The Legislative Lawyer A publication of the Legal Services Staff Section (LSSS)

November 2014 Do You Really Need to Say “But Not Limited To”? —Jery Payne, Staff Attorney, Office of Legislative Legal Services

Many of the residents of the town of Bow Mar were mad. that ‘shall include’ … cannot reasonably be read to be the They were mad at the town’s trustees, who had raised taxes equivalent of ‘shall mean ….’”4 to bury electric and telephone cables. To do this, the trustees had used a statute to create a special district. The citizens How did these cases arise? It was because sometimes got lawyered up and sued the trustees. Among other claims, drafters need to add examples to a statute. For example, they argued that the special-district statute didn’t apply to they may want a statute to apply to fruit, so they write the cables because the cables were owned by private, not “Fruit means the edible part of a plant developed from a public, companies. They got this idea from the statute’s flower.” They then become concerned that a court won’t definition of public utility: “…one or more persons or cor- include peas or tomatoes. So they add a comma and porations that provide electric or communication service to “including peas or tomatoes.” Then, the exclusio maxim the public by means of electric or communication facilities makes drafters fear that listing peas and tomatoes will and shall include any city, county, special district, or public make a court think they mean only peas and tomatoes. So corporation that provides electric or communication service they add “but not limited to” and end up with this: “Fruit to the public ….”1 means the edible part of a plant developed from a flower, including, but not limited to, peas and tomatoes.” The residents argued that the phrase “and shall include” meant that the list, “city, county, special district…” was But Sutherland’s Statutes and Statutory Construction has a different take: “The word ‘includes’ is usually a term of exhaustive. That is, by naming specific things the legislature 5 meant to exclude others. A maxim of statutory interpretation enlargement, and not of limitation ….” And a review of is expressio unius est exclusio alterius, which means to Colorado cases suggests that the phrase “but not limited express one is to exclude others. So the special-district to” isn’t necessary: statute didn’t authorize the burial of a private corporation’s ƒƒ Colorado Common Cause v. Meyer: “The cables. word ‘includes’ has been found by the overwhelming majority of jurisdictions The court wasn’t persuaded. The residents appealed all the to be a term of extension or enlargement way up to the Colorado Supreme Court, who agreed that when used in a statutory definition.”6 “the word ‘include’ is ordinarily used as a word of exten- sion or enlargement, and we find that it was so used in this ƒƒ Cherry Creek School Dist. #5 v. Voelker: definition. To hold otherwise here would transmogrify the “A statutory definition of a term as word ‘include’ into the word ‘mean.’2 ‘including’ certain things does not restrict the meaning to those items included.”7 The United States Supreme Court has also interpreted “shall ƒƒ Arnold v. Colorado Dept. of Corrections: include.” In this case, they were construing this statute: “The word ‘including’ is ordinarily used “‘creditor’ shall include anyone who owns a demand or claim as a word of extension or enlargement provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.”3 The court held that “It is plain

1 Lyman v. Bow Mar, 188 Colo. 216, 221 (Colo. 1975) 4 Id. at 516–517 (U.S. 1933) 2 Id. at 222 (Colo. 1975) 5 N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition) 3 11 U.S.C. § 1. See American Surety Co. V. Marotta, 287 U.S. 513 (U.S. 1933) 6 Colorado Common Cause v. Meyer, 758 P.2d 153, 163–164 (Colo. 1988) 7 Cherry Creek School Dist. #5 v. Voelker, 859 P.2d 805, 813 (Colo. 1993) The Legislative Lawyer  November 2014

and is not definitionally equivalent to the You may want to see if the cases in your state are similar word ‘mean.’”8 to Colorado’s cases. And if there is still heartburn over the issue you may want to consider what some other states ƒƒ DirecTV v. Crespin: “Nothing in §605(d)(6) indicates that Congress intended to depart have done: from the normal use of ‘include’ as intro- ƒƒ Maryland has a statute that says, “‘Includes’ ducing an illustrative—and non-exclusive— or ‘including’ means includes or including 9 list of entities ….” by way of illustration and not by way of ƒƒ Southern Ute Indian Tribe. King Consol. limitation.” Ditch Co.: “A statutory definition of a term ƒƒ Texas has a similar statute, “‘Includes’ and as ‘including’ certain things does not restrict ‘including’ are terms of enlargement and the meaning to those items included. The not of limitation or exclusive enumeration, word ‘include’ is ordinarily used as a word and use of the terms does not create a pre- 10 of extension or enlargement.” sumption that components not expressed are excluded.”13 (Hat tip to Jeff Archer.) It turns out that judges speak the same English as you and I do; they understand the meaning of “includes” and ƒƒ Utah has one: “‘Include,’ ‘includes,’ or “including.” ‘including’ means that the items listed are not an exclusive list, unless the word ‘only’ We didn’t find any Colorado cases that went the other or similar language is used to expressly way. So we cast the net a little wider and found Shelby indicate that the list is an exclusive list.”14 Cnty. State Bank v. Van Diest Supply Co. This case dealt (Hat tip to Tom Vaughn.) with a lien in “all inventory, including, but not limited to, ƒ agricultural chemicals, fertilizers, and fertilizer materials ƒ So does Vermont: “The terms ‘include,’ ‘includes,’ and ‘including’ mean that the sold to Debtor ….” [Emphasis added.]11 In this case the language following the term is illustrative 7th circuit held that “it would be bizarre as a commercial and not exhaustive, and shall have the same matter to claim a lien in everything, and then to describe meaning as though the term were followed in detail only a smaller part of that whole.” So the court by the words ‘but not limited to.’”15 (Hat did interpret the word “including” as limiting, and the tip to Michael Chernick.) judges didn’t care that the contract used the phrase “but not limited to.”12 So this phrase isn’t a guarantee anyway; Think of how many trees your state could save by cutting you probably shouldn’t get much comfort from it. out this unnecessary bit of legalese.

8 Arnold v. Colorado Dept. of Corrections, 978 P.2d 149, 152 (Colo. App. 1999) 13 Code Construction Act, Tex. Gov’t Code § 311.005 (13) 9 DirecTV v. Crespin, 224 Fed. Appx. 741, 748 (10th Cir. 2007) 14 Utah Code Ann. § 68–3–12(1)(f) 10 Southern Ute Indian Tribe. King Consol. Ditch Co. 250 P.3d 1226, 1233 15 1 V.S.A. § 145 (Colo. 2010) 11 Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 834–835 (7th Cir. Ill. 2002) 12 Id. at 837

The Legislative Lawyer is the periodic newsletter of the Legal Services Staff Section (LSSS), a staff organization of the National Conference of State Legislatures (NCSL). www.ncsl.org | Denver: 303-364-7700 | DC: 202-624-5400 LSSS Officers 2014–2015 NCSL Liaison Chair: Scott Harrison, Neb. Kae Warnock Vice-Chair: Wendy Jackson, Wisc. [email protected] Newsletter Editor: Jery Payne, Colo.

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