Jan KULMANN, in her official capacity as Mayor of the City of Thornton; and the City of Thornton, Colorado, a Colorado municipal corporation, Petitioners, v. Cherish SALAZAR, Respondent.
Supreme Court Case No. 22SC135
Supreme Court of Colorado
December 19, 2022
521 P.3d 649
Attorneys for Respondent: Robert McGuire Law Firm, Robert A. McGuire, III, Denver, Colorado
Attorneys for Amicus Curiae Colorado Municipal League: Robert D. Sheesley, Rachel Bender, Denver, Colorado
En Banc
JUSTICE GABRIEL delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MARQUEZ, JUSTICE HART, and JUSTICE SAMOUR joined. JUSTICE HOOD, joined by JUSTICE BERKENKOTTER, dissented.
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case requires us to determine whether the office of Mayor in the City of Thornton constitutes a separate office from that of Councilmember in that city for purposes of
¶2 Based on the plain language of the Thornton City Charter (“Charter“) and Thornton Municipal Code (“Code“), we now conclude that the Mayor and Councilmembers in Thornton serve in distinct offices. Accordingly, we reverse the district court‘s ruling declaring, as a matter of law, that the Mayor‘s seat and Councilmembers’ seats are part of one elected body and constitute the same office for purposes of section 11‘s term limit restrictions. In light of this determination, we need not reach the second question on which we granted certiorari.
I. Facts and Procedural History
¶3 Thornton is a Colorado home rule city and municipal corporation. See City of Thornton, Colo., Charter, §§ 1.1, 2.1. Pursuant to its Charter, Thornton employs a “Council-Manager” form of government, under which the City Council serves as the legislative and governing body of the City and the city manager serves as its chief administrative officer. Id. at §§ 2.2, 4.1, 5.4. The City Council consists of “nine (9) members, one of whom shall serve as Mayor.” Id. at § 4.1. The eight Councilmembers other than the Mayor are elected from four wards, two per ward, and serve four-year terms. See id. at §§ 4.2(a), 4.3(a). The Mayor, in contrast, is elected at large and serves a four-year term. Id. at § 4.3(b).
¶4 In 2013, Kulmann was elected to Thornton‘s City Council as a Ward 4 Councilmember. She served a full four-year term in that capacity and was reelected in 2017.
¶5 In 2019, while still serving as a Ward 4 Councilmember, Kulmann ran for and was elected Mayor of Thornton. She thus resigned her position as a Ward 4 Councilmember and was sworn in as Mayor.
¶6 Thereafter, in May 2021, respondent Cherish Salazar, a Thornton resident, taxpayer, and eligible elector, filed the present action against Kulmann and co-petitioner City of Thornton, seeking a declaratory judgment concerning the effect of section 11 on Kulmann‘s position as Mayor.
¶7 As pertinent here, section 11 provides:
In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected official of any ... city ... shall serve more than two consecutive terms in office .... For purposes of this Section 11, terms are considered consecutive unless they are at least four years apart.
¶8 Specifically, Salazar sought a declaration that (1) the Mayor‘s seat and Councilmembers’ seats are part of one elected body and constitute the same “office” for purposes of section 11; and (2) section 11 prohibited Kulmann from serving a “third term” on the City Council, and thus she was required to vacate her position as Mayor immediately (because her resignation after completing more than half of her second term as Ward 4 Councilmember represented the completion of that term), or, alternatively, no later than November 28, 2021 (the date on which her second consecutive term as Ward 4 Councilmember would have ended but for her resignation).
¶9 The parties cross-moved for summary judgment, and the Adams County District Court ultimately granted Salazar‘s request for a declaration on the first issue, concluding that the Mayor and the Ward Councilmembers “are not defined or treated so separately so as to justify separate application of Section 11.” In reaching this conclusion, the court initially decided that the term “office” in section 11 was ambiguous. The court thus looked to the intent of section 11 as reflected in that provision‘s declaration of purpose and in statements set forth in the voter Blue Book at the time the amendment adopting section 11 was passed. In the court‘s view, these sources revealed goals of “prevent[ing] elected officials from viewing their positions as lifetime,” “forc[ing] turnover,” and “bring[ing] fresh ideas to local governments.” The court then concluded that the purpose and intent of section 11 would best be served by construing the positions of Mayor and Councilmember as one office because it would limit the terms someone could serve on City Council regardless of the position held, thereby creating opportunities for more people to serve on the City Council.
¶10 The court found further support for its conclusion in the language of the Charter. In this regard, the court observed that (1) the Charter defines the City Council as “nine (9) members, one of whom shall serve as Mayor“; (2) the Councilmembers and Mayor take the same oath and have the same voting power; (3) the Mayor does not have either a separate budget, separate staff, separate legislative or veto powers, or a right to refuse to sign legislation; and (4) the City Council, and not the Mayor, may enter into contracts on behalf of Thornton and may spend money for capital improvements.
¶11 As to the second issue raised by Salazar, which essentially asked the court to declare that Kulmann‘s partial second term as a Ward 4 Councilmember constituted a full term for purposes of section 11, the court concluded that Kulmann‘s partial term did not constitute a full term and therefore Kulmann had served just one term on City Council, with her current term as Mayor constituting her second term.
¶12 Both sides then separately appealed to the court of appeals. Kulmann and Thornton contended that the district court had erred in concluding that the office of Mayor and that of Ward Councilmember are the same “office” for purposes of section 11. Salazar, in turn, contended that the district court had erred in concluding that Kulmann‘s partial term as a Ward 4 Councilmember was not a full term for term limit purposes. The parties subsequently filed a stipulated motion to consolidate these two appeals, and the court of appeals granted that motion.
¶13 Thereafter, Kulmann and Thornton petitioned this court, pursuant to C.A.R. 50, for certiorari, noting the relative urgency presented
II. Analysis
¶14 We begin by setting forth the applicable standard of review and principles of constitutional and legislative interpretation. We then consider whether section 11, and particularly the phrase “in office,” is ambiguous. After concluding that it is not, we turn to the plain language of Thornton‘s Charter and Code, and we conclude that the offices of Mayor and of Councilmember are separate and distinct offices for purposes of section 11.
A. Standard of Review and Principles of Construction
¶15 Constitutional and statutory interpretation present questions of law that we review de novo. All. for a Safe & Indep. Woodmen Hills v. Campaign Integrity Watchdog, LLC, 2019 CO 76, ¶ 20, 450 P.3d 282, 286; MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710, 717 (Colo. 2010). The rules of statutory construction apply equally to matters concerning the interpretation of citizen-initiated measures and local government enactments. Huber v. Colo. Mining Ass‘n, 264 P.3d 884, 889 (Colo. 2011); MDC Holdings, 223 P.3d at 717.
¶16 Our principal goal in interpreting constitutional amendments and local government enactments is to determine and effectuate the intent of those who adopted those measures. See Huber, 264 P.3d at 889; MDC Holdings, 223 P.3d at 717; JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365, 370 (Colo. App. 2007). To do so, we look first to the language employed, giving words and phrases their plain and ordinary meanings. People v. Lente, 2017 CO 74, ¶ 16, 406 P.3d 829, 832; MDC Holdings, 223 P.3d at 717. In addition, we look to the entire legislative scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we avoid constructions that would render any words or phrases superfluous or lead to illogical or absurd results. Elder v. Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698.
¶17 If the language of the measure is unambiguous, then we apply it as written and need not resort to other tools of construction. Id. If, however, the measure is ambiguous, then we may look to the intent of those who adopted the measure, the circumstances surrounding its adoption, and the possible consequences of different interpretations. Id. A legislative enactment is ambiguous when it is reasonably susceptible of multiple interpretations. Id.
¶18 In conducting the foregoing analysis, we must respect the legislative drafters’ choice of language, and we will not add words to a legislative enactment or subtract words from it. UMB Bank, N.A. v. Landmark Towers Ass‘n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840.
¶19 In addition, because the right to hold public office is a “valuable and fundamental” right of citizenship, we will construe measures limiting a person‘s right to hold public office in a way that will least infringe on that right. Romero v. Sandoval, 685 P.2d 772, 774-75 (Colo. 1984).
B. Section 11
¶20 Section 11 provides, in pertinent part, that “no nonjudicial elected official of any ... city ... shall serve more than two consecutive terms in office.”
¶21 As noted above, a provision is ambiguous when it is reasonably susceptible of multiple interpretations. Elder, ¶ 18, 477 P.3d at 698. Here, the phrase “in office” refers back to the phrase “nonjudicial elected official” (i.e., “in office” refers to the office held by a nonjudicial elected official).
¶22 In this regard, this case is distinguishable from Lorton v. Jones, 130 Nev. 51, 322 P.3d 1051 (2014), on which Salazar relies. In Lorton, 322 P.3d at 1052-53, the Nevada Supreme Court considered a state constitutional
¶23 Section 11 contains no language distinguishing between an office, on the one hand, and a governing body (or institution), on the other. Indeed, section 11 does not refer to a local governing body at all. Rather, it refers solely to an “office.”
¶24 The question thus becomes whether the offices of Mayor and Ward Councilmember in Thornton constitute the same or separate and distinct offices for purposes of section 11‘s term limit provisions. To decide this question, we must consider the language of Thornton‘s Charter and Code.
C. Thornton‘s Charter and Code
¶25 As Salazar correctly observes, the Charter provides that the City Council consists “of nine (9) members, one of whom shall serve as Mayor,” and that the Council “shall constitute the legislative and governing body of the City.” City of Thornton, Colo., Charter, § 4.1. Salazar, however, all but ignores the rest of the Charter‘s language.
¶26 For example, the Charter provides that the Mayor and Ward Councilmembers are elected in different ways and by different constituencies, and they represent different groups of people. Councilmembers are “elected from each ward” to represent their ward-specific constituencies, and they must live in the ward that they represent. Id. at §§ 4.3(a), 4.4. In contrast, the Mayor is elected “at-large” to represent all of the city‘s residents and can reside in any one of the four wards. Id. at §§ 4.3(b), 4.4. This election process is unlike that in some municipalities, where citizens elect their city council and the council, in turn, designates one of its members to serve as mayor. See, e.g., City of Durango, Colo., Charter, art. II, § 6; see also City of Grand Junction, Colo., Charter, art. V, § 39 (calling the designated member “president,” rather than “mayor“). Accordingly, we disagree with Salazar that being a Thornton Councilmember is a “prerequisite” to being Mayor. The Mayor is not elected to be a Councilmember, nor does one become Mayor by being elected to the City Council and then being selected to serve as Mayor. Rather, the voters specifically choose the individual whom they want to serve as their Mayor. Thus, if anything, these provisions support Kulmann‘s and Thornton‘s position that the Charter puts the Mayor on the City Council, not a Councilmember in the office of Mayor.
¶27 The Charter further establishes separate and distinct processes for filling vacancies in the offices of Ward Councilmember and Mayor, respectively. If a vacancy occurs in the “office of Councilmember,” then the Council appoints an eligible person to fill that vacancy, and the Council must do so within thirty days of the vacancy, unless the vacancy occurs within ninety days of a regularly scheduled election for that vacant seat. City of Thornton, Colo., Charter, § 4.5(b); City of Thornton, Colo., Mun. Code, ch. 2, art. VI, § 2-244. If, in contrast, a vacancy occurs in the “office of Mayor,” then the Mayor Pro-Tem becomes the Acting Mayor “immediately” and serves until the next regular election, after which the Acting Mayor resumes their duties as Councilmember for the remainder of their unexpired term in office. City of Thornton, Colo., Charter, § 4.5(a).
¶28 In addition, the Mayor has a number of duties that the Councilmembers do not have, and notwithstanding Salazar‘s assertions to the contrary, we cannot say that
a conservator of the peace, and in emergencies may exercise within the City the powers conferred by the Governor of the State of Colorado for purposes of military law, and shall have the authority to command the assistance of all able-bodied citizens to aid in the enforcement of the ordinances of the City and to suppress riot and disorder.
Id.
¶29 The Mayor also has the exclusive power to appoint eligible persons to serve, on a temporary basis, as municipal court judges when all regularly appointed municipal court judges are absent, disqualified, or unable to act in a matter or case and the presiding judge is also absent. Id. at § 6.2. And the Mayor appoints one member of the Thornton Active Adult Board. City of Thornton, Colo., Mun. Code, ch. 2, art. III, § 2-85(b)(1).
¶30 The Charter and the Code make clear that the Mayor can exercise each of the foregoing powers unilaterally, separate from the City Council, and without the involvement or consent of any of the eight Ward Councilmembers. No such powers or responsibilities are delegated to any individual Ward Councilmember.
¶31 The Charter also repeatedly refers separately to the “office of Mayor” and the “office of Councilmember.” When the Charter addresses only the Mayor, it refers to that position as “the office of Mayor.” See, e.g., City of Thornton, Colo., Charter, §§ 4.4, 4.5(a). When the Charter and the Code address only the Ward Councilmembers, they state “the office of Councilmember” or “office of the Councilmembers.” See, e.g., id. at §§ 4.3, 4.4, 4.5(b); City of Thornton, Colo., Mun.
Code,
¶32 And throughout the Charter and Code, when outlining limits and requirements that apply to both the individual elected to serve as Mayor and the individuals elected to serve as Ward Councilmembers, the drafters chose to address them separately with the disjunctive “or.” For example, the Charter establishes the age and citizenship requirements for an individual to be eligible to be elected to “the office of Mayor or Councilmember” and goes on to state, “No person shall serve as Mayor or Councilmember while also holding another elected position in government.” Id. at
¶33 As we have long recognized, the use of the word “or” in this fashion ordinarily demarcates different categories. People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009). Moreover, as noted above, in interpreting a municipality‘s enactments, we must give effect to the words used, respecting the drafters’ choice of language and declining to add or subtract words. See UMB Bank, ¶ 22, 408 P.3d at 840. Doing so here compels us to conclude that Thornton‘s Charter and Code create separate and distinct
¶34 Our conclusion that the offices of Thornton Mayor and of Ward Councilmember are separate and distinct is fully consistent with
¶35 As set forth above,
¶36
¶37 In concluding that Thornton‘s Mayor and Ward Councilmembers serve in separate and distinct offices for purposes of
¶38 Salazar contends that Thornton‘s Mayor is “functionally nothing more than a first among equals on Council” and that any distinction between the Thornton Mayor and Councilmembers are almost all “ceremonial or procedural” and “very minor” in comparison with the “substantive powers” that the Mayor shares with the Councilmembers. If Salazar were correct, however, then many of the above-described Charter and Code provisions would be superfluous. For example, there would be no need for the Charter to require different provisions for the elections of the Mayor and of Ward Councilmembers or for the filling of vacancies in those positions. See
¶39 Salazar also argues that our interpretation means that each Ward Councilmember occupies a different office from every other Ward Councilmember and therefore every Ward Councilmember could serve an unlimited number of terms on the City Council, as long as they change their residency and obtain election to a new ward seat every two
¶40 Finally, we are unpersuaded by Salazar‘s reliance on the Nevada Supreme Court‘s decision in Lorton, 322 P.3d at 1052-59, and on Colorado Attorney General Opinion No. 00-5, Colo. Op. Att‘y Gen. No. 00-5 (July 10, 2000), both of which Salazar claims are directly on point.
¶41 As noted above, in Lorton, 322 P.3d at 1052-53, the court considered a state constitutional provision declaring that “[n]o person may be elected to any state office or local governing body who has served in that office, or at the expiration of his [or her] current term if he [or she] is so serving will have served, 12 years or more.” (Quoting
¶42 Lorton, however, is distinguishable because in concluding that the mayor and city council members were not sufficiently distinct to preclude application of the Nevada term limit provision, the Lorton court relied on the specific language of the applicable city charter. Id. at 1058-59. Although that language may well be similar in some respects to that in Thornton‘s Charter, the language of the charter at issue in Lorton is not identical to the language at issue here, and the specific language of Thornton‘s Charter and Code controls our analysis.
¶43 As for Attorney General Opinion No. 00-5, we note, as an initial matter, that Attorney General Opinions, though entitled to “respectful consideration,” are not binding on us. Colo. Common Cause v. Meyer, 758 P.2d 153, 159 (Colo. 1988); Justus v. State, 2014 CO 75, ¶ 31 n.11, 336 P.3d 202, 211 n.11. In any event, on its face, that opinion did not address the specific question presented before us. Rather, it considered whether (1) a term-limited elected official from one district may run for election to the same body from a different district; (2) if redistricting creates a new or reconfigured district, whether a term-limited elected official may run for election to the same body from the new or reconfigured district; and (3) a term-limited official serving in an at-large seat in an elected body may run for election to a specific seat in that same body. Colo. Op. Att‘y Gen. No. 00-5, at 1-2. The Attorney General answered “no” to each of these questions, id., which we perceive to be analogous to the question of whether a term-limited Ward Councilmember in Thornton can move to a different ward and immediately run for election as a Ward Councilmember from that ward. Consistent with the Attorney General‘s opinion, no one here appears to dispute that this would be impermissible.
¶44 In reaching our conclusion that the offices of Mayor and of Ward Councilmember constitute separate and distinct offices for purposes of
III. Conclusion
¶45 For these reasons, we conclude that under the plain and unambiguous terms of both the Thornton Charter and Code, the offices of Mayor and of Ward Councilmember in the City of Thornton constitute separate and distinct offices for purposes of
¶46 We therefore reverse the judgment of the district court as to its conclusion that the offices of Mayor and of Councilmember are one and the same for purposes of
JUSTICE HOOD, joined by JUSTICE BERKENKOTTER, dissented.
JUSTICE HOOD, joined by JUSTICE BERKENKOTTER, dissenting.
¶47 Colorado‘s many municipalities (and other political subdivisions) have their own charters, structures, and procedures, vesting their elected officials with diverse powers and responsibilities. But
¶48 Instead, the majority eliminates the need. It simply applies the word “office” to the mayoral seat on the Thornton City Council, rather than applying it to the governmental body of which that seat is a part. Because I believe that this conclusion runs afoul of longstanding, voter-approved term limits in the case at bar and threatens to breed confusion in the multitude of cases potentially yet to come, I respectfully dissent.
I. The Definition of “In Office”
¶49
¶50 After all, the state constitution doesn‘t define the term, and dictionaries point to both interpretations. For example, Merriam-Webster defines “office” as both “a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose,” which would support the majority‘s “specific office” interpretation, and as “a major administrative unit in some governments,” which would support respondent‘s governing body interpretation. See, e.g., Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/ office [https://perma.cc/HV74-RHUT].
¶51 A quick comparison to other term-limit provisions is also instructive. In Colorado, the legislative term-limit provision restricts service within the “senate” or “house of representatives,”
¶52 Because it is reasonably susceptible of more than one interpretation,
¶53 In searching for the intent of the electorate here, we needn‘t look far.
¶54 In arguing that its interpretation meets this purpose, the majority spotlights the fact that the mayor must seek support from all wards, not just one. But in the 1994 Bluebook, advocates of
¶55 These sources urge a broader construction of “in office” than the majority offers, and the consequences of its decision further demonstrate why.
¶56 The majority‘s holding allows an individual to serve as a councilmember in perpetuity. If reelected, Kulmann will serve fourteen years on the City Council by the end of her term (six years longer than the two four-year terms contemplated by
¶57 Moreover, by concluding that the mayor and the councilmembers serve in distinct offices, the majority shifts
¶58 In addition, even if
¶59 The majority rejects this interpretation —that the mayor is simply one of the councilmembers— in part because of the word “or” in the Charter‘s other provisions, such as those detailing the election qualifications for “the office of Mayor or Councilmember,” which the majority views as creating mutually exclusive positions. See Maj. op. ¶ 32;
¶60 The majority‘s interpretation is also incongruous with other government positions where a single person occupies two offices simultaneously. The speaker of the Colorado House of Representatives has additional responsibilities, but the speaker is still a representative. The chief justice of the Colorado Supreme Court has additional duties, but the chief justice is still a justice. In these situations, a single government official occupies two positions simultaneously. See, e.g.,
¶61 The majority‘s opinion not only yields potentially perverse results in Thornton, it creates a recipe for statewide confusion. I turn to this concern now.
II. Differentiating Offices
¶62 If all of Colorado‘s nearly 4,000 local governments used the same structure, the majority‘s interpretation would provide clarity across the state. Instead, Colorado‘s thousands of local governments are remarkably diverse. While the majority‘s opinion resolves Thornton‘s dispute, it leaves far more questions than answers for other political subdivisions.
A. The Majority‘s Multi-Factor Test
¶63 The majority seems to rely on several considerations to determine what constitutes an “office” for
¶64 However, the majority doesn‘t say whether any factors are dispositive, nor does it instruct future courts how to weigh the factors against each other. This court‘s lack of guidance will create uncertainty in time-sensitive lawsuits, and courts will be forced to undertake complex and subjective fact-specific analyses for local government elections.
¶65 For example, the majority considers it important that the mayor and the ward councilmembers “are elected in different ways and by different constituencies” and that “they represent different groups of people.” Maj. op. ¶ 26. So, different voter pools apparently suggest different offices. Under this reasoning, an at-large councilmember and a word-elected councilmember occupy different offices, and councilmembers can just move between wards to refresh their voter pools and thus their term limits. While the majority reasons that “nothing in this opinion can reasonably be read to suggest” such an outcome is possible, id. at ¶ 39, and “no one here appears to dispute that [running in a different ward to avoid term limits] would be impermissible,” id. at ¶ 43, the majority fails to explain why the distinction it recognizes between the mayor and other councilmembers wouldn‘t apply to councilmembers of different wards.
¶66 Another example of the majority‘s unpredictable analysis is its argument that the mayor is distinct because she has a higher salary than the councilmembers. Maj. op. ¶ 38. This factor is confusing too, given the rest of the opinion. Earlier, the opinion suggests that a city council president in another city, unlike a mayor, would occupy the same office as other councilmembers. Id. at ¶ 26. However, city council presidents are regularly paid more than other councilmembers. See, e.g., Denver Rev.
¶67 While the majority‘s analysis is thorough for Thornton, its factors seem arbitrary when applied to other comparable government structures. I fear that this Thornton-specific analysis may map poorly onto the state‘s other jurisdictions and destabilize varying municipal structures.
B. Future Questions
¶68 The majority‘s assortment of factors helps it distinguish the mayor‘s office from the other councilmembers in Thornton, but it does not say how to draw the line between potentially distinct offices elsewhere. In the future, courts may attempt to apply the majority‘s Thornton-specific analysis to other local governments with varied structures.
¶69 Two examples illustrate why judges might have difficulty applying the majority‘s new precedent to other political subdivisions.
¶70 First, consider the many communities where the mayor is elected by the city councilmembers, rather than at large by the voters in the municipality. The majority opinion suggests that in such a case, the mayor is subject to the same term limits as other councilmembers because the mayor is initially elected as a councilmember. Maj. op. ¶ 26. If so, the majority seems to indicate that if Thornton made a single change—for councilmembers to elect the mayor, rather than the city‘s voters—the mayor would no longer occupy a separate office (despite the other
¶71 Second, consider another local government in which each elected individual has a different title; for example, a county that elects a treasurer, secretary, and a chair that each has a legislative vote on the county commission. Are these separate offices? And, what occurs if the county changes its election procedures so that each of the three county commissioners is elected by district, and they then choose among themselves who carries out each duty? How should a court apply the majority‘s opinion in a potential term-limit dispute in the county? Without dispositive factors or an explicit balancing test, local governments will not know whether two positions constitute distinct offices, and they will have no way to know if a small change in governing documents would alter term limits.
¶72 The majority finds certain factors relevant in its opinion but does not tell us why they are relevant and how these factors should be weighed and applied. In local government cases, where fact-specific analyses are common, this court should provide a framework for judges to resolve potential cases. Because the majority opinion does not, I fear this court opens the door to politically motivated term-limit litigation in the future. And it will leave not only courts but also municipalities and officeholders to guess what is permissible.
III. Resignations
¶73 Although the majority declined to address the second issue presented (regarding early resignations), I believe local governments would benefit from this court‘s guidance on the issue. Therefore, I would address it and conclude that Kulmann is term limited now.
¶74 The
¶75 Further, the Bluebook described the law at the time of the amendment: while the partial-term provision applied to members of Congress, it did not apply to any of
¶76 If read plainly,
¶77 Because
¶78 Kulmann proposes an unworkable “legitimate reason” test to determine when a partial term is exempted from term limits. She argues that since other provisions address partial terms, the absence of such language in
¶79 The mayor‘s recommendation presents at least a couple of obvious problems. First and foremost, the proposed test is completely untethered from the language of the amendment, the voters’ intent, or any implementing statutes. Second, the test would force courts to adjudicate messy cases where a public official‘s veracity and legitimacy are questioned. A subjective “legitimacy” test would put judges into the uncomfortable position of making ad hoc personal judgments. Is a divorce a legitimate reason to resign? How about the death of a loved one? Adopting Kulmann‘s test would open a pandora‘s box of term-limit loopholes, inviting anyone to sidestep
¶80 Therefore, I would reach the second issue, reverse the district court‘s order, and conclude that under the plain language of the
¶81 For all the foregoing reasons, I respectfully dissent.
Notes
Specifically, we granted certiorari, pursuant to
1. Whether the Office of Mayor is sufficiently distinct from the Office of Councilmember in the City of Thornton such that a term of office for one cannot be used as a term of office for the other in calculating
Section 11 ‘s two-term restriction.
2. Whether an elected official who only serves a partial term of office for legitimate reasons counts towards the calculation of
Section 11 ‘s two-term restriction.
Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of “And” and “Or” in Legal Drafting, 80 St. John‘s L. Rev. 1167, 1180-83 (2006) (“[A]uthorities on legal drafting have stated that or is ambiguous, in that it can be ‘inclusive,’ meaning A or B, or both, or it can be ‘exclusive,’ meaning A or B, but not both.“). And, courts recognize that the word “or” is usually used in legal drafting in an inclusive manner, meaning that the majority‘s interpretation of “or” here as mutually exclusive is less common. See Encino Motorcars, LLC v. Navarro, ––– U.S. ––––, 138 S. Ct. 1134, 1141-42, 200 L.Ed.2d 433 (2018); In re Estate of Dodge, 685 P.2d 260, 266, 266 n.1 (Colo. App. 1984) (concluding that “or,” as used in the relevant statute, was “to be given its usual inclusive construction” because “it simply ‘is not usual to interpret the “or” in an alternative proposition as expressing the exclusion of one alternative’ “) (quoting L. Susan Stebbing, A Modern Introduction to Logic 70-71 (6th ed. 1948)). “That is, ‘or’ is consistent with ‘perhaps both’; ... the onus probandi lies on those who assert [that] the logical interpretation of ‘or’ should be exclusive.” Estate of Dodge, 685 P.2d at 266 n.1 (quoting Stebbing, supra ¶ 59 n.1, at 70-71).
The Supreme Court later struck down Colorado‘s congressional term-limit provision, holding it unconstitutional for states to set federal term limits stricter than the