Colorado LegiSource

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

Year: 2024

  • There Are Only 10 Ways to Write a Sentence

    by Frank Stoner

    Despite the fact that there are only 10 ways to write a sentence, there remain infinitely many possible sentence constructions. English, like German, Mandarin, and Russian, is what linguists call an SVO language. That is to say, English writers will typically first tell you the [S]ubject, then the [V]erb, and then the [O]bject.

    For example:

                                            She          loves          him.

                                            Subject    Verb          Object   

    In what linguists call SOV languages, like Japanese or Latin, a writer will first tell you the [S]ubject, then the [O]bject, and then, finally, the [V]erb. An equivalent Latin sentence rendered in English would look like this:

                                            She          him          loves.

                                            Subject    Object     Verb

    Almost 90% of the world’s 6,000 or so languages use one of these two sentence structures.

    This very basic architecture seems to suggest that each language has only one sentence structure and that all natural languages (that is to say, natural human languages; not codes or computer languages) only ever include subjects, verbs, and objects, just in different orders. So, you might be wondering, Why does the title say there are 10 ways to write a sentence?

    Although it is true that English only uses the SVO sentence structure, there are 10 sentence patterns that employ the structure in different ways—mainly dealing with the “V” and “O” parts: the verbs and the objects.1 Among those different ways are four categories of things a sentence can do. These categories are organized below according to the traditional Reed-Kellogg model, which—in theory—places the sentence patterns in ascending of order of verb complexity.2

    Category A. A sentence can tell us what something is.

    This category, often called the “be patterns,” always includes some form of the verb “to be” (am, are, is, was, were, etc.) as its “predicating” or main verb. This category of sentence patterns is perhaps the most frequently used set in legal writing because its patterns always tell us something about the constitution of the subject. There are three patterns:

              (I). The chambers are upstairs. (upstairs gives us information of time or place about the subject).

              (II). The members are diligent. (diligent describes the subject).

              (III). Senator Smith is my representative. (my representative renames or defines the subject).

    Category B. A sentence can tell us what something is like.

    This category, often called the “linking verb patterns,” tells us something about the subject with any verb except a “be-verb.” There are two patterns:

              (IV). The members seem busy. (seem busy tells us information about the members without defining them).

              (V). The members remained citizens. (remained “links” the object citizens to the subject members without defining them with a “be-verb”).

    Category C. A sentence can tell us what something does.

    This category consists of only one pattern—an intransitive sentence. An intransitive sentence is, essentially, just the SV part of the larger SVO structure—in other words, no object follows the verb.

              (VI). The General Assembly adjourned. (nothing follows the verb adjourned).

    Category D. A sentence can tell us what something does to something else.

    This category consists of the four transitive patterns, and is perhaps the second-most commonly used structure in legal writing—though it is perhaps the most common structure in everyday speech.

              (VII). The legislature passed the bill. (the bill here is what linguists call a direct object, since it is the “thing” acted upon by the subject).

              (VIII). The editor gave the clerk the amendment. (the clerk here is what linguists call an indirect object since it is involved indirectly with the main object being acted upon: the amendment).

              (IX). The members consider the chairperson intelligent. (intelligent describes the indirect object chairperson without renaming or defining it).

              (X). The members elected Senator Smith chairperson. (chairperson renames or defines the indirect object Senator Smith).

    You may have a suspicion that these 10 patterns don’t cover quite everything that English speakers can write. What about adverbs, you might ask? First of all, words or phrases that “fancy up” a sentence are not considered vital to a sentence’s structure because the SVO structure can function without such niceties. Adverbs, for instance, can be moved anywhere within a sentence and therefore do not constitute any additional patterns:

              Quickly, they ran up to the chamber.

              They ran quickly up to the chamber.

              They ran up to the chamber quickly.

    Prepositional phrases like up to the chamber and other kinds of phrases that serve to “fancy up” a sentence are also not considered essential to a sentence’s function. While those kinds of phrases may carry essential meaning, they do not perform an essential function of an SVO sentence. For that reason, they do not constitute any patterns additional to the 10 listed above in Roman numerals.

    The final, and perhaps most important thing that allows English speakers to do so much with just 10 basic sentence patterns is what linguists call “recursion.” Using a process called nominalization (you can think of this as meaning “nounify”), speakers can take any of the 10 patterns and embed them in any place a noun (that is, a subject, object, indirect object, or direct object) normally belongs. Consider the following:

              Witches          are          scary.

              Subject          Verb        Object

              (Pattern II sentence)

              ________________________

              Dorothy          thinks       witches are scary.

              Subject           Verb                  Object

              (Pattern II sentence embedded in a pattern VII sentence)

    Here, the full sentence “Witches are scary” can be nominalized into a single object and embedded as a chunk within another complete sentence: “Dorothy thinks witches are scary.” This remarkable feature of both the human mind and language allows any of the 10 sentence patterns to be combined, reshaped, planted, or otherwise embedded within any other sentence. Given the 170,000 or so words English has within its lexicon, 10 patterns—and the ability to use them recursively—really are enough to say infinitely many things.

    1. These are the 10 sentence patterns according to the Reed-Kellogg model, discussed in Martha Kolln’s and Robert Funk’s “Understanding English Grammar” (Longman, 2012).

    2. The Reed Kellogg model, a 19th century creation, has largely fallen out of favor with  contemporary linguists, but the model is still taught by English instructors who believe pictorial sentence diagrams are valuable to help students visualize sentence structure.

  • Citizen Initiative Process Allows Coloradans to Go Nuclear, or Not

    by Jessica Chapman

    The 700,000 or so Coloradans who went to the polls on November 5, 1974, voted “yes” to all 10 constitutional ballot measures before them. Citizens voted soundly in favor of reinstating the death penalty (which the U.S. Supreme Court had outlawed two years earlier) in certain cases. They voted by an even greater margin to prohibit busing students to schools that were farther away from the closest schools. “School bussing,” as it was known at the time, was a policy designed to desegregate schools when the school’s neighborhoods were still de facto segregated. (Notwithstanding the vote, Denver continued school busing pursuant to a 1973 lawsuit.)

    By a thinner yet still decisive margin, Coloradans also voted in favor of an initiative brought by environmental groups to prohibit nuclear detonations in the state unless approved by a vote of the people.

    The ballot language voters considered read:

    “An act to amend the Constitution of the State of Colorado to establish procedural steps to be complied with prior to the detonation of nuclear explosives devices, requiring prior approval of the detonation by the voters through the enactment of an initiated or referred measure.”

    The measure passed, with 58 percent (399,818) voting “yes” and 42 percent (291,284) voting “no,” and resulted in the addition of Article XXVI to the state constitution.

    What led to this point? How, exactly, did the question of whether or not to permit nuclear testing end up reaching Colorado voters?

    The 1970s marked a time in the state and nation as a whole when Americans were paying more attention to environmental issues. At the federal level, under the administration of President Richard Nixon, the decade ushered in the Environmental Protection Agency, the Endangered Species Act, the National Environmental Policy Act, and the Legacy of Parks program, among others. The first Earth Day was celebrated April 22, 1970.

    In Colorado, nuclear energy had become an environmental issue to rally around for a couple reasons. A fire at the Rocky Flats nuclear weapons production facility, eight miles south of Boulder, in 1969 led to a multi-year clean-up and concerns about soil, air, and water contamination.

    Meanwhile, the federal Project Plowshare program, which was launched in the 1950s to pursue “peacetime” uses for nuclear energy, had located two sites on Colorado’s Western Slope to test the capability of nuclear weapons to extract natural gas from underground rock. The first, called Project Rulison, involved the detonation of a nuclear device in Garfield County in 1969. The other, called Project Rio Blanco, involved three devices and took place in May 1973, less than a year and a half prior to the November 1974 vote.

    Neither Project Rulison nor Project Rio Blanco produced suitable natural gas, and in fact, radiation was detected in the air after the Project Rulison detonation. Such unintended consequences alongside mounting public health concerns about nuclear power built momentum around the issue. (Project Plowshare terminated in 1977.)

    Site of underground nuclear testing in Rulison, Colo. in 1969. Denver Public Library Special Collections

    Given these elements, the passage of a nuclear ban like Measure 10 seems perhaps unsurprising.

    Dr. Derek Everett, a professor of history at Colorado State University explains that, “[T]he nuclear explosion ban in the state constitution emerged at a time when many Coloradans were thinking twice about the environmental impact of development after World War II. Pushback against Rocky Flats, the Rocky Mountain Arsenal, the 1976 Winter Olympics, and other controversies reflected an increasing environmental awareness alongside the nuke ban in 1974.”

    Then, as now, citizen groups, or “proponents,” have the option of pursuing placement of issues before voters via the citizen initiative process.

    Measure 10, before it became enshrined as Article XXVI of the state constitution, was guided to passage by activists, chief among them a student group called People for Rational Energy Sources. The group gathered enough signatures—50,000+ in this case—to place the ballot language cited above in front of voters on that day in 1974, while also working to promote public awareness of and support for the issue through writing letters, organizing events and otherwise direct attention to the issue.

    The citizen initiative is an interesting feature of our state’s constitution—shared by just 25 states other than Colorado—permitting citizens (any citizen) to propose new state laws or constitutional amendments. The mechanics of the process are somewhat complex.

    In a 2018 LegiSource article, Office of Legislative Legal Services Director Ed DeCecco provides a useful two-part overview of the initiative process. He explains how proponents of a measure must proceed through a number of steps, including “review and comment,” setting the ballot title, gathering signatures, verification of signatures, and setting language for the Blue Book – all before any issue may be placed on the ballot. The process involves the Legislative Council and the Secretary of State’s office as well as this office. In the decades since Measure 10’s passage, while the General Assembly has introduced bills addressing the feasibility of nuclear energy, the issue has remained more or less untouched and Amendment XXVI has remained intact since its enactment. In fact, despite the widespread use of nuclear power in certain parts of the world, including the United States, Colorado has only ever had one nuclear facility, the Ft. St. Vrain Nuclear Power Plant, which operated from 1979 to 1989.

    The General Assembly has made efforts to modify aspects of the citizen initiative process over the years. The language in Article V, Section 1, however, stands: “… the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.” And the people of the state continue to be asked to approve or deny initiatives, but the people still haven’t gone nuclear.

  • Great Outdoors Colorado: Protecting Colorado’s Natural Playground

    by Faith Marcovecchio

    State lotteries fund all kinds of valuable things, from education to veterans’ services, Special Olympics to small businesses. But of the 45 states that sponsor lotteries, only six have created programs that use the proceeds to protect beautiful landscapes for everyone to enjoy. With Colorado’s stunning natural and recreational offerings, it’s no surprise our state is one of them.

    A 1992 ballot initiative amended the Colorado Constitution to create Great Outdoors Colorado (GOCO) and its associated trust to improve outdoor access and recreational opportunities, protect and restore the state’s land and rivers, and offer educational programs and internships. GOCO is funded entirely by a portion of the proceeds from the state lottery. When Amendment 8 proposing GOCO was passed by the voters in 1992, Colorado joined Minnesota and Arizona in setting aside lottery profits to conserve and protect state land. Since that time, Oregon, Maine, and Nebraska have adopted similar programs and trusts to protect their own outdoor heritage.

    The results in Colorado are astounding. In the 31 years since GOCO was established, over 5,500 projects have been completed in all 64 of the state’s counties, conserving 1.2 million acres and creating or improving just shy of 1,800 parks. To accomplish this, GOCO’s board, which includes two members from each congressional district in the state, partners with nonprofits, local governments, and Colorado Parks and Wildlife on a wide array of projects funded through the GOCO trust and matching grants.

    Doubtless, you’ve heard of some of them. The new Fishers Peak State Park near Trinidad was purchased with funding from GOCO in partnership with The Trust for Public Land, The Nature Conservancy, Colorado Parks and Wildlife, and the City of Trinidad. Greenland Ranch, the beautiful swath of open space you enjoy as you drive between Denver and Colorado Springs, was also funded by the lottery, this time with additional financial backing from private funders and Douglas County, in partnership with The Conservation Fund.

    On the Western Slope, GOCO, working with Colorado Parks and Wildlife, recently completed the Palisade Plunge, 32 miles of varied single-track trail that challenges mountain bikers as they ride from the top of Grand Mesa to the desert floor below. And on the Eastern Plains, rodeo lovers in Kim, Colorado, throng to events at the new Mustang Pavilion, made possible by GOCO, the Gates Family Foundation, the El Pomar Foundation, and community support.

    These are some of the marquee projects GOCO is known for, but the lottery also funds hundreds of smaller projects that quietly enhance and maintain beautiful spaces and recreational venues across our state, whether by removing noxious weeds in Crested Butte, improving the baseball fields and playgrounds in Washington County, or connecting bike trails in Louisville. GOCO has had a hand in them all.

    When voters passed Amendment 8 and added article XXVII to the state constitution in 1992, it was an important constitutional addition, but it wasn’t a stand-alone amendment. Article XXVII can only work in concert with article XVIII, section 7, which allows for a state-supervised lottery. In 1982, a state lottery division within the Department of Revenue was created in statute, but the division must be reauthorized continuously by bill. The most recent reauthorization happened in 2018, when Senate Bill 18-066 extended the division’s termination from 2024 until 2049. Though it’s unlikely the General Assembly would abolish our state lottery, by continuing it, the legislature also supports outdoor recreation in every county and corner of the state. For the next 25 years, that support will continue, and millions of Coloradans and visitors to our jewel of a state will benefit as a result.

    Colorado, play on!

  • A Brief Timeline of Colorado Gaming Law

    by Richard Sweetman

    Colorado’s laws concerning gambling, or gaming, were, until recently, unique among the states. However, the tight and unusual restrictions that were associated with Colorado’s embrace of “limited gaming” in 1990 have now disappeared. Legally, our state now looks more like other states that have embraced for-profit gambling over the last 30 years. What happened? Well, here is a quick summary of the evolution of gaming law in Colorado!

    The Wild West: Gambling is a popular pastime in late-nineteenth-century Colorado. In frontier towns and mining communities, the absence of law enforcement allows gambling to flourish in saloons and brothels. In Denver, during Colorado’s silver boom, the legendary con man Jefferson Randolph “Soapy” Smith II operates gaming halls and rigged games that target successful silver miners and their newfound wealth.

    The silver boom eventually dies out and the miners move on, but migrant workers and families continue arriving to populate the new state of Colorado. As conservative values begin to prevail and local, state, and federal law enforcement agencies are established in the West, gambling is forced out of public spaces.

    1948: Colorado voters approve a legislatively referred measure called the Colorado Gambling on Horse and Animal Races Amendment. The new law allows betting on horse races and greyhound races and creates the Colorado Racing Commission. In 1949, live horse racing and greyhound racing begin in Colorado.

    1958: Through another ballot measure, Colorado voters amend the state constitution to allow charitable gaming, including bingo and raffles, beginning in 1959.

    1982:  The Colorado General Assembly creates the Colorado Lottery and the Lottery Division of the Colorado Department of Revenue. In 1983, the Colorado Lottery begins selling tickets.

    1990: Voters overwhelmingly (57.3% to 42.7%) pass Amendment 4, a citizen-initiated measure called the Legalization of Limited Gambling Initiative that legalizes “limited gaming” only in the mountain towns of Black Hawk, Central City, and Cripple Creek. In 1991, the initiative becomes law and casinos begin operations. Individual bets can be no more than $5, casinos’ hours of operation are limited to 8 a.m. to 2 a.m., and roulette and craps are not allowed.

    2000: Colorado voters enact Referendum E, a legislatively referred measure that allows the state lottery to begin offering tickets to multistate jackpot drawings such as Powerball and Mega Millions.

    2008: Through yet another citizens’ initiative (Amendment 50), Colorado voters amend the state constitution to increase the maximum individual bet amount from $5 to $100, allow casinos to operate 24/7, and allow casinos to offer roulette and craps games.

    2014: The Colorado General Assembly enacts House Bill 14-1146, which prohibits greyhound racing in Colorado.

    2019: Voters narrowly (51.4% to 48.6%) approve Proposition DD, which legalizes sports betting in Colorado.  In May 2020, in the midst of the COVID-19 pandemic and associated lockdowns, sports betting – including online sports betting – launches in Colorado. The operations of new sports books in Black Hawk, Central City, and Cripple Creek casinos are initially limited by the situation. But TV and radio advertisements for online sports betting websites suddenly become ubiquitous in Colorado media.

    2020: Colorado voters overwhelmingly (60.5% to 39.5%) embrace Amendment 77, which essentially removes any limits on the size of bets and the types of games allowed in Colorado casinos.

    2023: The Colorado General Assembly enacts House Bill 23-1041, which prohibits wagering on greyhound races that are conducted on out-of-state tracks and simulcast in Colorado.

  • Looking Back to Move Forward: The Colorado Supreme Court Explains the State Constitution’s Retrospectivity Clause.

    by Conrad Imel

    Often the General Assembly passes bills to regulate future conduct, but sometimes a legislator wants to expressly address something that happened in the past. The Colorado Constitution limits the General Assembly’s power to enact legislation that applies retroactively, so we at LegiSource are here to help make sense of these limits on the General Assembly’s authority.

    The General Assembly has broad plenary authority to enact legislation, but that power is limited by state and federal constitutional provisions. One such provision is the Colorado Constitution’s retrospectivity clause. Article II, section 11 of the Colorado Constitution states:

    No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly. (emphasis added)

    Recently, in Aurora Public Schools v. A.S., the Colorado Supreme Court had occasion to outline the contours of this retrospectivity clause. Aurora Public Schools involved a challenge to the constitutionality of Senate Bill 21-088. That bill created a new statutory cause of action for victims of sexual misconduct that occurred while the victim was a minor. Like most laws, S.B. 21-088 applies prospectively, to conduct that occurs after the bill’s effective date. However, S.B. 21-088 also expressly applies retroactively. The bill created a three-year “look back” window for victims of misconduct that occurred between January 1, 1960, and January 1, 2022 (the bill’s effective date). The look-back provision allowed victims of past misconduct to bring a claim during the three-year period between January 1, 2022, and January 1, 2025. The plaintiffs in Aurora Public Schools brought a claim pursuant to the look-back provision; the defendants moved to dismiss the case, claiming that the look-back window was unconstitutionally retrospective.

    The Court in Aurora Public Schools began by explaining the retrospectivity clause and reaffirming its prior retrospectivity jurisprudence. The Court explained that the purpose of the retrospectivity clause is to prevent unfairness that would otherwise result from “changing the consequences of an act after that act has occurred. [. . .] In other words, the prohibition on retrospective legislation prevents the legislature from changing the rules after the fact because to do so would be unjust.”

    But not all retroactive legislation is unconstitutionally retrospective. To determine whether a retroactive law is unconstitutionally retrospective, Colorado courts use the “Story test,”[1]  which says that a law violates article II, section 11’s prohibition if it (1) impairs a vested right; or (2) creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.  While these two prongs arguably overlap, a law that satisfies either prong is unconstitutionally retrospective. The focus of the test is on substantive laws. Laws that are merely procedural or remedial may apply retroactively without offending the constitution.

    The plaintiffs in Aurora Public Schools argued that there is a public policy exception to the prohibition on retrospective legislation, but the Court disagreed, holding that there is no public policy exception to the retrospectivity clause.

    Ultimately, the Court held that S.B. 21-088’s look-back window is unconstitutional in violation of the retrospectivity clause to the extent that it permits a victim to bring a claim for past sexual misconduct for which previously available causes of action were barred by the statute of limitations. The court found that the bill created a new right for relief for the plaintiffs, which in turn created a new obligation and disability with respect to past transactions for the defendants, in violation of the retrospectivity clause. Further, the court affirmed past precedent that the retrospectivity clause prohibits reviving claims that are time-barred by the statute of limitations and found that the three-year look-back window to bring a new cause of action for past conduct indirectly accomplishes the same ends as reviving a claim that is time-barred.

    So what does the Court’s opinion in Aurora Public Schools mean for the General Assembly? First, the Court made clear that Colorado courts will use the “Story test” to determine the constitutionality of a law that applies retroactively and that there is no public policy exception to the retrospectivity clause. Second, the Court explained that the retrospectivity clause prohibits the legislature from doing something indirectly which it could not do directly, so the retrospectivity analysis applies to any law that applies retroactively.

    The constitution does not completely prohibit the General Assembly from enacting laws that apply to conduct that occurred prior to the law going into effect, but it does prohibit laws that impair a vested right or create a new obligation, impose a new duty, or attach a new disability to past conduct. If a member wants to sponsor a bill that applies retroactively, the bill drafter can help walk the sponsor through any constitutional concerns.

    To read more about the Colorado constitution’s ex post facto clause (i.e., section 11 of article II), see https://legisource.net/2014/09/25/ex-post-facto-laws-effective-dates-and-legislative-time-travel/ .

    [1] The “Story test” is named for United States Supreme Court Justice Joseph Story, who first articulated the test in Society for the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (C.C.D.N.H. 1814).

  • Canons of Statutory Construction

    by Jessica Herrera

    Is the drafter in the room? We have a statutory interpretation question about a series of words.

    In a perfect world, all statutes would have a plain and straightforward meaning. Unfortunately, there are times when there is ambiguity in the words or phrases of a statute, and courts will rely on various methods of statutory interpretation. One way courts discern what a statute means is by using canons of statutory construction. These canons of statutory construction are interpretive principles that drafters in the Office of Legislative Legal Services often consider when drafting bills. Although these canons of statutory construction are not absolute, and may at times even conflict with one another, they are nevertheless a tool in your favorite drafter’s tool box.

    Canons of Statutory Constructions Regarding a List or Series of Words

    Expressio Unius est Exclusio Alterius

    Starting off with the most common sense canon of statutory construction, the doctrine of expressio unius est exclusio alterius comes from the Latin phrase that means “the express mention of one person or thing excludes others.” This canon boils down to the presumption that specified enumerations in a statute restrict the meaning to just those expressly listed. To illustrate, a statute that prohibits an individual from intentionally “hitting, kicking, or stomping” on a dog would exclude the prohibition of other harmful acts, such as strangling a dog, even if the legislative intent is obviously to prevent actions of a similar nature. Would adding a broader, catch-all clause at the end help prevent other harmful acts to dogs? It depends. The next canon of statutory construction sheds some light on having a catch-all clause at the end of a sentence.

    Ejusdem Generis

    Ejusdem Generis is a canon of statutory construction that comes from the Latin phrase that means “of the same kind.” Ejusdem Generis is the doctrine that states where there is a list or a series that specifies a number of specific people or things, and the list is immediately followed by more general words or a phrase, the general words or phrase is construed as being limited in scope and applies only to people or things of the same kind or class as those expressly mentioned with particularity. For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-power vehicles, a court applying the principle of ejusdem generis to the general phase of “motor-power vehicles” would likely exclude a boat or airplane because the specified list was limited to land-based vehicles.[1] In essence, it is worthwhile to pay attention to a common theme in an enumerated list, as a court may limit the scope of a catch-all phrase to a specific characteristic. See more about Ejusdem Generis here.

    The Last Antecedent Rule and the Series Qualifier Battle

    As we all recall from primary school, an antecedent is a word that is replaced by another word in the course of a sentence. The most common occurrence is when an antecedent is replaced by a pronoun. For example in the sentence, “Rose is very smart, she would make a great public official!” “Rose” is the antecedent to the pronoun “she.” Now that we all remember what an antecedent is, let’s extrapolate the concept of an antecedent to the canon of statutory construction known as the last antecedent.

    Under the last antecedent rule, when a series is followed by words of limitation, the limitation will apply only to the last antecedent on the list. For instance, a statute may provide, “Licensees may hunt deer, moose, and fish that are not on the endangered species list.” The restriction “that are not on the endangered species list” will apply only to fish, which is the last antecedent on the list. The last anteceding rule applies to qualifiers that follow a list.

    If a qualifier precedes a list, the series qualifier cannon applies. For instance, a statute may provide “Licenses may hunt blue deer, moose, and fish.” Under the series qualifier canon, the qualifier blue applies to fish as well as to deer and moose.

    If the last antecedent rule appears familiar to you, that may be due to your diligent reading on construction of statutes found in part 2 of article 4 of title 2, C.R.S. Specifically, section 2-4-214,C.R.S., states that the last antecedent rule has not been adopted by the general assembly. That means the modifier is not presumed to apply to just the last item on the list. Although the last antecedent rule may have had its last hurrah in Colorado, it is still used in other states and notably in the recent United States Supreme Court case Lockhart v. United States. [2]

    The court in Lockhart interpreted the federal law that set forth a mandatory minimum sentencing for an individual who violated federal law regarding possession of child pornography and also had a prior conviction under “…the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward…” The question at issue in Lockhart was whether the qualifier “involving a minor or ward” applied only to the last antecedent, “abusive sexual conduct,” or whether it also applied to the whole series and thus included both “aggravated sexual abuse” and “sexual abuse.” If the qualifier “involving a minor or ward” applied to the entire series, the defendant’s prior conviction of sexual abuse did not subject him to federal statute’s mandatory minimum sentencing because the victim was not a minor or ward. The Supreme Court held that the qualifier applied only to the last antecedent and not the whole series, and thus Lockhart’s prior conviction of sexual abuse perpetrated upon an adult elevated his minimum sentencing.

    These canons of statutory construction can play a role in determining whether something on a list or series is included or excluded and used as a tool to decipher the legislature’s intent. Sometimes making a list or series in statute is not as straightforward as one would think. Given the potential ambiguity and unintended legislative intent that may be implied from a series with a modifier, it might be best to forgo including a modifier all together and instead opt to flesh out each item on a list independently as suggested here.

    [1] McBoyle v. United States, 283 U.S. 25 (1931)

    [2] Lockhart v. United States, 577 U.S. 347 (2016)