Colorado § 2-4-303 - Penalties and liabilities not released by repeal.

§ 2-4-303. Penalties and liabilities not released by repeal.

The repeal, revision, amendment, or consolidation of any statute or part of a statute or section or part of a section of any statute shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising, amending, or consolidating act so expressly provides, and such statute or part of a statute or section or part of a section of a statute so repealed, amended, or revised shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings, and prosecutions, criminal as well as civil, for the enforcement of such penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions imposing, inflicting, or declaring such penalty, forfeiture, or liability.

Source: L. 73: R&RE, p. 1425, § 1. C.R.S. 1963: § 135-1-303.

ANNOTATION

I. General Consideration.

II. Effects of Section on Repealed or Amended Statutes.

III. Section Part of Repealed or Amended Statute.

IV. Statute Expiring by Its Own Limitation.

I. GENERAL CONSIDERATION.

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Application of section. This section has no application to acts other than those which relate to a penalty, forfeiture, or liability incurred under a repealed statute. Since no substantive penalty, forfeiture, or liability is incurred under a statute of limitations, this section has no bearing on such a statute. People v. Montera, 195 Colo. 118, 575 P.2d 1294 (1978).

Since no substantive penalty, forfeiture, or liability is incurred under a statute of limitations, this section has no bearing on such a statute. People v. Montera, 195 Colo. 118, 575 P.2d 1294 (1978).

Applied in People in Interest of M.K.A., 182 Colo. 172, 511 P.2d 477 (1973); City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976); People v. Harris, 633 P.2d 1095 (Colo. App. 1981); Lipp v. State, 843 P.2d 41 (Colo. App. 1992).

II. EFFECTS OF SECTION ON REPEALED OR AMENDED STATUTES.

The repeal, revision, amendment or consolidation of any statute shall not have the effect to alter, modify or change in whole or in part any liability, which shall have been incurred under such statute unless expressly so provided. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 148 Colo. 557, 367 P.2d 597 (1961).

General rule in civil proceedings regarding amendatory legislation is that civil liability already incurred may not be changed by statute unless specifically so provided by the general assembly. Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979).

Civil liability already incurred may not be modified unless specifically provided by the general assembly. Hedstrom v. Motor Vehicle Div., 662 P.2d 173 (Colo. 1983).

Therefore, the repeal of a statute does not invalidate the accrued results of its operative tenure and it will not be thus retroactively construed as undoing accrued results if not already required by language of the repealing act. State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962).

Absent an express legislative provision, the repeal of a statute will not operate retroactively to modify vested rights or liabilities. Stark v. Zimmerman, 638 P.2d 843 (Colo. App. 1981).

And so long as there is a general law limiting the effect of the repeal, it is declarative of the general policy of the state and takes effect unless the repealing act, or expiration clause, expressly provides otherwise. State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962); Wall v. Crawford, 103 Colo. 66, 82 P.2d 749 (1938).

Repealed statutory provisions remain in force insofar as pending actions, suits, proceedings, and prosecutions are concerned. Martinez v. People, 174 Colo. 365, 484 P.2d 792 (1971); City of Westminster v. Hyland Hills Metro. Park & Recreation Dist., 190 Colo. 558, 550 P.2d 337 (1976).

To hold otherwise would do violence to the expressed and plain intent of the general assembly that the reservation as to pending prosecutions applies equally to matters arising before repeal, even though prosecution not be had until after such repeal. Martinez v. People, 174 Colo. 365, 484 P.2d 792 (1971).

And the provision for retention of penalties does not attempt to interfere in any manner with future legislation. Wilson v. People, 36 Colo. 418, 85 P. 187 (1906); Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907).

But the repeal of a statute prescribing a penalty shall not prevent a recovery of such penalty unless the repealing statute so provides. Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907); Wilson v. People, 36 Colo. 418, 85 P. 187 (1906).

Its purpose then is to save the right to penalties incurred when the repealing statute was silent on that question. Wilson v. People, 36 Colo. 418, 85 P. 187 (1906); Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907).

And hence, by virtue of its provisions, the repeal of a statute imposing penalties under certain conditions, without any saving clause, does not prevent the recovery of such penalties when it appears that the repeal and subsequent statute are not inconsistent with its purpose. Wilson v. People, 36 Colo. 418, 85 P. 187 (1906); Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907).

And the provision for retention of penalties abrogates the rule that rights under statute repealed by subsequent law without saving clause are lost. Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907).

However, the general saving character is limited to those acts which relate to a penalty, forfeiture or liability, either civil or criminal, incurred under such acts. Peery v. City of Denver, 27 Colo. 93, 59 P. 747 (1899); Vail v. Denver Bldg. & Constr. Trades Council, 108 Colo. 206, 115 P.2d 389 (1941).

The penalty, forfeiture or liability which is saved, is one not merely incurred according to the terms of the repealed statute, but must be one incurred prior to the time the repealing act takes effect. Cobb v. Int'l State Bank, 67 Colo. 488, 186 P. 529 (1919).

But the retention of penalties provision does not apply where a statute gives certain rights of action upon grounds of public policy, no vested rights as to the continuance thereof are conferred, and notwithstanding the existence of a general saving statute such as this section, the repeal of the provision takes away all its benefits as regards incomplete actions existing at the time of the repeal, whether they be pending in appellate or trial courts. Vail v. Denver Bldg. & Constr. Trades Council, 108 Colo. 206, 115 P.2d 389 (1941).

As to retrospective liability under section 8-52-103(2) of the workmen's compensation law, see Eight Thousand W. Corp. v. Stewart, 37 Colo. App. 372, 546 P.2d 1281 (1976).

This section applies to any amendment or repeal of a statute providing for the award of punitive damages. Ortivez v. Davis, 902 P.2d 905 (Colo. App. 1995).

Section not violated by prospective modification of § 24-10-109 (1). The notice requirements of § 24-10-109 (1) of the Colorado government immunity act may be modified prospectively without violating the provisions of this section. Adams County Sch. Dist. No. 1 v. District Court, 199 Colo. 284, 611 P.2d 963 (Colo. App. 1980).

A defendant is not entitled to the ameliorative benefit of amendatory legislation when retroactive application is not expressly intended. People v. Kingsolver, 897 P.2d 878 (Colo. App. 1995).

Liability is incurred within the meaning of this section when the cause of action accrues, irrespective of the date on which litigation is commenced. Ortivez v. Davis, 902 P.2d 905 (Colo. App. 1995).

III. SECTION PART OF REPEALED OR AMENDED STATUTE.

The court has a right to assume that the general assembly, in passing a repealing statute without a savings clause, had in view the terms, scope, and legal effect of this section evidently passed to provide for such contingencies. Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897).

The retention of penalties provision is in general terms and it aims at no specific statute. Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897).

And is intended to embrace all statutes, both civil and criminal. Day v. Madden, 9 Colo. App. 464, 48 P. 1053, appeal dismissed, 24 Colo. 418, 51 P. 165 (1897).

Since the retention of penalties provision is broad in its scope, ample in its terms, therefore without giving undue force to its language, and without the adoption of a strained construction, it may be taken to be a part and parcel of a repealing or amending statute. Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897).

And if this is so, then a statute is amended and reenacted with this provision attached, and the court must read that section being repealed or amended as though it contained a provision that it should not be taken to extend to or affect any suits or proceedings already begun. Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897).

Therefore, this provision is to be given the same effect as a saving clause in the repealing statute itself. Vail v. Denver Bldg. & Constr. Trades Council, 108 Colo. 206, 115 P.2d 389 (1941).

IV. STATUTE EXPIRING BY ITS OWN LIMITATION.

Where an act expires by its own limitations, the effect is the same as though it had been repealed at that time. State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962).

Therefore, it is necessary to incorporate in an act which will soon expire under its own terms a specific exemption from the retention of penalties provision to avoid its application. State v. McMillan, 150 Colo. 23, 370 P.2d 435 (1962).

Because this general retention of penalties provision made it unnecessary for the general assembly to embody in a specific act which would expire under its own terms soon thereafter a declaration repeating the provision. State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962).

And where a general statute limits effect of repeal, such termination does not invalidate the accrued results of its operation. State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962).

PART 4

DEFINITIONS