The Dewitt Test: Determining the Retroactivity of New Civil Legislation in Colorado
| Publication year | 2011 |
| Pages | 73 |
2011, July, Pg. 73. The DeWitt Test: Determining the Retroactivity of New Civil Legislation in Colorado
July 2011
Vol. 40, No. 7 [Page 73]
Retroactivity of Statutes
About the Authors
Grant T. Sullivan is a law clerk to the Honorable Nathan B. Coats of the Colorado Supreme Court, and formerly was a litigation associate at a national firm and a law clerk to the Honorable John R. Webb of the Colorado Court of Appeals. Patrick R. Thiessen is a law clerk to the Honorable Dennis A. Graham of the Colorado Court of Appeals, and formerly was a law clerk to the Honorable Jerry N. Jones of the same court and a clerk for a law firm in New Zealand. The authors thank Cash K. Parker for his assistance in preparing this article. The interpretations contained in this article are solely those of the authors and not those of other employees of the Colorado Judicial Department. Editorial review of this article was performedby Sean Connelly, Reilly Pozner, LLP-(303) 893-6100, sconnelly@rplaw.com.
Although the prohibition on retrospective laws is stated plainly enough, successfully invoking or defending against the constitutional proscription in civil cases hinges largely on the application of a complex, multi-part judicial test, known in Colorado as the DeWitt test.
New legislative enactments in Colorado often lack explicit language-or at best are vague-concerning applying the provision to transactions or events that have already occurred. Even when guidance is providedby the legislature, such direction does not answer the question of whether the retroactive application is constitutionally infirm. As a result, the vexing task of determining whether a new statutory provision can or should be applied retroactively has plagued Colorado attorneys in all practice areas for years. With much of the Colorado General Assembly's new legislation taking effect on July 1, 2011, this article examines the DeWitt test for retroactive statutory applicability.
Introduction
The prohibition on retrospective application of legislation emanates from the ex post facto clause found in the Colorado Constitution, specifically the forbiddance of any law "retrospective in its operation."(fn1) This proscription recognizes the unfairness that would result from changing the legal consequences of an act after that act has already occurred.(fn2) However, applying new legislation retroactively is not presumptively unconstitutional, but rather is permitted in certain instances.(fn3) Colorado courts use the term "retrospective" to describe retroactive legislation that is unconstitutional and to distinguish it from legislation that may properly be applied retroactively.(fn4)
DeWitt Analysis
In In re Estate of DeWitt, the Colorado Supreme Court considered whether a 1995 amendment to the probate code operated retroactively. The amendment at issue purported to automatically revoke on divorce the designation of one's spouse as a beneficiary to wills, insurance policies, and other estate planning products.(fn5) The Court synthesized the holdings of previous cases to prescribe a methodical, two-step analysis to determine whether the newly enacted statute or amendment operates retroactively.(fn6) First, the court should consider whether the general assembly intended the challenged enactment to apply retroactively. Second, if such intent is clearly established, the court should determine whether the enactment is unconstitutionally retrospective. The retrospectivity prong consists of two subparts: whether the provision (1) impairs a "vested right," or (2) creates a new obligation, imposes a new duty, or attaches a new disability.(fn7) If either subpart is satisfied, the enactment is unconstitutionally retrospective.(fn8)
General Assembly Intent Prong
When confronted with the question of whether a new enactment operates retroactively, a court first asks whether the general assembly intended the new provision to apply to transactions that have already occurred or rights and obligations that existed before the enactment's effective date.(fn9) Because the general assembly has instructed in CRS § 2-4-202 that statutes are presumptively prospective in their operation, the legislative body's intent to apply a new enactment retroactively must be "clear" before retroactive operation is permitted.(fn10) The general assembly's pronouncement is consistent with the general disfavor for retroactive application of new enactments under common law.(fn11) Nevertheless, express statutory language dictating retroactive application is unnecessary to overcome the presumption of prospectivity.(fn12)
Whether the general assembly intended retroactive application most often is discerned from the enactment's effective-date provision or from explicit statutory language stating that retroactive application was intended.(fn13) However, retroactive intent also has been gleaned from sources that necessarily have fewer indicia of legislative intent. For example, retroactive intent, or lack thereof, has been inferred based on legislative history(fn14) and the general assembly's careful selection of amendantory language within a larger statutory scheme that, when viewed together, evinces an intent to apply the amendments to transactions that have already occurred.(fn15)
Determining legislative intent with regard to the retroactive applicability of statutory amendments, as opposed to a completely new statute, can be more difficult. Colorado appellate courts have sometimes invoked the three-part analysis used to distinguish between a change in the law and a mere clarification of the law.(fn16) Courts consider statutory language, legislative history surrounding the new enactment, and whether the provision was ambiguous before it was amended.(fn17) Where the result of this analysis reveals that the general assembly intended a mere clarification rather than a substantive change, presumably the amendment may apply retroactively if the remaining constitutional requirements of DeWitt are met.(fn18)
In some cases, the general assembly has been imprecise in delineating the relevant event that triggers the operation of the new enactment,(fn19) thereby permitting counsel leeway in crafting arguments favoring or disfavoring retroactive application. For example, in Specialty Restaurants Corp. v. Nelson, the Colorado Supreme Court concluded that the date of an employee's request for a lump-sum payout of otherwise periodic workers' compensation benefits constituted the relevant transaction for purposes of applying an amendment increasing the one-time payout amount, although the predecessor statute stated that the date of injury controlled and the amendment was silent on the issue.(fn20) In contrast, in DeWitt, the at-issue amendment's effective-date provision made clear that it applied to estates of decedents dying on or after a specified date; the date of the decedent's divorce and his execution of the estate planning device were immaterial for purposes of deciding the retroactive operation of the amendment.(fn21) In sum, although the legislature's retroactive intent must be clearly established to overcome the presumption of prospectivity, counsel need not be pigeon-holed in their arguments regarding retroactive application based on the absence of explicit retroactive language within the enactment.
Retrospectivity Prong
In the second prong of the DeWitt analysis, the court considers whether a new enactment is unconstitutionally retrospective due to either its (1) impairing a vested right; or (2) creating a new obligation, imposing a new duty, or attaching a...
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