by Kristen Forrestal and Julie Pelegrin
When a legislator crafts a bill, most of the drafting choices center on the substantive policies that the legislator is proposing. However, there are a few nonsubstantive, but important, questions that a drafter is likely to ask the bill sponsor. This article is intended to help bill sponsors decide the answers to some of these questions by explaining the outcomes of various options.
Reporting requirements – do you want them to expire in 3 years?
Often, a bill creates a new program or requires an executive branch agency or the judicial branch to implement new duties. Naturally, the General Assembly wants to know whether the new program or duties are accomplishing the goals of the legislation. Often, the bill includes a requirement that the executive branch agency or an office within the judicial branch must submit a report to the General Assembly that describes the agency’s or office’s progress in implementing the program or duties and any results achieved. Over the years, these types of reporting requirements have resulted in hundreds of reports submitted to committees of the General Assembly, many of which may no longer be useful.
In 1996, the General Assembly enacted section 24-1-136 (11), C.R.S., which states that every requirement for a report to the General Assembly by an executive branch agency or by the judicial branch automatically expires after three years unless the General Assembly passes a bill to continue the requirement. This means that, if a bill creates a reporting requirement, the bill sponsor should decide whether to allow the reporting requirement to expire after three years or to extend the reporting requirement, either for a specified number of years or indefinitely. Depending on the bill sponsor’s decision, the bill should include a reference to section 24-1-136 (11), C.R.S., and either recognition that the reporting requirement will expire in three years or language that makes an exception to this section and extends the reporting requirements beyond three years.
Do you prefer a safety clause or a petition clause?
The last section of every bill is either a safety clause, which says the act is necessary for the immediate preservation of the public peace, health, and safety, or a petition clause, which says the act takes effect 90 days after the legislative session adjourns unless someone files a petition to refer the act to the ballot. It’s up to the bill sponsor to decide which clause appears in his or her bill.
These two clauses arise from section 1 of article V of the state constitution. This section states that the people reserve to themselves the power to approve or reject at the polls any act that the General Assembly may pass. To exercise this power of referendum, a person must submit a petition signed by several thousand registered electors to the Secretary of State within 90 days after the legislative session adjourns. The act cannot take effect until after the 90-day period has passed, which is usually the first or second week of August. If someone files a petition and the act is referred to the ballot, the act cannot take effect until after the Governor proclaims the results of the election, which may be January of the year after the act passed, or may be as late as January two years after the year in which the act passed–20 months after the legislative session adjourned.
The constitution makes an exception for laws that are necessary for the immediate preservation of the public peace, health, or safety. These laws are not subject to the power of referendum, so they can take effect as soon as the Governor signs them. It is completely within the power of the General Assembly to decide whether a law is necessary for the immediate preservation of the public peace, health, or safety.
The people of Colorado have exercised the power of referendum only very rarely. The last time a person petitioned an act onto the ballot was in 1932, so it’s very likely that an act that passes without a safety clause will take effect in early August. In deciding whether to include a safety clause in a bill, a bill sponsor may consider whether there is a compelling reason or need for the bill to take effect sooner than August.
For more information on the power of referendum and safety clauses, please see the earlier LegiSource article “The Power of the People – Reservation of the initiative and referendum powers.”
Do you want your bill to take effect on a specific date?
Regardless of whether a bill includes a safety clause or a 90-day effective date clause, a bill sponsor may want to specify the exact date on which a bill will take effect. Because the fiscal year begins on July 1, a bill sometimes needs to take effect on July 1. At other times, for fiscal or other reasons related to implementation, a bill sponsor may choose to delay the bill’s effectiveness until January 1 or some other date.
It is also helpful with certain types of bills, such as bills that create crimes or affect civil court proceedings, to specify the effective date within the text of the bill. In these types of situations, it’s helpful to the public to know exactly when they must begin complying with a change to the law.
If a bill does not have an effective date clause, it will take effect either upon signature by the Governor, if the bill has a safety clause, or 90 days after the legislative session adjourns if it does not have a safety clause. If a bill sponsor wants a bill to take effect on a specific date, the bill must include an effective date clause. And if the specific effective date is sooner than August, the bill must include a safety clause as well as an effective date clause.
If the bill sponsor wants a bill to take effect on a date that is more than 90 days after the legislative session adjourns, the drafter will usually use language that states the bill will take effect on the specified date, but only if a petition is not filed to refer the act to the ballot. However, if the bill sponsor decides that a bill should not be subject to the power of referendum, the bill may include a safety clause and a specific effective date that is later than August.