Denver Bar Association
November 2013
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Statutory Construction in Colorado State Courts

by Justice Greg Hobbs

Taking the Legislature at Its Word

Because the goal of statutory construction is to effectuate the intent of the General Assembly, we should start with the legislature’s explicit presumption that it intended the following when enacting the statute we are called on to construe:

a. Compliance with the constitutions of the state of Colorado and the United States is intended,
b. The entire statute is intended to be effective;
c. A just and reasonable result is intended;
d. A result feasible of execution is intended;
e. Public interest is favored over any private interest.

§ 2-4-201(1)(a)-(e), C.R.S. (2013).

In other words, we, like they, should work for a just and reasonable result that complies with the Colorado and U.S. Constitutions, favors the public interest over any private interest, and takes into account the statute as a whole. To this end, the legislature counsels that we should liberally construe all aspects of the statute in ascertaining its intent and meaning:

All general provisions, terms, phrases, and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the general assembly may be fully carried out.

§ 2-4-212, C.R.S. (2013).

The legislature also provides a non-exclusive list of helpful assists should a court consider the statute ambiguous:

1. If a statute is ambiguous, the court, in determining the intention of the general assembly, may consider among other matters:

a. The object to be attained;
b. The circumstances under which the statute was enacted;
c. The legislative history, if any;
d. The common law or former statutory provisions, including laws upon the same or similar subjects;
e. The consequences of a particular construction;
f. The administrative construction of the statute;
g. The legislative declaration or purpose.

 

§ 2-4-203, C.R.S. (2013).

Not Ordinarily Plain

Although the plain meaning of individual words and phrases often plays a critical role in statutory construction, see, for example, Shaw v. 17 West Mill St., LLC, 2013 CO 37, ¶ 13, 307 P.3d 1046, 1049 ("We look to the plain meaning of the language the General Assembly employed and give it effect if possible."), see also § 2-4-101, C.R.S. (2013), one word the General Assembly does not include in its statutory construction provisions is the word "plain," and see §§ 2-4-201–216, C.R.S. (2013). To the contrary, the legislature’s charge to consider the entire statute, giving it a just and reasonable result feasible of execution, assumes the complexity of statutory construction and not any pat simplicity. If "plain" means "easily understood: clear," Webster’s Third New International Dictionary 1729 (1971), many statutory provisions flunk the rudiments of accessible expression when divorced from statutory context.

Who more than legislators realize the complexity of patching a bill together as it goes through the legislative process? Words and phrases may be fashioned for a precise meaning, or they may be chosen for their broader implications, or because ambiguity is necessary to accommodate a number of interests in passing the bill. Often, a comprehensive analysis of how a new provision may affect existing provisions contained in other sections of the code is not undertaken.

Getting a majority vote in both houses to pass a bill is surely an accomplishment every time it happens. It’s always an incremental process. A bill must go through one or more committees of both houses of the General Assembly, and there is very seldom a conference committee that prompts a comprehensive or reconciling rewrite before the bill becomes law. The wording of a new law or an amendment to an existing law gets tested outside statehouse doors, as people and businesses attempt to live with it, and the judiciary is called upon to apply it in individual cases.

Making judicial interpretations as plain as we can express them is the better part of any valor judges can earn amidst complexity and uncertainty over a law’s meaning.

 

Toolbox Not Lockbox

Instead of attempting to formulate a set of rules controlling the process of statutory construction, the legislature has arrayed a number of tools judges may "consider"—as the Assembly has recognized—"among other matters." § 2-4-203(1) C.R.S. These tools include various presumptions and preferences, such as that statutes are presumed to be prospective in operation, see § 2-4-202, C.R.S. (2013), and that both general and special or local provisions should be given effect if possible. If not possible, the special or local provision should prevail over the general provision unless the general provision is the later adoption and the manifest intent of the statute is that the general provision prevail, see § 2-4-205, C.R.S. (2013). In addition, the common law may serve as the rule of decision until repealed by legislative authority, see § 2-4-211, C.R.S. (2013), and the reenactment, revision, or amendment of a statute is intended to be a continuation of the prior statute and not a new enactment, see § 2-4-208, C.R.S. (2013).

In its generous phrasing and its assumption that the judicial and legislative roles are complementary—not antagonistic—to each other, the Colorado General Assembly’s approach to statutory construction reflects comity between these governmental branches. After the judiciary has construed the statute, the legislative power may review, live with, or change the result through statutory revision or constitutional amendment.

Text and Context

Every judge at every level, from municipal court to the Colorado Supreme Court, determines questions of law de novo, but not in a vacuum, because the facts of the case always provide the platform for analysis and application of the legal principle. Because there is no set framework about how to begin, the more a judge encounters statutory construction issues and works through round after round of civil and criminal cases, the better instincts she or he will have about how to proceed.

The seven of us who serve on the Supreme Court typically have the advantage of seeing how a trial court and the court of appeals have approached the statutory construction problem in the case now before us. One judge, three judges, seven judges—all get to wrestle with the same question: how do we understand and express as clearly as possible what the statute means, so that the rule of law the statute embodies can be applied reliably and repeatedly in the community at large.

Having wrestled with "the rules" of statutory construction for seventeen years, I have a few suggestions derived from forging majority opinions with the constant and insistent help of my colleagues.

1. Statutory construction should not contravene "the text and context" of the statutory provision at issue. See Springer v. City and Cnty. of Denver, 13 P.3d 794, 800 (Colo. 2000).

2. The statute may be part of a comprehensive legislative scheme. Even if not, the solution to the statutory construction problem the attorneys are contesting may be found in provisions they have not cited. See Droste v. Bd. of Cnty. Comm’rs of Pitkin, 159 P.3d 601, 605 (Colo. 2007) ("When we interpret a comprehensive legislative scheme, we must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent.")

3. Run the Session Laws to compare the language of the original statutory provisions and how they have been amended by deletions and additions since initial adoption. Arguments about conflicting or potentially ambiguous provisions may be resolved by analyzing how the General Assembly has addressed prior controversies involving the subject matter. See Montez v. People, 2012 CO 6, ¶¶ 7, 13, 269 P.3d 1228, 1230–31 ("The meaning of an undefined word in a statute may be determined by reference to the meaning of words associated with it... As an interpretive aid to determine legislative intent, we presume that when the General Assembly makes a substantive amendment to a statute,... it intends to change the law."); see also Lucero v. People, 2012 CO 7, ¶ 19, 272 P.3d 1063, 1065–66 (analyzing a series of amendments to theft statutes and stating that "we effectuate the intent of the General Assembly, heeding the words the General Assembly has used in the applicable statutory provisions").

4. When transcripts of legislative hearings help to confirm or refute contentions about the statute, use them, cautiously, in combination with other tools of construction. See City of Greenwood Village v. Petitioners For the Proposed City of Centennial, 3 P.3d 427, 436 (Colo. 2000) ("This legislative history confirmed for the district court, and for us, that the General Assembly consulted the set of facts involved in this case..."); see also Shaw v. 17 West Mill St., LLC, 2013 CO 37, ¶ 16, 307 P.3d 1050 ("Our plain meaning construction of the statute... is reinforced by the timetable of the legislature’s enactment of the provision.").

5. When your gut tells you something just isn’t right, you may be right! Look at the statute again. After all, the legislature intends a just and reasonable result. See People v. Wilburn, 2012 CO 21, ¶¶ 29, 30, 272 P.3d 1078, 1084 ("Wilburn’s evidence concerning his learning disability is admissible without an insanity plea as long as he ‘provides notice and permits a court-ordered examination.’... Under section 16-8-106(1), the trial court has discretion to consider and to order a suitable out-patient examination.").

6. An operative undefined word in the statute may have multiple meanings and might be resolved by examining other statutory provisions using the word and employing a mixed question of fact and law standard. See Brandt v. Brandt, 2012 CO 3, ¶ 44, 268 P.3d 406, 415 (addressing a statutory term lacking a definition and stating that "[r]esidency provisions contained in other Colorado statutes provide guidance for what factors should be considered in making the totality of the circumstances determination").

7. Congress carved Colorado out of the public domain. In real estate, tax, and natural resource cases, among others, historical legal research into both state and federal statutes may be useful in resolving the meaning of constitutional as well as statutory provisions. See Bd. Of Cnty. Comm’rs v. Vail Assocs., 19 P.3d 1263, 1275 n. 16, 1279 n. 21 (Colo. 2001) (analyzing the taxability of valuable private possessory interests in non-taxable federal lands). See also McCormick v. Union Pac. Res. Co., 14 P.3d 346, 350, 352–53 (Colo. 2000) (analyzing the meaning of the term "minerals" in statutory provisions and in the use of mineral reservations in deeds).

8. You have the authority to prevent local governments from perpetuating conflicts with each other that undermine the public interest—use it! See South Fork Water v. Town of South Fork, 252 P.3d 465, 473 (Colo. 2011) ("Without water there is no life."); see also Bd. of Cnty. Comm’rs v. Hygiene Fire Prot. Dist., 221 P.3d 1063, 1070 (Colo. 2009) ("In enacting a provision allowing other political subdivisions to override country disapproval of their public projects, the General Assembly intended to address just this sort of conflict between political subdivisions.").

9. Words are the coin of our realm. Consult the dictionary, subject to the overall admonition that the legislature intends a just and reasonable result feasible of execution. See Denver Post Corp. v Ritter, 255 P.3d 1083, 1091 (Colo. 2011) (analyzing the meaning of the words "made," "maintained," and "kept" in the Public Records Act definition); see also § 2-4-101 ("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.").

10. Relish ambiguity. You are called upon to resolve it! When alternative plausible meanings of legislative intent arise, you have a number of tools available and the good work of your colleagues in previously published cases to guide your choice. Nevertheless, many seeming ambiguities can be resolved by a plain meaning analysis that first looks to both the text and the context of the statute. Using the toolbox is not forbidden in aid of effectuating a legislative intent that is just, sensible, and comprehensible! D

 

 

Justice Gregory Hobbs

Justice Greg Hobbs has served as a member of the Colorado Supreme Court. He is the author of three books published by Continuing Legal Education of the Colorado Bar. Justice Hobbs also presented a draft of this article to judges at the 2013 Judicial Conference.

 

 

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