Lawmakers ignore grammar and punctuation at their own peril

April 9, 2021 8:30 am

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Because grammar and punctuation affect meaning — as two court cases recently reaffirmed — unintended and long-term ramifications can result if lawmakers neglect to scrutinize every word and comma. 

So while lawmakers may relegate grammar nerds and punctuation hawks to the bleachers when it comes to legal drafting, they may want to rethink doing so, especially now that they’ve returned from their Easter/Passover break and are slogging to the end of May. Because as the two court cases revealed, lawmakers who emphasize grammar and punctuation when debating and passing law can benefit Minnesotans and avoid unintended public policy consequences.

Punctuation can be critical to interpreting law, as the two court cases highlighted something as mundane as comma placement. In Minnesota, for example, a comma helped the Minnesota Supreme Court rule that the legislative definition of “mentally incapacitated” does not include a person who is voluntarily intoxicated by alcohol. The definition seems straightforward:

“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.

Lawmakers and others may think that the definition applies common sense. But a closer reading reveals that the definition in fact does not reflect what lawmakers might have intended — what is known as legislative intent. And when lawmakers carelessly craft their words, their legislative intent is obscured, with courts forced to follow what the law says, not what it intends, sometimes to tragic and far-reaching effect.

Here, lawmakers would have benefited from a seasoned legal drafter who could quickly show how the definition may not accurately reflect legislative intent. For instance, the legal drafter would have told lawmakers that the comma after “any other substance” would help a court apply an important canon of statutory interpretation; canons are tools that help courts interpret law. The drafter would have said “hold on,” because a court will use the comma and the series-qualifier canon to help it determine the meaning of mentally incapacitated contrary to legislative intent.

Responding to the lawmakers’ blank stares, the legal drafter would have said that the series-qualifier canon applies when there is a parallel list constructed of all nouns or all verbs. A modifier — a word or phrase that modifies something in a sentence — that occurs before or after the list will usually be interpreted to apply to the entire list.

And when interpreting the definition of mentally incapacitated, the Minnesota Supreme Court used the canon to conclude that “administered to that person without the person’s agreement” applied to all three elements in the list. The court’s interpretation was supported by its previous rulings and the text, and was so straightforward as to merit no dissents. In other words, it was a textbook ruling. Tragic but warranted by the text’s unambiguous plain meaning.

Like the Minnesota Supreme Court, the U.S. Supreme Court relies on grammar and punctuation to help it interpret law. In a case last week, for example, the Supreme Court used the series-qualifier canon — and that pesky comma — to help it determine what constitutes an “automatic telephone dialing system” under a telemarketing law. Similar to the definition of mentally incapacitated, the definition in this case was a parallel list with a modifier that applied to both elements in the list:

Equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.

Does the modifier “using a random or sequential number generator” apply to both “store” and produce”? Yes, the Supreme Court ruled, owing to the comma before the modifier and the series-qualifier canon. Again, the court’s previous rulings and the text’s plain language made for a decision with no dissents. Although this case did not lead to an ill-fated result, the case did nevertheless confirm that Facebook can send annoyingly unwanted messages about account log-in attempts.

Both cases demonstrate that a court’s role is not to legislate and rewrite a law’s loophole or to update a law to conform to modern life. Rather, the solution lies in lawmakers updating laws as needed and more judiciously checking grammar and punctuation. In the Minnesota case, if lawmakers had intended to have the modifier apply only to the last element of the list, they could have easily rewritten the law:

“Mentally incapacitated” means that a person lacks the judgment to give a reasoned consent to sexual contact or sexual penetration when the person is under the influence of: 

(1) alcohol; 

(2) a narcotic; 

(3) anesthetic; or

(4) any other substance administered to that person without the person’s agreement.

A simple tool, the mighty vertical list can solve many unintended problems stemming from misplaced punctuation and poor grammar. Consequently, lawmakers should consult with the bleacher-bound grammar nerds and punctuation hawks before passing law.

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Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.