How ‘that’ and ‘which’ can profoundly alter an Alabama law
When a bill is filed in the Alabama Legislature, it may contain major changes to state law and policy.
But it may also try to drag some language into the 21st century.
”Look at the bills from say, in Title 22, which is the health department, and you look at some these old– they’re fascinating– but some of those sections talk about the importance of, like, fresh milk and the scourge of vermin,” Paula Greene, deputy director of the Alabama Legislative Services Agency Legal Division, said.
Many bills filed in the Legislature contain “nonsubstantive code changes,” generally updates to language, to make things more modern or clear, to update Alabama law as the Legislature goes.
The Legislative Services Agency includes people who handle a lot of the bill drafting for the Legislature or help lawmakers draft their bills. The agency will be busy as legislators return Tuesday for the 2024 regular session.
For example, Greene says they try to avoid the word “such,” an old drafting style that they longer use. She says they replace “such” with “the,” “a” or “an” if possible. They will take out extraneous words.
“We try to update thereunders, whereins, theretofores, that sort of old complicated language,” she said.
So far, 93 bills have been filed for the 2024 Legislative Session. Over 900 bills were filed last year.
Alabama has a short drafting style manual that emphasizes clear and accurate language.
“The principal functions of a bill are (i) to create or establish, (ii) to impose a duty or obligation, (iii) to confer a power, create a right, or grant a privilege, and (iv) to prohibit,” reads the guide. “A bill is often subject to conditions, qualifications, limitations, or exceptions. The clarity and precision of the bill are enhanced by a plain and orderly expression of those functions.”
But Greene said that watching other states leads to updating drafting language.
“These things just come from national trends, what we hear, but we’re not making monumental changes in how we draft here,” she said.
She said they just had a meeting with the staff where they could use the word “must” more than they do in lieu of “shall.”
Greene said that “shall” is prohibition telling a person, legally defined to include corporations or organizations beyond individuals, that they have to or can’t do something.
“Must,” she says, is a condition.
“‘The application must include the address of the applicant, the name of the social security number, the applicant,’ whatever it is,” Greene said. “We’re not telling the application to do something. We’re not commanding the application to include these things.”
Greene said that a block of text or something with a lot of “legalese” might be rewritten into a more digestible format. They also change any “he” in the law to “he or she” to update the language.
“If it’s all substantive, then it’s not nonsubstantive,” she said.
Drafting language does have its quirks. Greene said the way they use “that” and “which” are different from how most people use them.
“Probably how you would write as a journalist, in how you use ‘that’ and ‘which,’ chances are fairly good that you use it differently than how we use it in our office,” she said.
For example, ‘which’ qualifies a word that does not come directly before it. In the sentence “a county with a municipality, which has a population greater than 50,000,” the word “which” refers to the county.
But if ‘that’ is used – “a county with a municipality that has a population greater than 50,000 people” – ‘that’ refers to a municipality.
To put it another way, a single word change in a bill can decide whether a law affects a county government, or a city government. Greene said that sentence would be neater in an actual bill.
“Most states follow that rule, but a lot of lawyers and a lot of lay people don’t understand that difference,” she said.
The goal, Greene said, is for all laws to be written as clearly as possible for the public.
“I know the public complains that bills are difficult to read,” she said. “That’s not on purpose. And sometimes it’s highly negotiated language and it ends up being more than we want, but that being said we really do have a duty to make non-substantive changes, if we think it’s going to be clearer and easier to read for the public generally.”
Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: info@alabamareflector.com. Follow Alabama Reflector on Facebook and Twitter.
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