by Julie Pelegrin
As committees begin hearing more bills and considering more amendments, it’s likely that more questions will arise around bill titles. What is the single subject of this bill? Does this amendment fit within the bill title? Should I amend my bill title? Can I amend my bill title? Following are some quick Q&As designed to help understand the use and application of bill titles in the Colorado General Assembly.
Are there any restrictions on how I write my bill title?
Section 21 of article V of the State Constitution states that each bill must have only a single subject that is clearly expressed in the bill title. Based on this requirement, each bill title should be a clear statement of the bill subject that provides helpful public notice of the bill contents, which is one of the recognized purposes of the constitutional requirement. The other obvious requirement in the constitutional language is that the title express a single subject. It is the common practice of the OLLS in drafting titles to avoid using the words “and” and “or”, because these words connote more than one subject.
There are times when a bill sponsor may want to call attention to a specific provision of a bill by including it in the bill title. To accomplish this, it is the practice of the OLLS to draft bill titles by stating the single subject at the beginning of the bill title, followed by a comma, after which the bill title may specify one or more provisions of the bill. For example: “Concerning fruit consumption, and, in connection therewith, requiring the consumption of Colorado apples and prohibiting the consumption of kumquats that are not grown in Colorado.” The actual subject and purpose of the bill is fruit consumption. The rest of the title is called a “trailer” and provides notice to the public as to some of the bill contents, but it isn’t considered to be the actual subject of the bill.
I asked a drafter to prepare an amendment for me and she said she would write it, but I might have a title issue. What’s a title issue?
As a bill goes through the legislative process, each amendment made to the bill must also fit within the single subject expressed in the bill title. If the amendment goes beyond the single subject expressed in the title, the amendment may be ruled out of order. Using the example above, if a legislator wanted to amend the bill concerning fruit consumption to require children to eat candy, there would likely be a question as to whether that amendment fits within the bill title. In this case, the drafter will prepare the amendment, but will discuss the potential title issue with the amendment sponsor.
Who decides whether I have a title issue?
When a legislator moves an amendment in a committee of reference or in the committee of the whole, it’s up to the committee chair to decide whether the amendment fits within the bill title. If someone moves a third reading amendment, the Speaker of the House or the President of the Senate, depending on which chamber the bill is in, will decide. The issue usually doesn’t arise, but if a member of the committee questions whether the amendment fits, the chair must make a ruling that the amendment either does or does not fit the bill title. If the chair rules that the amendment fits within the title, then the committee proceeds to consider and vote on the amendment. If the chair rules that the amendment does not fit within the bill title, then the amendment is out of order and receives no further consideration in that committee. The chair’s decision is final and can’t be challenged, but someone can move the same amendment and ask for a ruling by the chair when the next committee hears the bill.
Will the Office of Legislative Legal Services give an a legal opinion about whether my amendment fits within the bill title?
A bill drafter will discuss title issues with the legislator who requests the amendment. If the bill sponsor is not the amendment sponsor, the bill drafter may also discuss title issues with the bill sponsor, upon his or her request after seeing the amendment. And a committee chair may ask the bill drafter for the drafter’s opinion as to whether an amendment fits within the bill title. The general practice of the OLLS is to provide the amendment sponsor, the bill sponsor, and the committee chair with arguments as to why the amendment may fit within the title and arguments as to why it may not fit within the title. Any opinion by OLLS staff regarding an amendment is purely advisory; the committee chair has sole authority to decide whether an amendment fits within a bill title.
The OLLS will prepare a written title opinion only if a legislator insists on having a written opinion. In this case, the OLLS staff will let the requesting legislator know that the OLLS staff will inform the leadership from the requesting legislator’s chamber that the staff is preparing a written title opinion. However, OLLS staff will not prepare a written title opinion after the chair of the committee of the whole or the President or the Speaker has ruled on a title question; if a legislator wants a legal opinion in this situation, he or she should discuss the issue with the leadership in the legislator’s chamber.
Can I amend the bill title to be broader so that my amendment will fit within the title?
As a matter of custom and practice, the General Assembly will not amend a title to make it more broad. Broadening a title may suggest that the bill actually contains more than one subject or that the original purpose of the bill is being changed as it moves through the legislative process. Section 17 of article V of the state constitution prohibits altering or amending a bill so as to change its original purpose.
Can I amend my bill title to make it tighter so that other people can’t put amendments on my bill that I don’t want?
A legislator can amend a bill title to make it more narrow. However, if a bill title is amended to be more narrow — or “tight” — after the bill is introduced, the practice and understanding in the General Assembly is that the bill title may be amended again to make it as broad as it was when the bill was introduced. So, a legislator may be able to tighten his or her bill title in one committee and thereby prevent consideration of some amendments, but another legislator can amend the title back to its original breadth in another committee to allow for consideration of those amendments.
If a bill title includes a trailer, as in the example above, the General Assembly should amend the bill trailer as necessary to reflect changes made to the bill. Using the example above, if the bill were amended to remove the provision prohibiting consumption of kumquats, then that provision should also be removed from the trailer by amendment. However, if the bill were amended to add an additional prohibition against consuming breadfruit, the trailer would not need to be amended because a trailer does not have to include all of the provisions in the bill.
What happens if a bill passes and all of the parts of the bill don’t fit within the title?
The constitution says that, if a bill is enacted that includes provisions that aren’t within the bill title, only those portions of the bill that are outside of the title are void. After a bill is enacted, if someone feels that all or a portion of the bill doesn’t fit within the title, the person may be able to file a suit in the courts claiming that all or a portion of the bill is unconstitutional because it doesn’t fit within the title. These cases are very rare. But, when they occur, the court generally defers to the General Assembly’s judgement in passing the bill. If the court does find that part of the bill doesn’t fit within the title, then it will only invalidate those parts that don’t fit; the rest of the bill will still be valid.
During every regular legislative session, the General Assembly passes a bill to enact the Colorado Revised Statutes, as republished with the all of the changes that passed by bill during the previous legislative session, as the positive and statutory law of Colorado. This bill cures any title defects that may have existed with any bills that passed during the preceding legislative session. If someone wants to challenge the constitutionality of a bill based on whether all parts of the bill fit within the title, that person must do so before the bill to enact the Colorado Revised Statutes passes.
For more information on bill titles and single subject, see the OLLS memo concerning bill titles – single subject and original purpose requirements and LegiSource article “Single Subject Requirement Prevents a Multitude of Evils” posted December 6, 2012.