Consistency in Statutory Interpretation

Publication year2009
38 Colo.Law. 67
Colorado Bar Journal

2009, June, Pg. 67. Consistency in Statutory Interpretation

The Colorado Lawyer
June 2009
Vol. 38, No. 6 [Page 67]

Articles Statutory Interpretation

Consistency in Statutory Interpretation

by Grant T. Sullivan, John R. Webb

About the Authors

Grant T. Sullivan is a law clerk to Hon. John R. Webb. Following his clerkship, he will practice law with the Denver office of McElroy, Deutsch, Mulvaney & Carpenter, LLP. John R. Webb is a judge on the Colorado Court of Appeals. He has been on the Bench since 2002. The authors thank Tiffany Mortier, Senior Law Clerk to Hon. John R. Webb, for her assistance in preparing this article. The interpretations contained in this article are solely those of the authors and not those of other members of the Colorado Court of Appeals.

Common law principles are increasingly being displaced by statutory regulation. Because statutory interpretation is fundamental to the judicial process, lawyers should understand both the range of techniques courts use in construing statutes and the predictability of any single technique being applied to resolve a particular statutory question.

Colorado appellate courts consistently have recognized that policy judgments are the exclusive province of the general assembly.(fn1) However, when presented with a statutorily based claim or defense that is ripe, justiciable, and within a court's jurisdiction, the court cannot avoid reaching the merits because of doubt regarding the meaning of the underlying statute.(fn2) Consequently, Colorado courts have developed rules for interpreting statutes.

One legal scholar has suggested that these rules are simply two sides of the same coin, because most of them have an equally forceful counterpoint.(fn3) Colorado statutory interpretation cases provide only limited support for this thrust/parry analysis. However, several of those cases create anomalies, such as when courts depart from unambiguous statutory language, which permit a variety of arguments to support a desired interpretation.

This article examines consistency in Colorado statutory interpretation cases, beginning with the plain and ordinary meaning of statutory language and judicial techniques for reaching that meaning, including intrinsic aides such as statutory structure. It then discusses reasons that courts have articulated for departing from the plain and ordinary meaning without finding ambiguity, as well as uncertainty in the methods for ascertaining other meaning. Finally, it discusses statutory language that is ambiguous and thus may be interpreted based on extrinsic aides, such as legislative history, and linguistic rules, such as expressio unius est exclusio alterius--the expression of one thing is the exclusion of another. However, the cases do not reveal any hierarchy between extrinsic aides and linguistic rules.

Giving Language its Plain and Ordinary Meaning

In Colorado, the polestar or linchpin of statutory interpretation is ascertaining and effectuating the general assembly's intent.(fn4) Courts look first to the plain and ordinary meaning of the words used, because the general assembly is presumed to have meant what it said and each word must be given meaning to the extent possible.(fn5) Where the plain meaning is clear and thus the general assembly's intent appears with reasonable certainty, resorting to linguistic rules or extrinsic aides is unnecessary.(fn6)

Nevertheless, Colorado appellate courts implicitly recognize that interpreting a statute is rarely as simple as reading its language.(fn7) Despite purported reliance on the words alone, ascertaining the plain and ordinary meaning of statutory language often involves using a variety of techniques, which are discussed below.(fn8)

Intrinsic Statutory Content

Justice Felix Frankfurter urged three keys to interpreting a law: "(1) read the statute; (2) read the statute; (3) read the statute!"(fn9) In Colorado, however, intrinsic statutory content includes the statute's declaration of purpose or policy,(fn10) the placement of sections within the statutory framework,(fn11) other related statutes,(fn12) and the statute's title,(fn13) all of which also reflect action of the legislature that enacted the statute.

Consistency of Meaning Throughout the Statute

The rule of consistent usage(fn14) provides that:

meaning attributed to words or phrases found in one part of a statute should be ascribed to the same words or phrases throughout the statute, absent any manifest indication to the contrary.(fn15)

However, some Colorado cases have explicitly declined to follow this rule.

In Brofman v. Industrial Comm'n,(fn16) for example, the Colorado Supreme Court held use of the term "award" four times in the statutory section

does not necessitate the conclusion that the same term is attached thereto, or that the Legislature or the voters of the state understood the use of the word to mean the same in [all] instances.

Brofman was decided in 1947 and may have been eroded by later Colorado Supreme Court decisions following the rule of consistent usage.(fn17) Yet, other cases continue to cite it with approval.(fn18)

One approach to reconciling such cases might be that demarcations by section or title denote different "statutes," and thus do not trigger the rule of consistent usage.(fn19) However, giving consistent meaning to similar words or phrases that deal with comparable subject matter, even if in different sections of the same statute, would enhance predictability.

Statutory Change Versus Clarification

Statutory amendments present the question of whether the general assembly intended to change the law or merely clarify it. The Colorado Supreme Court has said that it presumes the legislature intended to change the law by amending it, not simply to clarify it.(fn20) However, other cases have held that "legislative intent to change the meaning of statutes in the course of a general revision will not be inferred unless this intent is clearly and indubitably manifested."(fn21) No test has been articulated to determine what is a mere "revision."

Because courts do not presume a change when the statute is substantially "the same as the prior statute,"(fn22) such amendments avoid the change or clarify issue. Where the language is dissimilar, presenting extrinsic aides, such as legislative history, may rebut the presumption of a change.(fn23)

Agency Interpretations

Courts often defer to agency or administrative interpretations of statutes. Some,(fn24) but not all, such cases(fn25) hold that courts should defer to such interpretations only when the statute is ambiguous. Indeed, CRS § 2-4-203 arguably requires this limited use of administrative interpretations. Deferring to an agency's interpretation of unambiguous language seems at odds with separation of powers, because agencies are part of the executive branch,(fn26) which may explain many broad statements that agency interpretations "not in accordance with the law" may be set aside.(fn27)

These cases suggest a continuum: deference to agency interpretations is most likely where the statute is ambiguous, the agency's interpretation has been consistent, the interpretation includes an explanation, and the subject matter calls for the exercise of agency expertise.(fn28) That said, the interplay between the power of de novo review and deference to agency interpretations has produced inconsistency.(fn29)

Strict and Liberal Interpretations

Under CRS § 2-4-212, statutes are to be "liberally construed" by the courts so that "the true intent and meaning of the general assembly may be fully carried out." Although this rule has been consistently applied,(fn30) statutes limiting the right of contract, tax statutes, statutes in derogation of the common law, and penal statutes through the rule of lenity, among others, all are strictly construed.(fn31)

Predictability is further eroded because the exceptions to the default liberal interpretation rule contain additional exceptions. For instance, the rule of strict interpretation is relaxed where the statute is designed to declare and enforce a principle of public policy, as well as where a penal statute is enacted for the benefit of the public.(fn32)

Use of Extrinsic Aides

Some cases(fn33) hold a statute unambiguous but still consult extrinsic aides in the analysis, despite pronouncements that consulting extrinsic aides to interpret unambiguous language is "inappropriate."(fn34) In Farmers Ins. Exchange v. Bill Boom, Inc.,(fn35) for example, the Colorado Supreme Court found the term "nonprivate passenger motor vehicle" in § 10-4-713(2) of the No-Fault Act unambiguous." Nevertheless, the Court said, "[W]e would reach the same conclusion even if the provision is viewed as ambiguous."(fn36) In doing so, the court determined the general assembly's intent based on the legislative history was the same as that previously gleaned from the plain language.(fn37)

Some of these cases consider extrinsic aides not to show that the court's interpretation is correct, but rather to reject a litigant's urged interpretation as being at odds with legislative intent.(fn38) Using legislative history absent...

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