by: Kurt Woock

The English language is rife with confusing words. In English classes, you likely studied various categories of linguistic confusion: homophones, heteronyms, homonyms, synonyms, antonyms. At the root of the confusion is the fact that words can have a lot in common, to the extent they deceive writers and readers into thinking the words are interchangeable.

Sometimes, a group of words signify a similar meaning, but with differing gradations or levels of emphasis. Those subtle differences allow writers to express nuance and help bring clarity to writing. Using these words incorrectly might blur the author’s true intent, but it won’t substantially alter the meaning.

However, in some cases, despite the similarities between words, an impassable chasm exists between the two meanings. Using these words interchangeably does alter the sentence’s substance.

Here are four word pairs that are commonly mistaken as synonyms when, in fact, each word expresses a distinct idea:

Impact-Effect

Impact and its variations (impacted, impacting, etc.) have become some of the most ubiquitous buzzwords today. You’ll see it (mis)used in writing of all types. In most cases, effect is the better option.

Impact, whether used as a noun or a verb, means the moment two objects collide. It means strong, often violent force. Strictly speaking, its scope in time is limited to the very moment of…you guessed it…impact.

Effect is a broader term that means the consequences or results stemming from an action. Rather than focusing tightly on the singular moment in which a sudden change occurs, it is oriented toward changes that occur after the initial point of inflection, and without any cap on time.

Consider this sentence: “The group will study the impact the construction will have on the neighborhood.”

In this case, effect would be a better choice. Construction does not collide with anything, nor is it sudden or violent. Instead, the author intends to say something about resulting changes (whether short-, medium-, or long-term) that will occur because of the construction.

Although-While

Although has a meaning similar to “despite that fact that…”. Often it is used to dispel a possible assumption the reader might have.

Example: Although I like most vegetables, I don’t like peas.

The word doesn’t give most people problems, but it’s important to understand the particulars of although because its cousin, while, tends to trip up writers. While is a function of time. It shows that two events occur concurrently:

Example: I went to the park while I was on lunch break.

Try substituting the word “when” for while whenever you use it. If the sentence still makes sense, you’re likely using while right.

While is often used where although would be a more precise choice. Oddly enough, you’ll rarely see although as an incorrect substitution for while…perhaps an indication that the two aren’t interchangeable.

Here’s a sentence in which although would have been a more precise choice:

While the Broncos are a very good football team this year, I still think the team from ’98 could beat them.

Here’s a similar sentence in which while is perfectly fine:

While the Broncos are taking the field for the first time this season, their fans are surely going to be loud.

Since-Because

Because shows causation or association. Use if you can replace with “as a result of the fact that…”.

Example: Because I live in Denver, I can easily go to the mountains.

Example: I need a lawyer because I am in trouble.

Since shows that a period of time has elapsed.

Example: It’s been five years since I’ve been to Texas.

The two words, side by side:

1. Since you’ve been gone, I can breathe for the first time.
2. Because you’ve been gone, I can breathe for the first time.

These two samples show how a sentence’s meaning can change, depending on word choice. In the first example, using “since” shows that the writer is emphasizing the time that has passed between two events (and is not necessarily the cause of either). The person who has vacated the author’s presence might or might not be related to the increase in the author’s ability to breathe. The departure is simply something used to mark time. Perhaps the other person’s departure simply coincided with the opening of a few windows. You likely hear similar constructions daily: “Since lunch, my phone hasn’t stopped ringing”; “I haven’t been able to concentrate since I woke up.” In both these cases, the writer is trying to define a period of time, not a cause.

In the second example, “because” suggests that the breathing is directly related to the person leaving.

May-Might

When you were a child, you probably learned the difference between “may” and “can”. In recent years, OLLS has emphasized understanding the particular nuances of the terms “may”, “must”, and “shall” to express statutory requirements more clearly. However, the distinction between “may” and “might” is discussed less frequently.

May is best used to show that an action is dependent upon someone first granting permission. Take the following sentence:

“You may go on a short vacation during session if you are on top of your workload.”

Might is best used to show that a particular outcome, situation, or action comes about by chance.

The sentence “It might rain today” expresses might correctly. To say “it may rain today” would be incorrect. The rain does not occur because of any rational actor’s choosing, nor does it occur because it was given permission to do so.

Sometimes, both words can make sense in a sentence. However, this does not mean that both sentences mean the same thing. For example:

• Alice may vote.
• Alice might vote.

In the first example, the writer is expressing that Alice meets all the requirements to vote: She is 18, etc. However, it technically says nothing about the likelihood that she will do so. She might just stay home and watch TV. The second sentence considers just that—the chances that she’ll vote.

Use the distinctions found among these words to make your writing as clear as you can. Although we can write well, we don’t always. While we write, we too often choose the first word that comes to mind. We may choose whichever words we want, but we might not always choose the best ones. Because we strive to write as clearly as possible, we must be aware of this. Since you began reading this article, perhaps you’ve become more aware of the unintended effects that words such as “impact” can have.

by Jery Payne

Imagine you’re a senator in the Colorado General Assembly. You’re sitting at your desk and feeling good. Session is winding down, and you’re done with that monster bill you’ve been working on. All you have left is a short cleanup bill.

Then, you get a letter from the Publications Coordinator and the Revisor of Statutes. It’s titled “Revisor’s Comment.” Your heart sinks. It looks pretty official. The letter tells you that your short cleanup bill conflicts with another bill. Darn it!

But what does this mean?

This means that at least one provision in your bill cannot be harmonized with at least one provision of another bill. You begin to wonder: “Will my bill die because of this?

It’s true that if one of the bills doesn’t change, then one of the conflicting provisions may not take effect. Or the conflicting provisions will be included in the law for courts to determine what takes effect.

If two bills change the same section of law, then normally the provisions will be harmonized. Here’s an example: If a law says “A person shall pay a tax of one dollar to the department of revenue …” One bill might change the tax to two dollars. Another bill might change the name of the department of revenue to the tax collectors. These bills will be harmonized to say that “A person shall pay a tax of two dollars to the tax collectors.” But if one bill repeals the tax and the other increases the tax, then these bills cannot work together.

So what should you do?

Go talk to the bill drafter.

By the time you have received the letter, the drafter has already been notified of the situation and has probably determined how to make the bills work together. In most cases, the language technically conflicts but the conflicting provisions can be made to work together. An amendment to your bill or the other bill will usually solve the problem.

by Julie Pelegrin

In representing the interests of constituents, a legislator may introduce legislation or an amendment that makes someone angry or that someone may consider unfair. When debating bills in committee or on the floor, a legislator may make a statement that offends someone or that someone believes is untrue. In the course of serving in the General Assembly, a legislator may do any number of things that could result in a civil law suit or even, in very rare circumstances, criminal charges. The framers of the Colorado constitution, anticipating these possibilities, included constitutional protections to ensure that legislators can do their jobs without interference or intimidation by the judicial or executive branches.

These constitutional protections are known as legislative immunity and are found in section 16 of article V of the Colorado constitution. This section states that a legislator cannot be arrested, except for treason or a felony, while attending or traveling to or from a legislative session or committee hearing. Further, what a legislator says or does during speech or debate in the Senate, the House, or a legislative committee cannot be “questioned in any other place.”

The courts have applied this section to more than just attending legislative sessions and engaging in speech or debate. The courts have said that, with regard to anything a legislator does that falls within the “sphere of legitimate legislative activity,” the legislator cannot be civilly sued, criminally prosecuted under state law, or forced to testify or produce documents.

In Colorado Common Cause v. Bledsoe¹, the Colorado Supreme Court explained that the founding fathers included legislative immunity in the U.S. Constitution to prevent the types of abuses that occurred in England during the 1600s and 1700s when monarchs tried to suppress and intimidate members of Parliament by subjecting them to criminal prosecution and civil suits in retaliation for their legislative actions. In the United States, legislative immunity preserves the independence and integrity of the legislature by reinforcing the separation of powers, preventing intimidation of legislators by the executive branch, and protecting legislators from unwarranted appearances before a possibly hostile judiciary.

The most important question in applying legislative immunity is whether a legislator’s actions fall within the “sphere of legitimate legislative activity.” There are actions a legislator may take, even when he or she is engaging in activities related to his or her legislative office, that do not fall within this sphere. If an action is not a legitimate legislative activity, the legislator is not protected by legislative immunity.

Actions within the sphere of legitimate legislative activity include:

• Actions that a legislator takes during formal legislative proceedings, such as chairing a committee, debating, making motions, and voting;
• Legislative committee investigations;
• Impeachment proceedings;
• Enacting and enforcing legislative rules; and
• Publishing official legislative documents.

Actions that the courts have found to be outside the sphere of legitimate legislative activity include:

• Publishing newsletters, press releases, and campaign materials;
• Giving speeches outside the legislature;
• Meeting with or influencing executive branch or local government employees or officials;
• Republishing protected legislative speech to the general public; and
• Engaging in committee activities that are outside the scope of the committee’s powers.

When the question of legislative immunity arises with regard to legislation or the legislative process, as in the cases of Lucchesi v. State of Colorado² and Romer v. Colorado General Assembly³, the court will determine whether the lawsuit is challenging the constitutionality of the legislation or the constitutionality of the procedure the General Assembly followed in enacting the legislation. If the suit challenges the legislation itself, then legislators are protected by legislative immunity. If the suit challenges the procedures followed in enacting the legislation, the legislators are not protected by legislative immunity if the court finds that the procedure did not fall within the sphere of legitimate legislative activity.

In the first case, Mr. Lucchesi challenged the constitutionality of certain tax statutes. The court dismissed the legislators who were named as defendants because, under legislative immunity, a legislator cannot be sued for sponsoring or voting for legislation, even if that legislation is later held to be unconstitutional. Sponsoring and voting on legislation is clearly within the sphere of legitimate legislative activity.

In the Romer case, however, the General Assembly sent a letter to the Governor stating that his attempted veto of certain headnotes and footnotes in the annual appropriations bill was unconstitutional and would therefore be ignored; the headnotes and footnotes would be implemented as if the veto had never occurred. The Governor challenged the procedure of sending a letter in response to a veto and asked the court for a declaratory judgment as to whether the Governor’s veto of the headnotes and footnotes was valid. The court held that the General Assembly did not act within the sphere of legitimate legislative activity when it chose to ignore the veto by letter. The General Assembly should have either tried to override the veto or asked for a declaratory judgment that the veto was unconstitutional. The court held that the headnotes and footnotes were presumed to have been vetoed absent a valid legislative override or a judicial declaration to the contrary.

1. Colorado Common Cause v. Bledsoe, 810 P.2d 201 (Colo. 1991). ↩︎
2. Lucchesi v. State of Colorado, 807 P.2d 1185 (Colo. App. 1990). ↩︎
3. Romer v. Colorado General Assembly, 810 P.2d 215 (Colo. 1991) ↩︎

by Julie Pelegrin

We’re halfway through the session. Some bills have passed, some have not, and most are still winding their way through the process. As the session picks up speed, bill titles become a matter of greater interest. “My bill just died. Is there another title I can fit it under?” is a question the drafting office hears on a regular basis in the last 60 days of the session. So now is a good time to review the constitutional requirements and the customs and practices pertaining to bill titles.

The first thing to remember: Section 21 of article V of the Colorado Constitution states that a bill may contain only one subject, which is clearly expressed in the bill title. Every section of the bill, as introduced and as it is amended through the legislative process, must be germane, or closely allied, to the single subject of the bill. The clear statement of the bill’s purpose helps ensure that the public has notice of what the bill does. Requiring every section to be germane to the title helps avoid public surprise as to what’s in the bill, protects the Governor’s ability to exercise the veto power effectively, and prevents the practice of log-rolling (i.e., packaging into a single bill many disparate provisions that couldn’t pass individually).

The other constitutional requirement to remember about bill titles is section 17 of article V of the Colorado Constitution: A bill cannot be so amended through the legislative process as to change the bill’s original purpose. In the case of Parrish v. Lamm¹, the Colorado Supreme Court held that the purpose of section 17 of article V is to prevent a bill that relates to one subject when introduced from being so drastically amended during the legislative process that, when passed, it relates to an entirely different subject. The court looked to the purpose that the General Assembly intended to accomplish through the bill and found that, even if the means of accomplishing the purpose was stated in the bill title, the General Assembly could amend the bill and its title to accomplish the purpose by some other means.

So, once the bill is introduced, what actions can the General Assembly take regarding a bill title? A legislator can amend a bill title to make it narrower. For example, if the introduced bill title is “concerning the regulation of private investigators”, a legislator could amend the title to read: “Concerning the regulation of private investigators who investigate claims relating to animals.” The amendment narrows the bill to apply only to certain private investigators, not to all private investigators. Once the bill title is narrowed, all of the sections in the bill and amendments to the bill must be germane to the new, narrower title. It is very important to note, however, that another legislator, in a later stage of the process, can amend the title by removing the limiting language and restoring the bill title as introduced.

By custom and practice, the General Assembly does not entertain amendments to broaden a title, the logic being that, if a bill title needs to be broader to accommodate an amendment, then the bill may contain more than one subject; all of the sections of the bill will not be germane to the original bill title and may not fit within the original purpose of the bill. Using the earlier example, “concerning the regulation of private investigators”, a committee chair could rule out of order an amendment to change the bill title to read: “Concerning the regulation of persons who investigate actions that may result in litigation.” With this title, a legislator could introduce an amendment to regulate investigators on a police force or investigators who work for the department of revenue, in addition to private investigators. This title amendment could also be interpreted as a change to the original purpose of the bill, which was to regulate persons who are not otherwise regulated by a public entity.

The single subject requirement doesn’t always result in a narrow bill title. A bill title can be very broad and still cover a single subject. For example, “concerning education,” “concerning expanding the availability of public transportation,” and “concerning child care” are all fairly broad bill titles. It’s these types of titles that a legislator may look for when his or her bill is killed. However, most legislators prefer a narrow title that gives them more control over the final content of their bills.

As a bill moves through the legislative process, it’s up to the presiding officer at each stage – the committee chair or the Speaker of the House or the President of the Senate – to decide whether an amendment fits within the single subject expressed in a title. After a bill passes, if someone thinks the bill contains more than one subject, he or she may bring a civil suit claiming the bill is unconstitutional. These cases are very rare. But when they occur, the court generally defers to the General Assembly’s judgment in passing the bill. However, if the court finds that a section of the bill is not germane to the title, that section will be held unconstitutional, but the rest of the bill will be valid.

Early in each legislative session, the General Assembly passes a bill to enact the Colorado Revised Statutes, as republished with all of the changes that passed by bill during the previous legislative session, as the positive and statutory law of Colorado. This bill cures any title defects that may have existed with any bills passed during the preceding legislative session. If someone wants to challenge the constitutionality of a bill based on whether all sections of the bill fit within the title, that person must do so before the General Assembly passes the bill to enact the Colorado Revised Statutes.

1. Parrish v. Lamm, 758 P.2d 1356 (Colo. 1988). ↩︎

by Jery Payne

Imagine you are judging a court case. The Wildlife Commission held a hearing to award a grant for an endangered species. Both the Whooping Crane Association and the Black-Footed Ferret Foundation applied. The commission gave the grant to the ferret folks, but it didn’t have a legally required quorum. The crane crew sues to make the ferret folks repay the grant.

The crane crew cites a law: “The commission shall have a quorum to do business.” Because the grant was made illegally, they want it repaid. They argue that the grant is invalid because the commission didn’t have a quorum.

The ferret folks argue that “shall” is well established as a command. This means that the commission had a duty to follow the law. If the commission broke the law, then the commission, not the ferret folks, have to make it right.

The crane crew replies that this makes the law meaningless because it doesn’t punish a violation or even require restitution. Failing to do your duty must have consequences.

How do you decide? Under Standard English, the ferret folks are right. The commission violated its duty and should suffer the consequences. But most people intuitively think that the legislature intended to withhold authority, not punish the commission. Do you apply the law as written or as probably intended?

This is merely one of many kinds of problems caused by using “shall” as a magic word to make things happen. So a law was passed during the 2013 session¹ to help us avoid these problems. First, it defines the word “shall” to mean that “a person has a duty.” Second, it defines the word “must” to mean that “a person or thing is required to meet a condition for a consequence to apply.” And to keep the distinction clear, it adds “‘must’ does not mean that a person has a duty.”

How does this help? It is the foundation for a set of practices that help the legislature draft clearly. Here’s how it works:

We won’t use “shall” unless it can be replaced with the phrase “has a duty to.” This works well for some problems, such as “You shall not steal,” which becomes “You have a duty to not steal.” Then we add a punishment, and it works. A court will know what to do when somebody steals.

But this doesn’t work: “The application shall be written in red ink.” An application is a thing; if it can’t do, it can’t have a duty. So we need to either (1) decide who has the duty and punish violators or (2) establish consequences. The first may not be practical. Do you really want to punish somebody for messing up an application? Maybe it would be better to reject the application.

This is when the word “must” helps. It is used to establish a requirement: “To be valid, the application must be written in red ink.” If the ink isn’t red, you won’t get what you’re applying for. That’s probably better than a punishment.

The important thing is to be clear about what happens when the law’s requirements aren’t met. The crane-ferret case could be avoided by writing “The actions of the commission are void unless a majority of the commission votes in favor of the act.” Then, the court wouldn’t have to choose between the law as written and as intended.

1. House Bill 13-1029, and the new provisions are codified at 2-4-401 (6.5) and (13.7), Colorado Revised Statutes. ↩︎