Colorado LegiSource

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

Month: January 2015

  • Constitutional Rules for Legislation

    by Julie Pelegrin

    As has been discussed several times in LegiSource, the General Assembly’s authority to legislate is plenary – which means complete or absolute – except as specifically limited by the state constitution. Many of the constitutional restrictions on the power of the General Assembly apply to specific subjects like the ability to tax, requirements regarding the personnel system, funding for public education, and legalizing marijuana. However, there are several that apply to legislation, regardless of the subject.

    Art. V, Sec. 21: Single subject requirement
    The most well-known requirement that the constitution imposes on legislation is the single subject rule: A bill cannot contain more than one subject, and that subject must be clearly expressed in the bill title. This rule actually does not apply to a bill that only contains appropriations, for example, the annual general appropriations or “long” bill. If a bill contains items that are not included within the subject specified in the bill title, a court may hold that those items are unconstitutional, but the rest of the bill, so long as it does fit within the subject of the bill title, will not be unconstitutional. For more on bill titles, see Keeping a Bill Title Constitutional and Informative; and Bill Title Questions…and Answers.

    Art. V, Sec. 18: Each bill must have an enacting clause
    To be constitutional, each bill must begin with the phrase, “Be it enacted by the General Assembly of the State of Colorado.” As a matter of practice, if someone amends a bill to remove the enacting clause, the bill is considered dead.

    Art. V, Sec. 17: Laws only passed by bill; bill can’t change from its original purpose
    Only a bill can create or amend a law; a resolution, joint resolution, memorial, or joint memorial does not have the force of law and is not enforceable as law. The General Assembly cannot amend a bill so significantly that the bill no longer accomplishes the purpose it was written to accomplish when introduced, as that purpose is expressed in the bill title.

    Art. V, Sec. 19: Bills take effect by a particular date; bill cannot be introduced with only a title
    When the General Assembly passes a bill, it takes effect on the date specified in the bill. If the bill doesn’t specify a date, the bill takes effect when it is signed, or allowed to become law, by the Governor. A bill that doesn’t include an effective date will include a safety clause. For more on safety clauses and the power to refer measures to the ballot, see How would You Like Your Bill? Questions a Bill Sponsor Must Decide; and The Power of the People – Reservation of the Initiative and Referendum Powers. A legislator cannot introduce a bill that consists only of the bill title; a bill must also include text that sets forth the changes to existing law or makes appropriations.

    Art. V, Sec. 31: Revenue bills must start in the House
    A bill that raises revenue must be introduced first in the House. The Senate may amend the bill after it passes the House. Several years ago, the Attorney General issued an opinion interpreting this section as applying to bills that raise or reduce state general fund revenue.

    Art. V, Sec. 32: General appropriations bill cannot include substantive provisions
    The general appropriations bill can only include appropriations to pay the expenses of the executive, judicial, and legislative branches, state institutions, interest on the public debt, and public schools. It cannot include substantive changes to the statutes. All other appropriations must be made in separate bills, which may include both substantive and appropriation provisions, and which must comply with the single subject requirement.

    Art. V, Sec. 34: Appropriations to private institutions are prohibited
    The General Assembly cannot appropriate state moneys for any charitable, industrial, educational, or benevolent purpose to a person, corporation or community that the state does not control. And the General Assembly cannot appropriate moneys to a denominational or sectarian institution or association. It is important to note that the courts, in interpreting and applying this section, have developed a “public purpose” exception to this section. More on that in a later article.

  • ICYMI: A Refresher on the Legislative Rules

    With the end of the second full week of the legislative session, committees of reference are looking at calendars full of bills and both houses will soon be spending hours debating bills in committee of the whole and on third reading. While there’s still a little breathing room, we at LegiSource decided it would be helpful to provide a quick refresher on the legislative rules: in general, for committees of reference, for committee of the whole, and for third reading. This collection of articles from the LegiSource archives provides a relatively short primer on the rules and quick references to the rules that are most often invoked. Remember: You can’t play the game if you don’t know the rules!

    The Principles of Parliamentary Procedure – a Stepping Stone to Learning the Rules

    Obviously, there are many legislative rules, and it’s difficult to learn and remember all of them. You may want to start by learning the basic principles behind legislative procedure. Knowing the principles may help you understand and remember the purposes behind the rules, even if you can’t remember each specific rule. The introduction to Mason’s Manual sets forth these ten principles for group decision making:

    • The group must have the authority to take the action it is trying to take.
    • The group must meet to take action.
    • All members of the group must receive proper notice of the meeting.
    • A quorum must be present at the meeting.
    • There must be a question before the group that the group is authorized to decide.
    • There must be opportunity to debate the question.
    • The question must be decided by taking a vote.
    • For an action to be taken or a question decided, there must be a majority vote of the group.
    • There can be no fraud, trickery, or deception resulting in injury to any member.
    • To be valid, an action or decision by the group must not violate any applicable law or constitutional provision.

    Making Sense of Committee Rules

    As the committees of reference swing into action for the 2014 regular legislative session, some legislators may be struggling to raise their committee rule IQ. This article is a short overview of the more important committee procedural rules to help guide you through the coming hours of committee hearings.

    Second Reading and the Committee of the Whole

    The Merriam-Webster online dictionary defines “committee of the whole” as “the whole membership of a legislative house sitting as a committee and operating under informal rules.” But just what are those rules and how informal are they?

    Third Reading – Overview of Rules

    The legislator’s bill has passed the committee of reference, passed the Committee of the Whole on second reading, and is finally calendared for third reading and final passage. There are fewer third-reading rules to learn, but knowing these rules is crucial if the bill sponsor wants to ensure that the bill safely finishes its journey through the House or the Senate.

  • Are Temporary Legislative Rules of Procedure Really Temporary?

    by Sharon Eubanks

    On January 7, 2015, the Senate and the House of Representatives of the 70th Colorado General Assembly convened amid much pomp and circumstance. The day was filled with a multitude of activities in each chamber – reading the election results for the appropriate chamber as certified by the Secretary of State, calling the roll of members, administering the oath of office, electing a presiding officer, and, of course, delivering speeches. The chambers were filled with Representatives and Senators, their families and friends, legislative staff, and members of the media. It was a headline-making day full of anticipation and excitement.

    But both houses performed one activity on opening day that received little notice and is probably even less understood. This activity was adopting the legislative rules of the previous General Assembly – in this instance the 69th General Assembly that first convened in January 2013 – as the temporary legislative rules of the 70th General Assembly.

    Wait…what?

    It is the long-standing custom and practice of both the Senate and the House to adopt a simple resolution on the first day of session that makes the rules of each chamber of the previous General Assembly the temporary rules of that chamber for the newly convened General Assembly. This year, they accomplished this by passing House Resolution 15-1001 and Senate Resolution 15-001. Also, by adopting a joint resolution, the Senate and the House make the joint rules of the Senate and the House of the previous General Assembly the temporary joint rules of the Senate and the House of the newly convened General Assembly. This year, they passed Senate Joint Resolution 15-001.

    While you now know how the General Assembly adopts temporary legislative rules on opening day, you are probably still wondering – why did this legislative custom and practice develop? And when do the temporary rules become permanent?

    As to why, the answer is simple. Procedural rules adopted by one legislature are not binding on a subsequent legislature. In fact, the legislative rules adopted by the previous General Assembly automatically expire when a new General Assembly convenes. Once the 70th General Assembly convened on opening day in accordance with constitutional procedures, (see Colo. Const. Art. V, Secs. 2 & 7), neither the Senate nor the House had any legislatively adopted rules to govern their proceedings – no rules on the order of business, the preparation of a calendar and a journal, bill introduction deadlines, motions, voting, or committees. On the first day of the first legislative session, both chambers need to adopt rules for their proceedings as authorized by Colo.Const. Art. V, Sec. 12, and the easiest and quickest way to do so is to adopt the legislative rules of the previous General Assembly as the temporary rules of the new General Assembly.

    Sometimes a chamber will change the temporary rules it adopts by amending the rules in the same resolution used to adopt the temporary rules or in resolutions introduced later in the session. For example, it has long been the practice of the House to specify in the same resolution that adopts the temporary House rules that the temporary House rules may be amended by the affirmative vote of a majority of the members elected to the House until the House adopts permanent rules. This is a significant deviation from House Rule 47, which requires a 2/3rds vote of all House members to amend, suspend, or repeal any House rule.

    Likewise, the Senate resolution that adopts the temporary Senate rules provides that the temporary rules may be amended by the affirmative vote of a majority of the members elected to the Senate. Otherwise, Senate Rule 34 (a) requires a 2/3rds vote of all members elected to the Senate to amend or repeal a rule unless a Senator gives three days’ notice, in which case a vote of only the majority of members elected is required.

    So making the temporary legislative rules of a chamber permanent makes it more difficult to amend or repeal the rules of that chamber, which may help explain why the General Assembly rarely makes temporary legislative rules permanent. In fact, during the last fifty years, the General Assembly and its houses have almost always operated under temporary legislative rules for the entirety of each General Assembly. Which leaves us to ponder the true nature of a temporary legislative rule.

  • Legislative Legal Services: The Variety of “Services” We Provide Beyond Bill and Amendment Drafting

    by Dan Cartin

    Legislative Legal Services provides a variety of written materials and services to legislators in addition to their bill and amendment drafting needs. We hope each legislator will learn about and make full use of these ancillary services available from our staff during the 2015 session. Our homepage is located at http://leg.colorado.gov/agencies/office-of-legislative-legal-services.

    Legislative Legal Services is the General Assembly’s nonpartisan legal staff agency. We have a statutory and ethical duty to represent the General Assembly as a whole. And we are obligated to serve the best interests of our institutional client, the General Assembly, as distinguished from the individual interests of any specific legislator. We balance that obligation with our statutory direction to prepare bills, amendments, and other documents for individual legislators and to maintain strict confidentiality when doing so.

    In addition to our primary function of drafting bills, resolutions, and amendments, the Legislative Legal Services staff, upon request, can provide legislators with written materials to help them understand the current state of the law and what other states are doing and to help them explain their bills. Our attorneys may not always be able to respond quickly to every legislator’s request due to the time constraints created by bill and amendment drafting demands. But we will do our best to provide the requested materials as soon as practicable, time permitting and on a first-come, first-served basis. Examples of ancillary materials available upon request, time permitting, include:

    • More detailed, written explanations of bills;
    • Summaries of changes made to a bill in committee, in the first house, or in the second house;
    • Tables comparing bill provisions;
    • Explanations of state or federal statutes;
    • Summaries of case law relevant to a bill;
    • Summaries of case law interpreting a particular statute or issue;
    • Legislative histories of issues or bills;
    • Legislative histories of constitutional or statutory provisions;
    • Comparisons of Colorado law with the law of other states on particular issues;
    • Lists of all Colorado statutes addressing an issue; and
    • Legal opinions regarding legislation.

    With regard to legal opinions, occasionally a legislator will ask us for a legal opinion on an issue that relates to pending legislation. We hold these requests in strictest confidence. We will not release a written memorandum to other persons without the permission of the legislator who requested it. And we will give the same answer if another legislator asks us the same question, which will result in identical legal opinions for different legislators.

    There are some limitations on the materials and services we can provide to legislators due to our role as nonpartisan legislative staff. Examples of the documents and tasks that Legislative Legal Services is not allowed to provide include:

    • Voting records on an issue or bill;
    • Talking points advocating or opposing a policy position;
    • Carrying messages that encourage a legislator to vote for a bill or discourage a legislator from voting on a bill;
    • Soliciting legislators as joint prime sponsors, cosponsors, or second house sponsors;
    • Violating confidentiality, e.g., telling a legislator about amendments prepared for other legislators to his or her bill; telling a legislator what another legislator said or told others about the legislator’s bill; telling a legislator what legal advice our office gave another legislator;
    • Assisting a legislator in counting votes; and
    • Advocating for passage or defeat of legislation on policy or any other grounds.These lists illustrate the materials or services we can and cannot provide, but they are not exhaustive. If a legislator has a request for materials or assistance, please ask us. If it’s something we can provide, we will.

    Please visit the Legislative Legal Services website for a better idea of the types of services and products we can help with. The link for “Legal Topics”, among others, is an especially good resource for information concerning recurring legislative legal topics and issues.

    We are here to help all of the members of the 70th General Assembly achieve a successful legislative session in 2015. We encourage legislators to fully utilize the Legislative Legal Services staff for all of their legislative needs during the session, including those described here that go beyond bill and amendment drafting.

  • Constitution Controls the Start and End of Regular Legislative Sessions

    by Patti Dahlberg

    Why start the legislative session so early — January 7 — this year? Because it’s the law! The convening date for a legislative session, the length of the legislative session, how much time the Governor has to act on bills as they are passed, and other dates and time periods that come into play during a legislative session are determined by the Colorado Constitution.

    Some of the constitutional provisions governing the legislative session have been around since Colorado was a territory. And the citizens of Colorado have voted more provisions into the constitution since Colorado became a state 139 years ago. Either way, constitutional provisions are the ultimate law of this land.

    The constitutional provision that determines when the legislative session annually convenes is section 7 of art. V, and requires the General Assembly to meet in regular session at 10 a.m. “no later than the second Wednesday of January each year.” This year, the General Assembly is actually convening on the first Wednesday in January. ConstitutionThis is necessary because section 1 of art. IV requires the Governor and Lieutenant Governor to take office by the second Tuesday of January. But section 3 of article IV requires the General Assembly to declare the winner of the election for Governor and Lieutenant Governor or to decide who the winners are if the general election ends in a tie or is contested. To declare the winners, the General Assembly must be in session. So, each time a Governor is elected, the General Assembly must convene before the second Tuesday of January.

    Each regular legislative session can last no longer than 120 days, including Saturdays and Sundays and any other days the General Assembly may decide to take off (section 7 of art. V). A regular legislative session can last fewer than 120 days, which has happened as recently as 2008. Section 7 also allows the General Assembly to meet outside of a regular session when convened in a special session by the Governor or by written request of two-thirds of the members of each house. During a special session, the General Assembly can consider only the specific subjects listed in the Governor’s call or in the written request. For more information on special sessions, see “Frequently Asked Questions concerning Special Legislative Sessions”.

    Other constitutional provisions regarding the timing of legislative sessions include:

    • Section 15 of art. V: During a legislative session, neither the House nor the Senate may adjourn for more than three days without the consent of the other house.
    • Section 22 of art. V: Before a bill can become law, the votes on the bill must be taken on two separate days in each house.
    • Section 11 of art. IV: The Governor has 10 days during the legislative session in which to sign a bill, veto and return it, or allow the bill to become law without a signature. The Governor has 30 days to act on bills that the General Assembly sends to him or her for signature during the last 10 days of session.