It’s pretty easy to find instances of a court offering a shaky analysis of ambiguity. I recently submitted to a periodical an article about a head-scratching instance of such misdiagnosis—let’s see if it’s accepted.
In the interim, you might want to check out “Ambiguous Drafting and the 12-Pound Cat,” by Jeffrey S. Ammon, a member in the Grand Rapids, Michigan office of the law firm Miller Johnson. (Go here for a PDF copy of the article.)
The ambiguity at issue in Jeffrey’s article is syntactic ambiguity, which arises when it’s uncertain which part of a sentence a given word or phrase modifies. The article discusses a Michigan Court of Appeals decision regarding the meaning conveyed by the following extract of a Michigan statute:
Ad valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors or obligations pledging the unlimited taxing power of the local governmental unit.
For reasons discussed in Jeffrey’s article, the issue was whether “of the local government unit” modifies not just “the unlimited taxing power” but also “the electors”. Here are three separate analyses:
- The Court’s Analysis: Because “electors” is preceded by the definite article the, the phrase “of the local government unit” DOES modify “the electors”.
- Jeffrey S. Ammon’s Analysis: Because the word “obligations” is repeated, the phrase “of the local government unit” DOES NOT modify “the electors”.
- My Analysis: The following factors suggest that the phrase “of the local government unit” DOES NOT modify “the electors”: (1) the lack of grammatical symmetry between “approved by the electors” and “pledging the unlimited taxing power”; (2) the lack of offsetting commas after “the electors” and before “of the local governmental unit”; and (3) in the absence of offsetting commas, it would be unreasonable for a drafter to expect the reader to make the leap from “the electors” to the fragment “of the local governmental unit”. Use of “the” before “the electors” and repetition of the word “obligations” are both irrelevant.
The fact that three sets of eyes could come up with three different analyses shows why courts should be willing to accept expert-witness testimony as to whether contract language is ambiguous. That’s something I discuss in this June 2009 post on AdamsDrafting.
The best way to resolve potential ambiguity is to get hold of extrinsic evidence of what the parties (in the case of a contract) or the legislators (in the case of a statute) had in mind. Jeffrey notes in his article that the court’s decision was inconsistent with longstanding statewide practice, and that it “surprised school districts so much that legislation was promptly enacted to reverse the court’s interpretation.”
But better than resolving ambiguity is to avoid it in the first place. Jeffrey suggests how the statute in question could have been drafted to eliminate any ambiguity. One possibility he suggests is using offsetting em-dashes. That technique has evidently been adopted by the new Federal Rules of Civil Procedure and Federal Rules of Evidence, but I’m not crazy about it. Offsetting em-dashes are generally used for asides and are equivalent to parentheses. As such, they’re more suited to regular narrative prose than contract language, which is more limited and stylized.
A standard shorthand way to clarify this particular clause, and many like it (if wanting to be sure the last part did modify the earlier part) would be to add an extra “of”:
“Ad valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors OF or obligations pledging the unlimited taxing power of the local government unit.”
The additional “of” leaves no option but to pick up the phrase later in the sentence, and in this case it can only really be picked up at “the local government unit”. Commas can be added after “electors of” and “power of”, but it isn’t necessary. The advantage of this in negotiation is that it minimises the changes to the clause, which is always desirable in pursuit of smooth negotiation.
I’m not much of a fan of dashes either. They have no advantage over commas, and feel less “appropriate” for contracts, as you say. To me they feel stylistically forceful, rather than stylistically neutral. It’s like someone grabbing you by the lapels, dragging you out of the sentence and saying that part very loudly to make sure that you have understood it.I also quite like Jeffrey Ammon’s first two suggestions – lists and formatting are often the clearest way to resolve this kind of ambiguity.
W: I concur with your of fix. Somewhere in my thousand-odd posts I articulated them same notion, and I’ll make sure that it’s included in the third edition of MSCD. Ken
I agree, although I would definitely add commas after each “of” to aid readability. But if you want the alternative meaning, presumably you omit the first “of”; it is not so clear in this case that you have the alternative meaning. Separating it into numbered and indented phrases is surely the answer.
I agree with Ken that “the” before “electors” isn’t a sound reason for choosing a meaning.
Ken:
Since the language in question was originally element #2 in an enumerated list, another option is to break this one list element into two:
(2) Ad valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors [of the local governmental unit].(3) Ad valorem property taxes specifically levied for the payment of principal and interest of obligations pledging the unlimited taxing power of the local governmental unit.Chris