STATE OF COLORADO

Colorado General Assembly

Mike Mauer, Director	Dan L. Cartin, Director

Legislative Council Staff	Office of Legislative Legal Services

Colorado Legislative Council	Office Of Legislative Legal Services

029 State Capitol Building	091 State Capitol Building

Denver, Colorado 80203-1784	Denver, Colorado 80203-1782

Telephone (303) 866-3521	Telephone (303) 866-2045

Facsimile (303) 866-3855	Facsimile (303) 866-4157

TDD (303) 866-3472	E-Mail: olls.ga@state.co.us

E-Mail: lcs.ga@state.co.us

MEMORANDUM

April 3, 2012

TO:	Frances Koncilja and Adam Mordecai

FROM:	Legislative Council Staff and Office of Legislative Legal Services

SUBJECT:	Proposed initiative measure 2011-2012 #91, concerning the Sexual Abuse Statute of Limitations

Section 1-40-105 (1), Colorado Revised Statutes, requires the directors of the Colorado Legislative Council and the Office of Legislative Legal Services to "review and comment" on initiative petitions for proposed laws and amendments to the Colorado constitution. We hereby submit our comments to you regarding the appended proposed initiative.

The purpose of this statutory requirement of the Legislative Council and the Office of Legislative Legal Services is to provide comments intended to aid proponents in determining the language of their proposal and to avail the public of knowledge of the contents of the proposal. Our first objective is to be sure we understand your intent and your objective in proposing the amendment. We hope that the statements and questions contained in this memorandum will provide a basis for discussion and understanding of the proposal.

Purposes

The major purposes of the proposed amendment appear to be:

1.	To explain by means of a non-statutory declaration the intent of the electorate of Colorado in adopting the proposed amendment and to explain the reasons why the proposed amendment does not violate the constitutional prohibition against retrospective laws in creating a two-year window during which a plaintiff may bring an action that is otherwise time-barred.

2.	To amend section 13-80-103.7, Colorado Revised Statutes ("C.R.S."), to eliminate the exemption of vicarious liability claims from the tolling of the statute of limitations for certain claims of sexual assault and sexual offense against a child and to specify that the tolling of the statute of limitations specifically applies to claims of vicarious liability if the plaintiff can prove that the person or entity against whom the claim is brought had reason to know that the perpetrator, who was an employee, volunteer, representative, or agent of the person or entity, had committed unlawful sexual conduct, and the person or entity failed to take reasonable steps and implement reasonable safeguards to avoid prospective acts of unlawful sexual conduct by the perpetrator.

3.	To amend section 13-80-103.7, C.R.S., to clarify the description of the "disability period" during which the statute of limitations is tolled by stating that the disability period includes the time during which the victim is unable to acknowledge the offense, unable to acknowledge the harm resulting from the offense, or unable to acknowledge the connection between the offense and the harm, and to state that the determination of whether a disability exists and the length of the disability period shall be made at trial by a fact finder.

4.	To repeal the language in section 13-80-103.7, C.R.S., that limits a plaintiff's damages to medical and counseling treatment and expenses, plus costs and attorney fees, if the plaintiff brings the cause of action fifteen years or more after attaining eighteen years of age, thereby allowing such a plaintiff to recover for any damages proved at trial.

5.	To repeal the language in section 13-80-103.7, C.R.S., that prohibits a plaintiff from bringing an action under the tolled statute of limitations if the defendant is deceased or incapacitated to the extent that he or she is incapable of rendering a defense to the action.

6.	To amend section 13-80-103.7, C.R.S., to create a two-year time period, beginning January 1, 2013, during which a plaintiff whose claim for damages for sexual assault would otherwise be time-barred as of January 1, 2013, may file the claim.

7.	To make the proposed statutory amendment effective January 1, 2013.

Comments and Questions

The form and substance of the proposed initiative raise the following comments and questions:

Technical questions

1.	It appears that Section 1 of the proposed amendment is creating a nonstatutory legislative declaration. Since the proposed amendment is enacted by the electorate and not the legislature, the proponents may consider referring to it as a "declaration of intent" rather than a "legislative declaration". In addition, it is the custom and practice to show nonstatutory language in regular type rather than small caps. Would the proponents consider presenting the nonstatutory declaration in regular type?

2.	If the proposed amendment were introduced as legislation in the General Assembly, the amending clause, which identifies the statutory sections being amended and the ways in which they are amended, would read as follows:

SECTION __. In Colorado Revised Statutes, 13-80-103.7, amend (1) and (3.5) (a); repeal (3.5) (c) and (3.7); and add (6) and (7) as follows:

Would the proponents consider following the standard form for amending clauses?

3.	There are a few technical errors:

a.	In section 13-80-103.7 (1) (a), (3.5) (c), and (3.7), C.R.S., the first word should be capitalized;

b.	In showing the language in (3.5) (c) and (3.7) in strike type, would the proponents consider not striking the subsection numbers and paragraph letter so that the Office of the Revisor of Statutes in republishing the statutes can more clearly indicate the history of these subsections?

c.	In the new subsection (7) (a), in the reference to paragraph (b), the letter "b" should not be capitalized. The same applies to the reference to paragraph (b) in the new subsection (7) (b) (II).

4.	The new subsection (7) (a) refers to "the provisions of 13-80-103.7, as amended". Because the amendments are being made within section 13-80-103.7, C.R.S., the reference should be to "this section", rather than using the section number, and the reference to "as amended" is unnecessary.

5.	The new subsection (7) (b) (I) refers to the "January 1, 2013 effective date of this amendment." If the proposed amendment passes, it will become a statutory section, therefore, the reference should be to the effective date of "this subsection (7)." Also, there should be a comma after "2013".

Substantive questions

1.	Section 11 of article II of the Colorado constitution states:

Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.

Generally, the Colorado courts have found that a law is retrospective if it takes away or impairs a vested right acquired under existing laws. In Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980), the Colorado Supreme Court specifically found that, in cases where the statute of limitations had run, the defendant had a vested right that could not be taken away by the retrospective application of a change to the statute of limitations for the action. Arguably, the two-year window for filing suit for damages arising from a sexual assault in cases where the statute of limitations has already run is a retrospective application of the law and therefore unconstitutional. Why do the proponents feel the two-year window is constitutional?

2.	Section 1(4) of article V of the Colorado constitution states that initiated measures that are approved by a majority of the votes cast thereon take effect "from and after the date of the official declaration of the vote thereon by proclamation of the governor, but not later than thirty days after the vote has been canvassed." Because the effective date for the proposed amendment is set in the constitution, would the proponents consider removing the effective date clause included in the measure?

3.	What is the single subject of the proposed amendment?