Sometimes the ambiguity is intentional. Other times, legal issues arise because lawmakers can’t always predict how their policies will be tested in the real world.
magine 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.
Source: Colorado Sun
