February 21, 2013 01:48 PM UTC

"Must" versus "Shall": Colorado Law is About to Change.

• 7 Comments
• by: PolDancer

Recently we looked at the manner in which the Colorado Legislature uses “authority verbs” like the words “shall” and “must” when writing Colorado laws.

This topic is of interest to Colorado PERA retirees since Colorado law (prior to the breach of Colorado PERA retiree pension contracts in the bill SB10-001) provided that Colorado PERA retiree’s SHALL receive a contracted, accrued 3.5% PERA COLA benefit: “. . . the cumulative increase applied to benefits paid SHALL be recalculated annually as of March 1 and SHALL be the total percent derived by multiplying three and one-half percent, compounded annually, times the number of years such benefit has been effective . . .”, (Colorado Law – Section 24-51-1002 (1), Colorado Revised Statutes.)

In 2010, a majority of the members of the Colorado General Assembly and Governor Ritter decided to enact an unconstitutional, retrospective change to statutes governing Colorado PERA benefits to make the pension debt owed by Colorado state and local governments simply go away.  They ignored the fact that the Colorado Constitution forbids “any law retrospective in its operation.”

Also, prior to the public pension contract breach in SB10-001, Colorado law provided that members of Colorado PERA who purchase PERA service credit SHALL receive Colorado PERA pension benefits in effect at the time of the purchase: “Service credit purchased by members . . . SHALL be subject to the benefit provisions in effect for the existing member contribution account,” (Colorado Law – Section 24-51-502 (3), Colorado Revised Statutes.)

In the near future, Governor Hickenlooper will sign into law a bill (HB13-1029) that defines these “authority verbs” in Colorado law.  Of course, in the context of the Colorado PERA statutes, the Colorado General Assembly has used the word “shall” to indicate Colorado PERA’s contractual obligation to pay accrued public pension benefits.

Lynn Bartels of the Denver Post covered the Legislature’s “authority verb” bill (HB13-1029) in the Denver Post’s political blog, The Spot, (here are a few excerpts from her article):

“Must ‘must’ be used in Colorado’s statutes when ‘a person or thing is required to meet a condition for a consequence to apply’?  Shall ‘shall’ mean that ‘a person has a duty’?”

“Apparently so, according to the House Judiciary Committee, which voted 11-0 to approve HB13-1029, a bill by Rep. Claire Levy (D-Boulder) entitled, ‘Concerning the Use of Authority Verbs in the Colorado Revised Statutes.’”

“Rep. Levy told the new chairman, Rep. Daniel Kagan (D-Cherry Creek Village), that the bill would give guidance to the courts about the legislature’s intent in any legislation approved after this bill is passed.  No prior legislation would be affected by the bill.”

Link:

http://blogs.denverpost.com/thespot/2013/01/17/colorado-legislators-decide/88950/

For your information, here’s a description of HB13-1029 from the bill’s legislative “fiscal note”:

“Summary of Legislation

The bill, recommended by the Committee on Legal Services (OLLS) during the 2012 interim, codifies use of the terms ‘must’ and ‘shall’ in the drafting of new statutory language.  The bill defines ‘must’ to mean that a person or thing is required to meet a condition for a consequence to apply (it does not mean that a person has a duty).  ‘Shall’ is defined to mean that a person has a duty.”

Link:

http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont3/8DF19AF46171630287257AEE0054B879?Open&file=HB1029_00.pdf

HB13-1029 was reported out of the Colorado Legislature’s House Judiciary Committee on January 17, 2013.  Here’s a brief summary of the House Judiciary Committee hearing on that date:

“01:37 PM — House Bill 13-1029

Representatives Levy and Gardner, co-prime sponsors, presented House Bill 13-1029 concerning the use of authority verbs in the Colorado Revised Statutes. The bill, recommended by the Committee on Legal Services during the 2012 interim, codifies the use of the terms ‘must’ and ‘shall’ in the drafting of new statutory language.  The bill defines ‘must’ to mean that a person or thing is required to meet a condition for a consequence to apply (it does not mean that a person has a duty).  ‘Shall’ is defined to mean that a person has a duty.  They responded to questions from the committee about the effective date of the bill.

01:45 PM — Jeff Ruebel, representing the Colorado Defense Lawyers' Association, testified in support of the bill.  Mr. Ruebel spoke about the importance of wordsmithing statutes to communicate legislative intent.  He responded to questions from the committee about situations when intent might be unclear without the definitions contained in the bill.”

Link:

http://www.leg.state.co.us/CLICS/CLICS2013A/csl.nsf/Committee?OpenFrameSet

And, a few quotations from the January 17, 2013 House Judiciary hearing on the bill:

Representative Levy described HB13-1029 at the hearing:

“We’ve also included some direction to the court on when to apply this new codified definition.”

“It’s going to apply prospectively.”

“The courts should not construe prior language according to these definitions, unless that’s what’s warranted from the context of the bill.”

Representative Gardner on HB13-1029:

“‘Must’ is a condition for a consequence to apply . . . . ‘shall’ is a duty.”

The Colorado Defense Lawyer’s Association supported the bill:

“We are of the belief that this statute will . . . provide invaluable assistance to lawyers and judges.”

Here’s the summary from the Senate Judiciary Committee hearing on HB13-1029 on February 13, 2013:

“01:34 PM — House Bill 13-1029

Senator Roberts and Senator Schwartz, co-sponsors, presented House Bill 13-1029.  The bill, recommended by the Committee on Legal Services during the 2012 interim, codifies use of the terms ‘must’ and ‘shall’ in the drafting of new statutory language.  The bill defines ‘must’ to mean that a person or thing is required to meet a condition for a consequence to apply (it does not mean that a person has a duty).  ‘Shall’ is defined to mean that a person has a duty.

01:35 PM

Senator Lundberg sought clarification concerning the effects of the bill.  Senator Roberts and Senator Schwartz responded to his question.

01:38 PM — Mr. Tom Morris, representing the Office of Legislative Legal Services, walked the committee through the bill.  He spoke about the applicability clauses on page 3 of the bill.”

Link:

http://www.leg.state.co.us/CLICS/CLICS2013A/csl.nsf/Committee?OpenFrameSet

And, a quotation from the Senate Judiciary Committee hearing on HB13-1029:

Senator Roberts:

“If you use the word ‘shall,’ it’s imposition of a duty.”

In my opinion, the Colorado General Assembly’s Legislative Drafting Manual has historically made it clear that the word “shall” in Colorado law “indicates a command.”  The context of the Colorado PERA statutes has made it clear that the state’s pension administrator “shall” pay the accrued, contracted Colorado PERA pension COLA benefit.  Legislative history makes it clear that Colorado PERA has a contractual obligation to pay accrued Colorado PERA COLA benefits, as does Colorado case law.  Colorado PERA has testified before the Colorado General Assembly’s Joint Budget Committee that payment of the Colorado PERA COLA benefit is a contractual obligation of Colorado PERA and its affiliated employers.  Finally, contract law itself makes it clear that Colorado PERA retirees are due their accrued, earned, deferred compensation . . . the Colorado PERA COLA benefit.

The Colorado Legislature has made a contractual “offer” to Colorado PERA members in an employment exchange transaction.  The Colorado Legislature offered a Colorado PERA pension “base benefit” and Colorado PERA pension “COLA benefits” in exchange for a PERA member’s pension contributions and labor over the course of their careers.  Colorado PERA retirees accepted this contractual offer . . . they made their contributions and did the work for their PERA-affiliated employers for decades.  The Colorado Legislature entered into an agreement with Colorado PERA members that was supported by consideration.  Colorado PERA and its affiliated employers must honor their contractual obligations.

I believe it is "imperative" that every member of the Colorado PERA pension system defend their contractual public pension rights.  How to do this?  Contribute to saveperacola.com.  (Their website explains how you can make a donation.)  Also, PERA members, “Friend” Save Pera Cola on Facebook!