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.

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

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

by Jery Payne

1.     Is Adam a Burglar?

Adam worked at a truck shop. His duties included delivering clothes to the other workers’ lockers. Although it was possible to secure the lockers using a padlock, none of the workers actually used locks. The workers should have used the locks, however, because several workers noticed money missing from their work lockers. Suspecting theft, one of the workers installed a small video camera in the room. The camera recorded Adam looking through the lockers and taking items from them. This led to Adam’s arrest for burglary and theft.

At trial, Adam was found guilty of the burglary charge. Here’s the law, section 18-4-204, C.R.S., forbidding burglary:

A person commits third degree burglary if with intent to commit a crime he [sic] enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated.

Adam appealed the guilty verdict, but the appeals court affirmed the conviction because he “entered or broke into what is tantamount to a vault.” The Colorado Supreme Court, however, reversed the appeals court because of ejusdem generis.

Ejusdem generis is a Latin phrase that means “of the same kind or class.” This doctrine of statutory interpretation holds that, when a catchall phrase follows a list, the catchall phrase should be read to apply only to persons or things that are of the same kind as the items on the list. This means that the catchall phrase should not be read to cover everything that it says it covers. Instead, the catchall phrase should be limited to covering persons or things that are similar or in the same class as the things on the list.

Ejusdem generis is actually a specific application of another rule of statutory interpretation: Every word in a statute must be given effect. When, for example, a statute applies to raspberries, strawberries, or other fruit, the words raspberries and strawberries are redundant with the word fruit. Therefore, reading fruit literally to mean all fruit means that the words raspberries and strawberries don’t do anything, and they don’t have any effect. So courts have decided that, to give every word meaning, we have to use the redundant items on the list to narrow the meaning of the catchall.

Returning to Adam’s burglary case, the Colorado Supreme Court reasoned that all the items in the statutory list “are almost always used to contain money or valuables exclusively: vaults, safes, cash registers, coin vending machines, product dispensers, money depositories, safety deposit boxes, coin telephones, and coin boxes.” Therefore, the list doesn’t include equipment that holds mere property; the list includes only equipment that holds money and valuables. “Thus, whether any given container falls within the purview of the statute depends on whether the apparatus or equipment is merely a storage receptacle or is of the same kind or class as those items enumerated in the statute, that is, whether the container is designed for the safekeeping of money or valuables[.]” So, the Colorado Supreme Court held that Adam had not committed burglary.

2.     Ejusdem Generis Is Squirrely.

Imagine that you’re a court interpreting a statute that reads:

To be imported into Colorado, cherries, tomatoes, cranberries, and other fruit must be inspected by the commissioner of agriculture.

The statute has three fruits and the catchall of other fruit, so this statute should be read in light of ejusdem generis. The catchall word, fruit, presumably shouldn’t be read to cover all fruit, so you must decide what types of fruit aren’t covered. Here are some options:

• The listed fruit, cherries, tomatoes, and cranberries, aren’t citrus, so no limes;
• The listed fruit have skin that is normally eaten, so no pineapples;
• The listed fruit are red, so no blueberries; or
• The listed fruit are spherical, so no bananas.

Which of these options is the right class? Which do you choose? Do you choose all of them?

Wouldn’t it be better to avoid this guessing game?

Sutherland’s Statutory Construction explains that ejusdem generis “expresses a meaningful insight about language usage that can be a relevant aid, if not a simple and certain exponent….”[1] When it passes a law, the General Assembly is trying to achieve a goal. Doesn’t this mean that the body wants as much certainty as possible?

The concern isn’t whether the rule makes sense; the concern is that the rule is a wellspring of uncertainty.

In Adam’s burglar case, the appeals court believed the statute applied to lockers, but the Colorado Supreme Court held that it didn’t. Regardless of what the General Assembly wanted, two courts came to opposite conclusions. Wouldn’t it be better to draft the statute so that both courts read the statute the same way?

3.     Don’t Shroud the Law in A Mist; Do Away with The List!

How should we improve the burglary statute? We can avoid the issue by not using a list:

• If the intention is to make the burglary statute apply to lockers, then forgo the list. Write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store property.”
• If the intention is, as the Colorado Supreme Court held, to apply only to a container that is used to store valuables, write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store money or valuable property.”

The ambiguity is removed by redrafting the provision to get rid of the list.

4.     Sometimes, A Belt and Suspenders Are Necessary.

I imagine that every drafter at the Capitol has heard from a bill’s proponents that “We need a belt­-and-suspenders” provision. This is legislative shorthand for “we may need some redundancy.” In stakeholder negotiations, it is sometimes necessary to list an item or two in a statute to assuage the concerns of a nervous stakeholder.

For example, a stakeholder may be worried that the word fruit won’t be read to include tomatoes and peppers. This is frequently what leads to phrases like tomatoes, peppers, and other fruit. Recall that ejusdem generis applies when a catchall follows a list, so the word fruit may be limited in some way to not apply to all fruit. Maybe a court will hold that the phrase tomatoes, peppers, and other fruit applies only to less-sweet fruit or, maybe, only to fruit that’s native to North America. If all fruit is meant to be covered, the phrase should be rewritten.

This is when it makes sense to use the word including:

To be imported into Colorado, fruit, including tomatoes and peppers, must be inspected by the commissioner of agriculture.

This is better than tomatoes, peppers, and other fruit because courts usually hold that the words includes and including enlarge or extend rather than limit the general term. Here are some examples:

• Colorado Common Cause v. Meyer: “The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement….”
• Arnold v. Colorado Dept. of Corrections: “The word ‘including’ is ordinarily used as a word of extension or enlargement….”
• Southern Ute Indian Tribe v. King Consol. Ditch Co: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included. The word ‘include’ is ordinarily used as a word of extension or enlargement.”

One note of caution: it is possible to find cases where an including phrase has been held to be limiting out of a desire to give every word effect. An example is Shelby Cnty. State Bank v. Van Diest Supply Co. This case dealt with a lien on

[A]ll inventory, including, but not limited to, agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor ….”[Emphasis added.]

In this case, the 7^th circuit explained that:

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

So the court did interpret the word including as limiting, and the judges didn’t care that the contract used the phrase but not limited to. Therefore, it is better to avoid using a list. But if that isn’t an option, then use an including phrase.

 

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

Editor’s Note: This is the final article in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. This article was originally posted February 19, 2016.

In addition to presumptions and tools for discerning legislative intent, the statutes on construction of statutes provide specific guidance for when a court can salvage part of an otherwise unconstitutional statute and how a court should decide which statute to apply when two statutes conflict.

Statutory Salvage Operations: Severability
Suppose a court interprets a statute and finds that part of that statute is unconstitutional. Does that mean the entire statute is unconstitutional, or can some portions of the statute survive?

The answer turns on the concept of severability. Section 2-4-204, C.R.S., says that, if a court finds part of a statute to be unconstitutional, the remaining constitutional parts of the statute are valid, unless the court finds that those remaining parts are:

• So essential to the unconstitutional part that the General Assembly would not have passed the constitutional part without the unconstitutional part; or
• So incomplete that they cannot be implemented without the unconstitutional portion.

To illustrate, let’s consider a hypothetical situation: Assume there’s a statute that regulates caterpillar breeders. Under this statute, a caterpillar breeder cannot have more than 1,000 caterpillars at a time and the caterpillar breeder cannot advertise her caterpillar breeding business. A caterpillar breeder sues the state claiming that the statute is unconstitutional because limiting the number of caterpillars and prohibiting advertising restricts her freedom of commercial speech. The court agrees that the prohibition on advertising is unconstitutional and cannot be enforced. However, the court finds that the limit on the number of caterpillars has nothing to do with commercial speech and is constitutional. The court will find that the statute is severable because the limit on the number of caterpillars is not directly related to the prohibition on advertising and can be implemented even though the prohibition on advertising is not enforced.

When Statutes Collide Part I: Specific Controls Over the General…Usually
Sometimes a statute will state a general requirement that is intended to apply in a variety of situations. But another statute may impose a different requirement in a specific situation. How is a court supposed to apply both of these statutes?

Section 2-4-205, C.R.S., directs a court to read the statutes together and give effect to both of them if possible. If the two requirements conflict and they cannot both apply, the court must apply the specific requirement instead of the general requirement. But, if the General Assembly passed the general requirement after it passed the specific requirement and made it clear that the general requirement was intended to replace the specific one, then the court will apply the general requirement, not the specific requirement.

Another illustrative hypothetical: Assume there’s a statute that says applications for a professional license must be filed in triplicate with the appropriate licensing agency. But, the statute for licensing professional caterpillar breeders says a caterpillar breeder may submit a single copy of the license application with the professional caterpillar breeders board. Obviously, a court could not apply both of these statutes; one must prevail. The court would allow the caterpillar breeder to file a single copy of the license application with the board, unless the statute that requires the application in triplicate was passed after the caterpillar breeders’ statute, and the bill for the general licensing statute included a statement of legislative intent that it is imperative to good government that all licensing applications be filed in triplicate.

When Statutes Collide Part II: Later In Time Controls
Sometimes two statutes conflict, not because one is general and the other is specific, but because one prohibits what the other allows or requires. As in other cases, the court will first try to reconcile the differences and give effect to both sections. But, under section 2-4-206, C.R.S., if the differences are irreconcilable – there is a true conflict – the statute that has the latest effective date is the one the court will apply. If both statutes were passed in the same legislative session with the same effective date, the statute that has the latest date of passage will apply.

Again, to illustrate: A caterpillar breeder loses his license because he does not post his license in the front window of the breeding building, as required by House Bill 1705. But, the caterpillar breeder argues to the court that he should keep his license because, under Senate Bill 923, a person who posts anything in the window of an insect breeding facility commits the crime of insect cruelty (papers in the window block the sunlight). The court cannot reconcile the conflict between the two statutes, so it looks to the effective dates of the bills. House Bill 1705 had an effective date clause that said it took effect July 1, 2009. Senate Bill 923 passed in 2009 without an effective date clause and without a safety clause – so it took effect August 5, 2009.  Senate Bill 923 took effect last, so it controls. The caterpillar breeder does not have to post his license.

If House Bill 1705 and Senate Bill 923 had both passed without a safety clause and without an effective date clause, they would have both taken effect on August 5, 2009. In that case, the court would look for the date on which the Governor signed each of the bills. If the Governor signed House Bill 1705 on May 3, 2009, and signed Senate Bill 923 on May 4, 2009, the court would apply Senate Bill 923.

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:

• Interpretation of ambiguous tax statutes favors the taxpayer;
• Interpretation of ambiguous pension or retirement fund statutes favors the employee;
• Interpretation of ambiguous criminal law statutes favors the defendant; and
• Interpretation of ambiguous workers’ compensation statutes favors the claimant.

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.

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.

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 91^st 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.”

 

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[1] The phrase “this year” refers to 2014.

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!

Editor’s Note: During the 2019 legislative interim, LegiSource will repost a series of seven articles on statutory construction, which was originally posted over several months from 2013-2016. We are posting the first article this week and will continue posting the articles every other week through October 10. This article was originally posted September 12, 2013.

By Julie Pelegrin

You’ve worked hard to get your bill through both houses and onto the Governor’s desk. You worked with your colleagues on amendments to be sure the bill language clearly and explicitly said just what you intended. Now, the act is signed and on its way to implementation and you can rest easy. Right? Hopefully right. But there may be some people who don’t agree on what this new statute means or on what your carefully crafted language says. Some of these disagreements may be so serious that someone files a lawsuit asking the court to interpret the precise meaning of this new statute. How is the court going to interpret your bill and decide what it means?

This is the first article in a series that looks at statutory construction—how courts approach interpreting a statute and the various rules that they apply. Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute. This series of articles is intended to provide a helpful and informative overview of those rules.

We’ll begin the series by looking at one of the basic ground rules a court applies when reading statutes. When someone asks a court to interpret a statute, the first thing the judge does is read the statute. If the statutory language is clear on its face and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand. This is known as the “Plain Meaning Rule.” The judge will decipher the plain meaning of a statute by applying the ordinary, everyday definitions of the statute’s words, unless the statute itself provides specific definitions of the words.

Colorado actually has a statute, section 2-4-101, C.R.S., that supports the Plain Meaning Rule:

Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

In giving the ordinary meaning to words and phrases, the judge will avoid an interpretation that leads to an illogical or absurd result. The judge will also avoid an interpretation that would defeat the obvious intent of the statute.

And as section 2-4-101, C.R.S., requires, the judge will read the statute in context, as a whole and try to give consistent and sensible effect to all parts of the statute. A judge assumes that the General Assembly intended the entire statute to be effective and did not include any statutory language that has no meaning or effect.

Unfortunately the meaning of a statute is not always plain. A judge may find that the language of a statute can be reasonably read to have two or more meanings. Also, a judge may find that there are two or more statutes that apply to a particular situation. The meaning of each statute may be plain, but each statute, as applied, will result in different outcomes. When this happens, the judge will likely find that the statute is ambiguous.

At this point, the judge may turn to the legislative history to try to determine the legislature’s intent when it enacted the statute. In Colorado, the legislative history consists almost entirely of the recorded debates and discussions concerning the bill in the committee of reference and on the floor. The court may also consider the goal that the statute is intended to accomplish, if that is clear from the legislative history or from the statutory legislative intent, and the consequences of a particular interpretation of the statute.

In addition to the legislative history, a judge may apply one or more of the canons, or rules, of statutory construction to interpret a statute. Colorado has codified many rules of statutory construction that we’ll consider in later articles. There are also several widely accepted canons of construction that courts have developed and used to interpret statutes and other legal documents for many years. Subsequent articles will discuss these, as well.

It is important to remember that, if the General Assembly disagrees with a court’s interpretation of a statute, the General Assembly can amend the statute to clarify its intent. But when the court interprets the constitution or finds that a statute violates a constitutional provision, the General Assembly, if it disagrees, can override the court’s opinion only by referring a constitutional measure to the ballot.