by Julie Pelegrin

Editor’s Note: This week’s article is the seventh in our series on statutory construction. For previous installments, click on “statutory interpretation” in the tag cloud.

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.

by Julie Pelegrin

Editor’s Note: This week’s article is the sixth in our series on statutory construction. For previous installments, click on “statutory construction” in the tag cloud.

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.

by Julie Pelegrin

Editor’s Note: This week’s article is the fifth in a series on statutory construction. For the earlier articles, see postings on Sept. 12, 2013; and July 31, August 21, and September 18, 2014. Or search the term “statutory construction”.

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.

By Gwynne Middleton

Legislators and attorneys get a bad rap when it comes to legalese, that pejorative term relegated to needlessly convoluted jargon often found in legal documents. And rightfully so. Some of the worst offenders of overly complicated writing come from the legal profession. The Center for Plain Language even created an annual award called the WonderMark for the worst legal writing.

But most legal writers don’t set out to confuse their readers. In a litigious society, these writers are tasked with including as much detail as possible in documents to avoid unintended interpretations and future legal debate. Unfortunately, even the best intentions sometimes leave the reader wishing the writer had gone another round at the editing table.

In 1993, the Colorado General Assembly passed a law that requires drafters to write legislation that clearly and concisely communicates legislators’ intent. Known as the “plain language” law, section 2-2-801, C.R.S., expects bill drafters to avoid unnecessary jargon and to aim for “nontechnical language” that “in a clear and coherent manner uses words with common and everyday meaning which are understandable to the average reader.”

Colorado legislative drafters apply this plain language law to each bill they draft. The Office of Legislative Legal Services’s drafting manual includes at least 37 guidelines and numerous examples for how to implement the plain language statute. Below are just a few of the guidelines drafters use to create clean legal writing for legislators’ bills.

Use Active Voice.

In the active voice, the subject and verb relationship is straightforward: the subject is a “be-er” or a “do-er,” and the verb moves the sentence along. In the passive voice, the subject of the sentence is neither a “do-er” nor a “be-er” but is acted upon by some other agent or by something unnamed. For example:

Passive voice (actor absent): A notice shall be mailed to the parties within 15 days after issuance of an order.
Active voice (actor present): The commission shall mail a notice to the parties within 15 days after issuance of an order.
Passive voice: Prescribed forms may be furnished by the county clerk and recorder.
Active voice: The county clerk and recorder may furnish prescribed forms.

Avoid unnecessary jargon, including archaic terms and provisos.

Legal writing has been around for a long time, and though legislators and drafters have updated language to reflect their changing audiences, certain archaic terms, such as “herein” and “heretofore,” as well as provisos (words before a sentence or clause that state an exception to the preceding sentence or clause) pop up in otherwise clear prose and often cloud the meaning of the sentence. For example:

The Archaic Interloper: Any other incidental expenses for the trip not specified herein are the sole responsibility of each participant.
Suggestion: Each participant is solely responsible for any other incidental trip expenses not specified in this section.
The Pesky Proviso: An application for a parking permit shall be approved provided that the applicant has not been fined for more than ten parking violations.
Suggestion: The county clerk must approve an application for a parking permit if (so long as) the applicant has not been convicted of more than ten parking violations.

Avoid being verbose.

Cutting archaic terms and provisos improves sentence clarity because including them in legal writing often indicates a legal writer’s propensity for being verbose. But seasoned legal writers know that cutting the “heretofore” and “provided that” legalese is just the beginning of concise writing. They’ll need to eliminate any unnecessary words and keep sentences short when possible if they want to help their audience understand and retain important information. For example:

Verbose: In the case of Abigail v. Johnson (TC, 1988), the taxpayer was able to exclude from gross income embezzled funds that were repaid during the year the funds were embezzled but the taxpayer was not allowed to exclude embezzled funds to be repaid in a subsequent year.
Concise: Abigail v. Johnson (TC, 1988) allowed the taxpayer to exclude embezzled funds repaid during the same year but not those repaid in a later year.
Verbose: Louise can deduct the $10,000 for the cost of the pool at her new home as a medical expense.
Concise: Louise can deduct the $10,000 cost of the new home’s pool as a medical expense.

Ultimately, by rewording sentences to omit archaic terms and provisos and whittling away unnecessary words, drafters and legislators aim for precision in their language, curbing legalese to compose legislation that’s easier to interpret and implement.

by Julie Pelegrin

Editor’s Note: Last September, LegiSource began a series of articles focusing on statutory construction. This week’s article is the fourth in the series. For the earlier articles, see postings on Sept. 12, 2013, and July 31 and August 21, 2014.

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 §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 definitional sections. A typical definitional 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.

by Julie Pelegrin

Editor’s Note: Last September, LegiSource began a series of articles focusing on statutory construction. So far, we have posted two articles: “Introduction to Statutory Construction – the Plain Meaning Rule”and “What Do You Mean by That? Definitions in the Statutes”. This week’s article is the third in the series.

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 section 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: Sections 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 (see 2-4-104, C.R.S.). The word “week” means any seven consecutive days, apparently including weekends (see 2-4-105, C.R.S.). The word “month” means a calendar month (see 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 (see 2-4-107, C.R.S.). Recently, the Colorado court of appeals applied this section and section 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, 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, section 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.”

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. (more…)

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? (more…)