{"id":34764,"date":"2023-04-06T13:51:07","date_gmt":"2023-04-06T19:51:07","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/whats-a-reasonable-rent-increase-courts-often-must-interpret-vague-language-in-laws\/"},"modified":"2023-04-06T19:51:07","modified_gmt":"2023-04-06T19:51:07","slug":"whats-a-reasonable-rent-increase-courts-often-must-interpret-vague-language-in-laws","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/whats-a-reasonable-rent-increase-courts-often-must-interpret-vague-language-in-laws\/","title":{"rendered":"What\u2019s a \u2018reasonable\u2019 rent increase? Courts often must interpret vague language in laws"},"content":{"rendered":"\n

\"Whispy
Whispy clouds over the State Capitol in January in Denver. (David Zalubowski\/Associated Press file)<\/span><\/figcaption><\/figure>\n<\/p>

Imagine driving down a Colorado highway and instead of seeing a posted speed limit, you pass a road sign that reads: \u201cGo an appropriate speed.\u201d<\/p>\n

The idea may seem ludicrous, but similarly vague language is often inserted into bills by Colorado\u2019s state lawmakers. Undefined terms like \u201creasonable\u201d and \u201csubstantial\u201d are included in key parts of legislation and then left to courts to sort out later.<\/p>\n

Sometimes, the ambiguity arises as laws are tested because it\u2019s 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.<\/p>\n

\u201cWhen you have a more broad standard that could be left open to interpretation of the courts, I think it\u2019s easier to get things done,\u201d said Rep. Javier Mabrey, a Denver Democrat who is an attorney.<\/p>\n

But while some see vagueness as a tool to keep bills moving forward, others see it as a possible burden for the court system.<\/p>\n

\u201cIf the law is vague, anyone can be dragged in front of the courts for most any reason,\u201d said Rep. Matt Soper, a Delta Republican who is also an attorney.<\/p>\n

This year at the Capitol, multiple highly debated bills weaving their way through the legislative process include ambiguous terms.<\/p>\n

What\u2019s a \u201creasonable increase\u201d in rent? What\u2019s a \u201csubstantially economically identical\u201d offer on a multifamily residential building that\u2019s for sale? Coloradans won\u2019t know for sure unless those bills get signed into law and are challenged in the court system.<\/p>\n

\u201cThis session will be marked by bills that have to be litigated later,\u201d 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.<\/p>\n

Reasonable rent hikes<\/div>\n

\"State
State Rep. Matt Soper, a Delta Republican, on the floor of the Colorado House on June 2, 2021. (Thy Vo\/The Colorado Sun file)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

One bill intended to protect people from evictions that\u2019s 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\u2019t define what a \u201creasonable\u201d rent increase is.<\/p>\n

The bill also uses the word \u201creasonable\u201d to lay out when a tenant has to let a landlord into their property and when a landlord has to complete repairs.<\/p>\n

Mabrey said it\u2019s important to balance vagueness and specificity but ultimately, lawmakers have to find a way to get things done.<\/p>\n

\u201cThe law is interpreted by the court at the end of the day,\u201d he said.<\/p>\n

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.<\/p>\n

Without a definition for the phrase in the bill, Mabrey said a judge would be the one to decide what \u201creasonably\u201d means based on the circumstances their jurisdiction is facing.<\/p>\n

\u201cTo do that in legislation is to invite or force a judge to make their own personal judgment about what\u2019s a reasonable increase in rent,\u201d said state Sen. Bob Gardner, a Colorado Springs Republican and lawyer who often picks apart vague language in bills.<\/p>\n

Judges would be uncomfortable making that determination, said Jason Dunn, Colorado\u2019s former U.S. attorney and a former state deputy attorney general.<\/p>\n

\u201cNo judge is going to take on that role of legislating,\u201d 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.<\/p>\n

The bill has been approved by the Colorado House and is waiting to be considered by the Senate.<\/p>\n

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\u2019t always settle it though, because one lawmaker\u2019s comments don\u2019t necessarily represent the entire Legislature\u2019s understanding of a bill.<\/p>\n

In one example, Dunn represented a client who shot a man on his patio near Steamboat Springs. Dunn used Colorado\u2019s \u201cMake My Day\u201d law, which allows homeowners to protect themselves from intruders, as a defense.<\/p>\n

But Dunn\u2019s challenge was that the law says to legally use deadly force, an intruder must have entered the person\u2019s \u201cdwelling,\u201d 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.<\/p>\n

\u201cYou can\u2019t always predict what sort of factual events will come up that drive an interpretation of language,\u201d Dunn said.<\/p>\n

\"The
The dramatic architecture of the rotunda of the Colorado State Capitol is enhanced through a fisheye lens. (David Zalubowski\/Associated Press file)<\/span><\/figcaption><\/figure>\n<\/p>

Sometimes when a bill isn\u2019t specific, it\u2019s because state regulators, like those at the Department of Local Affairs, are charged with developing procedures later. That\u2019s the case for some parts of Gov. Jared Polis\u2019 recently released local land-use bill.<\/p>\n

But Dunn and Gardner caution that lawmakers can\u2019t leave all the specifics to other authorities or the courts because eventually, it turns into its own version of policymaking.<\/p>\n

\u201cCourts really don\u2019t like that at all,\u201d Gardner said. \u201cThey wish we would be precise all the time so they don\u2019t have to play at politics.\u201d<\/p>\n

Rep. Mike Weissman, an Aurora Democrat and lawyer, would prefer to see direct language in all bills.<\/p>\n

\u201cWouldn\u2019t we rather say what we actually meant in the first instance?\u201d said Weissman, who is chair of the House Judiciary Committee.<\/p>\n

Economically similar offers<\/div>\n

House Bill 1190 is another bill with some vague language. It would give local governments a \u201cright of first refusal\u201d when multifamily residential properties are put up for sale.<\/p>\n

Under the proposal, aimed at boosting affordable housing, local governments would have the right to match any acceptable offer for the property.<\/p>\n

That offer would have to be \u201csubstantially economically identical\u201d to the one made by a private buyer, but that phrase isn\u2019t defined in the bill.<\/p>\n

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.<\/p>\n

\u201cIt 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,\u201d he said. \u201cOtherwise, you\u2019re going to end up going through the minutiae of being able to find one sentence that\u2019s different and use that as a reason to say that the offers were not equal.\u201d<\/p>\n

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 \u201cvoid for vagueness,\u201d Soper said.<\/p>\n

Gardner said he\u2019s seen a lot of legislation this session that could leave Coloradans confused about how to comply.<\/p>\n

Russ Carparelli, a former Colorado Court of Appeals judge, sees it as part of the judiciary\u2019s 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.<\/p>\n

\u201cIf they write poorly, we\u2019re stuck with it,\u201d he said. \u201cWe\u2019ve got to enforce it as they wrote it \u2013 as they wrote it poorly. That\u2019s just the way it is. That\u2019s the law.\u201d<\/p>\n

Poorly written bills have caused problems for the Legislature in the past, with errors requiring lawmakers to revisit policies to correct issues.<\/p>\n

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\u2019s recreational marijuana sales tax. Lawmakers had to come back for a special session to attempt to fix the mistake. (The special session was unsuccessful.)<\/p>\n

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 \u2013 plural \u2013 to be made.<\/p>\n

Most lawmakers aren\u2019t attorneys<\/div>\n

\"State
State Rep. Andrew Boesenecker, a Fort Collins Democrat, speaks with Rep. Edie Hooton, a Boulder Democrat, on June 2, 2021. (Thy Vo\/Colorado Sun file)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

The vast majority of lawmakers in Colorado\u2019s citizen Legislature aren\u2019t 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\u2019t in session.<\/p>\n

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\u2019 members.<\/p>\n

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.<\/p>\n

Without legal training, she said she works to ensure she won\u2019t be tripped up by complex language when drafting her bills, many of which are complicated policy areas like the Legislature\u2019s ability to issue subpoenas and immigrants\u2019 ability to access public benefits.<\/p>\n

\u201cWe have turned courts into lawmakers, and that\u2019s not what they should be. But we\u2019ve allowed that and we\u2019ve encouraged that by being vague,\u201d Garcia said.<\/p>\n

Still, Garcia prefers a Legislature made up of various backgrounds, she said.<\/p>\n

\u201cOur state would be in such a different place if it was just lawyers in this building,\u201d she said. \u201cAnd definitely not in a better place.\u201d<\/p>\n

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Sometimes the ambiguity is intentional, other times it is a mistake<\/p>\n","protected":false},"author":1,"featured_media":34765,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[394,15,233,28,929,107],"naviga_topic":[],"class_list":["post-34764","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-colorado-legislature","tag-colorado-state-senate","tag-coloradosun-com","tag-headlines","tag-house-building","tag-laws"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/34764","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=34764"}],"version-history":[{"count":0,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/34764\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/34765"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=34764"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=34764"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=34764"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=34764"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}