Colorado LegiSource

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

Month: September 2019

  • Statutory Construction: What was the General Assembly Thinking?

    Editor’s Note: This is the sixth in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. 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 presumptions: 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, C.R.S., 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 bill 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 held 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 clarification in interpreting the statute. If the bill does pass, however, it is entitled to “great weight” 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, 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. 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 interpretation 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 rights 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:

  • New Water Demand Management Agreement on the Colorado River

    by Thomas Morris

    What happens when the demand for a commodity exceeds supply? Economic theory predicts that the price for the commodity will increase. We’re all aware that water in Colorado is relatively scarce; in particular, the northern Front Range is highly dependent on water imported from the Colorado River, which is subject to increasing demands and dwindling supply. Are increases in the price of water sufficient to address this deficit?

    As we’ll see, due to multiple layers of state, interstate, and federal law and a combination of climate change effects, prolonged drought, and demand increases, our Colorado River water supply is at risk, and more is required to avoid fairly serious adverse consequences than simply relying on the market to equalize the supply and demand for water.

    The Colorado River basin, with areas that rely on exported water highlighted in orange.

    The law of the river. The use of Colorado River water is strictly governed by the so-called “law of the river,” which is a complex interplay of interstate compacts, federal statutes and regulations, United States Supreme Court decrees, and applicable state law.

    To avoid having California’s rapid growth gobble up available Colorado River supplies, in 1922 the seven states in the Colorado River basin[1] entered into an interstate compact. The Colorado River Compact (codified in article 61 of title 37, C.R.S.) allocated 7.5 million acre-feet[2] (Maf) of water per year to the upper basin states (including Colorado) and 8.5 Maf to the lower basin states, for a total 16 Maf.[3] Later, the upper basin states entered into the Upper Colorado River Compact (codified in article 62 of title 37, C.R.S.), pursuant to which 51.75% of the upper basin’s supplies were allocated to Colorado.

    Naturally, the states presumed that the river’s supplies were adequate, even plentiful, to meet these allocations. Indeed, from 1905 to 1921 the flow at the boundary between the upper and lower basins was about 18 Maf. Unfortunately, the 1922 compact was negotiated during a time of relatively high flows: rather than more than 16 Maf of flow per year, actual supplies under current conditions may be as low as 14.8 Maf. Moreover, climate change is likely to reduce this supply even more:

    Colorado River flows decline by about 4 percent per degree Fahrenheit increase . . . . Thus, warming could reduce water flow in the Colorado [River] by 20 percent or more below the 20th-century average by midcentury, and by as much as 40 percent by the end of the century.[4]

    Despite this somewhat grim outlook, the upper basin’s ability to comply with its delivery obligation to the lower basin is enhanced by two facts:

    • The 1922 compact states the delivery obligation as 75 Maf over 10 years rather than 7.5 Maf each year; and
    • Numerous reservoirs with significant storage capacities are located in the upper basin. These reservoirs, including Lake Powell[5] and several reservoirs referred to as the Aspinall Unit, store excess supplies in wet years and release them in dry years to comply with the delivery obligation.

    Staving off a shortage declaration through demand management. The federal Bureau of Reclamation operates the Aspinall Unit as well as Lake Powell and Lake Mead, which is the lower basin’s primary reservoir. Pursuant to an agreement[6] between the seven compacting states, the bureau operates the Aspinall Unit and Lakes Powell and Mead to maintain the water level in Lake Mead above 1,075 feet in elevation. If the water drops to that level, the bureau makes a “shortage declaration” that triggers mandatory restrictions on water diversions and usage in the lower basin. A shortage declaration may also be the first step toward a determination that the upper basin has failed to comply with its delivery obligation, which would result in the curtailment of upper basin diversions that postdate the 1922 compact.

    In order to reduce the risk of a shortage declaration occurring, the upper and lower basins have both recently adopted updated drought contingency plans.[7] Congress has approved the plans.[8]

    In particular, the upper basin’s drought contingency plan involves three elements:

    • Augmentation, consisting of weather modification efforts to increase precipitation and the removal of phreatophytes (plants that have deep root systems that draw water from near the water table and often consume an unusually large amount of water);
    • Operating the Aspinall Unit to benefit storage in Lake Powell; and
    • Demand management.

    Demand management in this context means, roughly, a temporary, voluntary, and compensated reduction in consumptive water use by specific water rights owners. In Colorado, demand management could involve a front range metropolitan water provider (whose water rights postdate the 1922 decree and thus whose diversions would be curtailed if the upper basin failed to meet its delivery obligation) paying a senior agricultural user on the western slope to temporarily not divert water from the Colorado River or its tributaries. The metropolitan water provider would then be able to continue to export Colorado River water to its Front Range water users. As the saying goes, water flows uphill toward money.

    The General Assembly recently supported the development of demand management programs by enacting SB 19-212. The bill appropriates $1.7 million from the general fund to the department of natural resources for use by the Colorado Water Conservation Board.  The board will use this money for stakeholder outreach and technical analysis to develop a water resources demand management program.

    The days of hoping that Colorado River supplies will somehow recover or that the lower basin will, by some miracle, substantially reduce its water consumption enough to avoid a shortage declaration are over. Colorado is preparing for a hotter, drier climate in which water demands continue to increase while supplies diminish. Water demand management is one of the primary tools (along with conservation and the development of additional storage) that will be used to adapt to this new normal.

     

    [1] The seven states of the Colorado River Basin are Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California. The upper basin consists mainly of Wyoming, Colorado, and Utah; New Mexico, Arizona, Nevada, and California are mainly in the lower basin.

    [2] An acre-foot is the amount of water required to cover one acre to a depth of one foot. An acre is about the size of a football field, including both end zones.

    [3] For comparison, Colorado consumes about 5.3 Maf per year, but this includes water that has been reused multiple times. See the state water plan, Figure 5-1. https://www.colorado.gov/pacific/cowaterplan/plan

    [4] http://theconversation.com/climate-change-is-shrinking-the-colorado-river-76280

    [5] Lake Powell is located directly above the boundary between the upper and lower basins; releases from Lake Powell are the primary method by which the upper basin complies with the 1922 compact.

    [6] Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead”, 72 FR 62272 (11/2/07); https://www.govinfo.gov/content/pkg/FR-2007-11-02/pdf/E7-21417.pdf

    [7] Agreement Concerning Colorado River Drought Contingency Management and Operations; https://www.usbr.gov/dcp/docs/final/Companion-Agreement-Final.pdf

    [8] Colorado River Drought Contingency Plan Authorization Act; https://www.congress.gov/116/bills/hr2030/BILLS-116hr2030enr.pdf

  • Statutory Construction: Legislative Intent and the Presumptions Used to Interpret Statutes

    Editor’s Note: This is the fifth in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. This article was originally posted July 30, 2015. We will post the sixth article in two weeks.

    by Julie Pelegrin

    As has been discussed in previous articles, when a court must apply a statute to the facts and decide what the statute means, it will first look to the plain language of the statute. Assuming the statute is clear and unambiguous, the court will not use any other tools or rules to interpret the statute; if the language is plain, then the statute means what it says.

    But, if the language is not plain and the statute could be read to have more than one meaning or application, then the court will look to the General Assembly’s intent in enacting the statute.

    In part 2 of article 4 of title 2, C.R.S., the General Assembly enacted several guides to help the courts – and individuals and state agencies – read the statutes and determine what the General Assembly intended to allow or prohibit. This week’s article looks at legislative intent, including the general intent that statutes apply to future actions and events.

    General intentions in enacting statutes: §2-4-201, C.R.S.

    Under section 2-4-201, C.R.S., every statute is based on five underlying presumptions:

    1. The statute is intended to be constitutional with regard to both the United States and Colorado constitutions;
    2. Every part of the statute is intended to be effective – no superfluous words or sections;
    3. When implemented, the statute is intended to have a just and reasonable result;
    4. The statute is intended to be feasible – i.e., someone is supposed to be able to implement the statute; and
    5. If implementing the statute one way will benefit the public interest and implementing it another way will benefit a private interest, the General Assembly intends to benefit the public interest.

    In applying these presumptions, the courts have taken some of them one or two steps further. A court not only presumes that a statute is constitutional, if a person claims that a statute is not constitutional, the court requires that person to prove the statute’s unconstitutionality beyond a reasonable doubt. And, if a court can read a statute two ways – a constitutional way and an unconstitutional way – it must choose the constitutional reading.

    Every word in every statute is supposed to have meaning and be effective. To apply this presumption, the courts read the parts of each statutory section, part, and article as a whole and interpret the various portions consistently with one another. If it appears that portions of a statute conflict, the court will try to harmonize those portions and, as much as possible, give a consistent and sensible effect to every portion.

    The courts have added a presumption of their own with regard to the words in statutes. The court presumes that, when it amends or creates a statute, the General Assembly acts with deliberation and full knowledge of any previous case law interpreting or defining the words used in that area of the statutes. If the General Assembly uses the same words that the court has previously interpreted in a related area of statute, and does not clarify that it intends to change the interpretation of the words, the General Assembly is presumed to agree with the court’s earlier interpretation. If the General Assembly amends a statute that a court has previously interpreted, the court assumes that the General Assembly agrees with the court’s interpretation of any portion of the statute that it does not amend.

    The statutes are intended to have a “just and reasonable result” and are intended to be implemented. So, a court will interpret a statute according to the General Assembly’s intent, rather than according to a literal interpretation of the words, if the literal interpretation would defeat the General Assembly’s intent or lead to an absurd result. And a court will not interpret a statute in a way that requires an impossible task.

    Obviously, these presumptions sometimes conflict with one another. In that case, the court decides how to balance the competing presumptions in the best way possible to meet the General Assembly’s intent in passing the statute.

    Statutes are Presumed to be Prospective: §2-4-202, C.R.S.

    Section 2-4-202, C.R.S., is short and relatively clear: “A statute is presumed to be prospective in its operation.” So, unless the General Assembly specifically says differently, each new statute and amendments to existing statutes apply only to the actions and events that occur on or after the date that the statute takes effect. See “When Does an Act Become a Law? It depends.” for an explanation of when an act takes effect.

    But the General Assembly in certain cases will specify that an act take effect on a date that is earlier than the date on which the act passes or that the act applies to actions or events that occur before, on, or after the effective date of the act. See “Ex Post Facto Laws, Effective Dates, and Legislative Time Travel” for an explanation of the constitutionality of retroactive laws.

  • 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” 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 Letter. 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.” (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 Act 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, 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.

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

    Editor’s Note: This is the fourth in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. 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: §§2-4-110 and 2-4-111, C.R.S.

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

    But that’s okay because sections 2-4-110 and 2-4-111, C.R.S., clarify that, for every public body, a quorum is 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 §§2-4-110 and 2-4-111, C.R.S.

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

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

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

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

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

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

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

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

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

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

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

    (1)  “A” means….

    (2)  “B” means…

    (3) “C” means…

    The text that precedes the colon is the introductory portion to the section.

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