by Tom Morris

While trying to read a statute to unravel its meaning, have you ever felt dismayed or sidetracked when you came across a phrase such as this: “as specified in sub-subparagraph (D) of subparagraph (III) of paragraph (g) of subsection (4) of this section”? That’s a lot of words—what is a “sub-subparagraph”, anyway?—and understanding them is made even more difficult due to the fact that they’re presented in reverse order from how most of us probably think. It’s as if, to describe how much money was being appropriated, we said “19 cents, 235 dollars, 452 thousand dollars, and 2 million dollars” instead of “2,452,235.19 dollars”. Surely, a better format for statutory references is possible.

Well, the Office of Legislative Legal Services has decided that a better format is possible, and, in drafting bills for the 2017 regular session, we have already started using it.

First, it’s important to understand the scope of the changes. When a statute refers to a portion of a different statute, that’s called an “external” reference, and we don’t use the format described above. Instead, if you’re in a statute other than section 24-30-122, the reference would previously have been something like “section 24-30-122 (4)(g)(III)(D), C.R.S.”. The main difference in external references going forward is that we’re dropping the “C.R.S.” (the abbreviation for “Colorado Revised Statutes”). We figure that, if you’re reading title 8, you know when you see a reference to section 24-1-104, it’s referring to a section in another title of the Colorado statutes and that we’re not straying down the freeway and into another state’s statutes.

Second, we used to include the number of a title or article only when the reference was located in a title or article other than the one being referenced, but we would always include the part number regardless of whether the reference was in or out of that part. We will now treat titles and articles as we currently treat parts: We’ll always include the article and title number (so references to “this article” in statute now become “this article 12,” for example).

The most significant changes we’re making relate to “internal” references. For example, if the reference is located in section 24-30-122 and the reference is to a portion of that same section, that’s an internal reference. Instead of listing the various types of C.R.S. subdivisions (sub-subparagraph, subparagraph, paragraph, and subsection) in reverse order, we’ll use a format similar to that used for external references. So if you’re in section 24-30-122, the reference will usually be “subsection (4)(g)(III)(D) of this section”.

There are a few things to note about this new format. First, we’re no longer going to refer to sub-subparagraphs, subparagraphs, or paragraphs; every internal reference to a C.R.S. subdivision will be to a “subsection”. Second, for both external and internal references, we will no longer put a space between the parentheses—so it will be “(2)(a)” rather than “(2) (a)”. Third, if the internal reference is to the same subdivision where the internal reference is located, we will include the complete string of higher-level subdivisions in the reference. For example, we used to write “this paragraph (d)”, but now we’ll write “this subsection (3)(d)”. Finally, every internal reference to a different subdivision will end with “of this section”. We used to write “paragraph (a) of this subsection (1)”, but now we’ll write “subsection (1)(a) of this section”.

Here’s a table that summarizes our old and new citation formats for internal references:

Format Before 2017	Format Beginning in 2017
this paragraph (d)	this subsection (3)(d)
this sub-subparagraph (C)	this subsection (1)(e)(II)(C)
paragraph (a) of this subsection (1)	subsection (1)(a) of this section
subparagraph (III) of paragraph (b) of this subsection (4)	subsection (4)(b)(III) of this section
sub-subparagraph (A) of subparagraph (IV) of paragraph (c) of subsection (2) of this section	subsection (2)(c)(IV)(A) of this section

Finally, we will make these changes only prospectively and only in those sections of statute that are included in bills; we will not update the citation format for the entire C.R.S. through the publications process. All new citations will follow the new format. The bill drafters, subject to the sponsors’ preferences, will update existing references in the same way that other grammatical or terminology updates to existing statutes are made.

So there will be some inconsistency in the C.R.S. in how our statutory references are phrased for quite some time. But we’ve concluded that using a citation format that is as specific and accurate as our current system—and that uses less terminology and is more concise, easier to understand, and more internally consistent—is an easy choice. We hope that you’ll agree!

by Patti Dahlberg

Although the Colorado General Assembly is only in session from January to May each year, General Assembly members know that being a legislator requires year-round attention to legislative responsibilities. The first bill request deadline is still almost three months away (Thursday, December 1), but there are significant benefits to starting the bill drafting process as early as possible during the interim. (See Ask OLLS posting “The start of the legislative session is over 4 months away. Why should I bother to get my bill requests in now?”)

Submitting bill requests early allows legislators, legislative staff, and stakeholders more time to research, consider, develop, and draft bills. And there are other benefits for legislators who can invest a little more time on bill drafting earlier in the fall.

Time Management:
There’s no way around it – bill request deadlines require legislators and staff to complete the bulk of the bill drafting before the convening date of the next session. A legislator can wait until the deadline to submit his or her bill requests and spend the four to five weeks immediately before session – including the holidays – in heavy drafting mode or try to shift a portion of the pre-session drafting demands to earlier in the interim and:

• Reduce the time demands of drafting in December and January, allowing more time to prepare for session, meet with constituents and stakeholders, and tie up other personal matters before the session starts.
• Save big on time and enjoy bill request flexibility by having a solid draft of a bill completed by November. (There is no need to finalize a bill until closer to the desired introduction date.)
• Have the luxury of focusing on one or two bill requests at a time. Once a bill draft is close to being finished, the request can be set aside and the legislator and drafter can start work on another bill. This way, a legislator isn’t just trading a busy December for a busy September or October, but instead leveling the time demands of bill drafting over four to five months.
• Allow legislative staff more time to assist in developing and drafting the legislation. Staff is more readily available to attend meetings, consult on drafting language, and, if needed, provide in-depth research before December.

A lot can change between now and January and it may seem that drafting in September and October could be a waste of time. After all, a legislator may need to significantly change, update, or even withdraw a bill draft before introduction. But that’s okay, because it’s usually easier and faster to revise or rewrite an existing bill draft than to create it from scratch at the last minute. Even if a legislator finds that he or she must withdraw a bill request, he or she doesn’t lose the benefits of early drafting efforts.

Decision-making:

• Early interim bill drafting allows a legislator and the bill’s stakeholders more time to make informed decisions about the bill’s content. Early interim drafting may require legislators to set some internal production deadlines to keep the bill draft moving along, especially when working with larger groups of stakeholders and constituents.
• With a bill draft in hand, even if it’s only an initial draft, a legislator is better equipped to know whether to introduce the bill, who to approach for second house sponsorship, and where the bill fits best in his or her bill introduction order.
• Often it is impossible to determine if a bill request is identical or substantially similar to another legislator’s bill request until draft language is available. By having drafts completed earlier in the interim, staff can more easily identify duplicate bills and the legislator can decide whether to proceed or replace the request sooner. (See Ask OLLS posting “What happens if I make the same bill request as another legislator?”)
• If a legislator has his or her bill drafted in the fall, he or she may authorize a fiscal analyst to provide an early estimate of how much the bill may cost. Knowing how expensive a bill may be before it’s introduced enables the legislator to consider changes before the bill is introduced and becomes public.
• The ability to review drafts of bills before the December 1 deadline is one of the best reasons to use more of the interim to develop and draft bills. If a legislator must decide whether to withdraw and replace one or more bill requests, then it’s best to make that decision before the first bill request deadline when the rules allow greater flexibility in making and replacing bills.

By Ed DeCecco and Sharon Eubanks

A critical part of legislation that creates a new program or changes an existing one is the appropriation clause. Through this clause, the General Assembly exercises its plenary power of the purse and authorizes an agency to spend state money from an identified source for a particular purpose, usually for a limited time. Recently, the trend has been to include more details in the clauses, but their basic format has essentially been the same for over a century. During that time, the clauses have been interpreted and applied without much controversy.

Yet, after an internal review, the staff of the Office of Legislative Legal Services and the Joint Budget Committee believed that the appropriation clauses could be improved. The existing clauses, although functional, are difficult to understand. Specifically, the legislative staff thought the appropriation clauses should be rewritten to remove unnecessary language, which could be codified; to increase legal accuracy; and to improve readability. The changes, however, are not intended to affect the meaning of the appropriation clauses or how the State Controller allows a department to spend its money.

To ensure that the new format would not change the status quo, legislative staff vetted the clauses with the Executive Branch – the State Controller’s Office, the Office of State Planning and Budgeting, and all of the departments. Their feedback was very positive, and they did not identify any serious obstacles to adopting the proposed format, though legislative staff did incorporate several changes based on the departments’ suggestions. The legislative staff then presented the proposed new format for appropriation clauses to the Joint Budget Committee for approval. The Committee approved the use of the new format beginning with the 2015 legislative session.

Here is a typical, simple appropriation clause written in the new format:

       SECTION _. Appropriation. For the 2015-16 state fiscal year, $73,972 is appropriated to the department of public health and environment for use by the prevention services division. This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.9 FTE. To implement this act, the division may use this appropriation for the suicide prevention program.

Rather than writing the appropriation clause as a single, lengthy sentence as was previously the case, this new format for an appropriation clause employs a three sentence structure. The first sentence describes the fiscal year, the amount of the appropriation, and the department, including the division that will use the appropriation. So, with a cursory review, a reader will know the essential information about the appropriation.

The second sentence identifies the source of the appropriation. If the source is a cash fund, the sentence will include the statutory citation for the fund, but that is unnecessary for the general fund. Also, rather than “appropriating” an FTE, it describes the associated FTE consistent with the definition of “FTE” in §24-75-112 (1) (d) (V), C.R.S., which applies to the Long Bill and complies with Colorado case law.

The third sentence specifically identifies how the department, or in this case the division, is permitted to use the appropriation. In many instances, this last sentence will include additional details about a program or a subdivision within the Long Bill so that the specified use corresponds to a Long Bill appropriation.

A key feature of the new format is what is excluded from the appropriation clause. Three phrases previously included in a clause – “In addition to any other appropriation”, “not otherwise appropriated”, and “or so much thereof as may be necessary” – are omitted from this new version. Instead these phrases are codified in Senate Bill 15-098, which the Governor signed into law on February 25, 2015. So the phrases will still apply to, but not clutter, each clause.

Legislative staff has created variations on this new standard format, including an appropriation clause that contains multiple purposes and a clause that directly syncs with an appropriation or series of appropriations made in the Long Bill. It is likely that a majority of appropriation clauses will be variations of the new three-sentence standard format or one of these other two clauses.

Without changing the meaning of appropriation clauses, legislative staff believes that appropriation clauses are now much easier to read. Hopefully you agree.

by Richard Sweetman and Rebecca Hausmann

You want your bill to take effect on January 1, 2015, but your bill drafter says it’s not possible. Why not?

Because the General Assembly convenes on January 7, 2015, the earliest any bill can be introduced is January 7, 2015. The earliest it could pass both houses of the General Assembly is January 9, 2015. And you can’t make a law travel back in time to apply to dates that occurred before the law was even passed!

Or can you?

Retroactivity and Retrospectivity

Section 11 of article II of the Colorado constitution provides that “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]

However, in Colorado, the courts observe a distinction between retroactive application of law and retrospective application of law. Although the retroactive application of a statute is generally disfavored by the common law and by section 2-4-202, C.R.S., (“A statute is presumed to be prospective in its operation.”), the retroactive application of a civil statute is not necessarily unconstitutional. Retroactively applied civil legislation is unconstitutional only if it is also retrospectively applied. Ficarra v. Dep’t of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo. 1993).

A statute is retrospective if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002).

The Colorado Supreme Court’s retrospectivity analysis consists of two inquiries. First, the court will consider the “vested right” prong of retrospectivity. Second, if a vested right is not implicated, the court will consider the “new obligation, new duty, or new disability” prong of retrospectivity.

A couple of recent court cases provide examples of how a bill’s effective date can affect a court’s retrospectivity analysis.

Impermissible Retroactivity

On March 27, 2006, the General Assembly enacted the “Colorado Clean Indoor Air Act,” which imposes restrictions on smoking in public places. The Act had an effective date of July 1, 2006. In Coalition for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 2006 U.S. Dist. LEXIS 77914 (D. Colo. 2006), the U.S. District court in Denver ruled that section 25-14-204 (2), C.R.S., was impermissible ex post facto legislation because a cigar-tobacco bar owner who legally expanded a business between December 31, 2005, and July 1, 2006, would become subject to penalties as of July 1, 2006, for the pre-enactment expansion. Section 25-14-204 (2), C.R.S., states in part:

A cigar-tobacco bar shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005.

The court stated that “on its face, this language criminalizes activity, expansion of a cigar-tobacco bar, that occurred prior to enactment, when it was still legal.”

Permissible Retroactivity

But, the fact that a law applies to a past action does not, in and of itself, make it impermissibly retroactive. In Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. App. 2011), the Colorado Court of Appeals addressed the question of retroactive applicability. Section 38-12-301, C.R.S., which prohibits rent control by counties and municipalities, was amended effective September 1, 2010, by HB10-1017. The “effective date – applicability clause” of the act indicated that the changes applied to agreements entered into “before, on, or after September 1, 2010.” [emphasis added]

Before the 2010 amendment, section 38-12-301, C.R.S., simply stated:

38-12-301. Control of rents by counties and municipalities prohibited – legislative declaration. The general assembly finds and declares that the imposition of rent control on private residential housing units is a matter of statewide concern; therefore, no county or municipality may enact any ordinance or resolution which would control rents on private residential property.

The 2010 amendment clarified the restriction in that section by adding subsection (2):

(2) For purposes of subsection (1) of this section, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include:

(a) A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or

(b) The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title.

The Meyerstein court found that the 2010 changes to section 38-12-301, C.R.S., were meant to clarify the existing law, not change it, and therefore the retroactive application of the new language under the circumstances of the case did not violate the constitutional prohibition against retrospective legislation.

To reach its decision, the court first noted the General Assembly’s explicitly stated intent that the new subsection (2) be applied retroactively. Meyerstein, at 465. The court also noted that in a prior case (Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000)) the Colorado Supreme Court had concluded that the unamended statute was ambiguous — particularly as to whether the statute could be read to extend beyond just ordinances and resolutions to deed restrictions. Id. Finally, the court considered the legislative history of the 2010 bill, especially comments by the sponsor, Senator Betty Boyd, indicating that the bill was intended to “clarify” the scope of the existing provision. Id., at 466.

Next, applying the two-prong approach described in DeWitt, the court stated that the statutory change did not deprive the plaintiff of any vested right and did not produce any change in the plaintiff’s position. Id., at 466. The plaintiff had purchased property that was subject to a deed restriction limiting tenants and rents, and application of the new rent control statute did not change that fact. Id., at 466.

Legislative Time Travel

So in the rules of the legislative universe, it is technically possible to make a law travel back in time to apply to dates and actions that occurred before the law was passed. That is, it is possible for an enacted law to apply retroactively. However, for this to happen, the General Assembly must be absolutely clear about its intent, and the retroactive application of the law must pass strict judicial tests to ensure its constitutionality.

by Kristen Forrestal and Julie Pelegrin

When a legislator crafts a bill, most of the drafting choices center on the substantive policies that the legislator is proposing. However, there are a few nonsubstantive, but important, questions that a drafter is likely to ask the bill sponsor. This article is intended to help bill sponsors decide the answers to some of these questions by explaining the outcomes of various options. (more…)

by Jery Payne

Imagine you are judging a court case. The Wildlife Commission held a hearing to award a grant for an endangered species. Both the Whooping Crane Association and the Black-Footed Ferret Foundation applied. The commission gave the grant to the ferret folks, but it didn’t have a legally required quorum. The crane crew sues to make the ferret folks repay the grant. (more…)

by Kate Meyer

Bill drafting is the most visible function that the Office of Legislative Legal Services (OLLS) performs, yet the actual process of getting a bill from idea to introduction is a lot more complicated than many people realize. How does the drafting process work (i.e., why does it take so long)? (more…)

by Jennifer Gilroy, Revisor of Statutes

It seems that most people who are involved in the legislative process in any way whatsoever have heard about the revisor’s bill — a bill viewed as a legislative means of “fixing” problems in the statutes or in legislation. But very few people really seem to have a clear understanding of what the annual revisor’s bill can and, more importantly, cannot include. To some, it seems to be a mystical piece of legislation over which a solitary individual (the Revisor of Statutes) randomly (or so it seems) grants (or not) inclusion of a provision they need “fixed”. To others it’s simply a boring, technical bill that shows up on the calendar late in the legislative session and is only important to legislative drafters. Well, it’s really both of these things and neither of these things…at the same time. The following are a few facts about the often misunderstood revisor’s bill. (more…)

by Thomas Morris

You may have noticed that some of the bills recently drafted by the Office of Legislative Legal Services have begun to use the word “must” in some instances where we previously would have used the word “shall”. What is the reason for this change and what does it mean for bills the Office will write in the future? (more…)