Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: September 2014

  • Ex Post Facto Laws, Effective Dates, and Legislative Time Travel

    by Richard Sweetman and Rebecca Hausmann

    You want your bill to take effect on January 1, 2015, but your bill drafter says it’s not possible. Why not?

    Because the General Assembly convenes on January 7, 2015, the earliest any bill can be introduced is January 7, 2015. The earliest it could pass both houses of the General Assembly is January 9, 2015. And you can’t make a law travel back in time to apply to dates that occurred before the law was even passed!

    Or can you?

    Retroactivity and Retrospectivity

    Section 11 of article II of the Colorado constitution provides that “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.” [emphasis added]

    However, in Colorado, the courts observe a distinction between retroactive application of law and retrospective application of law. Although the retroactive application of a statute is generally disfavored by the common law and by section 2-4-202, C.R.S., (“A statute is presumed to be prospective in its operation.”), the retroactive application of a civil statute is not necessarily unconstitutional. Retroactively applied civil legislation is unconstitutional only if it is also retrospectively applied. Ficarra v. Dep’t of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo. 1993).

    A statute is retrospective if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002).

    The Colorado Supreme Court’s retrospectivity analysis consists of two inquiries. First, the court will consider the “vested right” prong of retrospectivity. Second, if a vested right is not implicated, the court will consider the “new obligation, new duty, or new disability” prong of retrospectivity.

    A couple of recent court cases provide examples of how a bill’s effective date can affect a court’s retrospectivity analysis.

    Impermissible Retroactivity

    On March 27, 2006, the General Assembly enacted the “Colorado Clean Indoor Air Act,” which imposes restrictions on smoking in public places. The Act had an effective date of July 1, 2006. In Coalition for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 2006 U.S. Dist. LEXIS 77914 (D. Colo. 2006), the U.S. District court in Denver ruled that section 25-14-204 (2), C.R.S., was impermissible ex post facto legislation because a cigar-tobacco bar owner who legally expanded a business between December 31, 2005, and July 1, 2006, would become subject to penalties as of July 1, 2006, for the pre-enactment expansion. Section 25-14-204 (2), C.R.S., states in part:

    A cigar-tobacco bar shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005.

    The court stated that “on its face, this language criminalizes activity, expansion of a cigar-tobacco bar, that occurred prior to enactment, when it was still legal.”

    Permissible Retroactivity

    But, the fact that a law applies to a past action does not, in and of itself, make it impermissibly retroactive. In Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. App. 2011), the Colorado Court of Appeals addressed the question of retroactive applicability. Section 38-12-301, C.R.S., which prohibits rent control by counties and municipalities, was amended effective September 1, 2010, by HB10-1017. The “effective date – applicability clause” of the act indicated that the changes applied to agreements entered into “before, on, or after September 1, 2010.” [emphasis added]

    Before the 2010 amendment, section 38-12-301, C.R.S., simply stated:

    38-12-301. Control of rents by counties and municipalities prohibited – legislative declaration. The general assembly finds and declares that the imposition of rent control on private residential housing units is a matter of statewide concern; therefore, no county or municipality may enact any ordinance or resolution which would control rents on private residential property.

    The 2010 amendment clarified the restriction in that section by adding subsection (2):

    (2) For purposes of subsection (1) of this section, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include:

    (a) A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or

    (b) The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title.

    The Meyerstein court found that the 2010 changes to section 38-12-301, C.R.S., were meant to clarify the existing law, not change it, and therefore the retroactive application of the new language under the circumstances of the case did not violate the constitutional prohibition against retrospective legislation.

    To reach its decision, the court first noted the General Assembly’s explicitly stated intent that the new subsection (2) be applied retroactively. Meyerstein, at 465. The court also noted that in a prior case (Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000)) the Colorado Supreme Court had concluded that the unamended statute was ambiguous — particularly as to whether the statute could be read to extend beyond just ordinances and resolutions to deed restrictions. Id. Finally, the court considered the legislative history of the 2010 bill, especially comments by the sponsor, Senator Betty Boyd, indicating that the bill was intended to “clarify” the scope of the existing provision. Id., at 466.

    Next, applying the two-prong approach described in DeWitt, the court stated that the statutory change did not deprive the plaintiff of any vested right and did not produce any change in the plaintiff’s position. Id., at 466. The plaintiff had purchased property that was subject to a deed restriction limiting tenants and rents, and application of the new rent control statute did not change that fact. Id., at 466.

    Legislative Time Travel

    So in the rules of the legislative universe, it is technically possible to make a law travel back in time to apply to dates and actions that occurred before the law was passed. That is, it is possible for an enacted law to apply retroactively. However, for this to happen, the General Assembly must be absolutely clear about its intent, and the retroactive application of the law must pass strict judicial tests to ensure its constitutionality.

  • Statutory Construction: Interpreting requirements for action by a public body, numbers, references to statutes, and introductory portions of statutes

    by Julie Pelegrin

    Editor’s Note: Last September, LegiSource began a series of articles focusing on statutory construction. This week’s article is the fourth in the series. For the earlier articles, see postings on Sept. 12, 2013, and July 31 and August 21, 2014.

    Continuing our exploration of the General Assembly’s clarifications of certain words and phrases, this week we look at (1) how many members it takes for a public body to act; (2) what happens when the numbers say one thing, but the words say another; (3) what does “to” really mean; and (4) what it means when a drafter refers to the “introductory portion” of a statute.

    Joint authority and quorum of a public body: §§2-4-110 and 2-4-111, C.R.S.

    Many sections of statute create boards, commissions, task forces, advisory boards, or some other group of people who make policy decisions or recommendations. The statute that creates a policy group seldom specifies the minimum number of members that must be present for the body to take action and how many of them must agree for the action to be valid.

    But that’s okay because sections 2-4-110 and 2-4-111, C.R.S., clarify that, for every public body, a quorum is aLegislative Services CRS majority of the members of the body, as set in the statute. And if the body consists of three or more persons, a majority of the total number of members — not just a majority of a quorum — must agree for the body to exercise its authority. But if the statute that creates the policy group specifies a different number of members for a quorum or for the group to exercise its authority, the specific number will override §§2-4-110 and 2-4-111, C.R.S.

    The House of Representative and Senate don’t follow these sections. House Rule 25 (i) (1) and (j) (10) and Senate Rule 22 (b) and (n) require a majority of the members of a legislative committee for a quorum, and the agreement of a majority of a quorum or a majority of those present and voting, whichever is greater, is necessary to take action on legislation. So for a nine-member committee, at least five members must be present for the committee to take any action. And if only five members are present, the action can be approved by the affirmative vote of three members. But if all nine members are present, the action must be approved by the affirmative vote of at least five members.

    Expression of numbers: §2-4-112, C.R.S.

    A statute will sometimes include a number, and it may express the number both in numerals and in words. If the numeral is different from the word, §2-4-112, C.R.S., says that the word will govern. This provision also applies to nonstatutory portions of a bill such as appropriations clauses.

    The use of “to” in referring to several sections of statute: §2-4-113, C.R.S.

    Often, a statute will make a cross-reference to other statutory sections as follows: “section xx-xxx-xxxx to section xx-xxx-xxxx.” This creates an ambiguity: Are one or both of the listed sections included in the cross reference? Or does it include just the sections between the two listed sections? Section 2-4-113, C.R.S., solves this dilemma. Whenever the statutes refer to several sections and the section numbers given in the reference are connected by the word “to,” the reference includes both of the sections whose numbers are given and all intervening sections.

    If subsequent legislation adds a new section that falls between the two listed sections, that new section is automatically included in the cross-reference unless it is specifically excluded. So an existing reference to “sections 2-2-110 to 2-2-113” will automatically include a new section 2-2-110.5. Section 2-4-113, C.R.S., also applies to references to subdivisions of a section, such as “subsections (1) to (5).”

    Introductory portion: §2-4-114, C.R.S.

    You will sometimes hear a bill drafter refer to the “introductory portion” of a statute, and you may wonder what she’s talking about. The drafter did not make up the term; it’s created in §2-4-114, C.R.S.:

    The portion of any section, subsection, paragraph, or subparagraph which precedes a list of examples, requirements, conditions, or other items may be referred to and cited as the “introductory portion” to the section, subsection, paragraph, or subparagraph.

    There are several examples of this in the statutes; the most common is in definitional sections. A typical definitional section starts as follows:

    x-x-xxx. Definitions. As used in this article, unless the context otherwise requires:
    (1) “A” means….
    (2) “B” means…
    (3) “C” means…

    The text that precedes the colon is the introductory portion to the section.
    That’s it for statutory clarification of specific words and phrases. With the following articles in this series, we’ll look at part 2 of article 4 of title 2, C.R.S., which provides several rules or canons that courts apply when interpreting the statutes.

  • A Case of Mistaken Identity: Word pairs that are deceptively different

    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.

  • Legislative Oversight of State Agency Rule-making

    by Debbie Haskins

    Each year executive branch agencies in Colorado adopt over 500 sets of rules creating at least 16,000 pages of rules and accompanying materials. That’s a lot of rules! And every one of those rules, along with the corresponding materials, is read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    Through this rule review function, required by statute and performed by the OLLS and the Committee on Legal Services (Committee), the legislative branch oversees executive branch agency rule-making. In this example of the checks and balances between the legislative branch and the executive branch, the General Assembly reviews rules adopted by state agencies to find any instances where an agency has adopted Rule Booksrules that do not comply with the agency’s statutory authority or where rules conflict with state or federal law. When problems are found, the General Assembly takes steps to “check” that action by eliminating the flawed rule.

    The State Administrative Procedure Act (APA) requires each state agency to submit every rule that it adopts or revises to the OLLS for review under the supervision of the Committee. The standard of review is based on language in section 24-4-103 (8) (a), C.R.S., which states that “No rule shall be issued except within the power delegated to the agency and as authorized by law.” This means that when the General Assembly enacts statutes that delegate to a state agency the power to adopt rules, those rules must conform with the power delegated to that agency, must be authorized by the law, and must not conflict with the law. The vast majority of rules meet these requirements and the Committee and the General Assembly do not have to take action regarding them. But sometimes a rule fails to meet one of these requirements. At that point, the Committee and the General Assembly turn to the process laid out in the APA.

    The APA establishes a year-round cycle for reviewing rules. Under section 24-4-103 (8), C.R.S., rules adopted during that one-year period (from November 1 through October 31) automatically expire on May 15 following their adoption, unless the General Assembly extends the rules by passing a bill. The bill referred to in the statute is the annual Rule Review Bill, sponsored by the Committee. The Rule Review Bill postpones the automatic expiration of these agency rules, except for those rules listed in the bill that the Committee has determined should expire because the rules 1) lack statutory authority, 2) exceed statutory authority, or 3) conflict with a state or federal statute or constitutional provision.

    If the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the agency to Man reading Rulesdiscuss the issues with the rule. If the agency disagrees with the analysis or is unable to fix the problems identified with the rule, the staff schedules the rule issue for a hearing before the Committee. The OLLS staff writes a memo for the Committee explaining the staff’s analysis, and the agency may also submit a memo to the Committee. At the hearing, the Committee hears from the OLLS staff and from the agency and takes public testimony. At the conclusion of the rule review hearing, the Committee votes as to whether the rule should or should not be extended in the Rule Review Bill. The Committee bases its decision on the legal question of the authority of the rule — not on whether the rule in question is a good or bad policy for the state. After the Rule Review Bill passes, the OLLS staff transmits the bill to the Secretary of State’s office, which removes any expired rules from the Colorado Code of Regulations.

    Sometimes the underlying problem with a rule is that the statute should be clarified, and the agency may seek legislation to give it specific statutory authority for the rule. Under its policies, the Committee will not introduce corrective legislation to fix rule issues. The executive branch agency must find a legislator to sponsor a bill to change the statutes and authorize the agency to adopt the rule.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes executive branch agencies to adopt rules. In 2013, the General Assembly enacted Senate BillRules Apply 13-030 to help answer the perennial question of bill sponsors: “Did the agency ever adopt rules to implement my bill?” Section 24-4-103 (8) (e), C.R.S., requires the OLLS to identify these rules and notify sponsors and cosponsors when the agency adopts the rules required or authorized by the new legislation. This requirement applies to legislation enacted during the 2013 legislative session and sessions thereafter. An earlier article (SB 13-030 in Action: Improved Communication between Rule-making Agencies and Legislators) explained how the OLLS will notify legislators.

    But what if you want to know whether an agency ever adopted rules to implement a bill you heard in a committee of reference? Or what if you no longer have the e-mail notice sent to you? Any one can look up rule implementation information at any time on the OLLS’s homepage under a new tab entitled Rule Review. The OLLS is maintaining a chart, organized by committees of reference, that shows each bill for which rules are adopted. The chart also provides a link to the rule information that each agency files during the rule adoption process. Click here for a link to the current chart.

    Section 24-4-103 (8) (e), C.R.S., also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted. Beginning January 2015, and each January thereafter, the OLLS will send an annual email notice to the committees of reference with the chart of rules that the OLLS has compiled.