Colorado LegiSource

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

Month: August 2019

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

    By Jason Gelender

    Editor’s Note: This is the third 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, and the second article was posted July 25, 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 examined a recent case concerning a single-subject challenge to a lengthier and more complex bill, Senate Bill 17-267, “Concerning the sustainability of rural Colorado”, in which the Denver District Court decided that the bill did not violate the single-subject requirement.

    In this article, we examine a recent Colorado Supreme Court case, In re Title, Ballot Title, and Submission Clause for 2019-20 #3,[1] in which the court held that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR)[2] in its entirety has a single subject. Article V, section 1 (5.5) of the Colorado constitution requires every proposed initiative to have a single subject, which must be clearly expressed in its title. Consequently, before setting a title for a proposed initiative, the Title Board[3], must first find that the proposed initiative has a single subject.[4]

    Initiative proponents proposed initiative 2019-20 #3 (initiative #3), to repeal the Taxpayer’s Bill of Rights (TABOR) in its entirety. Initiative #3 is structured as a “simple repeal” that does not include the full text of TABOR in strike type but instead simply states: “In the constitution of the state of Colorado, repeal section 20 of article X.” The Title Board concluded that initiative #3 does not have a single subject and that therefore the board lacked jurisdiction to set a title. In making this conclusion, the Title Board relied on cases in which the Colorado Supreme Court had indicated that (1) TABOR includes multiple subjects and (2) a proposed initiative to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. Proponents filed a motion for rehearing, but the Title Board denied the motion and again declined to set a title. Proponents appealed.[5]

    The Colorado Supreme Court reversed the title board and remanded initiative #3 back to the Title Board for title setting, holding that initiative #3 contains a single subject: the repeal of TABOR. The court first noted, as it had in prior cases, that the single-subject requirement serves the following functions:

    • Forbidding the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their own individual merits (e., preventing “logrolling”); and
    • Preventing surreptitious measures and apprising the people of the subject of each measure by the title to prevent surprise and fraud from being practiced upon voters.

    The court then concluded that initiative #3 satisfies both functions and therefore has a single subject because it “effectuates one and only one general objective or purpose, namely the repeal of TABOR … and could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?”

    The court acknowledged that it had stated in multiple prior cases that if a constitutional provision contains multiple subjects, then a proposed initiative to repeal the entire provision also contains multiple subjects. But the court then characterized those statements as nonbinding “dicta” that lacked underlying analysis. The court specifically distinguished In re Proposed Initiative 1996-4,[6] a case in which the court had concluded that a proposed initiative that would have repealed and reenacted certain individual provisions of TABOR had multiple subjects, from the total repeal of TABOR, without reenactment of any provisions, proposed by initiative #3. The court then declined to adopt the “dicta” for the following reasons:

    • “[A] one-sentence initiative asking voters to decide if a constitutional provision should be repealed meets all of the requirements of a single subject[;]”
    • There is “no basis for creating … a unique single-subject rule for efforts to repeal constitutional provisions, whether or not such provisions contain multiple subjects[;]” and
    • “[C]oncluding that an initiative [to repeal a constitutional provision] contains multiple subjects merely because the targeted provision contained multiple subjects effectively makes the original provision impervious to challenge.”

    Having declined to adopt the “dicta,” the court concluded that initiative #3 satisfied the single subject requirement.

    In a dissenting opinion, two justices rejected the majority of the court’s characterization as “dicta” of the court’s prior statements that TABOR includes multiple subjects and that an initiative proposing to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. The dissenters concluded that initiative #3 includes multiple subjects because:

    • The single subject requirement applies to all initiatives, including those that only repeal existing constitutional provisions;
    • TABOR includes multiple subjects because (1) the court actually held in In re Proposed Initiative 1996-4, that the initiative’s proposed repeal of specified portions of TABOR itself violated the single-subject requirement even without consideration of the initiative’s proposed reenactment of some of the provisions, (2) the court later relied on that holding in other cases, and (3) if a partial repeal of TABOR violates the single-subject rule, it is logically impossible that a full repeal of TABOR does not;
    • The constitutional single subject requirement for initiatives was adopted in 1994 in response to the adoption of TABOR for the purpose of preventing multiple-subject initiatives like TABOR from being placed on the ballot in the future, and allowing initiative #3 to appear on the ballot is thus “directly contrary to the intent of the single subject requirement[;]” and
    • Case law has consistently held that a proposed initiative to repeal a multiple-subject constitutional provision violates the single subject requirement, and the majority had no justification to overrule that case law.

    What can we learn from the decision?

    • First, the decision establishes that a proposed initiative to repeal TABOR in its entirety and do nothing else has a single subject.
    • Second, the decision strongly suggests, notwithstanding the court’s explicit statement that it “is not adopting an exception to the single subject rule for repeal measures,” that a proposed initiative that does nothing more than repeal a discretely identified constitutional or statutory provision has a single subject even if the provision to be repealed is complex and might itself include multiple subjects. This seems especially likely to be true if the entire provision was enacted at the same time.
    • Third, beyond the first and second points, the decision may raise more questions than it answers. For example:
      • If a proposed initiative to repeal a constitutional provision in its entirety has a single subject, does a proposed initiative that repeals only a portion of the provision (and does nothing else) necessarily also have a single subject? Two days after the court’s decision in In re Title, Ballot Title, and Submission Clause for 2019-20 #3, the Title Board considered whether proposed initiative 2019-20 #84, which proposed the partial repeal of TABOR, had a single subject. A majority of the Title Board concluded that initiative #84 contained multiple subjects because it was not a simple repeal of all of TABOR as a single constitutional provision while the dissenting Title Board member argued that initiative #84 had a single subject because #3 has a single subject and it includes everything that initiative #84 includes and more. The proponents of initiative #84 did not appeal the denial of title.
      • If a proposed initiative proposes the simple repeal of multiple consecutive constitutional or statutory sections that were all enacted together, does it automatically have a single subject regardless of the breadth or complexity of the provisions? For example, does an initiative that states “In the constitution of the state of Colorado, repeal sections 1 to 16 of article II.” (a repeal of the first 16 sections of the state bill of rights, all of which were adopted simultaneously in 1876 and have not been amended since) have a single subject?
      • Does the decision elevate form over substance? For example, if a proposed initiative proposes to repeal TABOR just like initiative #3 does but, instead of proposing a “simple repeal,” shows the full text of TABOR in strike type, could the measure contain multiple subjects because it could have been “written more simply or directly” and might confuse voters with a wall of text?

    Stay tuned for future clarification regarding the single-subject rule as the Title Board will likely have to wrestle with the questions raised by the decision, applying the decision to the best of its ability, and the Colorado Supreme Court will have to assess the merits of the Title Board’s efforts.

     

    [1] 2019 CO 57, 442 P.3d 867.

    [2] Colo. Const. art X, sec. 20.

    [3] The Title Board is a three-member statutory board consisting of designees of the Secretary of State, the Attorney General, and the Director of the Office of Legislative Legal Services that is charged with setting “a proper fair title” for each proposed initiative. 1-40-106 (1), C.R.S.

    [4] Section 1-40-106 (1), C.R.S. See section 1-40-106.5 (3), C.R.S.

    [5] Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [6] 916 P.2d 528 (Colo. 1996).

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

    Editor’s Note: This is the third in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. 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, C.R.S., “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: §2-4-102, C.R.S.

    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 Appeals applied §2-4-102, C.R.S., 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 found 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: §2-4-103, C.R.S.

    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: §§2-4-104 to 2-4-109, C.R.S.

    There are several statutory sections to help us calculate time in the statutes. A word in the present tense includes the future tense (§2-4-104, C.R.S.). The word “week” means any seven consecutive days, apparently including weekends (§2-4-105, C.R.S.). The word “month” means a calendar month (§2-4-106, C.R.S.). An early case 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 (§2-4-107, C.R.S.). Recently, the Colorado court of appeals applied this section and §2-4-108, C.R.S., (discussed below) and held 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, C.R.S., 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. This year[1], the General Assembly adjourned on May 7. The ninety-one day period started counting on May 8, so this year several bills took effect on August 6, the 91st day after May 7.

    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, §2-4-109, C.R.S., 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] The phrase “this year” refers to 2014.

  • Federal Law as Law of the Land: Federal Preemption

    by Samantha Bloch

    The United States is a federal system in which federal laws and state laws coexist. But what happens when state law conflicts with federal law?

    The short answer is that “state laws that conflict with federal law are ‘without effect’.” This is the doctrine known as federal preemption, which is based on the Supremacy Clause of the U.S. Constitution. This clause creates a hierarchy of laws in which the U.S. Constitution is at the top, followed by acts of Congress and ratified treaties, and ending with state laws. Its purpose is to ensure that states don’t pass laws that undermine the goals of the United States.  While a state could pass a law that conflicts with a ratified treaty, this blog post will focus only on conflicts between state and federal law.

    The U.S. Constitution establishes a strict division of legislative authority between the federal government and the states in certain matters. For example, most foreign affairs issues and some aspects of the regulation of interstate commerce are reserved to Congress. Under the Tenth Amendment, powers not delegated to the federal government or prohibited to the states are reserved to the states. However, the U.S. Constitution also provides room for concurrent powers: legislative powers that both Congress and the states may exercise.

    One such power, the power to tax, is usually not subject to federal preemption. For all other concurrent powers, if there is direct conflict between a state law and a federal law, courts will invalidate state law under the Supremacy Clause. But when exactly does a state law enter into direct conflict with a federal law?

    The first element that needs to be present is a federal law regulating the activity that is the subject of the state law. The existence of such a law is, however, not enough. Courts pay particular attention to whether it was Congress’s purpose to supersede any conflicting state law. In the presence of concurrent powers, the Supremacy Clause does not limit the federal government’s power to preempt. But it is necessary for Congress to specifically exercise this power if it wants to effectively limit states’ legislative authority. A federal agency acting within the scope of the authority delegated to it by Congress also has the power to preempt state measures.

    Two concepts are useful in determining the preemption purpose of a law or regulation: express preemption and implied preemption.

    Express preemption is the most direct expression of Congress’s or an agency’s purpose. This form of preemption exists when a federal statute or regulation contains explicit language stating that it intends to preempt all state law regulating the activity that is the subject of the statute. The 2018 Restoring Internet Freedom Order issued by the Federal Communications Commission provides a recent example of an express preemption clause. It states that it “preempt[s] any state or local measure that would effectively impose rules or requirements that [it] has repealed or decided to refrain from imposing … or that would impose more stringent requirements for any aspect of broadband service that [it] addresses.” This renders all attempts by states to impose net neutrality obligations on internet service providers futile since the order would automatically trump any state measure attempting to impose additional or more rigorous requirements.

    Implied preemption occurs when federal law does not explicitly state that it intends to preempt all conflicting state law but it is still possible to determine that Congress or an agency intended to preempt state law in that particular area. This is the case, for instance, when it is impossible to comply simultaneously with the federal law and the state law or when state law interferes with the objectives of the federal law. For example, a state cannot pass laws regulating air and water if they interfere with any goals or requirements established by existing federal environmental laws.

    Implied preemption also includes the concept of field preemption. Field preemption exists when Congress has so broadly regulated a certain field of law that it implicitly must have chosen to prevent states from effectively legislating in that area. An example of this is U.S. immigration law, which is a field exclusively occupied by federal laws and regulations.

    In an implied preemption analysis, courts presume that Congress intended to defer to states in matters of traditional state action. For example, when states are legislating, within their historic police powers, there is a presumption that Congress’s purpose was to not supersede state measures unless there is a clear and manifest purpose to the contrary. Therefore, a court will only invalidate a state law in a field traditionally occupied by state measures in the presence of an express preemption clause.

    In the absence of federal law, or when Congress has not expressly or impliedly barred states from passing legislation to regulate certain activity and provide broader protections or benefits than what is available under existing federal law, state laws are usually valid. Except, of course, when they don’t comply with other constitutional obligations. In fact, the “dormant” Commerce Clause doctrine prevents states from passing measures that discriminate against or unduly burden interstate commerce, even in the absence of conflicting federal legislation. That, however, is a subject for an other blog post.

  • What Do You Mean By That? Definitions in the Statutes

    Editor’s Note: This is the second in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. This article was originally posted July 31, 2014. We will post the third article in two weeks.

    By Julie Pelegrin

    When debating legislation or reading statutes, a person will sometimes wonder what a specific word means as it’s used in the bill or the law. A word may be defined in several places and in different ways within the Colorado Revised Statutes – or it may not be defined at all. Following are some tips for figuring out whether the words in a bill or statute mean what you think they mean.

    First, it’s important to know that there is a definitions section in the statutes that defines several words for purposes of the entire Colorado Revised Statutes. Section 2-4-401, C.R.S., states “The following definitions apply to every statute, unless the context otherwise requires:” and then defines several words, including:

    • Child, which includes a child by adoption;
    • Immediate family member, which means a person who is related by blood, marriage, civil union, or adoption;
    • Must, which means that a person is required to meet a condition for a consequence to apply;
    • Person, which means any legal entity, including an individual, corporation, limited liability company, or government; and
    • Shall, which means a person has a duty.

    Most words, however, are not defined for the entire C.R.S. They are defined specifically for the title, article, part, or smaller subdivision of law in which they are used. The definition of “minor” is an interesting case in point.  In one section of statute, “minor” means a person who is less than 22 years of age, and in another section, it means a person who is less than 18 years of age. The statute-wide definitions section – section 2-4-401 (6), C.R.S. – defines “minor” as a person who has not attained the age of 21 years. But also says that a statute that expressly states another age for majority will override this definition.

    To discover whether and how a particular word is defined, you should look first at the statutory section in which the word is used to see whether the section includes any definitions. Usually, if the section includes definitions, the word “definitions” is included in the headnote (the type in bold at the beginning of the section). If the section doesn’t include definitions or if the word you’re looking for is not defined, you should look to the next larger grouping of statutes – either the beginning of the part or the beginning of the article in which the statutory section is located.

    Note that the introductory portion of the definitions section specifies the portion of statute to which it applies, i.e., “As used in this part…” or “As used in this article…” or “As used in this title…” (etc.). Furthermore, the introductory portion to a definitions section or subsection almost always includes the words “unless the context otherwise requires.” This means, if the definition of a word conflicts with the context in which the word is used, the contextual meaning may override the written definition. The persons applying a statute, and, if necessary, a court, must decide which definition actually applies.

    When reading a bill, remember that the definition of a word probably won’t appear within the bill unless the bill is specifically defining the word or changing the definition of the word. To understand how a word in a bill is defined, you may need to look up the definitions section in the existing law that applies to the section that the bill amends.

    But, there will be many times when you will look for a definition in a bill or in the statutes and you won’t find one. Generally, a definition is included in a statute only if the word has more than one definition and it is important for clarity to define it specifically or if the word is a term of art. Also, a word may be defined to avoid repeated use of a long or awkward phrase. For example: the state board of public health and environment is usually defined as the “state board”.

    Generally, words used in a statute must be construed according to their commonly accepted meaning. So, if a court must interpret a statute, and the words used in the statute aren’t defined, the court will open the dictionary and interpret the statute by applying the standard definition of the word. If you’re reading a statute and wondering what an undefined word means, you should do the same!