adding "ing" to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, this structure implies that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, we would normally expect the word “or” to appear before the last item of the list, so that it reads marketing, storing or packing for shipment or distribution of. And it doesn’t have the expected "or," and this implies that phrase was intended to be two items.

These dueling points bedeviled the court, so it gave up trying to parse the sentence. It decided that the exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.

The court wanted an Oxford comma to solve the issue. But the Oxford comma would only have solved the issue if the legislature intended to exempt delivery drivers. What should we change if the legislature didn’t intend to exempt delivery drivers? How could we draft the statute so that it is clearer? What if we repeated the preposition of?

The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Now the statute is clearer.

I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just add the disjunctive or.” No, I suppose in this case we don’t need the extra prepositions. But they do help. Why not use both?

And even if you don't use the Oxford comma, repeating the preposition also helps if the intention is to exempt the delivery drivers:

The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, packing for shipment of or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Primate Protection League v. Tulane Educ. Fund is an example of a simple provision that needed a U.S. Supreme Court opinion to be understood. The statute in question authorized these defendants to move a case to federal court:

Any officer of the United States or any agency thereof …

Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:

  • An officer of the U.S. or an officer of an agency of the U.S.; or
  • An agency of the U.S. or an officer of the U.S.

The U.S. Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the intent, repeating the preposition of solves the issue:

Any officer of the United States or of any agency thereof …

I know that people will be tempted to dispense with the repetitious preposition in a list. The editors in my office frequently suggest removing the extra prepositions. But repeating those prepositions does remove ambiguity. My advice is to repeat prepositions in a list.

Jery Payne is a senior attorney with the Colorado Office of Legislative Legal Services. He has been a legislative drafter in Colorado for 19 years and was the editor of the Legislative Lawyer from 2004 to 2016. In 2011, he received the NCSL Legislative Achievement Award from RELACS.

 

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