When attorneys in the Office of Legislative Counsel are drafting bills for California legislators, they often delete the word “includes” and substitute it with the word “means.” Why is that being done by these legislative lawyers?
The following example comes from a bill recently introduced in the California Legislature’s 2022 Session:
For purposes of this section, “just cause” includes means either of the following:
In general, the term “includes” has the meaning of comprising or containing something. When defining a word, by using the term “includes,” the defined word could include something more than what is in the definition following the term “includes.” On the other hand, using the word “means” signifies that the defined word is intended to be the definition following the word “means.”
A current California bill intends to provide a definition of the term “discretionary entitlement.” The first example provides a definition and the words following the term “means” is how the term “discretionary entitlement” is intended to be understood:
“Discretionary entitlement” means one or more of the following discretionary approvals for a new residential development project for which a new application or preliminary application is submitted after January 1, 2023:
The second example provides a definition of what the term “discretionary entitlement” does not mean:
“Discretionary entitlement” does not include any modification or amendment to any previously approved development agreement
The term “means” provides a clear definition, rather than the ambiguous term “includes.” In other words, the reader will examine a definition and see the word “includes” and possibly think, “what else might be included?” Or, the reader may ask, “what is excluded from this definition?” By using the term “means,” the defined word or term has its definition following the term “means.” This provides greater clarity in legislative language and is more likely to be understood and not lead to uncertainty.