People v. D.K.B.

Justice KIRSHBAUM

specially concurring:

The majority concludes that section 24-72-308(3)(a), 10 C.R.S. (1982) (the 1977 stat*1333ute), and section 24-72-308(1)(a), 10B C.R.S. (1988) (the 1988 statute), created only procedural rights which never vested and are therefore not protected by the prohibition against retrospective legislation established by article II, section 11, of the Colorado Constitution. In my view, these statutes created both substantive and procedural rights. However, because the respondents failed to exercise the substantive rights granted to them by the 1977 statute prior to the repeal of that statute and because no constitutionally protected interests are involved here, the respondents’ rights did not vest for purposes of retroac-tivity analysis. I therefore concur in the result reached by the majority.

The 1977 statute provided in pertinent part as follows:

Sealing of records, (a) Any person in interest may petition the district court of the district in which the arrest and criminal records information pertaining to him is located for the sealing of all or any part of said record, except basic identification information.

§ 24-72-308(3)(a), 10 C.R.S. (1982). By adopting this provision, the General Assembly created a right to seek a court order sealing certain criminal records, effective December 31, 1977, for the benefit of numerous classes of persons, including persons such as the respondents. Ch. 340, sec. 1, § 24-72-308, 1977 Colo.Sess.Laws 1244, 1249. As the majority notes, other provisions of the 1977 statute established procedures by which a petition might be presented to and ruled upon by a district court. Maj. op. at 1328.

The 1977 statute was repealed by the adoption of the 1988 statute. Ch. 190, sec. 3, § 24-72-308, 1988 Colo.Sess.Laws 979. The 1988 statute provides that petitions to seal a criminal record may be filed only if the record in question is “a record of official actions involving a criminal offense for which said person in interest was not charged, in any case which was completely dismissed, or in any case in which said person in interest was acquitted.” § 24-72-308(l)(a), 10B C.R.S. (1988). By adopting the 1988 statute, the General Assembly abolished the right of convicted persons, such as respondents, to file petitions to seal records in their cases. The question posed here is whether the respondents’ rights to seek a court order sealing their criminal records survived the repeal of the statute that created those rights.

Article II, section 11, of the Colorado Constitution prohibits the enactment of a law which is “retrospective in its operation.” A statute is impermissibly retrospective if it takes away or impairs vested rights acquired under existing laws, or creates new- obligations, imposes new duties, or attaches new disabilities to past transactions or considerations. P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo.1982); Jefferson County Dep’t of Social Servs. v. D.A.G., 199 Colo. 315, 317, 607 P.2d 1004, 1006 (Colo.1980); Denver, S. Park & Pac. Ry. Co. v. Woodward, 4 Colo. 162, 167 (1878). Application of a newly adopted statute to an existing claim for relief does not violate the constitutional prohibition against retroactive legislation if the statute effects a change that is only procedural or remedial in nature. Continental Title Co. v. District Court, 645 P.2d 1310, 1315 (Colo.1982); Jefferson County Dep’t of Social Servs., 199 Colo, at 318, 607 P.2d at 1006. As we observed in Continental Title Co., 645 P.2d 1310, “ ‘[t]he abolition of an old remedy, or the substitution of a new one, neither constitutes the impairment of a vested right nor the imposition of a new duty, for there is no such thing as a vested right in remedies.’ ” Id., 645 P.2d at 1315, (quoting Jefferson County Dep’t of Social Servs., 199 Colo, at 317, 607 P.2d at 1006). See also In re Colorado Mercantile Co., 299 F.Supp. 55 (D.Colo.1969); Smith v. Putnam, 250 F.Supp. 1017 (D.Colo.1965).

Some statutes may of course be categorized as either substantive or remedial. Substantive statutes create, eliminate or modify vested rights or liabilities, while procedural statutes relate only to remedies *1334or modes of procedure to enforce such rights or liabilities. Smith, 250 F.Supp. at 1018; Kardoley v. Colorado State Personnel Bd., 742 P.2d 934, 935 (Colo.App.1987). However, statutes which contain procedural or remedial provisions must nevertheless be deemed substantive statutes for retroac-tivity purposes if they in fact alter vested rights.

The 1977 statute contains both substantive and procedural elements. It grants convicted persons the right to seek a court order sealing their criminal records — a right that did not exist at common law prior to 1977. As the majority explains, “whatever interest convicted persons may have in record sealing is not based on the federal or state constitution but stems solely from the 1977 statute.” Maj. op. at 1330. The fact that the 1977 statute establishes procedures by which a convicted person may exercise the right to seek a court order sealing criminal records does not alter the additional fact that the same statute created that substantive right.

The question for retroactivity purposes is whether the respondents’ substantive rights vested prior to the repeal of the 1977 statute. There are no bright line tests to determine what constitutes a vested right or when that right accrues. See, e.g., Martin v. Board of Assessment Appeals, 707 P.2d 348 (Colo.1985); P-W Investments, Inc., 655 P.2d 1365; Lakewood Pawnbrokers, Inc. v. City of Lakewood, 183 Colo. 370, 517 P.2d 834 (1973); Berman v. City and County of Denver, 120 Colo. 218, 209 P.2d 754 (1949). A right having independent constitutional significance and therefore protected from governmental deprivation without due process of law may be deemed a vested right. See United States v. Security Indus. Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 413, 74 L.Ed.2d 235 (1982) (provision in the Bankruptcy Code may not operate retrospectively to destroy preexisting property rights in liens acquired before the enactment date in the absence of an explicit command from Congress); Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773 (1913) (repealing statute deprived plaintiffs of a vested property right, that right being the fixed liability of the city to compensate plaintiffs for damage to their property resulting from highway improvements).

A right that is created by statute and is not constitutionally protected but has been reduced to possession or perfected by final judgment may also be deemed vested. C. Dallas Sands, 1A Statutes and Statutory Construction § 23.35 (4th ed. 1985). To be “vested,” therefore, a right must consist of more than a mere expectation based on an anticipation of the continuance of an existing legal status. The right must have in some manner matured to the extent that the owner thereof has acquired legal or equitable title to the present or future enforcement of a demand or a legal exemption from the demand of another. State v. Matlock, 27 Wash.App. 152, 616 P.2d 684 (1980); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280 (Tex.Civ.App.1975). See also Lines v. City of Topeka, 223 Kan. 772, 577 P.2d 42 (1978), and Johnson v. Continental West, Inc., 99 Wash.2d 555, 663 P.2d 482 (1983) (no person has a vested right in any rule of law entitling him or her to insist it shall remain unchanged for his or her benefit). The respondents’ interests in seeking court orders to seal their criminal records constituted anticipations of continued legal status at the time the 1977 statute was repealed. The respondents took no steps to perfect their rights until after the adoption of the 1988 statute. In these circumstances, their substantive rights were not vested for purposes of retroactivity analysis when the 1977 statute was repealed.

As a general rule, repealing such statutes terminates all non-vested rights dependent upon the repealed statute and all proceedings based upon it, unless such pending proceedings are expressly exempted from the general rule by the repealing act. Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910); Flanigan v. Sierra County, 196 U.S. 553, 25 S.Ct. 314, 49 L.Ed. 597 (1905); Vail, State Highway Eng’rv. Denver Bldg, and Constr. Trades *1335Council, 108 Colo. 206, 115 P.2d 389 (1941); 73 Am.Jur.2d Statutes § 384 (1974); C. Dallas Sands, 1A Statutes and Statutory Construction § 23.33 (4th ed. 1985).1 The 1988 statute contains no such exemption. Because the respondents failed to exercise their rights to seek court orders sealing their criminal records prior to the repeal of the statute that created those rights, their rights were not vested at the time the General Assembly adopted the 1988 statute.

Because I believe that the 1977 statute created both substantive and procedural rights, I do not agree with the majority’s characterization of that statute as remedial. Maj. op. at 1332. However, because the respondents’ substantive rights had not vested prior to the repeal of that statute, I agree with the majority’s conclusion that the judgments of the Court of Appeals must be reversed.

Accordingly, I concur in the result reached by the majority.

I am authorized to say that Justice QUINN joins in this special concurrence.

. Under certain circumstances, even vested rights may be impaired without violating due process of law standards. For example, the state's inherent sovereign power includes the so-called "police power" right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals and general well-being of the state’s citizens. See, e.g., Lakewood Pawnbrokers, Inc. v. City of Lakewood, 183 Colo. 370, 517 P.2d 834 (1973) (citing Hoskinson v. Arvada, 136 Colo. 450, 319 P.2d 1090 (1957)); McCormick v. Montrose, 105 Colo. 493, 99 P.2d 969 (1939); Colorado Springs v. Miller, 95 Colo. 337, 36 P.2d 161 (1934). So long as the state adheres to procedural due process requirements, vested rights may be infringed or curtailed by the state in a valid exercise of its police power.