Month: July 2019

  • Recent Developments in Single Subject Requirement Case Law – Part II

    By Jason Gelender

    Editor’s Note: This is the second article in a three-part series on recent court decisions interpreting and applying the constitutional single subject requirement. The first article was posted July 11, 2019.

    In part I of this series on developments in the case law interpreting the single subject requirement, we examined a recent case concerning the title of House Bill 18-1306 in which the Denver District Court decided that section 7 of the bill, added by amendment in the Senate, did not fit within the single subject expressed in the bill title. In part II of the series, we will consider another decision in a recent challenge to a bill enacted by the General Assembly.

    TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al.,[1] involved a single subject challenge to Senate Bill 17-267 “Concerning the sustainability of rural Colorado.”[2] Unlike House Bill 18-1306, Senate Bill 17-267 was a lengthy (35 sections and 58 pages as enrolled), complex bill that did a number of things that were not closely and obviously connected. Among other things, Senate Bill 17-267:

    1. Repealed the hospital provider fee program;
    2. Created a new Colorado health care affordability and sustainability enterprise (CHASE) to administer a new healthcare affordability and sustainability fee program (CHASE program);
    3. Lowered the excess state revenues cap (the voter-approved statutory cap on the amount of TABOR revenue that the state may annually retain and spend) by $200 million for state fiscal year 2017-18 and by $200 million plus TABOR formula inflation adjustments for subsequent state fiscal years;
    4. Provided additional one-time funding for rural school districts;
    5. Required principal departments to submit reduced budget proposals to the Office of State Planning and Budgeting (OSPB) for state fiscal year 2018-19 and required the OSPB to strongly consider the proposals;
    6. Required the state to enter into up to $2 billion of lease-purchase agreements to fund transportation infrastructure and capital construction projects;
    7. Exempted retail marijuana sales that are subject to the state retail marijuana sales tax from the general state sales tax;
    8. Made the annual state payment of reimbursement to counties for property tax revenue lost due to the property tax exemption for qualifying seniors the first TABOR refund mechanism when TABOR refunds are required; and
    9. Increased the state retail marijuana sales tax rate to 15%.

    In making their single subject challenge, the plaintiffs argued that, to satisfy the single subject requirement, “‘a bill must have one unifying subject and a purposive element or modification of that subject” and that “all substantive provisions of the bill must be dependent on or connected to that purpose or modification.”[3] But the Denver District Court rejected this proposed test for single subject requirement compliance, stating instead “that so long as the matters encompassed in the bill are necessarily and properly connected with each other rather than disconnected or incongruous, the single subject requirement of Section 21 is not violated.”[4]

    The Denver District Court applied its stated test for single subject compliance in an order denying plaintiff’s motion for summary judgment and granting defendants’ cross-motion for summary judgment and defendant-intervenor’s[5] motion for summary judgment. The court concluded that Senate Bill 17-267 satisfied the single-subject requirement because:

    • The “general and broad” title of the bill (Concerning the Sustainability of Rural Colorado) does not indicate a single subject violation but instead is “the preferred practice” and, furthermore, was not shown in any way by plaintiffs to have actually misled any legislators or confused any citizen witnesses regarding the contents of the bill;
    • After reviewing all of the provisions of the bill, including nonsubstantive legislative declarations that indicated the General Assembly’s intention to “address a number of issues affecting rural Colorado, some of which undeniably also affected other parts of the state,” all of the provisions “relate to the subject of the sustainability of rural Colorado, are necessarily or properly connected with each other, and none are disconnected or incongruous.” Specifically the court concluded that:
      • The fourteen sections of the bill relating to the repeal of the hospital provider fee program and the creation of the CHASE and the CHASE program all related to the sustainability of rural Colorado by addressing “proposed cuts to the [hospital provider fee p]rogram that would have disproportionately impacted rural Colorado and rural hospitals in particular;”
      • Provisions of the bill concerning retail marijuana taxes, the provision of one-time funding for rural school districts, and highway funding, some of which the bill specifically redirected for rural highways, “addressed other issues impacting rural Colorado[;]” and
      • Provisions of the bill addressing business and personal property credits, as well as the property tax exemption for qualifying seniors, “disproportionately benefit rural Colorado” because of its slower “economic recovery following the Great recession compared to urban areas” and its older population compared to urban areas.[6]

    What can we learn from the Denver District Court’s order in TABOR Foundation?

    • First, and in contrast to a bill with a narrow title, if a bill has a broad general title, there is a good chance that it will withstand a single subject challenge even if it includes many provisions that are not closely and obviously connected on their face. So long as each provision of the bill plausibly relates to the broad general subject expressed in the title and furthers the bill’s main purpose, the bill is likely to satisfy the single subject requirement even if some of its provisions also address matters that are not clearly identified by the title.
    • Second, and especially when contrasted with Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado, discussed in part I of this series, the benefit of a broad general title is that it puts legislators and the general public on notice that a bill may contain provisions that cover a lot of ground and that the bill should therefore be closely examined by anyone who wants to know what those provisions are. In this way, one of the main evils that the single subject requirement is intended to mitigate, legislator and public deception and confusion regarding the contents of a bill, can be avoided.
    • Third, if a bill is drafted with a broad general title, it likely can safely be amended in a wide variety of ways; only amendments that do not plausibly relate at all to the title or the general purpose of the bill and therefore are likely to lead to legislator or public surprise and confusion regarding the contents of the bill are likely to be at risk if subjected to a single subject challenge. A bill sponsor who wishes to limit amendments should therefore think carefully before introducing a bill with a title that is broader and more general than necessary to encompass its provisions within its clearly expressed single subject.

    The plaintiffs have appealed the Denver District’s Court’s order in TABOR Foundation, and their opening brief must be filed by August 7, 2019.

     


    [1] Case No. 15CV32305 (Denver Dist. Ct.).

    [2] The plaintiffs also alleged that certain provisions of Senate Bill 17-267 violated the Taxpayer’s Bill of Rights (TABOR)

    [3] Order re: parties motions for summary judgment (March 5, 2019), at 40. (court order quoting plaintiffs’ argument as made in plaintiffs’ briefs).

    [4] Id. at 42.

    [5] The Colorado Hospital Association, which had advocated for the provisions of Senate Bill 17-267 that repealed the hospital provider fee program and created the CHASE and the CHASE program, was the defendant-intervenor.

    [6] Id. at 42-47.

  • Introduction to Statutory Construction – The Plain Meaning Rule

    Editor’s Note: During the 2019 legislative interim, LegiSource will repost a series of seven articles on statutory construction, which was originally posted over several months from 2013-2016. We are posting the first article this week and will continue posting the articles every other week through October 10. This article was originally posted September 12, 2013.

    By Julie Pelegrin

    You’ve worked hard to get your bill through both houses and onto the Governor’s desk. You worked with your colleagues on amendments to be sure the bill language clearly and explicitly said just what you intended. Now, the act is signed and on its way to implementation and you can rest easy. Right? Hopefully right. But there may be some people who don’t agree on what this new statute means or on what your carefully crafted language says. Some of these disagreements may be so serious that someone files a lawsuit asking the court to interpret the precise meaning of this new statute. How is the court going to interpret your bill and decide what it means?

    This is the first article in a series that looks at statutory construction—how courts approach interpreting a statute and the various rules that they apply. Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute. This series of articles is intended to provide a helpful and informative overview of those rules.

    We’ll begin the series by looking at one of the basic ground rules a court applies when reading statutes. When someone asks a court to interpret a statute, the first thing the judge does is read the statute. If the statutory language is clear on its face and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand. This is known as the “Plain Meaning Rule.” The judge will decipher the plain meaning of a statute by applying the ordinary, everyday definitions of the statute’s words, unless the statute itself provides specific definitions of the words.

    Colorado actually has a statute, section 2-4-101, C.R.S., that supports the Plain Meaning Rule:

    Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

    In giving the ordinary meaning to words and phrases, the judge will avoid an interpretation that leads to an illogical or absurd result. The judge will also avoid an interpretation that would defeat the obvious intent of the statute.

    And as section 2-4-101, C.R.S., requires, the judge will read the statute in context, as a whole and try to give consistent and sensible effect to all parts of the statute. A judge assumes that the General Assembly intended the entire statute to be effective and did not include any statutory language that has no meaning or effect.

    Unfortunately the meaning of a statute is not always plain. A judge may find that the language of a statute can be reasonably read to have two or more meanings. Also, a judge may find that there are two or more statutes that apply to a particular situation. The meaning of each statute may be plain, but each statute, as applied, will result in different outcomes. When this happens, the judge will likely find that the statute is ambiguous.

    At this point, the judge may turn to the legislative history to try to determine the legislature’s intent when it enacted the statute. In Colorado, the legislative history consists almost entirely of the recorded debates and discussions concerning the bill in the committee of reference and on the floor. The court may also consider the goal that the statute is intended to accomplish, if that is clear from the legislative history or from the statutory legislative intent, and the consequences of a particular interpretation of the statute.

    In addition to the legislative history, a judge may apply one or more of the canons, or rules, of statutory construction to interpret a statute. Colorado has codified many rules of statutory construction that we’ll consider in later articles. There are also several widely accepted canons of construction that courts have developed and used to interpret statutes and other legal documents for many years. Subsequent articles will discuss these, as well.

    It is important to remember that, if the General Assembly disagrees with a court’s interpretation of a statute, the General Assembly can amend the statute to clarify its intent. But when the court interprets the constitution or finds that a statute violates a constitutional provision, the General Assembly, if it disagrees, can override the court’s opinion only by referring a constitutional measure to the ballot.

  • Recent Developments in Single Subject Requirement Case Law – Part I

    By Jason Gelender

    The single subject requirement of the Colorado constitution prohibits bills enacted by the General Assembly, constitutional amendments submitted for a vote of the people by the General Assembly, and initiated statutory changes and constitutional amendments from addressing more than one subject. While three distinct constitutional provisions separately prescribe the rule for bills, referred constitutional amendments, and initiatives, they all respectively state that a bill, referred constitutional amendment or initiative cannot “contain more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in [the bill, referred constitutional amendment, or initiative] which shall not be expressed in the title, [it] shall be void only as to so much thereof as shall not be so expressed.” [1]

    Most of the single subject case law from the last quarter century addresses proposed initiatives and is generated when the Colorado Supreme Court considers appeals of Title Board decisions.[2] But two recent single-subject challenges to bills enacted by the General Assembly have yielded interesting and informative, albeit not precedentially binding, Denver District Court decisions. One case involves a successful challenge to a bill that was not especially lengthy, complex, or broad in its scope; the other case involves a thus far unsuccessful challenge to a bill that was lengthy, complex, and broad in its scope.

    This post, which is the first of a three-post series on recent developments in single subject case law, examines the first of those two decisions. The second post will examine the second of those decisions, and the third post in the series will examine the Colorado Supreme Court’s recent decision holding that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR) contains a single subject.

    The first case, Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado,[3] involved a single subject challenge to House Bill 18-1306, “Concerning ensuring education stability for students in out-of-home placement, and, in connection therewith, making an appropriation.” House Bill 18-1306 contained six substantive sections;[4] the plaintiffs alleged that section 7 of the bill violated the single subject requirement. Section 7, which was added to the bill in the Senate, eliminated a requirement that a school district that wishes to furnish transportation to a child who resides in another school district first obtain the approval of the school district in which the child resides. The plaintiffs contended that it violated the single subject requirement because, unlike the other substantive provisions of the bill, it did not apply only to “students in out-of-home placement.” The Denver District Court agreed with the Plaintiffs. In an order granting their motion for summary judgment, the court declared “[s]ection 7 of House Bill 18-1306 … to be void and of no effect” on the grounds that:

    • The “modern application” of the single subject requirement “requires an act and its title [(1) to] notify the public and legislators of pending bills so that all may participate; (2) to make the passage of each legislative proposal dependent on its own merits; and (3) to enable the governor to consider each single subject of legislation separately in determining whether to exercise veto power;”
    • The title of the bill “is not general,” but instead “is narrow in its focus, specifically ‘out of home’ placed students;”
    • The title therefore did not provide proper notice to the General Assembly or the public that section 7 of the bill modified “transportation for all students, in all school districts, without any restrictions or qualifications;”
    • Because section 7 of the bill was identical to language that had been included in a different bill, Senate Bill 18-228, which the General Assembly had postponed indefinitely, section 7 could not have passed on its own merits and its inclusion in the bill was “logrolling;” and
    • The addition of section 7 to the bill deprived the Governor of the opportunity to consider the remainder of the bill, all of which had a necessary and proper connection to the narrow single subject of ensuring educational stability for out-of-home-placed students, separately from section 7.[5]

    The state initially planned to appeal the order granting plaintiffs’ motion for summary judgment, but the General Assembly rendered the appeal moot by enacting Senate Bill 19-039, which restored the district of residency approval requirement that the voided section 7 of House Bill 18-1306 had sought to eliminate.

    What can we learn from the Denver District Court’s Order in Arapahoe Cnty. Sch. Dist. No. 1?

    • First, legislators, bill drafters, and anybody else who happens to get involved in the drafting of a bill should make sure to carefully consider and review the scope of the bill’s title before the bill is introduced. House Bill 18-1306 did not fail to meet the single subject requirement because it was a lengthy or complex “omnibus” bill that addressed a myriad of matters that could not reasonably fit under even a broad title. It failed because the title was drafted too narrowly to encompass all of its provisions, specifically a provision that was added by amendment, which a broader title could have encompassed.
    • Second, there is a real risk that a provision that actually relates to the single subject of a bill will nonetheless be found to create a second subject if the provision also relates to other matters. The issue with section 7 of House Bill 18-1306 wasn’t that it didn’t apply to students in out-of-home placement, but that it also applied to all other students. Again this risk can often be mitigated by drafting a bill with a broad general title.
    • Third, a narrow title remains a useful tool for limiting the scope of a bill and preventing the bill from being amended in a way that is contrary to the sponsors’ intentions. This tool is especially useful for a bill sponsor who knows, before a bill is introduced, exactly what the sponsor wants to accomplish and how it should be accomplished. But a narrow title does carry some risk if, after introduction, the policy goal of the bill or the means of achieving it change.

    In the next posting, we’ll discuss the lessons to be learned from the district court’s decision in TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al., which addressed a single subject challenge to Senate Bill 17-267, “Concerning the sustainability of rural Colorado.”

     


    [1] For general information about the single subject rule, see the Colorado LegiSource post titled “Single Subject Requirement Prevents a Multitude of Evils” (https://legisource.net/2012/12/06/single-subject-requirement-prevents-a-multitude-of-evils/)

    [2] Before a proposed initiative to change the Colorado Revised Statutes or amend the Colorado constitution can be circulated for signatures and placed on the ballot, the Title Board, a three-member statutory body composed of designees of the Secretary of State, the Attorney General, and the Office of Legislative Legal Services, must determine whether the measure satisfies the single subject requirement and, if it does, “designate and fix a proper fair title” for it. Sections 1-40-106 and 1-40-106.5, C.R.S. Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [3] Case No. 2018CV32901 (Denver Dist. Ct.).

    [4] Sections 2 through 7 of the bill included substantive amendments to Colorado law, while section 1 contained a non-statutory legislative declaration, section 8 contained an appropriation, and section 9 was a standard “act subject to petition” clause.

    [5] Omnibus order re: plaintiffs’ motion for summary judgment, defendant’s motion for summary judgment, and defendant-intervenors’ motion for summary judgment (December 14, 2018).