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.

  • 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!