NEWS STORY
Judge Blasts Legislature For Poor Legal Drafting
By J.P. Finet
Frustrated with what he considers yet another ambiguously worded statute, 1st District Court of Appeals Judge Mark P. Painter lashed out at the General Assembly for the poor writing he says is endemic to the Ohio Revised Code.
"I write separately to illustrate that all too often the legislature leaves us with an almost impossible task of attempting to read the bones it scatters," Painter wrote in a concurring opinion to a recent decision. "Neither the courts, nor the parties, nor the public should have to guess at the meaning of legislation. We should not have to resort to arcane rules of statutory construction, which, after all, only come into play when the law is ambiguous.
"Why must the legislature write ambiguous laws?" he continued. "The phrase in question here is only twenty-one words -- a model of brevity, especially when contrasted with [longer passages quoted elsewhere in the opinion]. Surely, the legislature could have written it so the meaning is plain. It is not difficult. But it is their job."
Painter's comments came in his concurring opinion in State v. Bowen, Lawyers Weekly No. 101-156-00, which was decided last week. While the case itself was wholly unremarkable and centered upon issues relating to the termination of commitment of a court-ordered hospitalization for mental-health issues, Painter's concurring opinion was notable for the clear and concise manner in which it criticized the authors of the code.
The section of the code at issue was a passage from R.C. 2954.401 which reads "[t]he prosecutor may introduce the evaluation report or present other evidence at the hearing in accordance with the Rules of Evidence." The majority determined and Painter agreed that the passage meant the evaluation report is to be considered separately from all other evidence. In making their decision they used the method of statutory interpretation known as the last antecedent doctrine.
"From reading the sentence ... I am not sure what the legislature meant," Painter wrote. "A comma between 'report' and 'or' would have made clear that the legislature meant what the majority gleans. A comma between 'hearing' and 'in' would have made plain the opposite meaning. Unfortunately, the legislature did not see fit to supply punctuation. The sentence is an example of the poor writing endemic in what the legislature has the gall to call the Revised Code."
To better make his point about how poorly drafted the code is, Painter cited, in its entirety, what he described as a random passage which he chose from the code. The section he quoted -- but which he did not choose to cite -- rambled on for several hundred words and contained a number of clauses connected by the word "or."
"I count fifteen times that the word 'or' is used in one sentence," he wrote. "Perhaps it is a world record, but if it is not, it is probably only eclipsed by another section of the legislature's handiwork. I have not the inclination, or the patience, to look. Applying the last antecedent doctrine to the above 239-word sentence would wreak havoc. ...
"Considering the above passage," he continued, "I hesitate to ascribe to the legislature any knowledge of grammar or clear writing, much less knowledge of the last antecedent doctrine. But if the majority is saying that we should apply rules of correct writing to the legislature's output, I fear what the rules might do to the next passage we are called upon to interpret."
Painter went on to point out that, while the majority used the last antecedent doctrine in interpreting the statute, neither of the parties had mentioned the doctrine in their briefs. He added that both sides assumed the passage had a different meaning than that to which the court ultimately ascribed to it.
"Well-educated, highly trained, and very experienced appellate lawyers have read the passage and interpreted it differently," he wrote. "And one side had an incentive to read it the majority's way -- even the lawyers who win when it is read that way have not asked us to read it so."
Crusade For Clarity
When asked to elaborate on his recent written concurrence, Painter said his decision is part of a plain-language crusade. He said his goal is to improve all legal writing, not just the Ohio code.
Painter said he recently taught several seminars at various locations across the state and is scheduled to teach more later this year.
"There are only two things wrong with legal writing: the form and the content," Painter explained. "Some of the biggest offenders out there are the judges. Law students read their opinions and get it into their minds that this is the way to write. They try to make it sound 'lawyerly.'"
However, he refers to the code as "one of the worst offenders right now." Painter went on to say that even lawyers have a difficult time deciphering the code, let alone the general public.
When asked if he believed recent legislatures had made the code more difficult to understand, Painter responded, "I don't know if its gotten worse, it's just always been bad."
Painter went on to call the code repetitious and ungrammatical.
According to Painter, the goal of all legal writing should be that the general public be able to understand it. He said the issues may sometimes be complex but anyone picking up the decision should at least be able to determine who won and who lost.
Time And Outside Factors
While admitting that the passages Painter cites in his recent opinion are difficult to understand, Ohio State Bar Association Legislative Liaison William Weisenberg pointed out that, under the separation of powers doctrine, it is the job of the courts to interpret what the Legislature has written. If the courts misinterpret the code, he said, the Legislature can go back and change the language.
"All too often, the Legislature enacts statutes, a judge makes a ruling on the statute and then the Legislature goes back and changes it saying, 'that's not what we meant,'" he added.
Weisenberg said everyone would like to see a better-written code, but that the drafters, while conscientious, are often pressed for time and operating under the direction of nonlawyers.
"We try to be as clear as we can be under the circumstances of drafting things in a hurry and with getting input from a lot of different sources," said Bob Shapiro, director of the Legislative Services Commission. "There are a lot of outside influences over what we draft and the way the drafting comes out."
OMVI Complaints
Painter's complaints about the drafting of the Revised Code are not the first to emerge from the 1st District. In another recent decision, Judge Robert Gorman said frequent changes in the felony OMVI statutes have created a punishment scheme which he described as "Byzantine" in complexity.
Mark Gardner, a DUI practitioner in Cleveland, said the changes to the DUI law were ill-conceived and half-baked -- often attempts to quickly remedy problematic provisions from the last slew of legislative amendments.
"There are too many changes, and they are doing all this at the same time the Misdemeanor and Traffic Sentencing Commission is getting ready to present their findings to the Legislature," Gardner said. Since the Legislature is not waiting for recommendations "as they incrementally mess with the law," Gardner posited, "the laws may conflict with what they're going to pass six months down the road."
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August 7, 2000