Colorado LegiSource

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

Year: 2019

  • Statutory Annotations Take Center Stage Before the U.S. Supreme Court

    By Jennifer Gilroy

    To listen to the news you would think the U.S. Supreme Court was concerned only with Second Amendment rights in hearing oral arguments last Monday. But they actually saved some energy for a vigorous discussion about copyrighting the annotations to state statutes.

    As we explained in LegiSource in April of 20171 (it takes a while for a case to wend its way from the trial court to the U.S. Supreme Court), while the text of the statutes is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. Up to now, most states have routinely filed a copyright on these writings, recognizing them as original, individual expressions that have a “modicum of creativity” (the general standard for copyrighting material). But now, the assumption that these writings are copyrightable is called into question.

    Our earlier article explained that the State of Georgia sued Public.resource.org (PRO) after it purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it, in its entirety, online. Georgia claimed this posting infringed on Georgia’s copyright of the annotations.2 As explained in the earlier article, Georgia successfully defended against PRO’s motion for summary judgment in the case pending before the District Court for the Northern District of Georgia. The District Court determined that the Georgia statutory annotations are, in fact, original works entitled to broad copyright protection.

    PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether it should treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable because they represent the exercise of sovereign power. Because they are written by the People’s representatives, they are in effect written by the People and are therefore part of the public domain. This policy is referred to as the government edicts doctrine.

    In October of 2018, the Eleventh Circuit observed that the issue before it was a “close one,” acknowledging that there were important considerations of public policy at stake on both sides. Ultimately, however, it concluded that the annotations in the OCGA were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. In reaching this conclusion, the Eleventh Circuit stated that: The annotations clearly had authoritative weight in explicating and establishing the meaning and effect of Georgia’s law; the procedures by which the annotations were incorporated in the OCGA bore the hallmarks of legislative process, namely bicameralism and presentment; and Lexis, with which the Georgia Code Revision Commission contracted to draft the annotations, did so pursuant to highly detailed instructions set out in the contract.

    Last March, the state of Georgia petitioned the United States Supreme Court (the Court) for a writ of certiorari, posing the question whether the government edicts doctrine extends to, and thus renders uncopyrightable, works that lack the force of law such as the annotations in the OCGA. The Court granted Georgia’s petition. Over the spring, summer, and fall, there were 33 amicus briefs filed. The amicus brief filed by Lexis even included a citation to the April 2017 LegiSource article. After the briefing schedule concluded, the Court heard oral arguments on December 2nd. We anxiously await the Court’s ruling likely sometime before June next year.

    However, as explained in the previous article, the outcome of the case will not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website, the Committee decided a copyright was not appropriate.

    1. https://legisource.net/2017/04/06/who-owns-the-law-the-colorado-perspective-on-copyright-and-state-statutes/ ↩︎
    2. For purposes of this case, “annotations” includes “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.” ↩︎

  • Spooky Oddities at the State Capitol

    by Ashley Athey

    In honor of All Hallows’ Eve, we’re reposting our article on the spooky tales and apparitions that haunt the gold dome. Have you encountered one of these spirits? Let us know!

    As with many old, historical buildings, a number of ghost stories haunt the Colorado State Capitol. Officially, there are no ghosts to be found in the building. However, those of us who have smelled an odd perfume, seen an odd figure, or heard an odd hoof beat know better. In honor of Halloween, we present to you a few of the most notable ghosts that unofficially haunt our halls.

    Black and white photo of a spooky floating face.

    The Bloody Espinosas1

    Perhaps the most well-known story of the capitol, this tale begins in 1863. Back then, the Colorado settlement was four years young, and the Gold Rush had brought a curious crowd to the territory. Denver was less a big city and more a town full of tents and temporary occupants hoping to make it rich. A few smaller mining towns were popping up throughout the state as gold was discovered, including Breckenridge, Colorado City, and Black Hawk, but these developments upset many people who already lived in the area. Two brothers from New Mexico, Felipe and Vivian Espinosa, were especially irate at the pioneers moving onto their land in the San Luis Valley and, for the better part of 1863, were intent on killing as many of the new residents as they could. Numbers of the murdered vary, but it’s believed they killed between a dozen and 30 people in just a few months.

    Accounts of how the brothers’ bloody careers ended differ, but eventually the brothers were killed, likely by a volunteer group of citizens from Park County. Their heads were brought to the capitol to collect the bounty set by the governor, but the governor refused to pay and no one knew what to do with the heads. They were first kept in the Treasurer’s Office in the capitol building but were later moved to the sub-basement beneath the capitol. Eventually, the heads were destroyed in the furnace.

    Since then, it’s been said that the heads of the Espinosa brothers can be seen floating through the building after dark. And if you’ve ever heard the sound of horses galloping up and down the main staircase, well, that’s just the Bloody Espinosas…looking for their heads!

    The Victorian Apparition

    On the third floor of the capitol building, rumor has it that you can see the ghostly visage of a woman wearing Victorian-era garments. She appears out of a mist near the entrance to the senate chambers and then floats off to either side of the chamber before disappearing.

    Black and white photo of translucent female figure on a staircase.

    The Woman in a Long Dress

    A female spirit, appearing in a long, turn-of-the-century dress, is said to wander the steam tunnels beneath the capitol, as well as the capitol building and all the buildings connected to the tunnels in the Capitol Hill area. She’s been seen reading over the shoulders of employees in each of the buildings.

    The Mysterious Tunnels

    Certainly the steam tunnels under the capitol building lend themselves to spooky stories and an overall heightened awareness. In addition to The Woman in a Long Dress, there have been reports of odd cold spells, during which keys, ID badges, and other items are pulled away from the body of the owner and lifted into the air by an unseen force.

    General Spookiness

    While the above stories illustrate a few of the known spirits, there are still a few more spooky happenings in the capitol building that don’t have a known explanation:

    • In the early hours before business gets going, and in the late hours well after business is done for the day, it’s said that the temperature in many areas of the capitol suddenly drops and a vintage, rose-scented perfume permeates the air before disappearing without a trace as the temperature returns to normal.
    • When business is done for the day, voices, conversations, and footsteps can be heard in and around empty meeting rooms and offices.
    1. https://www.legendsofamerica.com/outlaw-espinosagang/ ↩︎

  • Parsing Powers: Legislative Review of State Department Rules

    by Julie Pelegrin

    Each year, executive branch agencies in Colorado adopt between 400 and 500 sets of rules creating many thousands of pages of rules and accompanying materials. Specifically, in 2018 alone there were 457 sets of rules adopted. Counting the rules and corresponding materials, that totals up to 26,971 pages. That’s a lot of rules! And every one of those rules, along with the corresponding materials, was read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    This rule review function provides an instructive example of how the vague constitutional concept of separation of powers actually works between the legislative and executive branches. The legislature has the authority to make the laws. But in some instances, it makes more sense for the persons working directly with a program to decide the implementing details. In those situations, the legislature delegates some of its legislative authority to an executive branch department, allowing it to adopt rules. However, in adopting rules, the department must comply with statutes and cannot go beyond the authority that the legislature delegated to it. To ensure this does not happen, the legislature retains the ability to review the executive branch department’s rules and approve only those rules that are within the department’s rule-making authority and do not conflict with state or federal law.

    This process for reviewing and approving executive branch department rules is found in the State Administrative Procedure Act (APA). The APA requires each department to submit every rule that it adopts or revises within a one-year period to the OLLS for review under the supervision of the Committee on Legal Services (Committee)1. The standard of review is based on language in section 24-4-103 (8)(a), Colorado Revised Statutes, which states, “No rule shall be issued except within the power delegated to the agency and as authorized by law.” The vast majority of rules meet these requirements. But sometimes a rule conflicts with a statute or the constitution or does not fit within the limits of the department’s rule-making authority. 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), Colorado Revised Statutes, rules adopted during the one-year period from November 1 through October 31 automatically expire on the next May 15, unless the General Assembly extends the rules by passing a bill.  This annual bill is called the Rule Review Bill and is sponsored by the Committee. The Rule Review Bill postpones the automatic expiration of all of the adopted department rules, except for those rules listed in the bill that the Committee has decided 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.

    During the process of reviewing the rules, if the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the department to discuss the issues with the rule. If the department 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 its analysis, and the department may also submit a responsive memo to the Committee.

    At the hearing, the OLLS staff and if, they choose to appear at the hearing and make a presentation, the department staff or the department of law staff representing the department explain their positions to the Committee, and the Committee takes public testimony.  At the end of the hearing, the Committee votes to either extend the rule through the Rule Review Bill or allow the rule to expire. The Committee bases its decision on the legal question of the authority of the rule—not on whether the rule in question is 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 a department will seek a change to a statute to provide authority for a rule. The Committee will not carry a bill to do this, but if an individual legislator introduces and passes such a bill, the Committee will amend the Rule Review Bill so that the newly authorized rule does not expire.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes departments to adopt rules. Many legislators, after passing bills that create new programs, later ask, “Did the department ever adopt rules to implement my bill?”  Section 24-4-103 (8)(e), Colorado Revised Statutes, requires the OLLS to identify rules related to newly enacted bills and notify prime sponsors and cosponsors when the department adopts rules required or authorized by the new legislation. The OLLS sends out e-mail notices to prime sponsors and co-sponsors when the rules are adopted.

    But what if you want to know whether a department ever adopted rules to implement a bill you heard in a committee of reference?  Or what if you’re a legislator and you no longer have the e-mail notice?  Anyone can look up rule implementation information at any time on the OLLS’s homepage2 under “Rule Review”. The OLLS maintains a page with tables of rules related to newly adopted legislation3.  The chart also provides a link to the rule information that each department files during the rule adoption process.

    Section 24-4-103 (8)(e), Colorado Revised Statutes, also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted.  Each January, the OLLS sends an email notice to the committees of reference with the chart of rules that the OLLS has compiled.

    So, while the legislature is willing, when appropriate, to delegate some of its authority to the executive branch by authorizing a department to adopt rules, the legislature keeps a close eye on how that authority is exercised, ensuring that the department stays within the lines.

    1. https://leg.colorado.gov/committees ↩︎
    2. https://content.leg.colorado.gov/agencies/office-of-legislative-legal-services ↩︎
    3. https://content.leg.colorado.gov/agencies/office-legislative-legal-services/rule-review ↩︎

  • Legislative Review of Administrative Rules: A History of Oversight – Part 2

    by Thomas Morris

    In our previous article about the history of rule review, we looked at the process from its pre-legislative oversight era to 1976, when the General Assembly required legislative oversight of executive branch rules. In today’s article, we pick up one year later, when the General Assembly made more changes to the process.

    Legislative review of existing rules. In 1977, just one year after directing committees of reference or the Committee on Legal Services (COLS) to conduct the initial level of legislative oversight of new rules, the General Assembly enacted a law1 that, among several other significant changes, removed the authority to amend a rule and directed the “legislative drafting office” (the predecessor to the OLLS) to conduct the initial review:

    24-4-103.  Rule-making – procedure. (8) (d)  All rules adopted or amended on or after July 1, 1976, including temporary or emergency rules, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to legislative drafting office in the form and manner prescribed by the committee on legal services. Said rules and amendments to existing rules shall be filed by and in such office and shall be first reviewed by the staff of said committee to determine whether said rules and amendments are within the agency’s rule-making authority, and for later review by the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). The official certificate of the director of the legislative drafting office as to the fact of submission or the date of submission or a rule as shown by the records of his office, as well as to the fact of nonsubmission as shown by the nonexistence of such records, shall be received and held in all civil cases as competent evidence of the facts contained therein. Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or within twenty days after the date of the attorney general’s opinion rendered thereon to the legislative drafting office for review by the committee of legal services shall be void. The staff’s finding shall be presented to said committee at a public meeting held after timely notice to the public and affected agencies. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference proposed legislation at the next regular session of the general assembly. The committee on legal services shall be the committee of reference for any bill introduced pursuant to this paragraph (d). A committee of reference, or the committee on legal services, or Any member of the general assembly may introduce a bill which amends or rescinds or deletes portions of the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective, and that portion of the rule which remains after deletion of a portion thereof shall retain its character as an administrative rule. Passage of a bill repealing a rule does not result in revival of a predecessor rule.  Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services legislative drafting office. This paragraph (d) does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules. For the purpose of performing the functions assigned it by this paragraph (d), the committee on legal services, with the approval of the speaker of the house of representatives and the president of the senate, may appoint subcommittees from the membership of the general assembly. In addition, the said committee shall establish a program for the systematic review of all agency rules adopted prior to July 1, 1976, and in effect at the time of such review, which review shall be completed within a reasonable time not to exceed five years.

    Significantly, the final sentence of this statute directed the COLS to “establish a program for the systematic review of all agency rules adopted prior to July 1, 1976”.2 In 1979, evidently to implement this program for legislative review of existing rules, the General Assembly enacted House Bill 79-1063, which:

    • Provided for the automatic expiration of all new rules on the June 1 of the year after their adoption unless the expiration is postponed by bill;3
    • Struck the final sentence of section 24-4-103 (8)(d), Colorado Revised Statutes;4 and
    • Enacted section 24-4-108, Colorado Revised Statutes.5

    Section 24-4-108 (1) Colorado Revised Statutes provided that, “[u]nless extended by the general assembly acting by bill, all of the rules and regulations of the principal departments shall expire on the dates specified in this section.” Subsections (2) through (6) of this section then specified, respectively, that all existing rules of the various departments would expire on July 1 of the five years commencing on or after July 1, 1980. Subsection (7) specified that the General Assembly could “postpone by bill the expiration of rules and regulations, or any portion thereof, as often as necessary, but no such postponement shall exceed four years.”6 The General Assembly also amended subsection (7) to authorize the COLS to “establish procedures for the implementation of review of rules and regulations contemplated by this section including, but not limited to, a procedure for annual review of rules and regulations which may conflict with statutes or statutory changes adopted subsequent to review of a department’s rules and regulations pursuant to this section.”7

    After this 5-year legislative review of existing rules ran its course,8 the statutes governing the legislative review of rules assumed much of their current form:

    • The validity of existing rules is not reviewed unless included in a submittal that amends existing rules or adds new rules;
    • All new rules must be submitted to the attorney general and OLLS for review of their statutory authority;
    • All new rules automatically expire on the May 15 that follows the one-year period from Novem ber 1 to October 31, unless the General Assembly postpones the expiration acting by bill; and
    • The OLLS takes rules that it believes lack statutory authority or conflict with statute to the COLS, which holds a hearing to make its determination. Those determinations are then compiled into the annual rule review bill.

    For a LegiSource article that explains the current standards and procedures for legislative rule review in more detail, see “Parsing Powers: Legislative Review of State Department Rules”9.

    1. House Bill 1977-1646; Session Laws, 1977, p. 1141, section 1. ↩︎
    2. Recall that the General Assembly had already directed the attorney general to review all existing rules in section 3-16-2 (8)(c) Colorado Revised Statutes (enacted by Senate Bill 1967-102) (see footnote 7 above). ↩︎
    3. Session Laws, 1979, p. 845, section 1. The General Assembly later modified law governing the automatic expiration of rules, section 24-4-103 (8)(c)(I), Colorado Revised Statutes, by specifying that all rules adopted during the one-year period from November 1 to the following October 31 automatically expire on the May 15 that follows the one-year period unless the General Assembly postpones the expiration acting by bill. Senate Bill 1993-035; Session Laws, 1993, p. 496, section 1. ↩︎
    4. Session Laws, 1979, p. 845, section 2. ↩︎
    5. Session Laws, 1979, p. 845, section 3. ↩︎
    6. The General Assembly soon repealed the four-year limit on postponement. Senate Bill 1981-294; Session Laws, 1981, p. 1145, section 1. ↩︎
    7. Senate Bill 1981-294; Session Laws, 1981, p. 1145, section 1. ↩︎
    8. The legislature enacted several bills to repeal parts or all of subsections (2) through (6) of section 24-4-108, Colorado Revised Statutes, from 1980 to 1984. ↩︎
    9. https://legisource.net/2019/10/24/parsing-powers-legislative-review-of-state-department-rules-2/ ↩︎

  • Statutory Construction: Severing Statutes and Resolving Conflicts

    In addition to presumptions1 and tools for discerning legislative intent,2 the statutes on construction of statutes provide specific guidance for when a court can salvage part of an otherwise unconstitutional statute and how a court should decide which statute to apply when two statutes conflict.

    Statutory Salvage Operations: Severability

    Suppose a court interprets a statute and finds that part of that statute is unconstitutional. Does that mean the entire statute is unconstitutional, or can some portions of the statute survive?

    The answer turns on the concept of severability. Section 2-4-204, Colorado Revised Statutes, says that, if a court finds part of a statute to be unconstitutional, the remaining constitutional parts of the statute are valid, unless the court finds that those remaining parts are:

    • So essential to the unconstitutional part that the General Assembly would not have passed the constitutional part without the unconstitutional part; or
    • So incomplete that they cannot be implemented without the unconstitutional portion.

    To illustrate, let’s consider a hypothetical situation: Assume there’s a statute that regulates caterpillar breeders. Under this statute, a caterpillar breeder cannot have more than 1,000 caterpillars at a time and the caterpillar breeder cannot advertise her caterpillar breeding business. A caterpillar breeder sues the state claiming that the statute is unconstitutional because limiting the number of caterpillars and prohibiting advertising restricts her freedom of commercial speech. The court agrees that the prohibition on advertising is unconstitutional and cannot be enforced. However, the court finds that the limit on the number of caterpillars has nothing to do with commercial speech and is constitutional. The court will find that the statute is severable because the limit on the number of caterpillars is not directly related to the prohibition on advertising and can be implemented even though the prohibition on advertising is not enforced.

    When Statutes Collide Part I: Specific Controls Over the General…Usually

    Sometimes a statute will state a general requirement that is intended to apply in a variety of situations. But another statute may impose a different requirement in a specific situation. How is a court supposed to apply both of these statutes?

    Section 2-4-205, Colorado Revised Statutes, directs a court to read the statutes together and give effect to both of them if possible. If the two requirements conflict and they cannot both apply, the court must apply the specific requirement instead of the general requirement. But, if the General Assembly passed the general requirement after it passed the specific requirement and made it clear that the general requirement was intended to replace the specific one, then the court will apply the general requirement, not the specific requirement.

    Another illustrative hypothetical: Assume there’s a statute that says applications for a professional license must be filed in triplicate with the appropriate licensing agency. But, the statute for licensing professional caterpillar breeders says a caterpillar breeder may submit a single copy of the license application with the professional caterpillar breeders board. Obviously, a court could not apply both of these statutes; one must prevail. The court would allow the caterpillar breeder to file a single copy of the license application with the board, unless the statute that requires the application in triplicate was passed after the caterpillar breeders’ statute, and the bill for the general licensing statute included a statement of legislative intent that it is imperative to good government that all licensing applications be filed in triplicate.

    When Statutes Collide Part II: Later In Time Controls

    Sometimes two statutes conflict, not because one is general and the other is specific, but because one prohibits what the other allows or requires. As in other cases, the court will first try to reconcile the differences and give effect to both sections. But, under section 2-4-206, Colorado Revised Statutes, if the differences are irreconcilable – there is a true conflict – the statute that has the latest effective date is the one the court will apply. If both statutes were passed in the same legislative session with the same effective date, the statute that has the latest date of passage will apply.

    Again, to illustrate: A caterpillar breeder loses his license because he does not post his license in the front window of the breeding building, as required by House Bill 1705. But, the caterpillar breeder argues to the court that he should keep his license because, under Senate Bill 923, a person who posts anything in the window of an insect breeding facility commits the crime of insect cruelty (papers in the window block the sunlight). The court cannot reconcile the conflict between the two statutes, so it looks to the effective dates of the bills. House Bill 1705 had an effective date clause that said it took effect July 1, 2009. Senate Bill 923 passed in 2009 without an effective date clause and without a safety clause – so it took effect August 5, 2009.  Senate Bill 923 took effect last, so it controls. The caterpillar breeder does not have to post his license.

    If House Bill 1705 and Senate Bill 923 had both passed without a safety clause and without an effective date clause, they would have both taken effect on August 5, 2009. In that case, the court would look for the date on which the Governor signed each of the bills. If the Governor signed House Bill 1705 on May 3, 2009, and signed Senate Bill 923 on May 4, 2009, the court would apply Senate Bill 923.

    1. https://legisource.net/2019/09/12/statutory-construction-legislative-intent-and-the-presumptions-used-to-interpret-statutes-2/ ↩︎
    2. https://legisource.net/2019/09/26/statutory-construction-what-was-the-general-assembly-thinking-2/ ↩︎

  • Legislative Review of Administrative Rules: A History of Oversight – Part 1

    by Thomas Morris

    Colorado’s constitution vests all legislative authority in the General Assembly.1 It also requires a separation of powers between the “three distinct departments,—the legislative, executive and judicial” by specifying that “no person . . . charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others . . .”.2 How, then, can executive branch agencies promulgate rules, which are a type of law3 that seemingly should be enacted by the General Assembly?

    Pursuant to well-established principles of administrative law, a legislature may delegate its law-making power to an executive agency, but only if there are “sufficient statutory standards and safeguards and administrative standards and safeguards, in combination, to protect against the unnecessary and uncontrolled exercise of discretionary power.”4 Accordingly, it is fairly common for a legislature, once it has delegated rule-making authority to an agency, to review the agency’s exercise of that authority to ensure that the legislature’s intent has been carried out faithfully.

    Since 1976, the Administrative Procedure Act (APA)5 has required Colorado’s rule-making agencies to submit their new rules to the General Assembly for review. But the scope, procedures, and standards of that review have evolved over time. This article, the first of two regarding the rule review process, briefly summarizes that evolution.

    Pre-legislative oversight era

    The General Assembly enacted the earliest version of the APA in 1959.6 This version of the APA did not provide for legislative rule review but did specify the following standards7 for determining whether a rule is authorized:

    No rule shall be issued except within the power delegated to the agency and as authorized by law. A rule shall not be deemed to be within the statutory authority and jurisdiction of any agency merely because such rule is not contrary to the specific provisions of a statute.

    The General Assembly first provided for the systematic review of rules’ statutory authority in 19678 by directing the attorney general to review both new9 and existing rules:

    3-16-2.  Rule making procedure. (8) (b) On and after July 1, 1967, no rule shall be issued, nor existing rule amended, by any agency unless it shall first be submitted by the issuing agency to the attorney general for his opinion as to its constitutionality and legality. Any rule, or amendment to an existing rule, issued by any agency without being so submitted to the attorney general shall be void.

    (c) All rules of any agency in effect on July 1, 1967, also shall be submitted, on or before December 31, 1967, to the attorney general for his opinion as to its constitutionality and legality, and no such rule shall continue in effect after December 21, 1968, unless so submitted.

    Early legislative oversight

    Evidently concluding that more oversight was needed, 10 years after directing the attorney general to review both new and existing rules, in 1976, the General Assembly added a law10 that, for the first time, provided for systematic legislative review of new rules:

    24-4-103.  Rule-making – procedure. (8) (d)  All rules adopted or amended on or after July 1, 1976, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or to the committee of legal services shall be void. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference at the next regular session of the general assembly. A committee of reference, or the committee on legal services, or any member of the general assembly may introduce a bill which amends or rescinds the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective. Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services. This section does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules.

    This initial requirement for legislative review of new rules differs from current procedure in several respects:

    • The review was conducted by committees of reference, or, if the legislature was not in session, the committee on legal services (COLS); current law directs the Office Legislative Legal Services (OLLS) to conduct the initial review;
    • It appears that, if COLS determined that a rule lacked statutory authority, it was directed to submit a “resolution” to an appropriate committee of reference, although COLS could, along with a committee of reference or any legislator, also file a bill; current law directs COLS to file a bill;
    • The submitted rule must include a fiscal impact statement; current legislative review of rules does not specifically relate to fiscal impacts; and
    • Legislation resulting from the review would “amend[] or rescind[]” the rule; current law provides for “automatic termination” of all new rules and an annual bill that “postpones the expiration” of all rules other than those specifically listed.

    Not long after these changes, the General Assembly enacted more significant changes to the rule review process. In part 2 of this article, we’ll explore those changes and the rule review process from 1976 through its current iteration.

    1. “The legislative power of the state shall be vested in the general assembly . . .” Article V, section 1 (1) of the Colorado Constitution. ↩︎
    2. Article III of the Colorado Constitution. ↩︎
    3. “‘Rule’” means the whole or any part of every agency statement of general applicability and future effect implementing, interpreting, or declaring law . . .”. section 24-4-102 (15), Colorado Revised Statutes. ↩︎
    4. https://law.justia.com/cases/colorado/supreme-court/1981/80sa279-0.html ↩︎
    5. Section 24-4-103 (8)(d), Colorado Revised Statutes. ↩︎
    6. House Bill 1959-212; Session Laws 1959, p. 159, section 2. ↩︎
    7. These standards, currently codified in section 24-4-103 (8)(a), Colorado Revised Statutes, were initially codified in section 3-16-2 (8), Colorado Revised Statutes 1953 (cumulative supplement) and then codified in the same section in the 1963 Colorado Revised Statutes. ↩︎
    8. Senate Bill 1967-102; Session Laws 1967, p. 300, section 2. ↩︎
    9. Section 3-16-2 (8)(b), Colorado Revised Statutes 1963, providing for the attorney general’s review of new rules, continues in essentially the same form today, codified as section 24-4-103 (8)(b), Colorado Revised Statutes. ↩︎
    10. Senate Bill 1976-076; Session Laws 1976, p. 582, section 15. ↩︎

  • Statutory Construction: What was the General Assembly Thinking?

    Editor’s Note: This article was originally posted February 4, 2016. We will post the final article in two weeks.

    by Julie Pelegrin

    If the language of a statute is not plain, the court will try to interpret it by applying various presumptions1: The statute is intended to be constitutional; the interpretation should lead to a just and reasonable, not absurd, result; every word matters and should be read in context; the interpretation should not require an impossible task; and the interpretation should benefit the public interest.

    Taking all of these presumptions into consideration, the court will next look to the legislative intent: What did the General Assembly intend to accomplish by passing the statute?

    Section 2-4-203, Colorado Revised Statutes, specifies several items the court may consider in trying to interpret an ambiguous statute:

    Legislative History

    In Colorado, the legislative history is somewhat sparse. The General Assembly does not generate long committee reports that explain the intent and research behind each bill as Congress does. In Colorado, the legislative history consists of the various versions of the bill and the amendments considered in committee and on second and third reading. Legislative history also includes the testimony offered on the bill in committee and the debates on the bill. The court may consider witnesses’ and the bill sponsor’s explanations of a bill2 and what the bill is intended to accomplish.

    Legislative Intent

    In interpreting an ambiguous statute, the court may also consider the General Assembly’s intent in passing the statute. To understand legislative intent, the court looks to any legislative declarations or statements of legislative intent that were passed with the statute. Although legislative declarations are not binding on a court, they do provide some indication of what the statute is supposed to mean and how it should be applied.

    The court may also consider the title of the bill that created or amended the ambiguous statute. In interpreting a workers’ compensation provision, the Colorado Supreme Court held3 that the statute should be read the same way that certain recommendations by a national commission on workers’ compensation laws were read, because the title of the bill that amended the statute was “Concerning Workmen’s Compensation, and Providing Extended Coverage Necessary to Conform to Essential Recommendations of the National Commission on State Workmen’s Compensation Laws….”

    A court may also consider later legislation that amends the underlying statute the court is trying to interpret, but only if the later legislation passes. If the General Assembly introduces a bill to clarify a statute, but the bill doesn’t pass, the court does not consider the intended clarification4 in interpreting the statute. If the bill does pass, however, it is entitled to “great weight”5 in construing the original statute.

    Circumstances of Legislation

    A court may also look to the circumstances that surrounded the adoption of the statute. This is similar to considering the legislative history in that the court considers the explanation a sponsor provides for why he or she introduced a bill. The court may also look at who testified for or against a bill as some indication of the persons the bill was intended to affect. For example, in Gleason v. Becker-Johnson Associates,6 the court found that a statute was intended to apply to the persons involved in constructing a building, not persons who later inspected the finished building, partly because all of the witnesses were builders, architects, and engineers.

    Interpretation by an Administrative Agency

    The court will consider how an administrative agency interprets legislation.7 If an administrative agency is responsible for implementing a statute, and the agency adopts rules or policies that define terms or explain how the agency will apply the statute, a court will give deference to the agency’s interpretation in deciding what the statute means. But the court is not required to follow an agency’s interpretation, and the court will not follow the agency interpretation8 if it contradicts the plain language of the statute.

    The Common Law or Similar Statutes

    When interpreting an ambiguous statute, the court may consider how statutes on related or similar subjects are interpreted. The court may also look to the common law on the same subject to help interpret an unclear statute.

    The common law is the collection of rules of action and principles relating to the government and the security of persons and property that have arisen from usage and customs over centuries and from appellate court decisions that apply and interpret these rules and principles. The statutes are assumed to follow the common law. If the General Assembly intends for a statute to abrogate or change rights9 that are available under the common law, the statute must expressly state or very clearly imply that intent.

    Interpretation Favors the Person Intended to Benefit

    Finally, if the court has gone through the full analysis and it still isn’t sure what the statute means, as a last resort the court will generally resolve the ambiguity in favor of the person or party that the statute is supposed to benefit – consider it the legal equivalent of “tie goes to the runner.” For example:

    • Interpretation of ambiguous tax statutes10 favors the taxpayer;
    • Interpretation of ambiguous pension or retirement fund statutes11 favors the employee;
    • Interpretation of ambiguous criminal law statutes12 favors the defendant; and
    • Interpretation of ambiguous workers’ compensation statutes13 favors the claimant.
    1. https://legisource.net/2019/09/12/statutory-construction-legislative-intent-and-the-presumptions-used-to-interpret-statutes-2/ ↩︎
    2. https://caselaw.findlaw.com/court/co-court-of-appeals/1485170.html ↩︎
    3. https://law.justia.com/cases/colorado/supreme-court/1994/92sc837-0.html ↩︎
    4. https://law.justia.com/cases/colorado/supreme-court/1988/86sc279-0.html ↩︎
    5. https://law.justia.com/cases/colorado/court-of-appeals/1984/83ca0842-0.html ↩︎
    6. https://law.justia.com/cases/colorado/court-of-appeals/1996/94ca1804-0.html ↩︎
    7. https://law.justia.com/cases/colorado/supreme-court/1992/90sc417-0.html ↩︎
    8. https://law.justia.com/cases/colorado/court-of-appeals/2006/04ca2292-0.html ↩︎
    9. cument(1) 1. Preston v. Dupont, 35 P.3d 433 ↩︎
    10. https://law.justia.com/cases/colorado/supreme-court/1995/94sc8-0.html ↩︎
    11. https://law.justia.com/cases/colorado/supreme-court/1975/c-625.html ↩︎
    12. https://caselaw.findlaw.com/court/co-supreme-court/1045970.html ↩︎
    13. https://law.justia.com/cases/colorado/court-of-appeals/1984/83ca1107-0.html ↩︎

  • The Mayflower Experiment

    by Jery Payne

    In August of 1620, a group of Puritans set sail from Southampton, England, on two ships named the Mayflower and the Speedwell. The destination was Virginia. The Speedwell, which had already seen leaks repaired several times, sprung a leak and took on water, so both ships went back to the closest port of Plymouth. Many of the Speedwell’s passengers squeezed themselves and their belongings into the Mayflower, and they set sail once again.

    Because of the delay, the Mayflower crossed the Atlantic during storm season, which made the journey unpleasant. Many of the passengers were so seasick they could scarcely get up, and the waves were so rough that one person was swept overboard. After two months of misery, the Mayflower landed in Cape Cod, which wasn’t their destination. But they didn’t continue on to Virginia because, among other things, they were out of beer.

    Then the colonists drafted and signed the Mayflower Compact. This compact promised to create a “civil Body Politick”1 governed by elected officials and “just and equal laws.” And they meant it.

    The Puritans appear to have made what many modern Americans would consider a dystopian bargain. They gave up most freedom, individuality, and art for a society with low crime and low inequality. Our modern view of the Puritans is probably a little too influenced by the Salem witch trials and The Scarlet Letter2. Although these portraits of the Puritans are not entirely wrong, they overlook a great deal. Put in context, a different picture is painted:

    • The Puritans believed in public shaming. Along with the famous scarlet A for adultery, there was a B for blasphemy, a C for counterfeiting, a D for drunkenness, etc.
    • They were strict. Wasting time was a criminal offense, and another law held, “If any man shall exceed the bounds of moderation, we shall punish him severely.”3 (The drafter must not have had a keen sense of irony.)
    • The law required everyone to live in a family. If a Town official discovered a person living alone, the official would find a family and order the loner to join it.
    • Teenage pregnancy rates were the lowest in the Western world and in some areas were zero.
    • Murder rates were half of those in other American colonies.
    • The Puritans valued education. Massachusetts was the first place to mandate universal public education. The law was nicknamed The Old Deluder Satan Act4 in honor of its preamble, which began “It being one chief project of that old deluder, Satan, to keep men from the knowledge of the scriptures….” The Puritans founded Harvard and Yale. And the Massachusetts constitution guaranteed a public education to all citizens.
    • There was remarkable wealth equality. The wealthiest 10 percent owned only 20 to 30 percent of the property, compared to about 75 percent today.
    • The poor were treated with charity and respect. For example, a man’s heels were locked in the stocks for being uncharitable to a poor man.
    • Women had more equality than in probably any other part of the world. Wife abuse was punished by a public whipping. A wife could divorce her husband for failing to meet his marital obligations,5 due to adultery, impotence, desertion, or other failures. For example, a husband was excommunicated in 1640 for having “denied conjugal fellowship unto his wife.” In another case, a woman admitted to committing adultery, but that was overlooked—belying the plot of The Scarlet Letter—because her husband admitted that he had “deserted her for several years.”

    So although many of the Puritan’s attitudes and practices shock modern sensibilities, they were for their time remarkably egalitarian. Wealth distribution was actually more egalitarian than in modern America and almost every other civilization in history.

    The settling of American’s 13 colonies is a social scientist’s dream come true. The lords and their servants settled Virginia and much of the coastal South, and the Puritans settled New England. The Puritans came to New England in large numbers because the English lords persecuted them. When Parliament went to war with King Charles I, the Puritans supported Parliament. And it was Puritan armies that by and large won the war, so the Puritans ended up ruling England for a time. When Parliament beheaded Charles I, many lords took the hint and came to Virginia. Although they both came from England, the two groups had very different cultures.

    It’s not an accident that the descendants of the people who fought to reduce the king’s power over Parliament fought another civil war to end slavery. It’s not an accident that the descendants of the lords who fought for the rights of the king over Parliament fought against ending slavery. Although the first state legislature was established in Virginia, the American ideas about equality that inform the modern state legislature owe much to the Puritans.

    Although Puritan rule ended up placing Oliver Cromwell on something that looked remarkably like a throne, the British civil war was a step toward parliamentary sovereignty. And this informed the attitudes of Americans.

    The Constitution of the Commonwealth of Massachusetts is the oldest-written still-functioning constitution in the world. And it served as the model for the United States Constitution.

    1. https://en.wikipedia.org/wiki/Mayflower_Compact ↩︎
    2. https://en.wikipedia.org/wiki/The_Scarlet_Letter ↩︎
    3. https://slatestarcodex.com/2016/04/27/book-review-albions-seed/ ↩︎
    4. https://constitution.org/1-History/primarysources/deluder.html ↩︎
    5. https://timetravel21.blogspot.com/2018/06/the-puritans-and-sex.html ↩︎

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

    Editor’s Note: This article was originally posted September 18, 2014. We will post the fifth article in two weeks.

    by Julie Pelegrin

    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: Sections 2-4-110 and 2-4-111, Colorado Revised Statutes.1

    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, clarify that, for every public body, a quorum is a 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 sections 2-4-110 and 2-4-111.

    The House of Representative and Senate don’t follow these sections. House Rule 25 (i)(1) and (j)(10)2 and Senate Rule 22 (b) and (n)3 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: Section 2-4-112, Colorado Revised Statutes.

    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, section 2-4-112, 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: Section 2-4-113, Colorado Revised Statutes

    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, 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, also applies to references to subdivisions of a section, such as “subsections (1) to (5).”

    Introductory portion: Section 2-4-114, Colorado Revised Statutes.

    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 section 2-4-114:

    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 definitions sections. A typical definitions section starts as follows:

    x-x-xxx. Definitions. As used in this article, unless the context otherwise requires:

    • “A” means….
    • “B” means…
    • “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, Colorado Revised Statutes, which provides several rules or canons that courts apply when interpreting the statutes.

    1. https://leg.colorado.gov/laws ↩︎
    2. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.25&catg=House&pg=3.0 ↩︎
    3. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.22&catg=Senate&pg=2.0 ↩︎

  • Statutory Construction: Singular v. Plural, Gender, and Time

    Editor’s Note: This article was originally posted August 21, 2014. We will post the fourth article in two weeks.

    by Julie Pelegrin

    Even the most carefully drafted statute may have unnoticed and unintended ambiguities. When a statute refers to a single child, can it also apply to multiple children? If the statute only uses the pronoun “he” does it really only apply to men? If a statute gives a person seven days to file a notice, when do the seven days start, and do they include the weekend?

    Anticipating these issues, the General Assembly long ago adopted part 1 of article 4 of title 2, Colorado Revised Statutes,1 “construction of words and phrases.” This part has several sections that clarify statutory meaning. In this article, we’ll look at the rules for interpreting the use of singular and plural, the use of gender, and statements of time.

    Singular and plural: Section 2-4-102, Colorado Revised Statues.

    The singular includes the plural, and the plural includes the singular. Generally, it’s good drafting practice to use the singular tense, e.g., referring to a child instead of children, a parent instead of parents, or a car or sign instead of cars and signs. But that doesn’t mean that the statute applies only to a single child, parent, car, or sign because the singular includes the plural. The Colorado Court of Appeals2 applied section 2-4-102 to hold that a separate adoption petition isn’t necessary for each of four children of the same deceased mother, even though the statute refers to preserving the anonymity of the adopted “child.” Another court found3 that a municipality that created conflicting messages between a traffic control signal and temporary stop signs waived its sovereign immunity, even though the statute referred to the waiver of immunity for failure to repair “a” traffic signal. A singular word includes the plural.

    Gender: Section 2-4-103, Colorado Revised Statutes.

    Every word importing the masculine gender only may extend to and be applied to females and things as well as males; every word importing the feminine gender only may extend to and be applied to males and things as well as females; and every word importing the neuter gender only may extend to and be applied to natural persons as well as things.

    So, if a statute uses only the pronoun “he”, it also applies to women; if it uses only “she”, it also applies to men; and if it uses only “it”, it also applies to people. This rule only applies to statutes that can factually apply to both genders and to people as well as things. But, it’s good drafting practice to avoid using a gender-specific noun or pronoun unless the statute is really intended to apply only to a single gender.

    Interpreting time: Sections 2-4-104 to 2-4-109, Colorado Revised Statutes.

    There are several statutory sections to help us calculate time in the statutes. A word in the present tense includes the future tense (section 2-4-104). The word “week” means any seven consecutive days, apparently including weekends (section 2-4-105). The word “month” means a calendar month (section 2-4-106.). An early case4 interprets this section as meaning the period beginning on one day of a month and continuing until the corresponding day of the next month, if there is a corresponding day. If there isn’t, then the calendar month ends on the last day of the succeeding month – i.e., a calendar month from May 15 expires on June 15, but a calendar month beginning on May 31 expires on June 30. And the word “year” means a calendar year (section 2-4-107). Recently, the Colorado Court of Appeals applied this section and section 2-4-108, (discussed below) and held5 that:

    a period of years ends on and includes the anniversary date in the concluding year, that is, the same month and day of the concluding year as the month and day from which the computation began.

    Section 2-4-108 provides a few more helpful rules for computing time. First, in counting a period of days, the first day doesn’t count and the last day does. For example, a bill that passes without a safety clause generally takes effect on the 91st day after the General Assembly adjourns sine die.

    But if the last day of a period falls on a Saturday, Sunday, or legal holiday, the deadline extends to include the next business day.

    If a time period is expressed as a number of months, the period ends on the same numerical day in the last month as the numerical day on which the period started in the first month, unless there aren’t that many days in the last month, in which case it ends on the last day of the last month. A six-month period that begins on March 2 ends on September 2, but a six-month period that begins on March 31 ends on September 30, unless the last day in the period is a weekend or a holiday. In that case, the period ends for both examples on the next business day.

    Finally, section 2-4-109 requires Colorado to operate on daylight savings time in accordance with federal law.

    So we’re all clear on how to interpret singular, plural, gender, and time in the statutes. In the next article in this series on interpreting the statutes, we’ll learn the number of persons required for a public body to act, how to interpret the word “to” in reference to multiple sections, and just what is an “introductory portion.”

    1. https://leg.colorado.gov/laws ↩︎
    2. https://www.casemine.com/judgement/us/59148bb3add7b04934526602 ↩︎
    3. https://law.justia.com/cases/colorado/court-of-appeals/1999/98ca0347-0.html ↩︎
    4. Daly v. Concordia Fire Ins. Co., 16 Colo. App. 349 ↩︎
    5. https://law.justia.com/cases/colorado/court-of-appeals/1990/88ca0569-0.html ↩︎