by Jery Payne
A United States Court of Appeals’ opinion begins, “For want of a comma, we have this case.” The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.
Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.
Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?
- Packing for shipment and packing for distribution; or
- Packing for shipment and any kind of distribution.
The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.
The statute has at least one of two grammar errors. Notice that the list starts with a series of gerunds, which is a five-dollar word for a noun created by adding “ing” to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, the grammar indicates that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, then the statute is missing the word “or” before the last item of the list. It should read marketing, storing, or packing for shipment or distribution of. And it doesn’t. So the statute should have been written in one of two ways:
- …marketing, storing, or packing for shipment or distribution of:
- …marketing, storing, packing for shipment, or distributing of:
These dueling errors bedeviled the court, so it gave up trying to parse the sentence. It decided that the ambiguous exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.
As I mentioned, the court pointed out several times that an Oxford comma would have solved the issue. If the statute had read storing, packing for shipment, or distribution of perishables, it would have been clear that the statute covered the delivery drivers.
So using the Oxford comma is good advice. We aim to use it in the Colorado Revised Statutes.
But what if the legislature hadn’t intended to cover the delivery drivers? How could we draft the statute so that it is clear? What if we repeated the preposition of?
The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Now the statute is clear.
I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just don’t forget the disjunctive, or.” No, I suppose in this case we didn’t need the extra prepositions. But they do help. And what about the following statute[1] that authorized the defendants to move a case to federal court:
Any officer of the United States or any agency thereof …
Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:
- An officer of the US or an officer of an agency of the US; or
- An agency of the US or an officer of the US.
The United States Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the correct intent, repeating the preposition of would have solved the issue:
Any officer of the United States or of any agency thereof …
I know that people will be tempted to dispense with the repetitious preposition in a list, but repeating those prepositions does remove ambiguity. My advice is to repeat those prepositions when clarity is at stake.
[1] Hat tip to Bryan Garner from his Advanced Legal Drafting Course.