by Thomas Morris

Open your statute book to any statutory section and you’re likely to find a sentence something like the following: “The fine shall be imposed by the court and shall be in the amount of one hundred dollars.” While it is in English, some may not consider it “plain” English. Starting with the bills drafted for the 2012 legislative session, the OLLS will focus more on using active voice and present tense and on correctly using authority verbs when drafting bills.The OLLS recently updated our drafting manual to clarify the use of active voice, present tense, and authority verbs (such as “shall” and “may”).

Active voice. The “actor” in a sentence is the entity that performs the action specified by the verb; the actor could be the subject of, the object of, or absent from the sentence. If the actor is the subject of the sentence, the sentence is written in the active voice.

An example of the passive voice is “The notice is sent by the clerk”; an example of the active voice is “The clerk sends the notice”. The following tips distinguish the active from the passive voice:

• The passive voice often uses a helping verb, usually a form of the verb “to be”

• The use of the word “by” when the actor is present but the voice is passive

The updated rule on the active voice is: “Whenever possible, write sentences that clearly identify the actor of the sentence, and use the active voice to make that actor take the action specified in the sentence.” The rule is not absolute; sometimes the passive voice is useful because the agent’s identity is either unknown or unmistakable or there are so many agents that listing them is burdensome.

Present tense. The present tense uses a verb that locates an event in the present. For example, “the notice was valid” (past tense); “the notice is valid” (present tense); and “the notice shall be valid” (future tense).

The updated rule on the use of the present tense states: “Provisions should generally be stated in the present tense; avoid use of the future tense.” While statutes often specify actions that occur in either the past or the future, statutes are always applied in the present: they tell the reader what must, cannot, may, and need not be done when the statute is applied. Indeed, Colorado has a statute that specifies that “words in the present tense include the future tense.” Section 2-4-104, C.R.S.

Instead of writing “the penalty shall be $100″, we will write “the penalty is $100″; instead of “the committee shall consist of 5 physicians”, we’ll write “the committee consists of 5 physicians”. The Office’s use of the past tense will not change under the updated drafting manual. In contrast, many sentences that previously were drafted using the word “shall” will now be drafted using a present tense verb.

Authority verbs. Authority verbs are verbs that mandate, prohibit, permit, or impose conditions. Examples include “shall”, “shall not”, “may”, and “need not”. Bryan Garner, a respected legal writer, states:

Few reforms would improve legal drafting more than if drafters were to begin paying closer attention to the verbs by which they set forth duties, rights, prohibitions, and entitlements. In the current state of . . . drafting, these verbs are a horrific muddle–and, what is even more surprising, few drafters even recognize this fact. The primary problem is shall . . . .
A Dictionary of Modern Legal Usage (2d ed. 1995), p. 939.

The updated drafting rule is set out below. If the words in quotes from the right-hand column convey the intended meaning, then the OLLS will use the word or words from the left-hand column.

shall    =    a person or entity “has a duty to” or a thing, person, or entity “is required to” meet a condition for a consequence to apply
shall not    =    a person or entity “has no authority to”, “has a duty to not”, or “is not permitted to”
may     =     a thing, person, or entity “is permitted to” or a person or entity “has discretion to” or “has authority to”
need not    =     a condition “is not required to” be met by a thing, person, or entity

Hopefully, these changes will improve everyone’s ability to read and understand the statutes. If you have any questions concerning the meaning of your bill draft or these drafting changes regarding active voice, present tense, and authority verbs, please don’t hesitate to ask your bill drafter.