Grammar Matters: Legal Drafters Risk Avoiding It At Their Peril
One of the biggest issues in legal drafting involves the series-qualifier canon, a canon of statutory interpretation courts use to help them interpret law. For example, take a 2021 Minnesota Supreme Court case:
“Mentally incapacitated” means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.
Does the phrase starting with administered apply to the entire list, or to only "any other substance"? The court found, using the series-qualifier canon, that the phrase applied to the entire list because the phrase followed a parallel series of nouns: alcohol, narcotic, and any other substance.
The series-qualifier canon redux
The series-qualifier canon was cited again in an October Minnesota Court of Appeals case (Oct. 25, 2021, In the Matter of the Eligibility of Ted Johnson for MSRS General Employees Retirement Plan Coverage). The question before the court was whether Mr. Johnson qualified for Minnesota's general-retirement plan. The ambiguity surrounding the answer to Mr. Johnson's question can be blamed on the relevant statute:
"Subd. 2b. Excluded employees. "State employee" does not include:
(1) persons who are:
(i) students employed by the University of Minnesota, or within the Minnesota State Colleges and Universities system, unless approved for coverage by the Board of Regents of the University of Minnesota or the Board of Trustees of the Minnesota State Colleges and Universities, whichever applies;
. . .
(2) employees who are:
. . ."
The statute has been poorly drafted, as it consists of clauses and subclauses, leading to the main culprit:
"persons who are employed:
by the executive branch as a temporary employee in the classified service or as an executive branch temporary employee in the unclassified service if appointed for a definite period not to exceed six months, and if employment is less than six months, then in any 12-month period;"
The statute contains two prepositional phrases, beginning with the phrase in red, and then ending with the phrase in blue. Does the bolded phrase apply to both phrases, or to only the last phrase? The court ruled that the bolded phrase only applied to the second phrase because of the last-antecedent canon, which states that a pronoun or relative pronoun refers to the nearest reasonable antecedent. An antecedent is a word or phrase that the pronoun or relative pronoun refers to. Here, the antecedent was the blue phrase.
But Mr. Johnson argued that the series-qualifier canon applied, and that the bolded phrase referred to both prepositional phrases. Unfortunately for Mr. Johnson, neither canon in this case was persuasive, and the court eventually reached the correct conclusion by focusing on the key word of appointed, which differentiates between the classified and unclassified service for retirement purposes. Classified employees are not appointed; therefore, the bolded phrase cannot apply to the the first prepositional phrase.
Why not draft clearer in the first place?
The wasted time and money, not to mention confusion and frustration on Mr. Johnson's part, could have been easily avoided. How? Draft better, and eliminate any potential for ambiguity. Here's how:
Subd. 2b. Excluded employees. "State employee" does not include persons listed under
subdivision 2c [new subdivision].
Subd. 2c. List of excluded employees.
(a) University workers or trainees [new headnote]. Persons who are:
(1) students employed by the University of Minnesota, or within the Minnesota State Colleges and Universities system, unless approved for coverage by the Board of Regents of the University of Minnesota or the Board of Trustees of the Minnesota State Colleges and Universities, whichever applies;
. . . (g) Temporary employees. Persons who are employed:
. . .
(3) by the executive branch as a temporary employee in the classified service;
(4) as an executive branch temporary employee in the unclassified service if:
(i) appointed for a definite period not to exceed six months; and
(ii) employment is less than six months, then in any 12-month period;"
What did I do?
I moved the exhaustive list from the definition section and into a new subdivision. Doing this allowed me to use more headnotes in the new subdivision to better orient the reader with helpful finding aids and to better structure the vertical lists.
I broke the problematic phrase into two separate items, and then I further broke the second phrase down more. Now, there is no ambiguity about whether Mr. Johnson qualified for the general-retirement plan.
When in doubt, use a vertical list.