When the legislature convenes in January for the 2015 session, its first official act should be the adoption of the following Joint Resolution: “Be it resolved that henceforth, in perpetuity, all laws passed by the Colorado General Assembly shall be clear, concise and congruent.”
In furtherance of this resolution, legislators should look to the example set by the Almighty, who managed to give a set of laws to an entire people on two stone tablets. In contrast, there’s not enough stone in the Great Wall of China to contain the Colorado Revised Statutes as presently constituted.
Our state laws, Titles 1 through 43, are indisputably dense and often confusing. Has anyone in this state — judge, lawyer, legislator or citizen — ever sat down and actually read every word in each of these weighty tomes? The Magic 8 Ball says, “Don’t count on it.” How long would it take to wade through all the statutes plus annotations?
Legislators must craft concise, well-thought-out statutes written in plain English. Why? Because poorly drafted laws burden the entire system. Judges and lawyers struggle to interpret them. Average citizens cannot understand them. Vague or ambiguous laws often lead to costly and time-consuming litigation, are difficult if not impossible to enforce and may have unfortunate unintended consequences.
Of course, artful draftsmanship is not nearly so important if the legislature is adopting the Colorado state folk dance. It is when the legislature addresses controversial topics — gun control, gay marriage, abortion — that every word of a statute will be scrutinized, analyzed, and dissected like a frog in biology class. In these situations, it is vital that each word be the right word.
Why are laws so often poorly drafted? One theory that may explain the dearth of crisp, clear writing is that many legislators are lawyers or have at least some legal training and, as Will Rogers said, “The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”
Attorneys seem to be constitutionally incapable of simplicity. They are inordinately fond of arcane language (“hereinunder,” “aforesaid”) and redundancy (“null and void,” “full and complete,” “true and correct”). And they dearly love “freight trains,” those long strings of words that are supposed to increase precision, usually found in the definitional sections of statutes and contracts. For example: “A written instrument means any paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information.”
Is there any way a legislator in this state can get some assistance in crafting well-written laws? Yes.
The Office of Legislative Legal Services, an agency of the General Assembly, is trying to help. Its Legislative Drafting Manual, revised prior to the 2012 legislative session, contains guidelines to assist bill drafters in complying with the plain language requirement, such as using active voice, present tense and consistent use of authority verbs like “shall” and must”. The manual admits, however, that “The drafter will find many examples of existing statutes that do not follow these guidelines,” such as introductory clauses like “Notwithstanding the provisions of sub-subparagraph (A) of subparagraph (V) of paragraph (a) of subsection (1) of this section. In future, if bill drafters scrupulously follow this manual’s guidelines, citizens can hope to see less of the sort of language that induces migraines in the general public and makes judges wish the English language had no written form.
Teresa Keegan (tkeegan@ecentral. com) of Denver works for the courts.
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