Colorado LegiSource

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

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  • 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.

  • 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!

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

    By Jason Gelender

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

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

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

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 Repealed the hospital provider fee program;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

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

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

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

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

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

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

     

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

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

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

    [4] Id. at 42.

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

    [6] Id. at 42-47.