Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Year: 2014

  • A Holiday Message

    Holiday Collage 2HAPPY HOLIDAYS FROM THE OLLS!

    Holiday 5

  • The Publications Bill: A Little Bill with a Big Job

    by Nate Carr

    Each year a small, one-page bill works its way through the legislative process. It’s typically at the front of the legislative bill line, so to speak, and frequently has the honor of gracing the Governor’s desk before many of the other bills have even been heard in the first committee. This bill doesn’t trigger front-page headlines; it rarely, if ever, even makes the news. Why then, does this seemingly insignificant little bill get pushed through the legislative process so quickly?

    Well, this little bill has a big job – enacting the compilation of the state’s laws known as the Colorado Revised Statutes (C.R.S.). Each year the Committee on Legal Services, the legislative committee responsible for overseeing the publication and printing of the Colorado Revised Statutes, sponsors this bill. It is formally titled as a bill Concerning the enactment of Colorado Revised Statutes [Year] as the positive and statutory law of the state of Colorado; however, it is commonly referred to as the “publications bill.” The publications bill enacts the official printed version of the C.R.S. as the positive and statutory law of the State of Colorado. But why is it necessary to enact the C.R.S. annually?

    2012 Colorado Revised Statutes/Photo by Ashley Zimmerman
    2012 Colorado Revised Statutes/Photo by Ashley Zimmerman

    The answer to that question requires some background information. Once the General Assembly adopts a bill, the enrolling room and the Office of Legislative Legal Services (OLLS) prepare the bill in Act form for presentation to the Governor. Bills that the Governor signs, or that he does not veto, become law and are known as Acts. In the months following the adjournment of each legislative session, the OLLS staff, under the direction of the Revisor of Statutes, incorporates the newly enacted laws into the body of law published in the preceding year’s C.R.S. In addition, staff makes revision changes to correct nonsubstantive grammatical or punctuation errors, harmonizes conflicting bills, and adds voter-approved statutory changes. The Revisor also ensures that the C.R.S. are properly constructed, annotated, and indexed. The authority and guidelines that the Revisor follows to prepare the C.R.S. are located in articles 4 and 5 of title 2 of the Colorado Revised Statutes. Once the publications process is complete, the OLLS sends the data with the new, updated body of law to the state’s official contract printer who prints and distributes the updated sets of Colorado Revised Statutes.

    At the legislative session following the printing of the C.R.S., the General Assembly and the Governor move quickly to pass the publications bill. The bill does not change substantive law and may not be used as a vehicle to repeal or otherwise amend legislation enacted by a prior General Assembly or to amend a bill being considered during the same legislative session. Passage of the publications bill usually occurs within a few weeks after the start of the legislative session. Once enacted, the updated C.R.S., as printed by the state’s official contract printer, is deemed to have been properly collated, edited, revised, and constructed. The text of the newly updated C.R.S. becomes legal, irrefutable evidence of the state’s statutory law in a court of law. Without passage of the publications bill, provisions of the published C.R.S. are merely prima facie evidence of the statutory law that may be contradicted or rebutted by other evidence.

    Back to the question, why is it necessary to enact the C.R.S. annually? Enactment of the publications bill ensures that there is one, comprehensive body of primary statutory law for the state of Colorado on which courts and the public may rely. Without passage of the publications bill, all other bills would need to amend not only the last enacted version of the C.R.S., but also the Session Laws for each subsequent year in which a bill amends the same section of law. Eventually, it would become virtually impossible to know or understand what the statutory law of the state actually is. The publications bill may be a little bill, but it achieves a giant result!

  • Bill requests submitted? Then it’s time to decide the bill introduction order

    by Patti Dahlberg

    According to Joint Rule 24(b)(1)(A), each session a legislator is allowed five bill requests. These five requests are in addition to any appropriation, committee-approved, or sunset bills that a legislator may choose to carry. Seems simple, doesn’t it? Not so fast. To keep these five bill requests, a legislator’s requests must also meet specific bill introduction deadlines.

    Bill introduction deadlines:
    A legislator may forfeit a bill request if the bill does not meet specific introduction deadlines.* Before each session starts, a legislator must decide which one of his or her bill requests will be a prefile bill, which two will meet the early bill deadlines, and which two will meet the regular bill deadlines.

    1 plus 2 plus 2The prefile deadline is five days before session starts and usually falls on the Friday before the convening date of session. This year the prefile deadline is Friday, January 2, 2015. Each legislator must have one bill delivered to the front desk of the House or the Senate by this date or risk forfeiting a bill request.

    The remaining House and Senate early and regular bill introduction deadlines vary by chamber and are listed below:

    2015 Bill Intro deadlines

    Bill order
    A legislator’s “bill order” is the order in which his or her bills are introduced. Joint Rule 23 (a) indicates that a legislator should choose his or her prefile bill and two early bills from the three requests made by the December bill request deadline. But the rule also allows a legislator to choose a bill request submitted after the December request deadline to meet the early bill introduction deadlines.

    A legislator’s early bill requests are usually the first three bills the legislator introduces, because a bill submitted by the earliest request deadline is more likely to be further along in the drafting process than a bill request that’s submitted later. But sometimes an early bill request might be more complicated than expected. In this case, the legislator may choose a relatively simple “regular” bill request (i.e., a request submitted after the December deadline) to be one of his or her early bills; then the legislator has more time to work on the more complicated early bill request.

    The Office of Legislative Legal Services (OLLS) encourages legislators to designate their prefile bill and early introduction bills (i.e., the bill order) as soon as possible so that the bill drafters can prioritize these bills to meet the early introduction deadlines. If the OLLS does not have a legislator’s bill order on record, they will contact the legislator for this information and will continue contacting the legislator until they get the information.

    * A legislator can ask for permission from the Committee on Delayed Bills to put in additional bill requests or to waive a specific bill introduction deadline to a different date.

    designate bill order

  • After the Bills Pass: The Importance of Legislative Oversight

    by Patti Dahlberg

    “Legislative oversight” generally refers to a legislature’s review and evaluation of selected activities, services, and operations and the general performance of the executive branch of government. The legislature exercises Oversight definitionthis oversight to ensure that the executive branch administers new and existing programs efficiently, effectively, and in a manner consistent with legislative intent. Oversight has long been the focus of certain legislative statutory committees and has also become a required part of the hearings and work of the standing committees of reference.

    According to a National Conference of State Legislatures article on the Separation of Powers – Legislative Oversight:

      • “Legislative oversight takes many forms. Most often, legislative standing committees are responsible for continuous review of the work of the state agencies in their subject areas. Legislatures also have created special committees or staff agencies designed specifically to evaluate agency operation and performance. In addition, legislatures may review (and sometimes, veto) the rules and regulations developed by executive agencies to implement law.”

    In Colorado, ongoing legislative oversight of state agencies occurs through the following methods:

    Committee on Legal Services – review of administrative rules – §24-4-103, C.R.S.
    The legislature’s review of administrative rules is one way in which the General Assembly exercises legislative oversight of the executive branch. A “rule” is a formal written statement of law that a state agency adopts to carry out statutory policies and administer programs. The General Assembly’s role in the rule-making process is in authorizing an agency to make rules and then reviewing and, if necessary, invalidating rules that are not within the agency’s statutory authority or that conflict with state law. The Committee on Legal Services exercises some of the General Assembly’s rulemaking oversight responsibilities by tracking legislation that requires the adoption of rules and notifying sponsors when required or authorized rules have been adopted and by annually introducing a bill that extends rules that are within the agencies’ statutory authority and allows rules to expire that are outside the agencies’ authority or that conflict with law. For more information on the rule review function of the legislature see “Legislative Oversight of State Agency Rule-making”.

    Joint Budget Committee – fiscal oversight of state budget and finances – §2-3-201, C.R.S.
    The Joint Budget Committee (JBC) is charged with analyzing the management, operations, programs, and fiscal needs of the departments of state government as part of creating a balanced budget, which the state Constitution requires. The Governor reviews the executive-branch budget requests, sets priorities for funding, and sends the executive-branch budget request to the JBC for consideration. The JBC reviews the Governor’s proposed budget and holds public hearings with each state agency and institution to discuss priorities and answer questions. Based on the information gathered in these hearings and other information provided by the JBC staff, the JBC drafts the annual general appropriations bill, which is introduced during the second half of each legislative session.

    Legislative Audit Committee – review of agency performance – §2-3-101, C.R.S.
    The Legislative Audit Committee (LAC) assists in overseeing state government by reviewing the audits that the State Auditor performs of all departments, institutions, and agencies of state government and of other public Auditagencies, as well as reviewing other reports the State Auditor may prepare. In addition, the LAC reviews a number of annual performance audits required by §2-7-204, C.R.S., and conducted by the State Auditor’s office. According to Wikipedia, “an independent examination of a program, function, operation or the management systems and procedures of a governmental or non-profit entity to assess whether the entity is achieving economy, efficiency and effectiveness in the employment of available resources.” Based on recommendations from the State Auditor, the LAC may introduce legislation to create or clarify statutes identified in the audit reports.

    Legislative oversight of principal departments – §2-7-101, C.R.S.
    Section 2-7-101, C.R.S., better known as the SMART Act,* requires each legislative joint committee of reference to conduct hearings with assigned executive-branch departments regarding each department’s performance plans, regulatory agendas, budget requests, and associated legislative agendas – before each session. The goal of these hearings is for legislators to get a better sense of what is going on in the executive branch by asking questions, making sure that the departments are implementing laws as expected, and learning about departments’ legislative agendas before the legislative session starts. The appropriate joint committee of reference is notified when a department does not complete state auditor recommendations in a timely manner and when a department does not adopt legislatively required or authorized rules. The JBC will also use the departments’ performance plans to help prioritize departments’ requests for new funding. For more information regarding the SMART Act, see “So you think you’re so SMART?”

    Sunset Review Process – review of regulatory agencies and functions – §§2-3-1203 and 24-34-104, C.R.S.
    A number of entities, functions, boards, and advisory committees within state government are scheduled to terminate each year due to statutory repeal or “sunset” provisions. Under the sunset process, the Department of Regulatory Agencies (DORA) regularly reviews the functions of each state regulatory agency, division, or board, and each advisory committee, before its termination date, to determine whether the agency, division, board, or advisory committee should continue performing its functions with or without modifications. DORA issues a report to the General Assembly that a committee of reference reviews during the legislative session in a public hearing, which can include testimony from the program’s administrators and interested members of the public. The General Assembly must act by bill to continue the functions provided by an agency, division, board, or advisory committee. If the General Assembly does not act, the agency, division, or board goes into a one-year wind up period. If the General Assembly does not pass a bill to continue an advisory committee, the committee is repealed on the scheduled sunset date. For additional information regarding the sunset review process in Colorado see “The Sunset Process: Legislative Review of Regulatory Agencies and Functions” and “Sunset Reviews Conducted by Standing Committees”.

    * State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act

  • Water Your Plans? A Primer on the Colorado Water Plan

    By Jennifer Berman

    There are numerous demands on Colorado’s water supply. Colorado has a population of 5 million people, and some forecasts project that number will almost double by 2050. Additionally, Colorado’s rivers serve the water needs of 18 downstream states and the United Mexican States.

    Whiskey Water ImageGiven Colorado’s unique water challenges that include extensive population growth, downstream state users, drought, wildfires, and the geographic divide between water supply and water demand1, collaboration is imperative to meet Colorado’s future water needs. Recognizing that need for collaboration among competing water users such as agricultural users, municipal and industrial users, tourism and recreational interests, and environmental interests, Governor Hickenlooper, in May 2013, issued Executive Order D2013-005 directing the Colorado Water Conservation Board (CWCB) to create a Colorado Water Plan (CWP) to develop strategies for meeting Colorado’s competing water demands. The CWP will also focus on maintaining what Representative Randy Fischer, Chair of the interim Water Resources Review Committee (WRRC), describes as our “healthy watersheds and environment, robust recreation and tourism economies, vibrant and sustainable cities and viable and productive agriculture.”

    The governor’s Executive Order directs the CWCB to develop a CWP that specifically addresses:

    • The gap between our water supply and water demand, which is estimated by some forecasts to exceed 500,000 acre-feet of water by 20502;
    • The impacts of agricultural “buy and dry”, which is the transfer of ownership of all of the water rights associated with an agricultural water use to a water user who uses the water for non-agricultural purposes3. One study estimates that Colorado might lose 500,000 to 700,000 acres of currently irrigated farmland by 2050 due to “buy and dry.”
    • Water quantity and quality issues conjunctively;
    • Colorado’s drought conditions; and
    • The nine interstate water compacts and two equitable apportionment decrees that require Colorado to deliver almost 10 million acre-feet of water per year to surrounding states. Failure to adhere to these water-sharing charters is costly; in 2005, Colorado paid Kansas $34 million for a breach of the Arkansas River Compact.

    The CWCB, in consultation with the Water Quality Control Division and other state agencies engaging in waterDry Basin protection or administration, began working on the CWP shortly after the Governor issued the Executive Order. The CWCB released the initial draft sections of the CWB in March and additional draft sections in July. The CWCB has encouraged public comment on the draft CWP and has received more than 1,100 comments so far.

    The CWCB also called upon the state’s nine basin roundtables, which are local groups formed in each of Colorado’s main water basins for the purpose of developing local water policy and planning, to develop basin implementation plans (BIPs)4 to be incorporated into the CWP. The BIPs, for which drafts were submitted to the CWCB in July, identify the specific water needs and challenges faced in each water basin and propose projects and methods for addressing the basin’s specific needs and challenges.

    The General Assembly has played a role in the CWP as well. Last session, it passed Senate Bill 14-115 authorizing the WRRC to hold public hearings in each of the geographic regions associated with a water basin to collect public feedback on the “scope, fundamental approach, and basic elements” of the CWP. This past summer the WRRC conducted nine such hearings throughout Colorado that, in the aggregate, were attended by more than 500 people. The WRRC provided the CWCB with summaries of the public comments it received for consideration in developing the CWP.

    The CWCB will deliver a full draft of the CWP to the governor this December. From there, the basin roundtables will submit their final BIPs in April 2015, and the CWCB will accept public comments on the full draft of the CWP until May 2015. The WRRC will conduct another round of public hearings during the 2015 interim and will provide the CWCB with summaries of the public comments it received and its own comments on the full draft of the CWP. The CWCB will then release a second full draft of the CWP in July 2015 on which the public may comment until September 2015. The CWCB will submit the final version of the CWP to the governor in December 2015.

    Through the CWCB’s online form for submitting feedback and the WRRC’s 2015 public hearings, there is still time to review and comment on the CWP.

    1. Approximately 70 percent of Colorado’s surface water is located west of the Continental Divide, but 70 percent of the state’s water demand lies east of the Continental Divide.↩

    2. An acre-foot of water is the amount of water it would take to cover an acre of land one foot deep. Often, it is described as the approximate amount of water that two households would use in one year.↩

    3. Under Colorado’s prior appropriation system, water is a transferable property right separate from land ownership.↩

    4. Examples of the basin roundtables’ basin implementation plans include the Colorado Basin Implementation Plan and the South Platte Basin Implementation Plan.↩

  • The Resolution Might Be Televised: General Assembly Contemplates Remote Testimony

    by Kate Meyer

    Colorado, the nation’s eighth-largest state by land area, is justifiably renowned for its iconic landscapes, topographic variety, and diverse climate. However, with legislative sessions spanning treacherous winter and unpredictable springtime months, these quintessentially Coloradan features often conspire to impede the ability of the state’s citizens to travel to Denver to testify on legislation. Additionally, time, money, and accessibility concerns can deter residents of more distant locales. As a result, residents hailing from the more far-flung areas of the state can be underrepresented at legislative hearings. To address this inequity, there may soon be an alternative to the requirement to appear in-person in order to give testimony.

    Last session, the General Assembly passed House Bill 14-1303, which enables and directs the Executive Committee of the Legislative Council to promulgate policies that facilitate the receipt of public testimony from remote locations around Colorado. The bill is the General Assembly’s latest effort to adapt modern technology to the legislative process, but don’t expect to see citizens using FaceTime to testify on every bill when the legislature convenes this January. Like many of its forays into the new era of communication, the legislature will implement this bill cautiously and, likely, incrementally.

    What does HB14-1303 do? The bill directs the Executive Committee to “consider, recommend, and establish policies allowing legislative committees to take remote testimony from one or more centralized remote sites located around the state.” If the Executive Committee ultimately approves the use of remote testimony, at least one of those remote sites must be located on the Western Slope. And the Executive Committee is authorized specifically to contract with state institutions of higher education, which are typically well-known and well-equipped, that are willing to serve as those centralized remote sites. Further, the use of video conferencing can be implemented in phases.

    What doesn’t HB14-1303 do? Although HB14-1303 will allow some remote testimony, logistical circumstances, fiscal realities, and technological uncertainties require that the scope of the bill be somewhat limited. Therefore, HB14-1303 also put a number of crucial limitations on the way in which remote testimony will be accepted. Specifically, the bill does not:

    • Require every committee to take remote testimony, on every bill, at every hearing;
    • Erode the General Assembly’s ability to establish and enforce rules of procedure and decorum;
    • Allow citizens to provide remote testimony from any location they wish (say, their kitchen tables or Waikiki Beach); or
    • Require two-way video-conferencing capabilities.

    Other states allowing remote testimony. Two states currently permit remote public testimony. Like Colorado, these states’ capital cities are located in areas that often present geographic and meteorological challenges for many citizens.

    • Alaska’s Legislative Affairs Agency has set up 23 remote Legislative Information Offices throughout the state, which, in addition to providing general legislative information, allow members of the public to participate in committee hearings taking place in Juneau.
    • In 1991, the Nevada legislature appropriated moneys to set up a video conferencing link between committee rooms in the legislature and a room at the Cashman Field Convention Center in Las Vegas, the state’s most populous city.

    What are the next steps? Legislative Council Staff (LCS) is now in the process of evaluating potential vendors for the technology that will be involved with remote testimony. Three committee rooms are being adapted to allow for remote testimony, and LCS is developing related policies for the Executive Committee to consider.

    On September 5, 2014, the interim Water Resources Review Committee participated in a “trial run” of remote testimony. The committee met in the state Capitol, and received testimony from Hanna Holms at Mesa State University’s Water Center in Grand Junction. This “real-world” experience will undoubtedly inform the policies being developed.

    The General Assembly will be checking in on committees’ use of remote testimony through the next two sessions. HB14-1303 requires the director of research at LCS, before August 1, 2016, to submit to the members of the General Assembly a report detailing the extent to which remote testimony has been utilized, the costs associated with offering remote testimony, and any technical or other issues that arose in connection with remote testimony.

  • Bill Request Deadlines Looming — Even for New Legislators

    by Patti Dahlberg and Julie Pelegrin

    The 2014 election is finally over and the first bill request deadlines are just around the corner! One might think that returning and newly elected legislators would have a little time to take a breath and relax awhile before the 2015 legislative session starts. Unfortunately, the legislative rules don’t allow for much relaxation. The bill deadlines require legislators to complete the bulk of bill drafting in December before the first day of the legislative session.*

    Returning legislators have until Monday, December 1, 2014, to submit their first three bill requests to the Office of Legislative Legal Services (OLLS). Newly elected legislators have a little extra time — but not much — to get their session legs. They must submit their first three bill requests to the OLLS by Monday, December 15, 2014. But if all legislators submit their bill requests now, or as soon as possible, drafters can work on rough drafts sooner and work out any drafting kinks long before the first day of session — Wednesday, January 7, 2015.

    What all legislators need to know about requesting bills [Joint Rule 24(b)(1)(A)]:

    • The Joint Rules allow each legislator five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may choose to carry.†
    • To reach the five-bill-request limit within the bill request deadlines, legislators must submit at least three bill requests to the OLLS by the December deadlines. Legislators must submit the last two requests by January 13, 2015.
    • If a legislator submits fewer than three requests on or before the December deadline, he or she forfeits the other one or two requests that are due by that date.†

    The first bill request deadline is still a few weeks away so some legislators may feel they have plenty of time. But if a legislator waits until December to submit the first three bill requests, he or she will, almost immediately, have to provide sufficient drafting information so that the drafters can draft all three bills at once, and the legislator will have to very quickly decide which of these requests will be introduced on the first day of session. Although the legislative rules allow newly elected members of the General Assembly more time to request their first three bills than a returning legislator has, these rules do not actually allow a new legislator more time to have his or her bills drafted.

    If possible, every legislator — even the new ones — should try to submit at least one bill request ASAP. This bill request can touch on any subject matter and does not need to be completely conceptualized. The bill drafting process allows for potential issues or problems to rise to the surface making it easier for the legislator to decide whether his or her idea is “workable.” If it becomes apparent that a request isn’t working, the legislator can withdraw it and replace it with a new request, as long as he or she makes that decision on or before the December 1 deadline for returning members or the December 15 deadline for new members.

    The OLLS encourages legislators to submit more than three requests by the December deadlines. By doing so, a legislator preserves the flexibility to withdraw and replace at least one of his or her requests after the December deadline without losing a request. For example, if a legislator submits only the three-request minimum by the December deadline and later withdraws one of those requests, the legislator forfeits the withdrawn bill request because the rules allow a legislator to make only two bill requests after the December deadline and before the January deadline. On the other hand, if a legislator submits four bill requests by the December deadline and later withdraws one of those requests, the legislator is left with three bill requests that meet the early request deadline plus the legislator can submit the two requests that are allowed after the early bill request deadline — for a total of five bill requests.

    Bill Requests 2

    * Every legislator’s first bill must be introduced on the first day of the legislative session (Wednesday, January 7). Every senator’s next two bills must be ready for introduction on the 3rd legislative day (Friday, January 9), and every representative’s next two bills must be ready for introduction on the 7th legislative day (Tuesday, January 13).

    † A legislator can ask permission from the House or Senate Committee on Delayed Bills to submit additional bill requests or to waive a bill request deadline. Permission to introduce an additional bill request or a delayed bill in the House requires the approval of at least two of these three persons: the Speaker of the House, the Majority Leader, and the Minority Leader. Permission to introduce an additional bill request or a delayed bill in the Senate requires the approval of at least two of these three persons: the President of the Senate, the Majority Leader, and the Minority Leader.

  • Spooky Oddities at the State Capitol

    by Ashley Zimmerman

    As with many old, historical buildings, a number of ghost stories haunt the Colorado state capitol. Officially, there are no ghosts to be found in the building. However, those of us who have smelled an odd perfume, seen an odd figure, or heard an odd hoof beat know better. In honor of Halloween, we present to you a few of the most notable ghosts that unofficially haunt our halls.

    The Bloody Espinosas

    Perhaps the most well-known story of the capitol, this tale begins in 1863. Back then, the Colorado settlement was four years young, and the Gold Rush had brought a curious crowd to the territory. Denver was less a big city and more a town full of tents and temporary occupants hoping to make it rich. A few smaller mining towns were popping up throughout the state as gold was discovered, including Breckenridge, Colorado City, and Black Hawk, but these developments upset many people who already lived in the area. Two brothers from New Mexico, Felipe and Vivian Espinosa, were especially irate at the pioneers moving onto their land in the San Luis Valley and, for the better part of 1863, were intent on killing as many of the new residents as they could. Numbers of the murdered vary, but it’s believed they killed between a dozen and 30 people in just a few months.

    Accounts of how the brothers’ bloody careers ended differ, but eventually the brothers were killed, likely by a volunteer group of citizens from Park County. Their heads were brought to the capitol to collect the bounty set by the governor, but the governor refused to pay and no one knew what to do with the heads. They were first kept in the Treasurer’s Office in the capitol building but were later moved to the sub-basement beneath the capitol. Eventually, the heads were destroyed in the furnace.

    Since then, it’s been said that the heads of the Espinosa brothers can be seen floating through the building after dark. And if you’ve ever heard the sound of horses galloping up and down the main staircase, well, that’s just the Bloody Espinosas…looking for their heads!

    Ghost on stairs

    The Victorian Apparition

    On the third floor of the capitol building, rumor has it that you can see the ghostly visage of a woman wearing Victorian-era garments. She appears out of a mist near the entrance to the senate chambers and then floats off to either side of the chamber before disappearing.

    The Woman in a Long Dress

    A female spirit, appearing in a long, turn-of-the-century dress, is said to wander the steam tunnels beneath the capitol, as well as the capitol building and all the buildings connected to the tunnels in the Capitol Hill area. She’s been seen reading over the shoulders of employees in each of the buildings.

    The Mysterious Tunnels

    Certainly the steam tunnels under the capitol building lend themselves to spooky stories and an overall heightened awareness. In addition to The Woman in a Long Dress, there have been reports of odd cold spells, during which keys, ID badges, and other items are pulled away from the body of the owner and lifted into the air by an unseen force.

    General Spookiness

    While the above stories illustrate a few of the known spirits, there are still a few more spooky happenings in the capitol building that don’t have a known explanation:Ghosts-of-riddle-house

    • In the early hours before business gets going, and in the late hours well after business is done for the day, it’s said that the temperature in many areas of the capitol suddenly drops and a vintage, rose-scented perfume permeates the air before disappearing without a trace as the temperature returns to normal.
    • When business is done for the day, voices, conversations, and footsteps can be heard in and around empty meeting rooms and offices.

    For more information on the eerie and unexplained happenings under the Dome, visit Colorado Central’s two-part story on the Espinosa brothers here and here, as well as the New York Times archival report on the brothers, and “Colorado Legends and Lore: The Phantom Fiddler, Snow Snakes, and Other Tales” by Stephanie Waters.

  • Net Neutrality: I’m totally for it! Wait, what exactly is it?

    by Jennifer Berman

    Hardly anyone is neutral on the issue of net neutrality. Passions flare when the issue is discussed — from Netflix Slow laneand Twitter participating in an “internet slowdown” protest last month to comedian John Oliver’s thirteen-minute rant on his late-night HBO show in early June.

    Although virtually everyone who discusses the issue comes out in favor of net neutrality, the debate gets heated when discussing how the Federal Communications Commission (FCC) should achieve net neutrality. But before discussing which of the two major regulatory courses of action the FCC will likely choose, let’s get everyone up to speed on net neutrality.

    What is net neutrality?

    Understanding net neutrality first requires an understanding of how the internet works. There are three key players in the internet — the internet service providers (ISPs) such as Comcast and Verizon, the content providers such as Google, Facebook, and Netflix, and the end users such as you and me. Sometimes these three key players overlap. You were a content provider when you tweeted a funny comment last week— oh you, you’re so witty! But let’s keep things simple for now by assuming that the key players do not overlap.

    Computer highwayWe can use the overused internet highway analogy to demonstrate how the key players fit together. Think of the ISPs as toll booth operators, the content providers as drivers, and the end users as the drivers’ destinations. The toll booth operators can control which toll lanes are open, how fast the drivers get through the lanes, which drivers are allowed access to their destinations, and how much the drivers have to pay. If given free reign, the toll booth operators could make it very difficult and expensive for drivers.

    Similarly, if given free reign, an ISP could block certain content providers from accessing the ISP’s “backbone network,” which is considered the “last mile” connecting the content provider to the end user. An ISP could also require content providers to pay for priority over other traffic — an internet “fast lane”. Finally, an ISP could discriminate against content providers by giving priority to the ISP’s own content over competing content providers’ content, such as a cable company blocking an online video provider like Netflix.

    Back of shirtNet neutrality is a principle that requires ISPs to treat all content the same, regardless of its source. Net neutrality would prohibit ISPs from engaging in content blocking, paying for prioritization, and preferring an ISP’s own content over competitors.

    Sounds good, right? So why is net neutrality in jeopardy?

    How did we get here?

    Before 1996, all communications systems were treated as common carriers, which meant that providers were required to serve all customers without discrimination. They had no say over the content and had to allow unfettered access.

    The Telecommunications Act of 1996 created differential treatment of “telecommunications services” — those communications networks that offered two-way connectivity to the public– and “information services” — the content and applications shared over telecommunications services. Telecommunications services were regulated but information services were not. Therefore, the FCC could regulate the ISPs, but not the websites and applications.

    But starting in 2002, the FCC deviated from this clear distinction by classifying cable modem services, a subset of ISPs, as information services. In 2005, the FCC broadened the unregulated information services classification to broadband offered through other platforms. Thus, broadband generally became unregulated.

    In response to a backlash for deregulating broadband, the FCC issued a policy statement containing a set of principles “to ensure broadband networks are widely deployed, open, affordable, and accessible to all consumers.” Sounds familiar, right? The 2005 Openness Principles embodied net neutrality.

    In 2010, the FCC promulgated rules codifying the 2005 Openness Principles in an Open Internet Order that included anti-blocking, anti-discrimination, and disclosure rules governing ISPs. In Verizon v. FCC, Verizon challenged the FCC’s authority to issue the Open Internet Order. They argued that it lacked the statutory authority to do so and that the rules it imposed on ISPs were arbitrary and capricious.

    In January of this year, the D.C. Circuit Court overruled the anti-blocking and anti-discrimination provisions of the Open Internet Order because those provisions essentially treated ISPs as common carriers, but the ISPs were explicitly exempted from common carrier regulations.

    With the D.C. Circuit gutting the FCC’s Open Internet Order, net neutrality advocates worry that ISPs are free to block websites and applications from their network and implement pay-for-priority routing schemes.

    Now what?

    gravestoneOn May 15, 2014, the FCC issued a notice of proposed rulemaking to address net neutrality. In the notice, the FCC has proposed two avenues to codify net neutrality without running afoul of the Verizon ruling.

    The first avenue is to use its authority under Section 706 of the Telecommunications Act of 1996 to maintain an open internet. Section 706 requires:

    [The FCC shall] encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market or other regulating methods that remove barriers to infrastructure investment.

    Critics of this approach point out that, in light of the Verizon holding, it does not appear that the FCC’s authority under Section 706 would permit the agency to prohibit paid prioritization. To do so would be treating ISPs as common carriers without classifying them as common carriers.

    The second avenue is to reclassify ISPs as common carriers under Title II of the Communications Act of 1934. By reclassifying ISPs as common carriers, the FCC would presumably be able to prohibit paid prioritization because it can regulate against “unjust or unreasonable discrimination in charges, practices, classifications, facilities, or services” under section 202 of Title II. Critics of the Title II approach point out that section 202 is just one of 47 statutes governing common carriers, and that imposing common carrier status on ISPs would stifle innovation and competition in internet services. And some ISPs think such a reclassification would not ban paid prioritization.

    It’s a thorny issue. The FCC invited the public to comment on “the best way to define, prevent and punish the practices that threaten an open Internet” and “on the benefits of both section 706 and Title II, including the benefits of one approach over the other.” And comment we did …

    The FCC received more than 3.7 million comments on its proposed rulemaking. This is almost twice the number of comments the agency received in response to Janet Jackson’s “wardrobe malfunction” at the Super Bowl XXXVIII halftime show.

    The FCC also sought expert opinions on the best way to ensure internet openness. On September 16th, the FCC hosted Open Internet Roundtables, at which panels of experts from a variety of disciplines debated three issues: threats to internet openness; the proper scope of internet openness rules; and how best to enhance transparency by internet service providers.

    While the FCC wades through these comments and reflects on the recent roundtable discussions, there is talk of addressing the net neutrality issue through legislation. In June, Senator Patrick Leahy of Vermont and Representative Doris Matsui of California introduced the “Online Competition and Consumer Choice Act”. The Act would require the FCC to prohibit paid prioritization agreements between ISPs and content providers.

    While we’re waiting to see what the FCC and Congress do about net neutrality, let’s enjoy this award-winning internet cat video: Winner of the Golden Kitty Award at the 2014 Internet Cat Video Festival.

  • When Will There Be An “Official” Electronic Version of the Colorado Revised Statutes?

    by Jennifer Gilroy, Revisor of Statutes

    When you access information on the internet, how reliable do you think it is? What if the source of the information you’re looking at is the state or federal government? Do you think you can rely on its accuracy or authenticity? What if it’s the Colorado law and you found it on the Colorado General Assembly’s website? Seems like it should be reliable, right? Maybe not.

    The savvy internet user knows that the reliability of even government-published legal materials on the internet can be questionable. So in 2011, the National Conference of Commissioners on Uniform State Laws proposed a uniform act that would require a government publisher of electronic legal materials to meet certain standards before the government agency could designate the materials as an “official” version. The act, called the “Uniform Electronic Legal Material Act” (UELMA), was immediately embraced by the Colorado legislature, which was among the first in the nation to enact it. See House Bill 12-1209.

    In their official comments to UELMA, the uniform law commissioners observed that providing information on line is integral to conducting state government in the 21st century. But they also acknowledged that changing to an electronic environment raises new issues in information management. In their prefatory note, the commissioners stated:

    [e]lectronic legal information moves from its originating computer through a series of other computers or servers until it eventually reaches the individual user. The information is susceptible to being altered, whether accidentally or maliciously, at each point where it is stored, transferred, or accessed. Any such alterations can be virtually undetectable by the consumer. A major issue raised by the change to an electronic format, therefore, is whether the information presented to consumers is trustworthy, or authentic.

    To address this concern and establish reliable, outcomes-based electronic resources, the commissioners drafted UELMA to guide would-be government publishers of official electronic legal materials.

    As drafted by the uniform law commissioners and as adopted by the Colorado General Assembly, UELMA requires an official publisher of legal material in an electronic format to meet the following three conditions before it may designate the material as official:

    1. The official publisher must authenticate the legal material in the electronic record;
    2. The official publisher must provide for the preservation and security of the record; and
    3. The official publisher must ensure that the material is reasonably available for public use on a permanent basis.

    For purposes of Colorado’s UELMA law, the General Assembly is the “official publisher” of the state constitution, the Colorado Session Laws, and the Colorado Revised Statutes. So long as the General Assembly continues to publish these legal materials in a printed format, it does not have to designate the electronic version as official or meet the UELMA requirements. However, before the General Assembly may designate an electronic version of any of the legal materials it publishes on line as official, it must meet the three prerequisites.

    As part of its contract with the Colorado General Assembly to print and distribute the official Colorado Revised Statutes books, LexisNexis also hosts the on-line version of Colorado’s statutes. However, the General Assembly has not designated this electronic version of the statutes as an “official” version of the law. In fact, statute provides that only the print version of the Colorado Revised Statutes may be viewed as “official” statutes and is entitled to be considered as evidence in Colorado courts. In other words, the on-line version of Colorado’s statutes does not meet the requirements of UELMA and is not, therefore, “official”.

    Enter the Legislative Digital Policy Advisory Committee (LDPAC). In 2013, the General Assembly enacted legislation creating the LDPAC. See House Bill 13-1182. This committee, comprised of staff from all three branches of government, was initially charged with developing a plan to digitize archived audio recordings and a plan to implement UELMA. In 2014, the General Assembly re-established the LDPAC and, adding three members to the committee, directed it to continue studying and make recommendations to the Joint Budget Committee and the Committee on Legal Services regarding the implementation of UELMA, including authenticating certain legislative electronic legal materials such as the Colorado Session Laws and the Colorado Revised Statutes. See House Bill 14-1194.

    The LDPAC has met three times this year and recently issued its first progress report. In studying the issue, the LDPAC is researching the technology and government resources that the other states that have adopted UELMA (now 10) are using to authenticate their electronic legal material, including the associated costs as well as the advantages and disadvantages the various governmental agencies have experienced in the process. The LDPAC’s final report is due October 1, 2015. Thereafter, expect legislation and, in the not-too-distant future, the designation of an on-line version of the Colorado Revised Statutes as official!