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.
They were mad at the town’s trustees, who had raised taxes
to bury electric and telephone cables. To do this, the trustees
had used a statute to create a special district. The citizens
got lawyered up and sued the trustees. Among other claims,
they argued that the special-district statute didn’t apply to
the cables because the cables were owned by private, not
public, companies. They got this idea from the statute’s
definition of public utility: “…one or more persons or corporations that provide electric or communication service to
the public by means of electric or communication facilities
and shall include any city, county, special district, or public
corporation that provides electric or communication service
to the public ….”1
The residents argued that the phrase “and shall include”
meant that the list, “city, county, special district…” was
exhaustive. That is, by naming specific things the legislature
meant to exclude others. A maxim of statutory interpretation
is expressio unius est exclusio alterius, which means to
express one is to exclude others. So the special-district
statute didn’t authorize the burial of a private corporation’s
cables.
that ‘shall include’ … cannot reasonably be read to be the
equivalent of ‘shall mean ….’”4
How did these cases arise? It was because sometimes
drafters need to add examples to a statute. For example,
they may want a statute to apply to fruit, so they write
“Fruit means the edible part of a plant developed from a
flower.” They then become concerned that a court won’t
include peas or tomatoes. So they add a comma and
“including peas or tomatoes.” Then, the exclusio maxim
makes drafters fear that listing peas and tomatoes will
make a court think they mean only peas and tomatoes. So
they add “but not limited to” and end up with this: “Fruit
means the edible part of a plant developed from a flower,
including, but not limited to, peas and tomatoes.”
But Sutherland’s Statutes and Statutory Construction has
a different take: “The word ‘includes’ is usually a term of
enlargement, and not of limitation ….”5 And a review of
Colorado cases suggests that the phrase “but not limited
to” isn’t necessary:
ƒƒ Colorado Common Cause v. Meyer: “The
word ‘includes’ has been found by the
overwhelming majority of jurisdictions
to be a term of extension or enlargement
when used in a statutory definition.”6
The court wasn’t persuaded. The residents appealed all the
way up to the Colorado Supreme Court, who agreed that
“the word ‘include’ is ordinarily used as a word of extension or enlargement, and we find that it was so used in this
definition. To hold otherwise here would transmogrify the
word ‘include’ into the word ‘mean.’2
ƒƒ Cherry Creek School Dist. #5 v. Voelker:
“A statutory definition of a term as
‘including’ certain things does not restrict
the meaning to those items included.”7
The United States Supreme Court has also interpreted “shall
include.” In this case, they were construing this statute:
“‘creditor’ shall include anyone who owns a demand or claim
provable in bankruptcy, and may include his duly authorized
agent, attorney, or proxy.”3 The court held that “It is plain
1
2
3
Lyman v. Bow Mar, 188 Colo. 216, 221 (Colo. 1975)
Id. at 222 (Colo. 1975)
11 U.S.C. § 1. See American Surety Co. V. Marotta, 287 U.S. 513 (U.S. 1933)
ƒƒ Arnold v. Colorado Dept. of Corrections:
“The word ‘including’ is ordinarily used
as a word of extension or enlargement
4
5
6
7
Id. at 516–517 (U.S. 1933)
N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition)
Colorado Common Cause v. Meyer, 758 P.2d 153, 163–164 (Colo. 1988)
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
word ‘mean.’”8
You may want to see if the cases in your state are similar
to Colorado’s cases. And if there is still heartburn over the
issue you may want to consider what some other states
have done:
ƒƒ DirecTV v. Crespin: “Nothing in §605(d)(6)
indicates that Congress intended to depart
from the normal use of ‘include’ as introducing an illustrative—and non-exclusive—
list of entities ….”9
ƒƒ Maryland has a statute that says, “‘Includes’
or ‘including’ means includes or including
by way of illustration and not by way of
limitation.”
ƒƒ Southern Ute Indian Tribe. King Consol.
Ditch Co.: “A statutory definition of a term
as ‘including’ certain things does not restrict
the meaning to those items included. The
word ‘include’ is ordinarily used as a word
of extension or enlargement.”10
ƒƒ Texas has a similar statute, “‘Includes’ and
‘including’ are terms of enlargement and
not of limitation or exclusive enumeration,
and use of the terms does not create a presumption 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
“including.”
ƒƒ Utah has one: “‘Include,’ ‘includes,’ or
‘including’ means that the items listed are
not an exclusive list, unless the word ‘only’
or similar language is used to expressly
indicate that the list is an exclusive list.”14
(Hat tip to Tom Vaughn.)
We didn’t find any Colorado cases that went the other
way. So we cast the net a little wider and found Shelby
Cnty. State Bank v. Van Diest Supply Co. This case dealt
with a lien in “all inventory, including, but not limited to,
agricultural chemicals, fertilizers, and fertilizer materials
sold to Debtor ….” [Emphasis added.]11 In this case the
7th circuit held that “it would be bizarre as a commercial
matter to claim a lien in everything, and then to describe
in detail only a smaller part of that whole.” So the court
did interpret the word “including” as limiting, and the
judges didn’t care that the contract used the phrase “but
not limited to.”12 So this phrase isn’t a guarantee anyway;
you probably shouldn’t get much comfort from it.
ƒƒ So does Vermont: “The terms ‘include,’
‘includes,’ and ‘including’ mean that the
language following the term is illustrative
and not exhaustive, and shall have the same
meaning as though the term were followed
by the words ‘but not limited to.’”15 (Hat
tip to Michael Chernick.)
Think of how many trees your state could save by cutting
out this unnecessary bit of legalese.
Code Construction Act, Tex. Gov’t Code § 311.005 (13)
Utah Code Ann. § 68–3–12(1)(f)
15
1 V.S.A. § 145
Arnold v. Colorado Dept. of Corrections, 978 P.2d 149, 152 (Colo. App. 1999)
DirecTV v. Crespin, 224 Fed. Appx. 741, 748 (10th Cir. 2007)
10
Southern Ute Indian Tribe. King Consol. Ditch Co. 250 P.3d 1226, 1233
(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
8
13
9
14
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
Chair: Scott Harrison, Neb. Vice-Chair: Wendy Jackson, Wisc.
Newsletter Editor: Jery Payne, Colo.
2
NCSL Liaison
Kae Warnock
[email protected]