ULC

Statute and Rule Construction Act Summary

The meaning of statutes and administrative rules is critical at three stages: drafting, implementation (including enforcement), and interpretation by the courts. The proper goal of the drafter is to provide language that may clearly and unambiguously be implemented. The fact that there is an extensive and fairly incoherent body of common law addressing interpretation of statutes and rules suggests that the goal is not always achieved. Is there something that can be done in statute that aids the drafter and eases the burden on the courts, recognizing that no new law will eliminate all ambiguity, unintended consequences, obsolescence, and uncertainty from the statutes and rules?

The Uniform Statute and Rule Construction Act (USRCA) is an effort to connect and bridge the two activities, drafting and interpretation. It tries to lighten the drafter's load and to simplify the interpretive burden of the courts. It was initially adopted by the Uniform Law Commissioners in 1993 and amended in 1995 to further clarify some of the issues.

Helping the Drafter

USRCA standardizes common definitions that automatically apply to every statute or rule adopted in a jurisdiction. This means that the drafter does not have to redefine standard words unless he or she wants a different, specialized meaning to apply. If a standardized word is therefore redefined, its redefinition is highlighted and clarified by the existence of the standard definition.

The standardized definitions are provided for words that are used again and again in statutes and rules. So a standard definition is provided for words like "person," "personal property," "population," and "State." These definitions just make the drafter's job a little easier and help to unify statutes and rules in any adopting jurisdiction.

There are basic rules of construction in USRCA that also are meant primarily to help the drafter, although they constitute some basic rules for interpretation, as well. These are structural rules that answer basic questions about the construction of a statute or rule. They are not rules that determine the interpretation of the substance of a statute, except insofar as they eliminate structural questions that might make substantive questions more difficult to answer or resolve.

For example, Section 2 states that the meaning of a word that is not specifically defined in a statute or rule is "determined by its context, the rules of grammar, and common usage." This rule helps the drafter to decide when to define a term in the statute or rule and gives the courts the sources of meaning for words that are not specifically defined.

USRCA indicates the meaning for "shall, must and may." These are the most important words in statute and rule drafting. They convey whether mandate, prohibition or permission is intended. USRCA designates "shall" and "must" as words of "duty, obligation, requirement or condition precedent." It designates "may" as conferring "power, authority, privilege, or right." Thus, the drafter can know when to use the particular word and the court has a basic direction for interpreting any statute or rule using these words.

Rules of Interpretation

USRCA cannot prevent drafters from writing legislation and rules that are ambiguous and unclear. It cannot guarantee competence by rule of law. There will always, therefore, be a need for rules of interpretation that the courts apply. The courts themselves have produced rules of interpretation that are varied and frequently inconsistent. In addition, there are a variety of theories of interpretation that have been advocated in the courts and the academic journals. There is no consensus on the rules to apply or the theories of interpretation that ought to govern in American jurisprudence today. The outlook for any consensus is bleak.

USRCA does not try to provide a comprehensive set of rules of interpretation, nor does it advocate any particular theory of interpretation. What it does try to do is provide a basic, fundamental scheme for interpretation that will guide courts to better interpretation but not affect any court's exercise of its own interpretative policies.

Section 18 initiates the scheme. It simply states that any statute or rule should be construed, if possible, to "give effect to its objective and purpose, to give effect to its entire text, and to avoid an unconstitutional, absurd, or unachievable result." Section 19 provides that "The text of a statute or rule is the primary, essential source of its meaning." This is not a reiteration of the "plain meaning" rule, but simply directs a court where to start when looking for meaning.

Other rules aid in these endeavors. For example, USRCA provides that, if nothing is provided in the statute about retroactive effect, a statute is only prospective in effect. Statutes that appear to be irreconcilable should be construed, if possible, to give effect to each. These rules complement the general scheme and are so fundamental and practical that they can govern interpretation without affecting a particular court's substantive policies on interpretation.

There are extrinsic aids to construction that are immediately available to a court under USRCA. The court may look at settled judicial construction in another jurisdiction for a statute or rule borrowed from that jurisdiction. It may use an official commentary published and available before the enactment or adoption of the statute or rule. These are examples of extrinsic aids to interpretation that a court may, but need not, use.

Legislative history as an aid to interpretation becomes available to a court, after looking at the text of a statute or administrative rule to find its meaning there, and considering the range of principles enunciated in USRCA, when the meaning of the text of a statue or rule or its application "is uncertain." The court has the ability to look at materials relating to the development of the statute or rule, including the record of the proceedings of the legislature or agency.

At the same time none of these aids is directory or mandatory, so that a court is not restricted by them or forced to use them all if it does not fit the court's perception of proper interpretative policy.

Conclusion

The help for the drafter and the rules of interpretation come together in the USRCA. Bringing them together should mean better drafting and interpretation, a boost for each end of the statute or rule spectrum. This is a very useful Act to state government and should be considered and adopted in every jurisdiction.