How a lawyer devoted to clear writing can make a difference
Illustration by Sam Ward
The year is 2012. You're a lawyer in Minneapolis. You learn that libraries everywhere are "deaccessioning" books to reduce the "clutter" on shelf space, and you're concerned. You're also committed to the idea that all politics is local. As a public-minded citizen, you discover late one night that the Minneapolis City Charter provides for a nine-member library board—three ex-officio members being the mayor, the president of the board of education and the president of the University of Minnesota.
If you could get on the board, this would be some fun. You’d be a hardworking member, and it would be significant public service. Hmm. Do you have to be appointed or elected? And how? You decide to do some preliminary checking.
The Minneapolis City Charter is long—some 70,000 words long (compared with slightly more than 4,500 in the U.S. Constitution). You find the operative provision in Chapter 2:
Except as in this chapter otherwise specifically provided, all … officers provided for in this charter or deemed necessary for the proper management of the affairs of the city shall be appointed by the city council. The appointment of such officers shall require the affirmative vote of a majority of all members of the city council.
Fair enough. You know two new members of the city council, and they’d surely support an appointment for you. Perhaps you’ll call one of them tomorrow.
COMPREHENDING THE INCOMPREHENSIBLE
Being a tenacious reader—why else would you want to be on the library board?—you discover, in Chapter 3, some 3,434 words later, this operative provision:
Notwithstanding any other provision of this charter or special law to the contrary, the executive committee shall have the exclusive power to appoint and remove during their terms of office the police chief, fire chief, city engineer, commissioner of health, city attorney, city assessor, city coordinator, civil service commissioner, and any officer in a department or agency who, by statute, charter or ordinance, is appointed by the mayor or city council or by any public board the majority of whose members are members of the city council.
Hmm. This “notwithstanding” clause overrides contrary provisions, and the main clause vests “exclusive power to appoint and remove” in the city council’s executive committee. But wait a second. Is a library board member an “officer in a department or agency who, by statute, charter or ordinance, is appointed by the mayor or city council or by any public board the majority of whose members are members of the city council”? After close study and much syntactic reflection, you decide that library board membership is indeed covered by this provision.
So it’s definitely an executive-committee decision. Good to know. You’re feeling almost like a nominee-in-waiting.
But hold on. Because you’re so thorough, and despite the late hour, you’ve found another relevant provision. It’s still in Chapter 3, but it appears 19 sections and 2,507 words later: “The city council shall have power at any time … to appoint such other officers as may be necessary to carry into effect the provisions of this chapter, and to prescribe their duties, unless herein otherwise provided for.” It’s more than a little unclear whether these officers are to be appointed by the city council or by its executive committee. Although both provisions in Chapter 3 cover the same topic, they do so inconsistently.
You begin to doubt that your friends on the city council, perspicacious though they are, have worked out precisely what the appointment procedures should be, according to the city charter.
Yet you’re convinced that library board membership is undoubtedly “necessary for the proper management of the affairs of the city” (to use the words of the charter itself). Why else would the mayor and the UM president be obliged to serve on it? Your ambitions to bibliophilic public service have been only slightly dampened.
Because you know a thing or two about legal interpretation, you know that charters (like statutes and contracts) are to be read as a whole—not as isolated provisions. So you’ve soldiered on in your study of the city charter, only to find a fourth relevant provision—25 sections and 7,082 words later:
Whenever the mayor exercises the power of appointment or designation of persons to be members or occupants of any board, commission, department or office, and the city council approval of such appointment or designation is required, the appointment or designation will be deemed approved if the city council has not disapproved such an appointment or designation within a period of 60 days from and after the submission of the appointment or designation by the mayor to the city council.
Perhaps you might become a recess appointment by the mayor. But then again the mayor might not have the authority for this particular appointment. For that matter, the mayor doesn’t seem from other provisions to have any authority to make solo appointments to any boards. That authority is vested in either the city council or its executive committee (we can’t quite tell which).
Having spent five hours on this appointment conundrum, you go to bed. Tomorrow you’ll find out more about the current situation—and do some digging into what positions the mayor and the UM president have taken, not to mention the president of the education board.
But even before making any calls the next morning, you discover some extracharter ordinances that seem to change things further. For one thing, a 1965 special law reconstituted the board: one mayor-appointed trustee, one appointed by the city council and six elected by popular vote. In 1986, a special law changed the terms of trustees from six years to four. And in 2008, the library board itself was abolished altogether after the Minneapolis Public Library was merged into the Hennepin County Library.
So all this research—and fairly arduous reading of the charter—was for naught. When you recount this anecdote to a retired librarian, you learn that even from the earliest days, the UM president and the mayor had never actually participated in a single library board meeting, despite what the charter prescribes.
You’ve now spent eight hours to learn only how badly drafted and out of date the Minneapolis City Charter is.
SKILL AND MUCH PATIENCE REQUIRED
Enter the Minneapolis Charter Commission, which in 2002 undertook a stem-to-stern revision of the charter, which from its adoption by referendum in 1920 until the Plain-Language Charter Revision in 2013 had been amended 177 times—60 times by referendum and 117 times by ordinance. In the commission’s words, the charter was “a highly impractical document: more than 70,000 words long; confusingly organized; full of redundant or conflicting provisions, or provisions long since overridden by statute; cluttered with detail better suited to ordinances; and written in a legalistic style that is more than a century out of date, and practically unintelligible to a nonlawyer (and exceptionally difficult even for lawyers).”
By 2013 the commission had completed its stellar work, which was next subject to approval by referendum. As the commission explained: “The proposed revision reorganizes and rewrites the entire charter, from start to finish, while preserving intact its substance. The revision reorganizes the charter in 10 articles and groups related provisions together. The revision uses plain English.”
One example of the plain-language cleanup was eliminating the word doth (does), which had already become archaic English by the mid-1600s. Yet the word mysteriously appeared four times in the charter, probably because “some Minnesota legislator, in the early years of statehood (or perhaps as early as the territorial days), copied a form prepared by a lawyer from the older states on the Eastern seaboard, who had copied a form prepared by another lawyer … and so forth, back to some common-law scrivener in Shakespearean England, whose words found their way into the charter of a modern American metropolis in the year 2013.”
Gauged by modern drafting standards, the revision was a huge success. The word count went from 70,905 words to a mere 13,862—a reduction of more than 80 percent. The average sentence length plunged from 43.7 words to just 12.7. Passive-voice sentences dropped from 14 percent to only 3 percent. Some 1,848 instances of shall simply disappeared: The commission eliminated them because, of course, shall is a prime example of needless legalese.
There were several heroes in this story, but none greater than Brian Melendez, a Minneapolis lawyer who in 2002 offered to serve as the project’s reporter and manage the process. During his work, he also served as the Minnesota State Bar Association president and as head of the statewide Democratic Party. Busy guy.
In the end, the voters approved the new city charter with almost 80 percent in favor, making it the seventh most popular charter amendment by referendum up to that point. For the first time, ordinary people (and therefore lawyers, too) have a realistic shot at understanding a legal document that affects their lives.
The effort required even more skill than it did time, but that’s always the case with such revisions. How many other cities, associations, clubs and the like have board members with the skill, fortitude and patience to see such a project through?
This article originally appeared in the February 2016 issue of the ABA Journal with this headline: “Charting a Public Service Path: How one lawyer went from aspiring library board member to municipal charter drafter.”
Correction
Because of an editing error, the subhead on print and early Web versions of Bryan Garner’s February column,“Charting a Public Service Path,” misidentifies as one and the same the aspiring library board member and the municipal charter drafter. They are separate individuals.The Journal regrets the error.
Bryan A. Garner (@BryanAGarner) is the president of LawProse Inc. and a law professor at Southern Methodist University. He is the author of "The Redbook: A Manual on Legal Style" and "Legal Writing in Plain English."
