Colorado LegiSource

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

Month: March 2015

  • Is it a motion? Is it a COW motion? No! It’s a Supermotion!

    By Jery Payne

    Imagine you’re sitting down to hear testimony at a committee hearing. People are signing up to testify. The committee chair asks the sponsor to explain the bill. And another member says, “I move the bill to the committee of the whole.” The chair says the motion is in order, and you think, “No, it’s the wrong order. The motion is the last part of the hearing. And isn’t this bill supposed to go to Finance Committee? What’s going on?” Someone says, “It’s a supermotion!”

    Nope. Although this situation does not follow normal practice, this motion is not a supermotion.

    gavel 3-26In 1988, the people approved a group of amendments to the Colorado Constitution. These amendments are known as GAVEL, which stands for “give a vote to every legislator.” One of these amendments is Section 20 of Article V, “A motion that the committee report the measure favorably to the committee of the whole, with or without amendments, shall always be in order within appropriate deadlines.” Of course, moving a bill to the committee of the whole is normal practice. But GAVEL made it possible for a person to make this motion at any time without the possibility of the chair ruling the motion out of order. So if a bill hasn’t missed a deadline, it may be considered and moved to the committee of the whole. In other words, GAVEL was intended to stop a committee chair from refusing to schedule a bill. This is known as a pocket veto.

    A supermotion still refers a bill to the committee of the whole, but it’s made under House Rule 25 (j) (1) (G), which reads, “If a motion is made that a committee report a measure favorably to the committee of the whole … when such measure is not in the order of business …, then such measure shall be considered by the committeesupermotion upon its merits.” So a bill can be moved to the committee of the whole even when it’s not being heard as scheduled. This can mean either when the bill has been scheduled on the committee’s calendar but hasn’t been taken up yet or even when the bill hasn’t been so scheduled.

    Because of this overlap, confusion is common. In Grossman v. Dean, the appeals court cited both these sources of authority to define “supermotion”: “[A] motion becomes a supermotion under the GAVEL amendment and the House Rule when it is made out of order of the calendared business of the committee.” Neither GAVEL nor House Rule 25 actually use the word “supermotion,” the word itself is legislative slang. So you can’t look it up.

    In the example above, the motion is made when the bill has already been brought up by the chair according to the committee’s calendar. So the bill’s scheduled hearing has begun. It becomes a “supermotion” only when a legislator goes over the chair’s head. A supermotion bucks the calendar. This is what makes it super.

    Speaking of GAVEL and Grossman v. Dean, the court held that these types of motions can lead to a constitutional problem. GAVEL also has other requirements that need to be met. I’ll discuss them next week.

  • When Does an Act Become a Law? It depends.

    by Patti Dahlberg and Julie Pelegrin

    Section 19 of article V of the state constitution specifies that an act takes effect “on the date stated in the act, or, if no date is stated in the act, then on its passage.” This seems simple enough. But there are other considerations question markand constitutional provisions that can affect when a bill eventually becomes law. To determine the date that a bill becomes law, you will need to read the last few sections of the bill to find the appropriate “clause.”

    Effective date clauses:

    It is common practice for a bill to state that it takes effect on a specific date, which may be several weeks or months after adjournment of the legislative session. This interval of time between the date that the bill is signed into law and the specified effective date allows state agencies, local governments, courts, and citizens to learn of the new law and make any required adjustments to comply with the new law. A typical effective date clause looks like this:

    SECTION 20. Effective date. This act takes effect July 1, 2015.

    Applicability clauses:

    An applicability clause specifies that the new law will apply to certain events or transactions that occur on or after the effective date. An applicability clause can be used with either an effective date clause or a safety clause (see below). Applicability clauses are frequently used in criminal laws and other acts concerning contracts, contractual relationships, or court proceedings. The following are some common applicability sections:

    SECTION 81. Effective date – applicability. This act takes effect November 1, 2015, and applies to offenses committed on or after said date.

    Or

    SECTION 25. Applicability. This act takes effect upon passage and applies to fiscal years beginning on or after July 1, 2015. (Note: This applicability clause must be accompanied by a safety clause.)

    Safety clauses and 90-day Petition Clauses:

    Section 19 of article V of the state constitution says that a bill takes effect upon passage if it doesn’t specify an effective date. But section 1 of article V of the state constitution says that the people reserve to themselves the power to approve or reject at the polls all or any portion of an act passed by the General Assembly – generally referred to as the “referendum power.” To refer an act to the ballot, a citizen must submit a petition to the Secretary of State within 90 days after the General Assembly adjourns the legislative session.

    Section 1 of article V also says that the people cannot refer an act to the ballot if the act is “necessary for the immediate preservation of the public peace, health, or safety….” To clearly identify an act that is not subject to the referendum power, the General Assembly will include in the act a safety clause:

    SECTION 17. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

    If an act includes a safety clause, section 11 of article IV of the state constitution determines the date of passage. This section requires that every bill be presented to the Governor for approval or veto. A bill becomes law when signed by the Governor, when the Governor fails to act on the bill within the time allowed, or, in the case of a signed billvetoed bill, when the General Assembly overrides the Governor’s veto.

    In the vast majority of cases involving a safety clause, the date of passage is the date of the Governor’s signature. For those bills that the Governor does not sign or veto, the date of passage is the day following the final date for the Governor to act on a bill presented to him or her. If the Governor vetoes a bill and the General Assembly overrides the veto, the date of passage is the date on which the second house passes the veto override motion.

    The Colorado courts have held that the General Assembly is vested with the exclusive power to decide the appropriateness of using the safety clause. The question of including the safety clause in legislation is a matter of debate in the legislative process, and the courts will not review or question the General Assembly’s decision.

    If the General Assembly decides a bill is not necessary for the immediate preservation of the public peace, health, or safety, it doesn’t make sense for it to pass without a specified effective date and take effect upon passage only to have its effectiveness questioned 90 days later when a citizen turns in a petition to put the act on the ballot. To avoid this, in each bill that does not have a safety clause, the General Assembly includes a “90-day petition” clause. This clause is really a specialized type of effective date clause. The standard 90-day petition clause reads as follows:

    SECTION 33. Act subject to petition – effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2015, if adjournment sine die is on May 6, 2015); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.

    Bills usually default to the effective date specified in the 90-day petition clause, but they may have a different specified effective date, which must be later than 90 days after adjournment. In some cases, this date is many months into the future, sometimes even into the next year.

    Fun Facts About Referendums:

    • The General Assembly can refer an act or part of an act to the people by substituting a referendum clause in place of the safety clause or 90-day petition clause. The bill then becomes a “referred bill,” and it is not subject to the Governor’s veto power.
    • The procedure by which the people can refer to themselves an act or part of an act passed by the General Assembly is often called a “recision referendum” or an “initiated referendum.”
    • According to General Assembly records, the last act that was referred to the ballot by petition of the people was in 1932. The act increased the tax on oleomargarine – and it was affirmed by the voters.
    • Appropriation acts for the support and maintenance of the departments of state and state institutions are not referable either by petition of the people or by an act of the General Assembly, even if the acts do not contain the safety clause.

  • Requesting an Interim Committee? All You Need is a Letter

    (Reprinted with updates for the 2015 Session)

    The process for requesting an interim study committee changed last year. Pursuant to section 2-3-303.3, C.R.S., a legislator can no longer create an interim committee by passing a bill or resolution. Instead, a legislator who thinks a group of his or her colleagues should study a particular issue during the interim must submit a formal letter to the Legislative Council for consideration and prioritization.

    Requesting the creation of an interim study committee is a fairly simple process. A legislator starts by contacting either the Office of Legislative Legal Services or the Legislative Council Staff office to ask for a letter to formally request the creation of the interim study committee. Legislators letterswill also soon have the ability to initiate the request through the iLegislate iPad application. The only information the legislator needs to provide when asking for the letter is the general topic that the interim committee will study. Both offices will assign staff to work with the legislator to develop the necessary details for the request and to prepare and finalize the letter. The legislator can also identify lobbyists or others who are authorized to work with staff in crafting the language of the letter.

    The final letter must specify key details concerning the interim committee, such as:

    • The scope of the policy issues the committee will examine;
    • The number of legislators on the committee;
    • How many times the committee will meet;
    • Whether a task force is needed to assist the committee; and
    • An estimate of the number of bills the interim committee may request to address the issues it studies.

    The legislator who submits the letter request may ask other legislators who are in favor of creating the interim study committee to sign on as “supporters” of the request, similar to signing on as cosponsors of a bill or resolution. Unlike bills and resolutions, a letter requesting the creation of an interim study committee cannot have joint prime sponsors.

    Once the letter is ready, the legislator must submit it to the Legislative Council for consideration by the Executive Committee. For the 2015 session, the deadline for submitting the letter is Friday, April 10, 2015. To help ensure adequate time to prepare the final letter for submission to the Executive Committee, a legislator must submit his or her request for a letter to the Office of Legislative Legal Services or the Legislative Council Staff office no later than Tuesday, April 7, 2015. The Legislative Leadership has stated no exceptions will be granted on this request deadline.

    The Legislative Council will meet no later than Friday, April 24th this year to review and prioritize all of the interim study requests. Before that meeting, the Director of Research of the Legislative Council will review the 2015-16 legislative budget and report to the Executive Committee of the Legislative Council the number of interim committee meetings that are funded for the 2015 legislative interim. The Legislative Council will consider this information in deciding how many interim studies to prioritize. The President of the Senate, the Speaker of the House of priority envelopeRepresentatives, and the Minority Leaders of the Senate and the House will appoint the legislative members of the prioritized interim committees.

    Using this process, most interim committees will be created by the end of the legislative session. However, after the General Assembly adjourns sine die, a legislator may submit to the Executive Committee a written request for an interim study committee. If the Executive Committee finds that the issue is the result of new or changed circumstances and the issue warrants study, the Executive Committee may create an additional interim committee or add the issue to the agenda of an existing interim committee.

    For questions, please contact the Office of Legislative Legal Services at (303) 866-2045 or the Legislative Council Staff office at (303) 866-3521. A template of the letter used to request an interim study committee can be found here.

  • Marijuana Tax Revenues: Refund Madness!

    By Sharon Eubanks

    What’s up with the news reports saying the state has to refund state tax revenues collected on recreational marijuana? Didn’t voters already approve recreational marijuana and two new state taxes on recreational marijuana at two separate elections? It makes no sense that the state will have to refund tax revenues collected on recreational marijuana. Why are these refunds required? Well, here’s the scoop.

    At the statewide election held in November of 2013, Proposition AA asked voters to approve imposing two new taxes on legalized recreational marijuana – a state excise tax and an additional state sales tax. Because this ballot question included tax increases, Article X, Section 20 of the Colorado Constitution (TABOR) required the state to include certain financial information in the Blue Book, which is the ballot information booklet that Legislative Council Staff prepares and provides to the public before an election.

    TABOR requires the Blue Book to include “[f]or the first full fiscal year of each proposed district tax increase, blue bookdistrict estimates for the maximum dollar amount of each increase and of district fiscal year spending without the increase.” (TABOR Section 20 (3)(b)(iii).) To comply with these requirements, the 2013 Blue Book analysis for Proposition AA included the following estimates for fiscal year 2014-15:

    • State Spending Without the New Taxes   —  $12.08 billion
    • State Revenue from the New Excise and Sales Taxes  —   $67 million

    TABOR imposes consequences if the actual fiscal year spending and revenue amounts from an approved tax increase exceed the estimates provided to voters before the election. Specifically, TABOR Section 20 (3)(c) requires that, if either the resulting tax revenue or actual fiscal year spending exceeds the Blue Book estimates, then the voter-approved tax increase is reduced and the state must refund the revenues that exceed the estimates. The only way to avoid these impacts is “by later voter approval.” The General Assembly may obtain this later voter approval by referring a ballot question to prevent the tax rate reduction and to allow the state to keep all of its revenue.

    If the recreational marijuana tax revenue in 2014-15 exceeds the Blue Book estimate of $67 million or if actual state fiscal year spending in 2014-15 exceeds the estimate of $12.08 billion, and the state has not obtained the later voter approval, then the state must:

    • Reduce the rates of the recreational marijuana taxes; and
    • Refund amounts that exceed the Blue Book estimates for fiscal year 2014-15 up to the total amount of the recreational marijuana tax revenues collected in that fiscal year.

    Based on the Legislative Council Staff’s December 2014 Revenue Forecast, it is currently projected that the amount of recreational marijuana taxes collected in fiscal year 2014-15 will be $58.7 million, which is below thegreen piggy bank Blue Book estimate, and fiscal year spending for fiscal year 2014-15 will be $12.347.3 billion, which is above the Blue Book estimate. These estimates will likely change in subsequent revenue forecasts, but legislative staff expects that, by the end of fiscal year 2014-15, total recreational marijuana tax revenues will remain below the Blue Book estimate and actual fiscal year spending will still exceed the Blue Book estimate.

    With total fiscal year spending for fiscal year 2014-15 likely to exceed the Blue Book estimate, the General Assembly may consider legislation during the 2015 session to:

    • Refer a ballot question at the 2015 statewide election to prevent the recreational marijuana tax rate reductions and allow the state to keep all of its FY 2014-15 revenue above the Blue Book estimates; or
    • Specify how to comply with TABOR in terms of how to reduce the rates of the recreational marijuana taxes, how to refund the marijuana tax revenues and to whom, and what revenues to use to accomplish this refund (e.g., recreational marijuana tax revenues or general fund revenues).

    To date, a legislator has not introduced a bill dealing with these issues. But the 2015 session is only almost half over, so there is still time for the General Assembly to take up this issue. Stay tuned!