Colorado LegiSource

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

Month: January 2020

  • Do You Really Need to Say “But Not Limited To”?

    by Jery Payne

    Many of the residents of the town of Bow Mar were mad. They were mad at the town’s trustees, who had raised taxes to bury electric and telephone cables. To do this, the trustees had used a statute to create a special district. The citizens got lawyered up and sued the trustees. Among other claims, they argued that the special-district statute didn’t apply to the cables because the cables were owned by private, not public, companies. They got this idea from the statute’s definition of public utility:

    …one or more persons or corporations that provide electric or communication service to the public by means of electric or communication facilities and shall include any city, county, special district, or public corporation that provides electric or communication service to the public ….

    The residents argued that the phrase and shall include meant that the list, city, county, special district… was exhaustive. That is, by naming specific things the legislature meant to exclude others. A maxim of statutory interpretation is that to express one is to exclude others. So the special-district statute didn’t authorize the burial of a private corporation’s cables.

    The court wasn’t persuaded. The residents appealed all the way up to the Colorado Supreme Court, who agreed with the lower court:

    [T]he word include is ordinarily used as a word of extension or enlargement, and we find that it was so used in this definition. To hold otherwise here would transmogrify the word include into the word mean. [Emphasis Added]

    The United States Supreme Court has also interpreted shall include. In this case, they were construing this statute:

    ‘[C]reditor’ shall include anyone who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.

    The court held that “It is plain that ‘shall include’ … cannot reasonably be read to be the equivalent of ‘shall mean….’”

    How did these cases arise? It was because sometimes drafters need to add examples to a statute. For example, they may want a statute to apply to fruit, so they write:

    Fruit means the edible part of a plant developed from a flower.

    Then someone becomes concerned that a court won’t include peas or tomatoes. To address this concern, they add a comma and “including peas or tomatoes.” Yet the inclusion–exclusion maxim makes drafters fear that listing peas and tomatoes will make a court think they mean only peas and tomatoes. So they add but not limited to and end up with this:  “Fruit means the edible part of a plant developed from a flower, including, but not limited to, peas and tomatoes.”

    But Sutherland’s Statutes and Statutory Construction has a different take:

    The word ‘includes’ is usually a term of enlargement, and not of limitation….[1]

    And a review of Colorado cases suggests that the phrase “but not limited to” isn’t necessary:

    • Colorado Common Cause v. Meyer: “The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement when used in a statutory definition”
    • Cherry Creek School Dist. #5 v. Voelker: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included.”
    • Arnold v. Colorado Dept. of Corrections: “The word ‘including’ is ordinarily used as a word of extension or enlargement and is not definitionally equivalent to the word ‘mean.’”
    • DirecTV v. Crespin: “Nothing in §605(d)(6) indicates that Congress intended to depart from the normal use of “include” as introducing an illustrative—and non-exclusive—list of entities ….”
    • Southern Ute Indian Tribe v. King Consol. Ditch Co: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included. The word ‘include is ordinarily used as a word of extension or enlargement.”

    It turns out that judges speak the same English as you and I do; they understand the meaning of includes and including.

    I didn’t find any Colorado cases that went the other way. So I cast the net a little wider and found Shelby Cnty. State Bank v. Van Diest Supply Co. This case dealt with a lien on “all inventory, including, but not limited to, agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor ….”[Emphasis added.] In this case the 7th circuit explained that:

    [I]t would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole. … But if all goods of any kind are to be included, why mention only a few? A court required to give “reasonable and effective meaning to all terms” must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage.

    So the court did interpret the word including as limiting, and the judges didn’t care that the contract used the phrase but not limited to. So this phrase isn’t a guarantee. And I have found several similar cases, so we probably shouldn’t get much comfort from the phrase but not limited to.

    Think of how many trees your Colorado could save by cutting out this unnecessary bit of legalese.

     

    [1] N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition)

  • CCUSL Recommends Five Uniform Acts for Introduction in 2020

    By Patti Dahlberg and Thomas Morris

    The Colorado Commission on Uniform State Laws (CCUSL) is Colorado’s delegation to the national Uniform Law Commission (ULC). The ULC is comprised of more than 300 commissioners appointed by all 50 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico. The CCUSL meets each year during the ULC’s July annual conference to identify a preliminary legislative agenda of approved uniform acts for potential introduction in Colorado. The CCUSL then typically hosts two to three public meetings at the state capitol to discuss its proposed legislation and to finalize its legislative agenda. The CCUSL sends advance notice of the meetings held in the capitol to interested parties, posts meeting information on the General Assembly and the CCUSL websites, encourages public testimony at the meetings, and broadcasts the meetings over the internet.

    The CCUSL held meetings to discuss its legislative agenda on September 25, 2019, and December 9, 2019, and approved five uniform acts for introduction as commission bills during the 2020 legislative session. Two of the uniform acts approved for introduction were ULC acts newly approved at the 2019 July annual meeting, and the other three uniform acts were ULC-approved acts from prior years. The five uniform acts approved for introduction in 2020 in Colorado are:

    • Uniform Automated Operation of Vehicles Act. This act covers the deployment of automated vehicles on roads held open to the public by reconciling automated driving with a typical state motor vehicle code. Many of the act’s sections – including definitions, driver licensing, vehicle registration, equipment, and rules of the road – correspond to, refer to, and can be incorporated into existing sections of a typical vehicle code.  This act also introduces the concept of an automated driving provider (ADP) as a legal entity that must declare itself to the state and designate the automated vehicles for which it will act as the legal driver when the vehicle is in automated operation.  The ADP might be an automated driving system developer, a vehicle manufacturer, a fleet operator, or another kind of market participant that has yet to emerge. Only an automated vehicle that is associated with an ADP may be registered.  In this way, the Automated Operation of Vehicles Act uses the motor vehicle registration framework that already exists in states – and that applies to both conventional and automated vehicles – to incentivize self-identification by ADPs.  By harnessing an existing framework, the act also seeks to respect and empower state motor vehicle agencies.
    • Uniform Collaborative Law. This act, promulgated by the ULC in 2009 and subsequently amended in 2010, provides attorneys guidance in determining whether collaborative law is appropriate for a particular dispute or client. As a uniform state law, the act helps establish uniformity in core procedures and consumer protections, while minimizing the patchwork spread of varying approaches and definitions. The collaborative law process provides lawyers and clients with an important, useful, and cost-effective option for amicable, non-adversarial dispute resolution. Like mediation, it promotes problem-solving and permits solutions not possible in litigation or arbitration. Collaborative law is a voluntary process in which clients and their lawyers agree that the lawyers will represent the clients solely for purposes of settlement, and that the clients will hire new counsel if the case does not settle. The parties and their lawyers work together to find an equitable resolution of the dispute at hand, retaining experts as necessary. No one is required to participate, and parties are free to terminate the process at any time.
    • Uniform Criminal Records Accuracy Act. Approved by the ULC in 2018, this act is designed to improve the accuracy of criminal history records, commonly called RAP sheets, that are frequently used in determining the eligibility of a person for employment, housing, credit, and licensing, in addition to their use for law enforcement purposes. The act imposes duties on governmental law enforcement agencies and courts that collect, store, and use criminal history records to ensure the accuracy of the information contained in the RAP sheet. The act provides individuals the right to see and correct errors in their RAP sheet. Through use of a mistaken identity prevention registry, the act also provides a mechanism by which an individual whose name is similar to and confused with a person who is the subject of criminal-history-record information, a means to minimize the possibility of a mistaken arrest or denial of housing, employment, credit, or other opportunities.
    • Uniform Parentage Act (2017). Colorado enacted the 1973 Uniform Parentage Act (UPA) in 1977. The 2017 version is an update of the 2002 revised act, which streamlined the UPA (1973), added provisions permitting a non-judicial acknowledgment of paternity procedure that is the equivalent of an adjudication of parentage in a court, and added a paternity registry. UPA (2002) included provisions governing genetic testing, rules for determining the parentage of children whose conception was not the result of sexual intercourse, and the option to authorize surrogacy agreements and establish the parentage of children born under the agreements. UPA (2017) changes include broadening the presumption, acknowledgment, genetic testing, and assisted reproduction articles to make them gender-neutral in order to better comply with the US Constitution. These updates seek to ensure the equal treatment of children born to same-sex couples, provide clarity to these families, and avoid unnecessary litigation. The 2017 version also provides for the establishment of de facto parents and precludes the establishment of a parent-child relationship by the perpetrator of a sexual assault that resulted in the conception of the child. It updates the surrogacy provisions to make them more consistent with current practice and includes a new article addressing the rights of children born through assisted reproductive technology to access medical information regarding any gamete providers without disclosing the identity of that provider without his or her permission.
    • Uniform Registration of Canadian Money Judgments Act. This act creates an administrative procedure for the registration and enforcement of Canadian money judgments as an efficient alternative to filing a lawsuit for recognition and enforcement. Once the Canadian judgment is successfully registered in the state, the judgment is enforceable in the same manner as a judgment rendered in that state. It only applies to a Canadian judgment if it (1) grants or denies recovery of a sum of money; (2) is final, conclusive, and enforceable in Canada; and (3) its recognition is sought in order to enforce the judgment. It supplements the Uniform Foreign Country Money Judgments Recognition Act (enacted in Colorado in 2008) by providing an alternative method to seeking recognition and enforcement of a foreign judgment.

    It is anticipated that CCUSL bills will be introduced starting in late January. For links to a commission bill’s information page as it is introduced and proceeds through the legislative process, go to the “Uniform Acts Approved For Introduction In 2020” section on the  CCUSL Additional Information page and click on the appropriate link as it is posted.

    Several uniform acts remain on the CCUSL agenda for discussion and consideration for introduction in future legislative sessions:

    • Amendments to the Uniform Probate Code (2019)
    • Revised Uniform Athlete Agents Act (2015) and 2019 Amendments
    • Uniform Fiduciary Income and Principal Act
    • Uniform Partition of Heirs Property Act
    • Uniform Trust Act, part 5

     

    Other articles regarding the ULC and CCUSL:

  • Too Many Bills! When and How to Delay

    by Darren Thornberry & Patti Dahlberg

    Now that you’ve met most of the bill deadlines set by rule, it’s time to consider taking care of a few pesky bill limits and deadlines that aren’t quite working for you this year. The five-bill limit and the filing date deadlines imposed by Joint Rules 23 and 24 were implemented to keep bills and other legislative work moving through the legislative process in a timely manner. But these rules also allow some bills to be exempted from these bill limits and deadlines. In a perfect session, a legislator might need only five bills to accomplish what he or she wants to see done in a session; and, of course, these bills would sail through all readings and committees and meet all deadlines with ease. The Governor’s desk would groan under the weight of so much gleaming legislation so early in session!

    We can dream!

    However, sometimes five bills just aren’t enough. Or a bill is submitted after a request deadline. Or a bill is more complex than expected. Or, after introduction, a bill simply needs more time to meet the remaining deadlines. When any of these situations occur, a legislator needs to obtain delayed bill authorization for the bill to be drafted or to continue through the legislative process. Delayed authorization is needed when:

    • A legislator submits a bill request after the bill request deadline, the bill request exceeds the legislator’s five-bill limit, or the legislator is being added as a joint prime sponsor to a bill in the first house. Any of these circumstances will cause the legislator to exceed the five bill-limit. This requires a waiver of one or more “bill limits” (and possibly bill deadline dates).
    • A bill request requires additional time for drafting, necessitating a waiver of one or more “bill deadlines”.
    • An introduced bill is not scheduled for a hearing or final vote in time to meet the committee or final passage deadline. This requires a waiver of one or more “bill deadlines”.

    The process for obtaining “delayed” or “late” bill authorization starts with the Speaker’s or the President’s office.  A legislator must request permission for delayed status for a bill from the House or Senate Committee on Delayed Bills (i.e., Leadership).  At the beginning of the legislative session, House and Senate Leadership designate a specific process for legislators to follow when requesting delayed bill authorization and the leadership staff who will be able to answer questions on the process. The Speaker or President’s staff should be able to provide this information.

    Leadership reviews all requests for delayed bill authorization and may request additional information from sponsors before deciding whether to grant approval. In both the House and the Senate, the approval process has two steps. If, as step one, Leadership initially grants approval, leadership staff notifies the Office of Legislative Services (OLLS) that Leadership has granted preliminary approval. This gives preliminary approval on the request to add a legislator as a joint-prime sponsor, to draft a new bill, to continue to draft a bill that is already being drafted but is unable to meet its introduction deadline, or, for bills that have been introduced and now need additional deadlines waived, to allow the bill to remain on the calendar in its current position. Upon receipt of preliminary approval, the OLLS creates the official delayed bill letter according to Leadership’s directions regarding the limits and deadlines waived, including any specified deadline dates, for signature by the applicable Committee on Delayed Bills. To complete the second step of the process, at least two of the three members of the applicable Committee on Delayed Bills must sign the official delayed bill letter before delayed status is considered approved and the bill can be introduced or, if already introduced, continue through the legislative process.

    Bills that need any type of delayed bill authorization can’t move to the next step in the legislative process until official delayed bill authorization is granted in the form of the official signed letter.  Once Leadership signs the official letter, the letter is attached to the bill so that at every subsequent step during the process it is easily ascertained that the bill has delayed bill approval and, if new deadline dates are specified, what those new deadline dates are.

  • C.R.S. Books vs. C.R.S. Online: Why Aren’t They the Same?

    by Jennifer Gilroy

    Recently it came to my attention that a significant change in the law took place right after the Office of Legislative Legal Services (Office) had approved the proof print for the final title of the Colorado Revised Statutes (C.R.S.) and sent it off to our printers, LexisNexis, for formatting, printing, and distribution.  At that moment I knew the beautiful set of burgundy-colored leatherette soft-bound volumes that this office had worked on so meticulously for the preceding three months would be sadly out of date the moment they would be delivered.

    You might wonder how the Office didn’t know that there would be a change in the law and account for it in the official publication.  It is because, on occasion, bills are written in anticipation of an event that is expected to occur at some unknown time in the future.  That event is the trigger for a new law to take effect or for an existing law to repeal. For example, a bill creating a new program may provide that the new law will not take effect until the federal Department of Health and Human Services grants a waiver to the state Department of Human Services to implement the program that the bill creates.  In that situation, the drafter typically includes a provision in the law directing the executive director of the state Department of Human Services to notify the revisor of statutes when the triggering event has occurred, and, with that notice, the new law comes to life.  However, if the triggering event—or even the receipt of the notice of the triggering event—occurs after August 10th, it is too late to change the books.  August 10th is the cut-off date by which the Office must approve the final proof print for the publication of the Official C.R.S. No changes can be made to the printed C.R.S. thereafter.

    This is particularly frustrating when I receive a notice to the revisor after August 10th, but I learn from the notice that the triggering event (the approval of the waiver in my example) actually occurred a month or two earlier when the Office could have identified in an editor’s note that the triggering event had occurred and that the law is effective.  Instead, however, the reader only sees the law printed in the books, accompanied by an editor’s note that reads, “As of the publication date, the revisor of statutes has not received the notice referred to in subsection (1).”  When the reader sees that type of note, he or she does not know whether the law is in effect or merely pending the event.  It’s even more confusing when the triggering event ultimately results in the repeal of a law already on the books.  In that situation, the reader can see the law published in the official statutes, but the editor’s note does not help the reader understand whether the law is still in effect.

    On the other hand, the online version of the C.R.S. is much more nimble and can be easily updated to reflect that the triggering event has occurred and that the law in question is now in effect or repealed, as the case may be. Working with our partners at LexisNexis, the Office can update the editor’s notes and remove repealed law that is no longer effective on a real-time basis. But should the online version, accessible through the General Assembly’s website, be different from the C.R.S. books?

    For years I have struggled with that dilemma for two reasons: One, I’ve historically believed that both the book version and the online version of the C.R.S., in addition to the DVD, should be

    identical so that two different people reading the law published by the General Assembly don’t see two different versions. Second, the books are still the only “official” version of the Colorado’s

    An example of statutory language referencing notification to the revisor of statutes and the accompanying editor’s note.

    primary statutory law. See §2-5-118, C.R.S. Until the legislature can ensure compliance with the three requirements of the Uniform Electronic Legal Material Act (See article 71.5 of title 24, C.R.S.) to allow the online version to also be an “official” source of the primary statutory law, those lovely burgundy leatherette books remain the only official version of Colorado’s statutory law. But, while the online version cannot be official, it could be more up-to-date.

    After significant rumination on the subject, I have decided to change my historical approach of keeping all versions of the C.R.S. the same, and begin updating the online version as new information becomes available that will affect the law presented in the C.R.S. This decision is based primarily on a belief that public expectations likely favor timely online updates to reflect the current state of the law. Most people recognize that the books cannot be updated and changed as information becomes available over the course of the year without costly errata supplements, but they presume a vibrant website source can be. Therefore, going forward, the Office will update the online statutes as we receive notices that indicate a change in the law has occurred.

    What to take away from this article?  I recommend that when doing research, feel free to conduct your research using the online version of the C.R.S. (https://leg.colorado.gov/colorado-revised-statutes) to see the most updated state of the law. But for official court filings or other formal business, confirm the text with the official version in the books. If you are still in doubt, call the Office of Legislative Legal Services.

  • 125 Years Ago Today

    by Darren Thornberry

    On January 2, 1895, the Colorado General Assembly met in its new statehouse for the first time. Outgoing governor Davis Waite had moved into the building two months earlier, but work on the Capitol would not be complete for 13 more years. Imagine the deafening din of hammers and trowels while trying to debate on the chamber floors. Just getting here from far flung Trinidad, Leadville, or Ouray would have been a feat.

    According to the Senate journal of that day, Lt. Gov. David H. Nichols and Asst. Secretary of the Ninth General Assembly, Stanley Stokes, called the Senate to order (exact time unknown) and Rev. Thomas Uzzell gave the invocation. Chief Justice of the Colorado Supreme Court, Charles Hayt, administered the oath to 16 newly elected Senators.

    The House of Representatives convened at noon and was called to order by Chief Clerk of the Ninth General Assembly John R. Wallingford followed by a prayer by Prof. T.N. Haskell. Among the day’s business was nominating a clerk pro tempore, and the body unanimously voted for Wallingford. Mr. A. Humphrey of El Paso County received a majority of votes to become Speaker of the House.

    Truth be told, much about the process of offering, debating, and voting on legislation remains the same as it did 125 years ago. Here are three notable bills passed by the 10th General Assembly that reflect Colorado citizens’ interests and concerns of the day.

    S.B. 294 – World’s Fair (Senator Reuter)
    This bill, designed to elevate Colorado to the world stage, provided for the appointment of three commissioners of the state of Colorado to the World’s Fair, which was to be held in Paris, France, in 1900. The duty of the commissioners would be to make suggestions for the proper presentation of the interests of the state at the World’s Fair. The commissioners would of course receive no compensation for services rendered or expenses incurred in the exercise of their duties unless specially provided for by law.

    H.B. 218 – Train Wrecking (Rep. Humphrey)
    The bill provided for the punishment of train wrecking and train robbing. Any person or persons who willfully and maliciously threw out a switch, removed or in any manner loosened a rail, or placed any obstruction on any railroad or tramway track operated in the state of Colorado, with the intention of derailing any passenger, freight, or other train, or who willfully boarded any passenger, freight, or other train with the intention of robbing the same, or who willfully placed any dynamite or other explosive material on the track of any railroad in the state of Colorado, with the intention of blowing up or derailing any passenger, freight, or other train, or who willfully set fire to any railroad bridge or trestle over which any passenger, freight, or other train, upon conviction, would be adjudged guilty of a felony and punished by imprisonment in the state penitentiary for a term of not less than 10 years. And that term could be extended to life imprisonment!

    H.B. 19 – Mayhem (Rep. Morris)
    In this somewhat terrifying bill, mayhem was defined as unlawfully depriving a human being of a member of his or her body or disfiguring or rendering it useless. The bill stated that any person who unlawfully cut out or disabled the tongue, put out an eye, slit the nose, ear, or lip, or disabled any limb or member of another, or voluntarily and of purpose put out an eye or eyes, was guilty of mayhem, and on conviction would be punished by confinement in the penitentiary for a term not less than one year nor more than 20 years. Naturally, there’s an exception: No person would be found guilty of mayhem if it occurred during a consensual fight, nor unless it appeared that the person accused was the assailant, or that the party maimed had in good faith endeavored to decline further combat.

    Much history has been made at the Colorado Capitol over these 125 years. The will of the people, through their elected representatives, is imposed here today just as it was on Jan. 2, 1895. Let us be grateful for and humbled by this legacy of democracy in action.

     

    All photos courtesy of the Denver Public Library.