Law Writer

The Germaneness Principle

2010-03-03T11:25:00.000-08:00

Law writers must always be mindful of germaneness. Germaneness is a principle that applies to an amendment and its relationship to a bill or a pending amendment. An amendment that is not germane is subject to being ruled out of order.

On one hand, the theory behind germaneness is that a legislative body should only consider one subject matter at a time to the end that business may be conducted in an orderly and expeditious manner. On the other hand, germaneness requirements protect the nature of a piece of legislation as well as the sponsor of a bill from amendments that might dilute effectiveness or lessen the chance of passage.

Germaneness and "relevancy" are not the same concept. For example, an amendment may be politically related to a portion of a bill, but may not be germane to the bill. Consider the possibilities.

Suffice it to say that germaneness is both a legal doctrine and a political reality. The National Conference of State Legislatures reports that:
• Forty state constitutions contain a provision that requires a bill to address or contain a single subject. In Mississippi, germaneness is implied, but a single subject requirement is not specifically stated in the constitution. No specific single subject provision is set forth by the constitutions in Arkansas, Connecticut, Maine, Massachusetts, New Hampshire, North Carolina, Ohio, Rhode Island and Vermont.
• Over three-fourths of the state legislative chambers reported that they have rules on germaneness of amendments or motions.

NCSL's Sample Checklist to Test Germaneness

Does the amendment deal with a different topic or subject?

Does the amendment unreasonably or unduly expand the subject of the bill?

Would the amendment introduce an independent question?

Is the amendment relevant, appropriate, and in a natural and logical sequence to the subject matter of the original proposal?

Would the amendment change the purpose, scope or object of the original bill?

Would the amendment change one type of motion into another type?

Would the amendment change a private (or local) bill into a general bill?

Would the amendment require a change in the bill title?

The Statue of Freedom

U.S. Capitol

The Good, the Bad, and the Wordy, Part I

2010-02-16T13:23:00.000-08:00

The venerable legislative drafting manual is the law writer's guide. The drafting manual helps one to stay on target and to resist being corralled onto poor word choices. Though the particulars of these manuals may vary, one common feature is a list of words and phrases to use, and words and phrases to avoid using, in the drafting of bills. Here are some of my personal favorites.

Good Bad

a, an any, every

a, an, the such, said

comply                                                   in compliance with

if                                                             provided that

to                                                            in order to, for the purpose of

with                                                        in conjunction with

without                                                   in the absence of

about, for, over                                    with respect to

apply                                                   submit or make an application for

assess                                                 perform an assessment of

later                                                      at a later date

notify                                                    send notification of

survey                                                 conduct a survey of

investigate                                          conduct an investigation of

select                                                  make a selection

review                                                 conduct a review of

except                                                 with the exception of

explain provide an explanation of

exceeding in excess of

inspect perform an investigation of

Common "circumlocutions" comprise a special subset of bad words. Special because lawyers seem to love them the most.

Badder

bind and obligate
by and between
by and with
cease and desist
covenant and agree
due and owing
relieve and discharge
each and every
for and during
full and complete
furnish and supply
kind and nature
over and above
power and authority
suffer or permit

Baddest

shall and will
sole and exclusive
true and correct
then and in any event
unless and until
type and kind
supercede and displace
adopt, promulgate, and enforce

Savoring the Conference Process

2010-02-11T09:03:00.000-08:00

Needless to say, the legislative process can be a complex sight to behold. The ongoing ruckus over Congress' handling of the Obama health care package provides the perfect context for a discussion of my favorite part of the legislative process – the maze known as conference. By definition, conference happens after the two chambers in a bicameral legislature each pass a bill that is in conflict with the other and the differing bills must be reconciled before joint passage of a "conference" report. Put another way, conference is where the tastiest sausage is made.

Here is how it works. One chamber requests a conference or agrees to the other chamber's request for a conference. Conferees are appointed and the other house is informed of the action by a "message" -- a formal communication between the chambers. After the second chamber agrees to go to conference, it appoints conferees and likewise sends a message back. Either chamber may appoint any number of conferees. No matter the number, the conferees must act as one.

Next come the dicing and slicing of deliberations, with review by the conferees of the differences between the respective bills. The scope of the "matters" in conference is the crux of the matter (pun intended). Germaneness becomes a key question. Conferees are supposed to attend to only the matters in the legislation that are in disagreement. Conferees are not supposed to insert new matters or drop matters in agreement. A parliamentary point of order may lie against the conference report if conferees overstep their authority by going too far beyond reconciling the differences. In the real world sausage making process, however, conferees have some latitude towards the end that the entire controversy may be successfully resolved to the satisfaction of both chambers.

Conferees confronted with an amendment (or a series of amendments) are under more procedural constraints than conferees handling a bill passed by the other chamber via a committee substitute. If the differences are in the form of conflicting amendments (rather than conflicting committee substitutes), the conferees may recommend that (i) one chamber recede from all or some of its amendments, (ii) the other chamber recede from its disagreement to all or some of the amendments and agree; or, (iii) the conference committee report a failure to agree either in all or in part.

In the end, if the conferees reach an agreement on the disputed subject, the conference committee reports to each house and the two houses vote on the text of the recommended agreement. If either house rejects the conference committee's recommendation, new members to the conference committee may be appointed to try again, otherwise, the bill is dead. Long live the conference process.

Peace - Happy MLK Day

2010-01-17T14:23:00.000-08:00

Happy New Year

2009-12-31T20:14:00.000-08:00

Kwanzaa

2009-12-28T06:59:00.000-08:00

Happy Kwanzaa

The Official Kwanzaa Website

Merry Christmas

2009-12-23T07:25:00.000-08:00

The Joys of "May"

2009-12-17T14:15:00.000-08:00

"May" is one of my favorite words. It is a modal verb, from German, that adds "texture" to sentences in artful ways. Short and sweet, "may" speaks to volition, permission, discretion, possibility, or necessity. It quantifies and qualifies statements, expresses intent, and indicates obligations and possible actions. It is a joy to find so much meaning in one little word. (Other modal verbs include: can, could, might, must, will, would, shall, should, ought to, dare, and need.)

Drafting Tip: Use "shall" to create a duty. Use "must" where appropriate to assert the existence of a duty. But, remember that "must" sounds bossy and may not maintain the proper tone in a statute or administrative rule. Use "may" to state permission, but be careful that the use is not ambiguous or subject to interpretation as a statement of possibility.

The Zen of Law Writing ~ “Must vs. Shall”

2009-12-03T14:13:00.000-08:00

If language is not correct,
Then what is said is not what is meant.

If what is said is not what is meant,
Then what ought to be done remains undone.

Confucius (551-479 BCE)
Philosopher, politician, teacher.

Law writers use the word "shall" to denote a duty imposed on a person or an entity.

Law writers use the word "must" to connote a prerequisite or condition precedent that requires meeting certain conditions, consisting of certain components, or possessing certain characteristics.

Law writers sometimes prefer "must" if the word is used in a sentence in which the subject is an inanimate object rather than a person or entity on which a duty can be imposed. ~ Example: "A grievance must be filed within 90 days of the adverse action."

At times, either "shall" or "must" is correct. So, a law writer will consider the context and desired point of emphasis. ~ Example 1: "Notice must be given in writing." versus Example 2: "A review shall be conducted within 45 days of the filing of a formal request for review." ~ Consider that Example 1 relates to a required characteristic of the notice, while Example 2 relates to a person with the duty to conduct the review.

Law writers can often avoid the entire issue by writing the "facts and nothing but the facts" when appropriate. Example: "The successful candidate qualifies for the position by scoring the highest on the test."

Next: The Joys of "May"

Legislation - Effective Dates

2009-11-30T13:09:00.000-08:00

Toward the end of each year, constituents, journalists, and others become (understandably) quite interested in what new laws are becoming effective when. In North Carolina, the Legislative Library tracks those dates and publishes a very useful list of the effective dates of major legislation: 2009 Legislation Effective Dates.

Unbeknownst to some, but as any law writer knows, a bill sponsor's selection of an effective date for a piece of legislation is a critical decision sometimes governed by rules of the chamber in which the bill will be filed, or by some other convention.

July 1 is a common effective date for North Carolina laws because the State follows a fiscal year beginning July 1 and ending June 30.

December 1 is the effective dates used for courts and criminal law bills in order to allow time for adequate notice to the public and formal training on the new laws for criminal justice personnel.

January 1 of the next year is usually required as the effective date for tax law changes, but it is otherwise a mainstay for obvious reasons.

{Yes, Law Writer does not hesitate to use words like "unbeknownst" and "mainstay" in instances other than the drafting of bills -- for obvious reasons.}

A "Blue" Turkey Day ~ Thanksgiving Blue Laws in the Puritan North

2009-11-23T13:57:00.000-08:00

"I wish the Bald Eagle had not been chosen as the representative of our country: he is a Bird of bad moral character: like those among Men who live by Sharping and Robbing, he is generally poor and very often lousy. The Turkey is a much more respectable Bird and withal a true original Native of North America." ~ Benjamin Franklin

In Massachusetts and Connecticut, on Thanksgiving Day (and again on Christmas Day, for that matter), many restaurants, bars, and convenience stores will only be open for special hours. But, by law, retail stores, supermarkets, and liquor stores will be closed due to Blue Laws.

Blue Laws were so named because they were published on blue paper. Written in the 1600s by mostly Puritan law makers, the aim was to preserve the morality of the colonits and later the state residents. Closing all of the stores and businesses and restricting alcohol sales was designed to assist in keeping the people in church or at home with their families on Sundays, and later on national holidays. Subsequently, blue laws were expanded to protect workers from being forced to work on Sundays and holidays.

HAVE A HAPPY &
LAWFUL THANKSGIVING!

James Davis, the House of Burgesses, and the North-Carolina Gazette

2009-11-21T15:41:00.000-08:00

In 1749, when the colonial Assembly of North Carolina decided to retain an official printer, James Davis (1721-1785), of Virginia, was the man and he then became the first printer in North Carolina. James Davis went on to print the province's money and to become the proprietor of the first newspaper in North Carolina. Davis published the North-Carolina Gazette over two separate periods. First, from 1751 until around 1760, until he began a new newspaper -- The North-Carolina Magazine; Or Universal Intelligencer in 1764. Publication continued until around 1768. By May 1768, Davis had "retooled" operations and reverted to the original title. The "new" North-Carolina Gazette continued in print until 1778.

{Above: Pound and shilling notes printed by James Davis in the collection of The University of North Carolina at Chapel Hill. Below: Gazette Masthead from LEARN NC webpage.}

Kudos: Scott Aaron Reavis wrote a truly masterful paper on James Davis, entitled James Davis: North Carolina's First Printer, in 2000 in partial fulfillment of the requirements for a Masters in Science in Library Science from The University of North Carolina at Chapel Hill. His paper includes an extensive annotated bibliography of all known printings of James Davis.

Printers' Ornaments

2009-11-19T16:21:00.000-08:00

"Printers' ornaments are decorative motifs used to fill in page space, signify the end of a chapter or the end of a book and generally add an aesthetic quality to the printed page. They have been around since moveable type printing commenced in the 15th century."

Definition from:

BibliOdyssey Blog

Books~~Illustrations~~Science~~History~~Visual Materia Obscura~~Eclectic Bookart

Above: Details of several printers' ornaments

as found in the following two volumes:

A collection of all the acts of Assembly, of the province of North-Carolina, in force and use since the revisal of the laws in the year 1751: together with the titles of all such laws as are obsolete, had their effect, expir'd or repeal'd: with an exact table: to which is prefixed a list of the names of those gentlemen who subscribed for the book. New Bern, N.C.: Printed by James Davis, M,DCC,LXIV [1764]

AND

A collection of all the acts of Assembly of the province of North-Carolina, now in force and use: together with the titles of all such laws as are obsolete, expired or repealed: in two volumes: with marginal notes and references and an exact table to the whole. New Bern, N.C.: Printed by James Davis, M,DCC,LXV [1765]

Source: University Library, The University of North Carolina at Chapel Hill: The Colonial and State Records of North Carolina Digital Collection. A project made possible by a Library Services and Technology Act grant distributed through the State Library of North Carolina. Recommended Link ~ Documenting the American South

For beautiful & interesting information about printers' ornaments see: BibliOdyssey Blog

GINA and the Saturday Effective Date

2009-11-18T12:42:00.000-08:00

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (H.R. 493), known as GINA. Public Law No. 110-233 (2008).

Basically, GINA prohibits health insurers (Title I) and employers (Title II) from discriminating against applicants, employees, and the insured based on genetic tests or genetic information.

One interesting thing about GINA is that Title II of the Act becomes effective 18 months after the date of enactment, which is Saturday, November 21, 2009.

Recommended GINA Links:

Text Of GINA as Passed by House and Senate

Summary of GINA Title I (Health Insurance)

Summary of GINA Title II (Employment)

EEOC Notice of Rule-Making

DHHS Guidance

NCSL State Genetic Legislation Database

NCSL Genetics and Health State Anti-Discrimination Laws

THE Manual ~ Mason's Manual of Legislative Procedure

2009-11-10T09:39:00.000-08:00

Mason's Manual is published by the National Conference of State Legislatures in cooperation with the American Society of Legislative Clerks and Secretaries.

At 707 pages, calling Mason's the "bible of legislative procedure" would not be inaccurate, or boastful. Mason's tome is THE Manual.

An effective law writer will understand the principles advanced in Mason's Manual, for that is the context and system under which one will work. Legislative bodies adopt their own rules of procedure. It is Law Writer's understanding that Mason's Manual has become the most widely used legislative procedure guide in the United States, currently in use by 77 of the 99 state legislative bodies in the United States. Thus, when the rules of procedure of a house need to be supplemented, Mason's becomes the guiding text.

Mason's Manual is edited by NCSL every few years to update relevant legal precedents. NCSL ~ Mason's Manual of Legislative Procedure

NOTE ~ Paul Mason's (1898-1985) roles in California state government included: Chief Assistant Secretary of the California Senate (1929-1932); Chief, Division of Driver's Licenses (1937-1953); Director of Motor Vehicles (1954-1958); and Legislative Secretary to Governor Goddwin Knight (1954-1958). * Before his death, Mason assigned the copyright of his manual to NCSL.

The two other leading manuals of legislative procedure include Thomas Jefferson's Manual of the Senate and Cushing's Legislative Assemblies.

PRIMARY RESOURCE ~ MANUAL OF PARLIAMENTARY PRACTICE: for the Use of the Senate of the United States. BY THOMAS JEFFERSON. SECOND EDITION. WITH THE LAST ADDITIONS OF THE AUTHOR. GEORGE TOWN: PUBLISHED BY JOSEPH MILLIGAN; AND BY WILLIAM COOPER, WASHINGTON. 1812. Edited with an Introduction by Wilbur Samuel Howell. (Published without copyright by Princeton University Press) Link to TEXT.

PRIMARY RESOURCE ~ Cushing's Manual of parliamentary practice for deliberative assemblies and rules of procedure in business corporation meetings. by Luther Stearns Cushing. Published in 1914, The John C. Winston Company (Philadelphia) ~ Link to Cushing's TEXT on Google Books.

Bill Drafting Bibliography -- The Classics

2009-11-06T17:40:00.000-08:00

As recommended by the master drafters of the Texas legislature:

Biskind, Elliott L. Simplify Legal Writing. 2nd ed. New York: Arco, 1975. Aimed at the general practitioner. Examines the style and ambiguities of certain examples and rewrites them in proper form. A large portion is devoted to suggestions for avoiding common errors in legal writing.

Dickerson, Reed. Legislative Drafting. Boston: Little, Brown and Company, 1954. The bible for legislative drafting. Primarily gives answers to everyday drafting problems. [Westport: Greenwood Press, 1977. Reprint of the 1954 edition.]

Filson, Lawrence E., and Sandra L. Strokoff. The Legislative Drafter’s Desk Reference. 2nd ed. Washington, D.C.: CQ Press, 2008. An overview of legislative drafting concerns and considerations with an emphasis on federal statute construction. Provides statutory examples, case studies, and court decision citations to illustrate drafting principles. Also examines the dynamics between legislative and judicial branches in interpreting legislation.

Garner, Bryan A. A Dictionary of Modern Legal Usage. 2nd ed. New York: Oxford UP, 2001. A general reference work that provides definitions of legal terms and guidance on specific points of usage.

Goldfarb, Ronald L., and James C. Raymond. Clear Understandings. New York: Random House, 1982. Demonstrates through anecdotes and examples problems common to legal writing and how to solve them. Does not address legislative drafting but is a readable and entertaining guide to improved legal expression in general.

Haggard, Thomas R. Legal Drafting in a Nutshell. St. Paul: West Publishing Co., 1996. Addresses many facets of the legal drafting process, including style and usage, construction of definitions, contract drafting, and legislative drafting.

Mehlman, Maxwell J., and Edward G. Grossman. Yale Legislative Services Handbook of Legislative Drafting. New Haven: Yale Legislative Services, 1977. Designed to provide instruction in the basic techniques of legislative drafting for nonprofessional drafters. Divided into two main sections—one section concerns word choice and sentence structure and the other concerns the parts of a bill.

Mellinkoff, David. The Language of the Law. Boston: Little, Brown and Company, 1963. Explores the history and usage of legal language. Well researched, understandable, and humorous. Not a guide for legal drafting but useful to improve writing and drafting skills.

Mellinkoff, David. Legal Writing: Sense and Nonsense. New York: Charles Scribner's Sons, 1982. Provides lively instruction in ways to make legal documents more precise and readable. Does not deal specifically with legislative drafting.

Sutherland, Jabez G. Statutes and Statutory Construction. 6th ed. edited by Norman J. Singer. St. Paul: West Group, 2000. Discussion of legislative powers, constitutional regulations relative to the forms of legislation and to legislative procedure, together with an exposition at length of the principles of statutory interpretation and construction.

The HAUNTED State Library of North Carolina?

2009-10-30T11:41:00.000-07:00

The State Library of North Carolina opened in 1812. Its Government and Heritage Library provides direct services to state government employees and to anyone with a research interest in the history, culture, geography, economy and people of North Carolina. The genealogy services are enjoyed by family researchers from all over the country and other parts of the world. The State Library serves as the repository of state government publications and is the coordinating agency of the State Data Center.

But, it it haunted???????? Haunted Carolina Website

The African-American Political Phoenix in North Carolina

2009-10-27T10:53:00.000-07:00

This, Mr. Chairman, is perhaps the negroes’ temporary

farewell to the American Congress,

but let me say, Phoenix-like he will rise up someday and come again.

George H. White (1852-1918) --

The only African American in the 55th Congress.

George Henry White was born in Rosindale, Bladen County, North Carolina, on December 18, 1852. His mother was a slave, his father a free farmer. White had one sister. He went on to marry three times, and have four children. With African, Native-American and Irish ancestors, White's life was one true to the ideal of the American melting pot.

Mr. White graduated from Howard University in 1877 and joined the North Carolina Bar in 1879. He began law practice in New Bern. His political career began in 1880 with his election to the North Carolina House of Representatives. He went to the State Senate in 1885. Mr. White championed legislation pertaining to education, particularly laws securing funding and authorization to open black schools and provide training for black teachers. White served as solicitor and prosecuting attorney in North Carolina's second judicial district from 1886-1894.

In 1896, Mr. White was elected to Congress from what was known as the "Black Second" district, a boot-shaped area in eastern North Carolina with a large black majority that stretched from the southern coastal region to the Virginia border (see illustration). The only African American in the 55th Congress (1897–1899), George White was part of a large Republican majority swept into office riding the coattails of presidential winner William McKinley. [The North Carolina History Project website provides an excellent overview of fusion politics in North Carolina: Fusion Politics/George White]

Upon election to the 56th Congress (1899–1901), Congressman White’s second term focused on anti-lynching legislation. He introduced a bill to make lynching a federal crime, subjecting those who participated in lynch mob violence with possible capital punishment. Some saw the measure as radical. The bill died in committee. Nearing the turn of the century, many parts of the American South began to pass Jim Crow legislation designed to disenfranchise black voters and eliminate black government officials. White became the primary target of white supremacist politicians who feared African-American political influence.

In 1898, white supremacists in the City of Wilmington in New Hanover County (then the largest city in the state) incited race riots and seized power from an integrated fusion city government [See: 1898 Wilmington Riot Timeline]. The rioting resulted in the numerous deaths and extensive property damage. The black owned Wilmington Journal newspaper was burned to the ground (see above).

Congressman White would return to Washington and vent his frustration with racists elements in government in his first substantive floor speech. On January 26, 1899, during a debate to extend the standing army after victory against Spain, White abruptly changed the subject to disfranchisement, arguing in favor of the bold proposal that states with discriminatory laws should have decreased representation in the U.S. House proportionate to the number of eligible voters they prevented from going to the polls. "If we are unworthy of suffrage, if it is necessary to maintain white supremacy," White chastised his colleagues, "then you ought to have the benefit only of those who are allowed to vote, and the poor men, whether they be black or white, who are disfranchised ought not go into representation of the district of the state."

Also in 1899, the North Carolina General Assembly followed the trend among neighboring states and enacted new registration laws to restrict black voters. On June 30, 1900, Congressman White announced his intention not to seek reelection to the 57th Congress (1901–1903). On January 29, 1901, Congressman White delivered his famous valedictory address to the 56th Congress, predicting the return of blacks to Congress. The speech, which spanned over four pages of the Congressional Record, championed respect and equality for African-Americans.

In 1901, Mr. White began a second successful career in Washington, DC, and then later in Philadelphia, PA, engaging in banking and practicing law. He organized a town for African Americans in southern New Jersey along with Paul Lawrence Dunbar and Booker T. Washington. The Town of Whitesboro was erected on 1,700 acres of land near Cape May. By 1906, its population had grown to over 800 inhabitants.

George H. White, Sr., died in Philadelphia on December 28, 1918. Twenty eight years would pass before the next black Representative was seated at the U.S. Capitol.

Personal Note -- Some of Law Writer's relatives departed from North Carolina following George Henry White by migrating from the Wilmington area to Whitesboro, New Jersey. Growing up decades later, Law Writer spent many a summer day in Cape May, Wildwood and the surrounding quaint towns visiting with relatives who continue to live in and near Whitesboro. Law Writer can attest personally to the natural beauty of coastal southern New Jersey and the Cape May area (maps shown at left), the many similarities to North Carolina's Cape Fear Coast, and the independence and strong sense of heritage embraced by the people of both scenic and historically significant areas.

JAMES EDWARD O'HARA -- In 1868, James Edward O'Hara became the first African American to be admitted to the North Carolina Bar. In 1882, Mr. O'Hara was elected to represent the Second Congressional District. He served two terms.

Sources:

Black Americans in Congress, by the Office of the Clerk, U.S. House of Representative. Black Americans In Congress

Irving Joyner, The African American Lawyer in North Carolina, The North Carolina State Bar Quarterly, Spring 1992.

The Legislative Process: Second & Third Reading

2009-10-26T15:32:00.000-07:00

NC House of Representatives Chamber

Once a bill passes third reading in the chamber in which it was introduced, the bill is sent to the other house, where it goes through the same process as in the first house. Thus, the bill will be referred to committee, and if approved, debated and voted on at the second and third readings on the floor. If the second house makes changes to the bill, the bill must return to the house of origin with a request that that body concur in the changes made by the second house. The bill is ready to be enrolled and signed into law if the original house concurs in the changes made by the second house. If the original house objects to the amendments adopted in the second house, the two presiding officers may appoint members to a conference committee which seeks to reconcile the differences between the two chambers. If the conference committee reaches an agreement on the disputed subject, the committee reports to each house and the two houses vote on the recommended text. If either house rejects the conference committee's recommendation, new members to the conference committee may be appointed to try again, otherwise the bill is defeated.

The Legislative Process: Enrollment, Ratification, and Publication

NC Senate Chamber

A bill is enrolled after is passes both houses. In North Carolina, a clean, engrossed copy is prepared, including all amendments, with space for the signatures of the two presiding officers, and the governor, if necessary. (The enrolled copy is taken to each presiding officer during the daily session.) Each officer signs the enrolled copyand when the second signature is affixed, the bill is said to have been ratified. If the bill is a local law, it becomes law at that point. All public bills other than bills making appointments, proposing constitutional amendments, or revising districts are presented to the Governor on the day following ratification for the Governor's approval or veto. If the Governor signs the bill or takes no action on the bill within ten days after presentation, the bill becomes law. After adjournment of the General Assembly, the Governor has 30 days to act on a bill. The Governor is required to reconvene the General Assembly if a bill is vetoed after adjournment, unless a written request is received and signed by a majority of the Members of both houses that it is not necessary to reconvene. If the Governor vetoes a bill, the bill is returned to the original house where 3/5 of present and voting members can vote to override the veto. If the original house votes to override the veto, the bill is sent to the second house where 3/5 of present and voting members must also vote to override the veto before the bill can become law. After it becomes law, the term "bill" is no longer used. The enrolled act or law is given a chapter number and is published under that number in a volume called "Session Laws of North Carolina."

Improving the English Language

2009-10-19T10:50:00.000-07:00

Samuel Johnson and Noah Webster were about the science of the English language, but Mark Twain was all about the art and comedy of English.

Enjoy below -- and visit the Mark Twain Project.

Mark Twain

"A Plan for the Improvement of English Spelling"

For example, in Year 1 that useless letter "c" would be dropped to be replased either by "k" or "s", and likewise "x" would no longer be part of the alphabet.

The only kase in which "c" would be retained would be the "ch" formation, which will be dealt with later.

Year 2 might reform "w" spelling, so that "which" and "one" would take the same konsonant, wile Year 3 might well abolish "y" replasing it with "i" and iear 4 might fiks the "g/j" anomali wonse and for all.

Jenerally, then, the improvement would kontinue iear bai iear with iear 5 doing awai with useless double konsonants, and iears 6-12 or so modifaiing vowlz and the rimeining voist and unvoist konsonants.

Bai iear 15 or sou, it wud fainali bi posibl tu meik ius ov thi ridandant letez "c", "y" and "x" -- bai now jast a memori in the maindz ov ould doderez -- tu riplais "ch", "sh", and "th" rispektivli.

Fainali, xen, aafte sam 20 iers ov orxogrefkl riform, wi wud hev a lojikl, kohirnt speling in ius xrewawt xe Ingliy-spiking werld.

[Law Writer must note that the "Plan" above has also been attributed to M.J. Yilz, in a letter written to the The Economist.]

NC Legislative Architecture

2009-10-14T13:48:00.000-07:00

The North Carolina State Legislative Building opened in 1963. The building was designed by Edward Durrell Stone (1902-1978) in the modern style. It is located one block north of the Capitol in Raleigh. The building has a 22-foot wide, red-carpeted stair that leads from the front entrance to the third floor galleries for the House and Senate. There are roof gardens as well as garden courts at the four interior corners. Each pair of brass doors leading to the House and Senate chambers weighs 1,700 pounds. A 12-foot diameter brass chandelier in the rotunda weighs 750 pounds. Brass chandeliers in the chambers and the main stair are eight feet in diameter and weigh 625 pounds each. The building is open to the public daily and tours are available.

Architect Edward Durell Stone with his son, landscape architect Edward Durell Stone Jr., photographed during the 1960s. (Photo by Benjamin Hicks Stone.)

Mr. Stone also designed the Kennedy Center in Washington, D.C. He was appointed to the Presidential Commission of Fine Arts by Richard M. Nixon in 1971, reappointed by President Gerald R. Ford in 1976, and again in 1980 by President Jimmy Carter. Of Interest: Link to other structures designed by Edward Durrell Stone and his firm.

The Legislative Process -- First Reading

2009-10-09T11:50:00.000-07:00

The legislative process is the process of government by which bills are considered and laws are enacted. With the exception of Nebraska's unicameral legislature, the other 49 states each have a legislature consisting of two chambers (bicameral), making the enactment of laws predicated upon the agreement of both chambers of the legislature. North Carolina has a House of Representatives and a Senate that combine as the General Assembly. The nomenclature may differ among the states, yet the functions of the legislative process remain the same.

A sponsor's idea is transformed into a bill draft by a law writer. When satisfactory to the sponsor, the bill is introduced or read the first time. "First reading" happens when the bill number, the name of the sponsor, and the long title of the bill are read on the floor of the house during session ("house" in this context denotes either chamber).

The legislative process is governed by rules. Each chamber adopts by resolution the detailed requirements for filing and acting upon bills, including the scope and bounds of each legislative committee to which bills may be referred for hearing.

Generally, a bill is assigned to a substantive, policy committee based upon the subject matter of the bill. A bill requiring the expenditure of funds is referred to an appropriations committee. A bill that raises revenue through the imposition of taxes or fees is referred to a finance committee. (Some jurisdictions call these "fiscal" committees.)

A hearing on a bill includes presentation of the bill by the sponsor or a member of the committee, an analysis by legislative staff, and testimony or comments concerning the measure from interested parties. Legislative committee meetings are public meetings for which proper advance notice must be given. The meetings are often well attended when there are bills of general interest or some controversy.

The committee then votes to pass or amend the bill, or to defeat the bill by giving it an unfavorable report. (A bill may die in committee through inaction if the rules allow.) Some bills are re-referred for consideration by another committee. Some bills leave the committee and go directly to the floor for consideration by the body during session.

Next: Second and Third Reading

Supreme Court of the United States of America

2009-10-05T15:06:00.000-07:00

JUSTICES

John G. Roberts, Jr.

Nominated by President Bush

Seated as Chief Justice

December 29, 2005

John Paul Stevens

Nominated by President Ford

Seated December 19, 1975

Antonin Scalia

Nominated by President Reagan

Seated September 26, 1986

Anthony M. Kennedy
Nominated by President Reagan
Seated February 18, 1988

Clarence Thomas

Nominated by President Bush

Seated Octber 23, 1991

Ruth Bader Ginsburg

Nominated by President Clinton

Seated August 10, 1993

Stephen G. Breyer

Nominated by President Clinton

Seated August 3, 1994

Samuel G. Alito, Jr.

Nominated by President Bush

Seated January 31, 2006

Sonia Maria Sotomayor

Nominated by President Obama

Seated August 6, 2009

Ideas Become Law

2009-10-03T18:46:00.000-07:00

The legislator's idea is part one. The spark for the idea may derive from the member's personal experience, a request from the executive branch or a local government agency, the advocacy of a public interest group, the information provided by a lobbyist, or an e-mail or telephone call from a constituent. The spark might come from a matter in the news or from a member's conversation with a legislator from another jurisdiction.

Next, the member will take the idea to the legislative staff for assistance in turning the idea into a law. The legislator's communication of the "legislative idea" to the bill drafter is the beginning of the legislative drafting process.

All communications between drafter and sponsor are confidential and privileged. The law writer is charged to understand fully the member's aim and the subject matter involved. This is Law Writer's favorite part of the process.

The legislator is entrusted under the constitution with making law. That trust is placed by thousands of voters. It is a privilege for a law writer to take on the responsibility of assisting the sponsor to craft the best law to effectuate the member's solemn intent. No brag. Just fact. Law writing is a very unique vocation.

A bill is more than the sum of its parts. For the record, the basic elements of a bill include:

Bill Number - Each bill will have a number that also includes an identifier of the chamber from which it comes. Of course, if one is in Nebraska, there is only one chamber in its unicameral legislature. The rest of the states are bicameral.

Sponsor(s) - Their names appear on the bill in North Carolina and most other jurisdictions.

Long Title - Depending on the jurisdiction, the long title gives pertinent detail in brief about what the bill does.

Short Title - More like a "nickname" or very brief way to reference the legislation.

Enacting Clause - Very special lead in language at the beginning of a bill that puts the people on notice that "The General Assembly enacts . . ." or some similar phrase. Generally required by the state constitution to make an bill into law in order to declare the source from which the law claims to derive its authority. To put it another way, a bill cannot be enacted unless it contains an enacting clause.

Sections - A bill may add new law, amend existing law, or repeal existing law. Each of these functions will appear in one or more sections of a bill. Each section of a bill bears a numbered or lettered designation and each section must be uniquely designated. Each legislature has its own rules as to how sections are designated. A law writer must follow those rules.

Applicability - A section that defines who or what the law applies to. Sometimes, an applicability clauses resolves constitutional issues or merely prevents undue confusion.

Effective Date - Every bill must have an effective date section. That section itself should take effect on the earliest effective date in the act. Common sense. But when bills get lengthy and are amended numerous times with new and revised sections, it is possible to err in this regard. A law writer must pay attention to such things.

Celebrate National Punctuation Day

2009-09-24T08:33:00.000-07:00

Jeff Rubin is the founder of National Punctuation Day. Quoting from the official NPD website, he says: “Casual shortcuts bred by e-mailing and text messaging have no place in school papers or professional business writing. In the business world, words have power and help decision-makers form impressions immediately. Careless punctuation mistakes cost time, money, and productivity." Well said. But, Law Writer simply will not post the entry requirements of the National Punctuation Day Baking Contest . . . oh well, why be so stuffy?

"RULES FOR THE PUNCTUATION BAKING CONTEST:

- Entrants must send a recipe and a sample of their cookie, cake, pastry, doughnut, or bread baked in the shape of a punctuation mark to National Punctuation Day, 1517 Buckeye Court, Pinole, CA 94564.

- Entrants must send two photos — one putting the item in an oven before baking and the other taking it out when it’s done. Make sure we can see the baked goods clearly.

- First-, second-, and third-place winners will receive a box of NPD goodies, and all entrants’ photos will be published on the National Punctuation Day website (www.NationalPunctuationDay.com).

- All entries must be received by September 30, 2009."

Links of note on this day:

National Punctuation Day Website

The Semi-Colon Is Not A Body Part -- New Haven Register

The Blog of Unnecessary Quotation Marks

Back to Basics: The Legislative Product

2009-09-22T14:09:00.000-07:00

A bill must have a title, an enacting clause, and a body of provisions to be enacted. To draft bills, drafters rely on drafting manuals.

A state legislature's drafting manual can take the form of a bound handbook, a loose leaf notebook, or a CD-Rom. Some drafting manuals are even available on line. Some are enacted as resolutions. Some are internal staff documents. Law Writer edits one drafting manual and collects others.

No matter the form, a legislative drafting manual is generally much more than a checklist on how to write a bill. The drafting manual serves as a detailed guide to the correct form for bills and resolutions. The manual provides information on style and gives "voice" to the laws of a particular jurisdiction. Though legislative drafting manuals are not generally concerned with the particular substance of bills, manuals usually provide information about constitutional issues and limitations. Confidentiality requirements are often discussed as well.

First published in 1955, the Bill Drafting Manual for the Kentucky General Assembly is one of my favorites. Section 101 (Introduction) of the 1996 Edition says: ". . . The quality of the legislative product depends not only upon the substance of laws, but upon their form and style. Inaccurate or careless drafting may produce bad laws, or even invalidate a measure entirely. It is essential to legislators, administrators, courts, and the public that bills and resolutions be written in a clear, correct, and unambiguous style."

Legislative Documents & Their Functions:

Bill: The exclusive means by which a legislature enacts, amend, or repeals a statute.

Resolution: The document used to address internal legislative matters. A resolution that must be passed by both chambers is a joint or concurrent resolution. A resolution that need be passed by only one chamber is a simple resolution.

Floor amendment: An amendment to a bill or resolution offered by a legislator during floor debate.

Committee substitute: A committee substitute for a bill or resolution is a "draft de novo" adopted by a committee for consideration by the chamber in place of the original bill or resolution.

Conference committee report: The conference committee is appointed when the chambers do not agree and matters in disagreement must be settled. A conference committee report is a complete draft of a bill that usually represents a compromise. (If the originating house agrees with changes to a bill made by the other chamber, there is no need for a conference report.)

Noah Webster & His Dictionary - An Exhibit

2009-09-22T10:25:00.000-07:00

An Exhibit Commemorating the 250th Anniversary

of Noah Webster’s Birth October 16, 1758

Amherst College Library,

Archives and Special Collections Department

September 4, 2008 through January 4, 2009

Interesting information and photographs are still posted online.

Bust of Noah Webster

by Chauncey Bradley Ives

American (1812-1894)

Bronze 26 ½ in; 67.31 cm

Gift of Theodore Bailey, Jr. in memory of

Richmond Mayo-Smith

(Class of 1909)

Loaned, courtesy of the Amherst College

Mead Art Museum

Link to more information about the Webster Exhibit

https://www.amherst.edu/library/archives/exhibitions/webster

An American Dictionary of the English Language… By Noah Webster.

Revised and enlarged by Chauncey A. Goodrich. Springfield, Mass.:

Published by George and Charles Merriam, 1854.

The National Conference of State Legislatures = The Forum For America's Ideas

2009-09-21T12:48:00.000-07:00

Recently Released & Recommended:

NCSL The State of Staff Survey

The single most influential nonpartisan organization that serves state legislators and staffers in the constant improvement of the legislative process is the National Conference of State Legislatures based in Denver, CO. No brag, just fact.

NCSL personnel management gurus Karl Kurtz and Brian Weberg have completed a survey indicating trends in the staffing patterns of legislatures in all 50 states. NCSL did its first count of staff in 1979. Now well into the 2000s, it appears that the number of legislative staff has leveled off after considerable growth in the 1970s and 1980s. The NCSL survey counted the number of staff employees serving currently, and then reviewed how that number has changed over the past 30 years.

Among the key findings:

• Women are well-represented among all staff, except in managerial ranks.

• Staff jobs are dominated by whites, with minorities under-represented.

• A large majority of legislative staff view their work as a long-term career.

• Main concern among staff managers is the impending retirement of long-term staffers.

The link above leads to more information well worth reading. Other interesting findings relate to:

• Differences Among States

• The Partisan Percentage

• Staffing as a Career

• Staff Concerns

• Future Uncertainties

A Birthday and Constitution Day Tribute to Samuel Johnson

2009-09-18T11:30:00.000-07:00

You may have gathered that the Law Writer values history and context as part of the craft. And, will take any opportunity to add historical notes to the process of drafting law. Yesterday was Constitution Day, so the Law Writer will use that excuse, and the gentleman's 300th birthday, to pay homage to Samuel Johnson, the English author, critic, and lexicographer (1709 - 1784).

Dr. Johnson took nine years to produce his Dictionary of the English Language published in 1755 -- the most commonly used text of its kind for 150 years until the publication of the Oxford English Dictionary in 1928. Dr. Johnson's work had a major impact on Modern English and is widely considered one of the greatest single achievements of scholarship. Particularly important to the Law Writer is the fact that Dr. Johnson's esteemed work influenced the framers of the U. S. Constitution as his was the dictionary of the Revolutionary Era.

The Law Writer must confess that complete appreciation for Dr. Johnson's significance was somewhat lacking when the Law Writer was required to read James Boswell's Life of Samuel Johnson during undergraduate studies at UNC-Chapel Hill. Now, many years later and after acquiring more seasoned biographical reading tastes, the Law Writer has placed Boswell's masterpiece on the short range reading list.

Happy 300th Birthday to Dr. Samuel Johnson &

A Belated Happy 222nd Birthday to the Constitution

of the United States of America.

"Knowledge is of two kinds. We know a subject ourselves, or we know where we can find information on it". Samuel Johnson.

Recommended Reading: NYT Op-Ed on "Dr. Johnson's Revolution" by Jack Lynch, the editor of Samuel Johnson's Dictionary: Selections from the 1755 Work That Defined the English Language.

[Note: Another important dictionary in American history -- Noah Webster's 1828 American Dictionary of the English Language.]

New York Law Bans Use of ‘Oriental’ in State Documents

2009-09-15T07:27:00.000-07:00

On September 8, 2009, New York Governor David A. Paterson signed legislation to ban the use of the term “Oriental” in reference to persons of Asian or Pacific Islander descent on all “forms or preprinted documents used by state government, public authorities or municipalities.” The redactions are required by no later than Jan. 1.

Governor Paterson said in a statement: "The words we use matter. We in government recognize that what we print in official documents or forms sets an example of what is acceptable. With this legislation, we take action against derogatory speech and set a new standard. The word ‘oriental’ does not describe ethnic origin, background or even race; in fact, it has deep and demeaning historical roots. I am pleased to sign this legislation and remove the phrase from preprinted forms and documents."

The Magic of Law Writing

2009-09-10T09:09:00.000-07:00

The Law Writer takes raw materials (consisting of the ideas of others), then applies law writing skills to materialize that idea into law. Sometimes, the process is almost magical.

The first audience for a piece of law writing is the bill sponsor. If the Law Writer's draft bill is satisfactory to the sponsoring lawmaker, the next audience is the legislature. If the legislature approves the bill, and the governor does not veto it (if applicable), then the bill becomes law.

The audience for the enacted law includes the people (the most important audience), the executive branch (which must execute the law) and the judicial branch (which must interpret the law, if necessary.)

Thus, the Law Writer's constant aim is to write statutes so that the words and directives in the law have plain and straightforward meanings, giving the law clarity and effect.

The Law Writer is always aware that statutory interpretation begins with the text. As explained by Justice Corrigan of the Michigan Supreme Court: ". . . when the words of a statute are unambiguous, the task [of interpretation] should end there -- if the legislature has clearly spoken, nothing is left to construe."
{Quote with emphasis included from: Maura D. Corrigan & J. Michael Thomas, "Dice Loading" Rules of Statutory Interpretation, NYU Annual Survey of American Law 2003, Vol. 59:231, 233.}

NOTE:
Chapter 120 of the North Carolina General Statutes defines the requirements surrounding coded bill drafting, which is the official formatting scheme of underlinings and strike-throughs used in the NCGA electronic bill drafting/information system to create, repeal, or modify laws in North Carolina. Chapter 12 of the General Statutes covers statutory construction, working in combination with common law and case law.

The "Supreme Expression"

2009-09-04T12:24:00.000-07:00

Law. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other . . . Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. . . That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. . .Law is a solemn expression of the will of the supreme power of the State. (From Black's Law Dictionary, Sixth Edition, 1996)

Statute, n. A law passed by the legislature of a state; an enactment; a fundamental or permanent rule of law. (From Webster's Popular Illustrated Dictionary, 1937)

bill, 6 : a draft of a law presented to a legislature for enactment; also : the law itself . . .(From Merriam Webster's Collegiate Dictionary, Tenth Edition, 1996)

The law is what it is. And, legislative drafting is serious business. The legislative drafter needs a firm foundation in Constitutional Law, should be well versed in all aspects of the Separation of Powers doctrine, and must never think that he or she knows everything. Fortunately, I have learned from some of the very best including:

John V. Orth, William Rand Kenan Jr. Professor of Law at UNC Law School. Professor Orth taught eloquently from Lawrence M. Friedman's classic History of American Law and from his own scholarly articles. I recommend two of Professor Orth's books -- Due Process of Law: A Brief History (University of Kansas Press, 2003) and The Judicial Power of the United States: The Eleventh Amendment in American History. (Oxford University Press, 1991).
Daniel Pollitt, now an emeritus professor of law at UNC Law. After World War II, Professor Pollitt was an associate of Joseph Rauh. He was the kind of teacher who frequently left the classroom to practice real law in real time by defending capital cases, representing poor people, and taking on free speech and civil liberties cases. While I was in law school, he would spend the summers as a special counsel to the U.S. House of Representatives Committee on Education and Labor.
Gerry F. Cohen, a Morehead Fellow while at UNC Law School, and currently the Director of the Legislative Drafting Division of the NCGA Legislative Services Office. That would be my boss. North Carolina has a non-partisan central professional staff that serves both the State Senate and the House of Representatives, and the majority and minority parties. Gerry is known in NC legal and political circles as "Constitutional Cohen" -- really.
Mother Wit. A master teacher.

The Basics of Writing Statutes Continued

2009-09-02T08:42:00.000-07:00

A few trustworthy dictionaries and a killer legal thesaurus are just as important as the right style and grammar resources from the individual legislative drafters' point of view, but far more important to the lawyers, judges, police officers, felons, law abiding citizens, etc., who will rely upon, or be affected by, the law every day of their lives and even into the grave. [More about long, silly sentences later.]

All that being said, I have these dictionaries in my office:

Black's Law Dictionary, 6th Edition (1990) -- Speaks for itself.
Merriam Webster's Collegiate Dictionary, 10th Edition (1996) -- Newest not required.
Websters Popular Illustrated Dictionary (1937) -- Old defintions can come in handy. I like the pictures, too.

My thesaureses of choice are:

Burton's Legal Thesaurus, 3rd Edition (1999) -- Simply fabulous.
Roget's II The New Thesaurus (1980) -- Same old, same old, but the old reliable.

Time is money, so I need not tell you why these books are helpful since you already know that. I will have a lot more to say about them, however, when I opine later about statutory construction.

The Basics of Writing Statutes

2009-08-31T15:01:00.001-07:00

The beginning Law Writer requires the proper tools at all times, but must have already mastered English grammar. Impeccable grammar is required to adhere to the rules of the language and to understand when and how to break those rules well.

Strunk & White, The Elements of Style, Any Edition, is a MUST. You shall get a copy and read it thoroughly if you want to write "good" law. No ad, just fact. [More on must vs shall later.]

I use the 3rd Edition, myself. Cost $7.95 in 1979. That fact, however, has nothing to do with my age. The "new rules" featured in that edition covered the use of the colon, the use of the dash, agreement of subjects and verbs, and correct pronoun case. Riveting, my dear reader, simply riveting. More tomorrow on the grammatical and style foundations for legislative drafting.

By the way, this is my play time, so do not expect perfect grammar in this blog.