Imagine driving down a Colorado highway and instead of seeing a posted speed limit, you pass a road sign that reads: “Go an appropriate speed.”
The idea may seem ludicrous, but similarly vague language is often inserted into bills by Colorado’s state lawmakers. Undefined terms like “reasonable” and “substantial” are included in key parts of legislation and then left to courts to sort out later.
Sometimes, the ambiguity arises as laws are tested because it’s impossible for the legislature to imagine every possible scenario in which a statute may apply. Other times, loosey-goosey terms are intentionally added by lawmakers trying to build enough political support to pass a controversial bill.
“When you have a more broad standard that could be left open to interpretation of the courts, I think it’s easier to get things done,” said Rep. Javier Mabrey, a Denver Democrat who is an attorney.
But while some see vagueness as a tool to keep bills moving forward, others see it as a possible burden for the court system.
“If the law is vague, anyone can be dragged in front of the courts for most any reason,” said Rep. Matt Soper, a Delta Republican who is also an attorney.
This year at the Capitol, multiple highly debated bills weaving their way through the legislative process include ambiguous terms.
What’s a “reasonable increase” in rent? What’s a “substantially economically identical” offer on a multifamily residential building that’s for sale? Coloradans won’t know for sure unless those bills get signed into law and are challenged in the court system.
“This session will be marked by bills that have to be litigated later,” said Jason Hopfer, a longtime lobbyist who represents clients like the Douglas County School District, Jefferson County, Xcel Energy and the Colorado Community College System.
Reasonable rent hikes
One bill intended to protect people from evictions that’s sponsored by Mabrey includes language that could be interpreted in a number of ways. The measure attempts to also stop landlords from effectively evicting tenants by unreasonably increasing their rent. But the bill doesn’t define what a “reasonable” rent increase is.
The bill also uses the word “reasonable” to lay out when a tenant has to let a landlord into their property and when a landlord has to complete repairs.
Mabrey said it’s important to balance vagueness and specificity but ultimately, lawmakers have to find a way to get things done.
“The law is interpreted by the court at the end of the day,” he said.
Mabrey said the goal of the vague language around rent increases in his House Bill 1171 is to thread the needle between preventing landlords from imposing retaliatory rent increases and not creating a back-door rent control policy.
Without a definition for the phrase in the bill, Mabrey said a judge would be the one to decide what “reasonably” means based on the circumstances their jurisdiction is facing.
“To do that in legislation is to invite or force a judge to make their own personal judgment about what’s a reasonable increase in rent,” said state Sen. Bob Gardner, a Colorado Springs Republican and lawyer who often picks apart vague language in bills.
Judges would be uncomfortable making that determination, said Jason Dunn, Colorado’s former U.S. attorney and a former state deputy attorney general.
“No judge is going to take on that role of legislating,” said Dunn, a Republican who now works in private practice for Brownstein Hyatt Farber Schreck, where he focuses on government investigations and white collar defense.
The bill has been approved by the Colorado House and is waiting to be considered by the Senate.
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Dunn, who has previously served as an adviser for state legislators during bill drafting, has spent hours trying to understand what lawmakers intended when they approved bills by listening to committees and floor work. That process doesn’t always settle it though, because one lawmaker’s comments don’t necessarily represent the entire legislature’s understanding of a bill.
In one example, Dunn represented a client who shot a man on his patio near Steamboat Springs. Dunn used Colorado’s “Make My Day” law, which allows homeowners to protect themselves from intruders, as a defense.
But Dunn’s challenge was that the law says to legally use deadly force, an intruder must have entered the person’s “dwelling,” which could or could not include a patio. Dunn won the case but said he never got a clear answer on how the legislature defined dwelling.
“You can’t always predict what sort of factual events will come up that drive an interpretation of language,” Dunn said.
Sometimes when a bill isn’t specific, it’s because state regulators, like those at the Department of Local Affairs, are charged with developing procedures later. That’s the case for some parts of Gov. Jared Polis’ recently released local land use bill.
But Dunn and Gardner caution that lawmakers can’t leave all the specifics to other authorities or the courts because eventually, it turns into its own version of policymaking.
“Courts really don’t like that at all,” Gardner said. “They wish we would be precise all the time so they don’t have to play at politics.”
Rep. Mike Weissman, an Aurora Democrat and lawyer, would prefer to see direct language in all bills.
“Wouldn’t we rather say what we actually meant in the first instance?” said Weissman, who is chair of the House Judiciary Committee.
Economically similar offers
House Bill 1190 is another bill with some vague language. It would give local governments a “right of first refusal” when multifamily residential properties are put up for sale.
Under the proposal, aimed at boosting affordable housing, local governments would have the right to match any acceptable offer for the property.
That offer would have to be “substantially economically identical” to the one made by a private buyer, but that phrase isn’t defined in the bill.
Rep. Andrew Boesenecker, a Fort Collins Democrat and prime sponsor of the bill, said the goal is to prevent a seller from favoring an offer from a private buyer over a government buyer without good reason.
“It needs to be reasonably broad in order to give a potential buyer, in this case, a public entity, the ability to make an offer that should be considered as equal,” he said. “Otherwise, you’re going to end up going through the minutiae of being able to find one sentence that’s different and use that as a reason to say that the offers were not equal.”
But there is a risk in using broad language. If a judge feels that a law is too difficult to interpret, they can deem it “void for vagueness,” Soper said.
Gardner said he’s seen a lot of legislation this session that could leave Coloradans confused about how to comply.
Russ Carparelli, a former Colorado Court of Appeals judge, sees it as part of the judiciary’s role to interpret unclear language from the legislature but that judges should also steer clear of trying to understand what an entire legislative body intended to do when passing a bill.
“If they write poorly, we’re stuck with it,” he said. “We’ve got to enforce it as they wrote it — as they wrote it poorly. That’s just the way it is. That’s the law.”
Poorly written bills have caused problems for the legislature in the past, with errors requiring lawmakers to revisit policies to correct issues.
In 2017, for instance, lawmakers passed a bill that unintentionally blocked dozens of government entities, like the Regional Transportation District and Scientific and Cultural Facilities District, from collecting revenue from the state’s recreational marijuana sales tax. Lawmakers had to come back for a special session to attempt to fix the mistake. (The special session was unsuccessful.)
This year, House Speaker Julie McCluskie has brought a bill to fix a mistake in a measure passed in 2022 that accidentally limited a housing grant program to making a single grant. The fix allows for grants — plural — to be made.
Most lawmakers aren’t attorneys
The vast majority of lawmakers in Colorado’s citizen legislature aren’t coming to bill drafting with a background in law. They are part-time politicians who typically work in the private sector when the legislature isn’t in session.
While some have legal experience, many come from careers in activism, education, business or engineering. There are ranchers, farmers, an emergency room nurse, a musician and a pharmacist among the chambers’ members.
Rep. Lorena Garcia, an Adams County Democrat, is in her first year at the Capitol. She was an activist and nonprofit leader before running for office.
Without legal training, she said she works to ensure she won’t be tripped up by complex language when drafting her bills, many of which are complicated policy areas like the legislature’s ability to issue subpoenas and immigrants’ ability to access public benefits.
“We have turned courts into lawmakers, and that’s not what they should be. But we’ve allowed that and we’ve encouraged that by being vague,” Garcia said.
Still, Garcia prefers a legislature made up of various backgrounds, she said.
“Our state would be in such a different place if it was just lawyers in this building,” she said. “And definitely not in a better place.”