Colorado LegiSource

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

Year: 2015

U.S. Supreme Court Holds Federal Tax Subsidies Apply to Both Federal and State-run Health Exchanges
by Kristen Forrestal

On June 25, the United States Supreme Court announced its decision in favor of the government in King v. Burwell. The case, which could have unwound the Patient Protection and Affordable Care Act (ACA), involved a challenge to the 2012 IRS ruling that individuals purchasing private health insurance in health insurance exchanges, regardless of whether the exchanges are federal or state-run, are eligible for tax subsidies.

Signed into law on March 23, 2010, the ACA adopted three key reforms:
- A ban on insurers taking into account a person’s pre-existing conditions when selling health insurance or calculating premiums;
- The creation of a mandatory health care provision requiring most Americans to purchase health insurance; and
- Refundable tax credits to individuals purchasing insurance whose household incomes fall between 100% and 400% of the federal poverty level.
The ACA also requires that states either establish their own exchanges in which people can purchase health insurance or, in the alternative, allow the people to purchase insurance in the federal exchange.

The central issue of the Burwell case was whether the ACA’s interlocking reforms apply equally in each state, and, more specifically, whether the act’s tax credits are available in states using the federal, and not a state-run, exchange.

The plaintiffs, from Virginia, challenged a section of the ACA that describes the meaning of premium assistance or the subsidies for taxpayers who purchase qualified health plans “through an Exchange established by the State.” They suggested that limiting subsidies to only those who bought insurance on state exchanges was an intentional choice made by lawmakers and was meant to pressure states to establish exchanges.

Arguing that they were ineligible for subsidies because Virginia had not established a state exchange, the plaintiffs claimed that they should be exempt from the ACA’s mandatory coverage requirements because the cost of health insurance would exceed 8% of their household incomes, qualifying them for a hardship exemption (and freeing them from paying a fine for not having health insurance).

The Court’s task was to determine the correct reading of the law. If the statutory language was plain, the Court would enforce it according to its terms. If not, the Court would read the words in their context and with a view to their place in the overall statutory scheme.

Warning that provisions may seem plain when viewed in isolation but ambiguous when read in the broader context of the statute, the Court explained that the meaning of “established by the State” was not so clear.

According to the Court, the provision that establishes a federal exchange for states that do not establish their own suggests that state and federal exchanges are equivalent. Additionally, the Court noted that several other provisions of the ACA assume subsidies are available on both state and federal exchanges.

The Court also criticized the “more than a few” examples of “inartful drafting” throughout the act, noting that several key parts were written behind closed doors rather than through the traditional legislative process and that a complicated budgetary procedure limited opportunities for public debate and amendments.

In the end, the Court rejected the plaintiffs’ interpretation of the law, stating that limiting subsidies to only those persons on state exchanges would destabilize the individual insurance market, because many individuals who couldn’t afford health insurance without the subsidies would be exempt from purchasing it. These consequences, Chief Justice John Roberts wrote, would create an economic death spiral and were exactly what the law was meant to avoid, as “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

It is important for lawmakers to note an additional outcome of the Court’s decision is that a future presidential administration cannot change the ruling of the Court (for instance, by reinterpreting how the subsidies are offered) without changing the act itself.
August 13, 2015
The Uniform Law Commission Works to Promote Uniformity of Law Among the States
by Patti Dahlberg and Thomas Morris

The Uniform Law Commission (ULC), formerly known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), was created as an offshoot of the American Bar Association and held its first convention in 1892. Every state has enacted a law to authorize the appointment of state representatives or “commissioners” to the ULC, each of whom must be an attorney. The commissioners meet annually to “consider state laws, determine in which areas of the law uniformity is important, and … draft uniform and model acts for consideration by the states.” By 1912, every state had designated commissioners and was participating in the ULC. Operating for more than 120 years, the ULC is the nation’s oldest state governmental association.

Since its inception in the 1890s, the ULC has drafted more than 300 uniform laws on numerous subjects and in various fields of law. Examples of uniform acts include the Uniform Commercial Code, Uniform Probate Code, Uniform Child Custody Jurisdiction Act, Uniform Partnership Act, Uniform Anatomical Gift Act, Uniform Limited Partnership Act, and Uniform Interstate Family Support Act. More than 100 uniform laws have been adopted by more than one state, and Colorado has enacted more than 100 uniform laws.

The ULC’s stated mission is to provide states with non-partisan, well-conceived, and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Its goal is to simplify the legal life of businesses and citizens by providing rules and procedures that are consistent from state to state.

In addition, the ULC sees itself as an efficient mechanism benefitting all of the states, not only because the almost 400 commissioners are willing to donate their time and energy to the uniform law movement, but also because participation in the ULC represents a cooperative effort by all of the states. Equally important to the ULC is that it offers a means to strengthen the role of state law within the federal system. As new technology evolves and increasing mobility increases cross-boundary legal effects, consistency in rules and procedures becomes ever more critical.

The ULC and the uniform law process also:
- Provides rules and procedures that are more consistent from state to state but that also reflect the diverse experience of the individual states;
- Proposes statutes that are representative of state experience, because the organization is made up of representatives from each state and appointed by state governments;
- Helps to keep state laws up-to-date by addressing important and timely legal issues;
- Reduces the need for individuals and businesses to deal with different laws as they move and do business across state lines;
- Facilitates economic development and provide a legal platform for foreign entities to deal with U.S. citizens and businesses;
- Draws on the expertise of commissioners through a deliberative and open drafting process; and
- Incorporates input from legal experts, advisors, and observers representing the views of other legal organizations or interests.
Uniform law? Really?
Although called a “uniform law” and approved by the commissioners at their annual conference, a uniform law adopted by the ULC is not law anywhere in the United States. It is actually a legislative proposal addressed to 50 state and three territorial legislatures. As with any legislative proposal, a legislature may alter draft language to “fine tune” the proposed uniform law to better fit an individual state or territory’s current law or needs or other special local conditions. So even when considered “uniform,” there may be variances in the law from state to state. In addition, uniform laws, like all state laws, may be revised from time to time to keep up with changing conditions and policies within that state.

So what’s the point if uniform laws are not always uniform?
While uniformity is the original aim of the ULC and its process, law revision or reform has become a significant outcome as well. The ULC also considers topics for legislation where state-to-state variance does not create a serious problem for conducting business or interstate mobility. In addition, the ULC may consider proposals to bring certain state laws more up-to-date.

Information about uniform acts, drafting projects, committees, meetings, and legislation is available on the ULC’s website.

For information on Colorado’s ULC connection, visit the website of the Colorado Commission on Uniform State Laws (CCUSL).
August 6, 2015
Statutory Construction: Legislative Intent and the Presumptions Used to Interpret Statutes

by Julie Pelegrin

Editor’s Note: This week’s article is the fifth in a series on statutory construction. For the earlier articles, see postings on Sept. 12, 2013; and July 31, August 21, and September 18, 2014. Or search the term “statutory construction”.

As has been discussed in previous articles, when a court must apply a statute to the facts and decide what the statute means, it will first look to the plain language of the statute. Assuming the statute is clear and unambiguous, the court will not use any other tools or rules to interpret the statute; if the language is plain, then the statute means what it says.

But, if the language is not plain and the statute could be read to have more than one meaning or application, then the court will look to the General Assembly’s intent in enacting the statute.

In part 2 of article 4 of title 2, C.R.S., the General Assembly enacted several guides to help the courts – and individuals and state agencies – read the statutes and determine what the General Assembly intended to allow or prohibit. This week’s article looks at legislative intent, including the general intent that statutes apply to future actions and events.

General intentions in enacting statutes: §2-4-201, C.R.S.
Under section 2-4-201, C.R.S., every statute is based on five underlying presumptions:

1. The statute is intended to be constitutional with regard to both the United States and Colorado constitutions;
2. Every part of the statute is intended to be effective – no superfluous words or sections;
3. When implemented, the statute is intended to have a just and reasonable result;
4. The statute is intended to be feasible – i.e., someone is supposed to be able to implement the statute; and
5. If implementing the statute one way will benefit the public interest and implementing it another way will benefit a private interest, the General Assembly intends to benefit the public interest.

In applying these presumptions, the courts have taken some of them one or two steps further. A court not only presumes that a statute is constitutional, if a person claims that a statute is not constitutional, the court requires that person to prove the statute’s unconstitutionality beyond a reasonable doubt. And, if a court can read a statute two ways – a constitutional way and an unconstitutional way – it must choose the constitutional reading.

Every word in every statute is supposed to have meaning and be effective. To apply this presumption, the courts read the parts of each statutory section, part, and article as a whole and interpret the various portions consistently with one another. If it appears that portions of a statute conflict, the court will try to harmonize those portions and, as much as possible, give a consistent and sensible effect to every portion.

The courts have added a presumption of their own with regard to the words in statutes. The court presumes that, when it amends or creates a statute, the General Assembly acts with deliberation and full knowledge of any previous case law interpreting or defining the words used in that area of the statutes. If the General Assembly uses the same words that the court has previously interpreted in a related area of statute, and does not clarify that it intends to change the interpretation of the words, the General Assembly is presumed to agree with the court’s earlier interpretation. If the General Assembly amends a statute that a court has previously interpreted, the court assumes that the General Assembly agrees with the court’s interpretation of any portion of the statute that it does not amend.

The statutes are intended to have a “just and reasonable result” and are intended to be implemented. So, a court will interpret a statute according to the General Assembly’s intent, rather than according to a literal interpretation of the words, if the literal interpretation would defeat the General Assembly’s intent or lead to an absurd result. And a court will not interpret a statute in a way that requires an impossible task.

Obviously, these presumptions sometimes conflict with one another. In that case, the court decides how to balance the competing presumptions in the best way possible to meet the General Assembly’s intent in passing the statute.

Statutes are Presumed to be Prospective: §2-4-202, C.R.S.
Section 2-4-202, C.R.S., is short and relatively clear: “A statute is presumed to be prospective in its operation.” So, unless the General Assembly specifically says differently, each new statute and amendments to existing statutes apply only to the actions and events that occur on or after the date that the statute takes effect. See “When Does an Act Become a Law? It depends.” for an explanation of when an act takes effect.

But the General Assembly in certain cases will specify that an act take effect on a date that is earlier than the date on which the act passes or that the act applies to actions or events that occur before, on, or after the effective date of the act. See “Ex Post Facto Laws, Effective Dates, and Legislative Time Travel” for an explanation of the constitutionality of retroactive laws.

July 30, 2015
U.S. Supreme Court Settles Legality of Same-Sex Marriages
by Debbie Haskins

In a landmark ruling issued on June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges (pronounced “OH-ber-guh-fell”) that the right to marry is a fundamental right under the U.S. Constitution. In a 5-4 decision, written by Justice Anthony Kennedy, the Court held that:
1. States cannot ban same-sex marriages and are required, upon request, to issue a marriage license to two people of the same sex; and
2. States must recognize a marriage between two people of the same sex if the marriage was lawfully licensed and performed in another state.
Justice Kennedy based the majority opinion on four principles:
- The right to personal choice regarding marriage is inherent in the concept of individual autonomy;
- Same-sex couples have the same right as opposite-sex couples to enjoy intimate association;
- Marriage safeguards children and families, and the right to marry cannot be conditioned on the capacity or commitment to procreate;
- Marriage is a keystone of the nation’s social order from which no one should be excluded.
Having found marriage to be a fundamental right, the Court next considered whether the challenged law unconstitutionally infringes on this right. The Court concluded that state laws preventing same-sex marriage are unjustified infringements on the fundamental right to marry under the due process and equal protection clauses of the 14th amendment to the U.S. Constitution.

In its opinion, the Court reviewed the history of marriage, noting that “after years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage.” The majority rejected the dissent’s argument that sufficient debate had not occurred in the country to make this decision at this time. Justice Kennedy wrote, “Individuals need not await legislative action before asserting a fundamental right.”

As a result of this decision, every state statute or state constitutional provision that bans same sex-marriage is now invalid.

The Rise and Fall of DOMA Laws

As Justice Kennedy noted, the public debate about same-sex marriage laws has been on-going in this country for the last two decades. In 1993, the Hawaii Supreme Court ruled that a law denying same-sex couples the right to marry violated the state’s constitutional equal protection guarantees unless the state could show a “compelling reason” for this discrimination. After the Hawaii decision raised the possibility that states would start recognizing same-sex marriage, several state legislatures adopted statutes or amended their constitutions to define marriage as a relationship that could only exist between a man and a woman. These laws are referred to as “Defense of Marriage Acts” or “DOMA.” Congress enacted a federal DOMA law in 1996, which limited the availability of over 1000 federal benefits to only those marriages that consist of a relationship between one man and one woman as husband and wife. According to the National Conference of State Legislatures, by the end of 2000, 40 states had either adopted a DOMA-type statute or constitutional provision or both. Colorado adopted its DOMA statute in 2000, and Colorado voters approved a DOMA constitutional provision in 2006.

However, in the last ten years, opinions about same-sex marriage have been changing. Eleven states and the District of Columbia have now enacted legislation authorizing same-sex marriage. On June 26, 2013, the U.S. Supreme Court struck down the federal DOMA law in U.S. v. Windsor holding that the restrictions on federal benefits violated equal protection and due process for same-sex couples who were legally married in a state that recognized same-sex marriages. In that decision, also written by Justice Kennedy, the Court emphasized that states have the power to define marriage. On the same day, the Court also held that the proponents of Proposition 8, a voter-approved ban on same-sex marriage in California, did not have the legal right to defend the measure in court. Although based on the technical issue of standing, the decision in Hollingsworth v. Perry made same-sex marriages legal in California.

After these decisions, same-sex marriage bans toppled in state and federal courts across the country. Federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits all ruled that state bans on same-sex marriage are unconstitutional. The U.S. Supreme Court refused to hear appeals in these cases on October 6, 2014, causing the Colorado Attorney General to declare that all legal barriers to same sex marriages in Colorado, which is in the Tenth Circuit, were removed. As a result, same-sex marriages became legal in Colorado on October 7, 2014.

Meanwhile, the Sixth Circuit Court of Appeals upheld DOMA laws from Kentucky, Michigan, Ohio, and Tennessee, creating a split among the circuits in the country. Often when there is a circuit split, the U.S. Supreme Court will grant certiorari to resolve the matter, as it did in Obergefell.

By the time the U.S. Supreme Court heard the Obergefell case from the Sixth Circuit, same-sex marriage was legal in the United States in 37 states either because of state or federal court decisions or because of state statutes authorizing same-sex marriage. As a result of the Obergefell decision, same-sex marriage is now legal in the entire country.
July 23, 2015
The 411 on 2015’s Legislative Interim Committees

by Gwynne Middleton

Interim committee season is just around the corner. This year ten committees will meet to study pressing issues during these months when the General Assembly is not in session. Chaired by legislators and staffed by the Legislative Council and the Office of Legislative Legal Services, each interim committee gathers information through meetings and tours held in the Capitol and throughout the state to inform legislative recommendations and potential bills for the upcoming session. Below you’ll find important details for each 2015 interim committee:

Important Dates and Deadlines for
Interim Committees and Task Forces

An interim committee that chooses to request bills must do so by Friday, October 2, 2015. The deadline for submitting drafting information to OLLS is Monday, October 5, 2015 (if the meeting to request bills is held on October 2), or by three days after the meeting when bills are requested for drafting. Thursday, October 22, 2015, is the deadline to finalize bill drafts for distribution to the interim committee and release for fiscal analysis. The deadline for distributing bill drafts and fiscal notes to the interim committee is Friday, October 30, 2015 (if the committee’s final meeting is held November 2), or three days before the final meeting at which the committee will take final action on bills. Finally, Monday, November 2, 2015, is the deadline by which an interim committee must approve final bill drafts.

For the first time this year, the LCS staff must prepare a fiscal note for each interim committee bill before the Legislative Council can consider the bill. Meeting the deadline schedule for requesting and finalizing bills will help ensure that each interim committee bill moves smoothly through the legislative review process.

For more information about meeting agendas and summaries for each committee, visit the Legislative Council’s helpful page on interim committees here, and if you’re interested in learning more about where interim committees come from, check out this Legisource article, “To Really Drill Down on an Issue, Consider Creating an Interim Study Committee.”

July 16, 2015
Question Remains Whether Legislators Can Challenge Constitutionality of TABOR

by Sharon Eubanks

If a legislature does not have the power to impose new taxes or raise the amount of existing taxes, does the state enjoy a republican form of government? Some think not.

In late May of 2011, 34 plaintiffs, including members of the General Assembly, local government officials, educators and education officials, and citizens of Colorado, filed a lawsuit against Governor John Hickenlooper in his official capacity and the State of Colorado in federal District Court for the District of Colorado. The lawsuit is entitled Kerr v. Hickenlooper because Senator Andy Kerr, one of three current legislators who are plaintiffs, is the first plaintiff listed on the complaint.

The plaintiffs allege that the Taxpayer’s Bill of Rights (TABOR), Section 20 of Article X of the Colorado Constitution, violates the Guarantee Clause and the Equal Protection Clause of the United States Constitution and section 4 of the Colorado Enabling Act of 1875 by eliminating the General Assembly’s plenary power to legislate on matters of taxation and appropriations and thereby denying the state of Colorado and its citizens an effective representative democracy. As part of their claims, the plaintiffs argue that TABOR has inflicted an institutional injury upon all members of the General Assembly by removing their ability to enact taxes to provide for the state’s expenses, thus rendering the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government.

In response to this lawsuit, the Attorney General filed a motion on behalf of Governor Hickenlooper in mid-August of 2011 asking the federal District Court to dismiss the lawsuit on several procedural grounds, including: 1) plaintiffs’ claims constitute nonjusticiable political questions that neither the federal District Court nor any other court can resolve on the merits; and 2) even if these questions could be resolved, the plaintiffs lack standing to bring the lawsuit. In July of 2012, the federal District Court denied the Governor’s motion to dismiss on all grounds except the Equal Protection Claim.

The Governor appealed the federal District Court’s order to the federal 10th Circuit Court of Appeals. The appeal was assigned to a 3-judge panel of the 10th Circuit, which affirmed the federal District Court’s order. Next the Governor filed a petition for rehearing before the entire membership of the 10th Circuit Court of Appeals. The court denied the petition for rehearing en banc, and the Governor filed a petition for writ of certiorari appealing the federal District Court’s order to the United States Supreme Court. After both parties and several amicus curiae (“friends of the court”) filed briefs on the petition, the matter was scheduled for discussion at the January 9, 2015, conference of the Supreme Court Justices.

The Justices’ conference is a private meeting of the Supreme Court Justices to discuss a short list of cases they are considering for review. The Justices’ decision to grant or deny review is usually announced shortly after the Justices’ conference. However, in this case, the Supreme Court did not immediately announce any decision as to whether the Supreme Court would hear the appeal of the procedural issues raised in Kerr v. Hickenlooper.

Some speculated that the Supreme Court was waiting to announce its decision until after the Court issued its decision in another case it heard this term – Arizona State Legislature v. Arizona Independent Redistricting Commission et al. In this case, Arizona’s Legislature challenged the constitutionality of a redistricting commission created by ballot initiative to draw congressional districts. One of the issues raised in the Arizona State Legislature case is whether the Legislature has standing to bring the lawsuit, so the Supreme Court’s decision in this case could have implications for the Legislator-Plaintiffs’ standing in Kerr v. Hickenlooper. It turns out that this speculation was correct.

On June 30, 2015, the last day of the Supreme Court’s October 2014 term, the Supreme Court issued a grant, vacate, and remand (GVR) order in Kerr v. Hickenlooper, which granted the Governor’s petition for writ of certiorari, vacated the decision of the 10th Circuit Court of Appeals, and remanded the matter back to the 10th Circuit for reconsideration in light of the Supreme Court’s decision issued the day before in Arizona State Legislature. In that decision, the Supreme Court held that the Arizona Legislature, as an institution, has standing to challenge the constitutionality of the redistricting commission even though the Supreme Court also upheld the constitutionality of the redistricting commission.

As a result of the Supreme Court’s GVR order in Kerr v. Hickenlooper, the 10th Circuit has established July 31, 2015, as the deadline for parties and amicus curiae to file supplemental briefs on the impact of the Supreme Court’s decision in Arizona State Legislature on the issue of the Legislator-Plaintiffs’ standing.

Watch for further developments in this lawsuit.

July 9, 2015
Colorado LegiSource is on hiatus

The Colorado LegiSource will be taking a break for the next several weeks. We expect to resume weekly postings on July 9. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

May 18, 2015
Gavels Adjourn the First Regular Session of the 70th General Assembly
by Julie Pelegrin

One hundred twenty days of heavy lifting, deep diving, guard-rail strengthening, collaborating, and serious negotiating came to an end Wednesday evening. At 8:02 p.m. in the House and 8:11 p.m. in the Senate, the Speaker and the President banged the gavels to adjourn the first regular session of the 70th General Assembly sine die.

As is usually the case when one party controls the House and another controls the Senate, there were many bills, resolutions, and memorials introduced, but not many passed. Starting in January, the General Assembly introduced 682 bills. By last night, they passed 367 of them – a pass rate of 54%. This compares with pass rates of:
- 68% in 2013 and 72% in 2014 when the same party held the majority in both houses;
- 56% in both 2011 and 2012 when control of the houses was split between the parties; and
- Pass rates of 70% or higher for each of the 2007 through 2010 regular legislative sessions when the same party again held the majority in both houses.
As usual, the General Assembly tackled several difficult and contentious issues – red light cameras, changes to birth certificates, K-12 assessments, rain barrels, guns, abortion, TABOR refunds, governmental immunity for school districts, requirements affecting peace officers, student data privacy, workforce development, felony DUI, and, of course, the state budget – just to name a few.

Before the session ended, the General Assembly passed Senate Joint Resolution 15-028, which sets Wednesday, January 13, 2016, as the convening date for the second regular legislative session of the 70th General Assembly.

Between now and next January, some legislators will be busy meeting in interim committees. In addition to the pre-existing statutory committees, the General Assembly approved several new interim committees. This interim, watch the Legislative Council website for meetings of:
- The transportation legislative review committee;
- The early childhood and school readiness legislative commission;
- The police officers’ and firefighters’ pension reform commission;
- The water resources review committee;
- The interim committee to study vocational rehabilitative services for the blind;
- The interim committee to study profiling-initiated contacts by law enforcement;
- The interim committee on school safety and youth in crisis;
- The Colorado health insurance exchange oversight committee – formerly known as the health benefit exchange implementation review committee; and
- The off-highway vehicle task force.
And the legislative staff agencies – Legislative Council Staff, the Office of Legislative Legal Services, the Joint Budget Committee Staff, and the State Auditors’ Office, as well as the staff of the House and the Senate – will be working the full interim. First, there’s session work to wrap up, including enrolling and finalizing the bills that passed, finalizing the state budget, and publishing the new Session Laws and the new statutes. Then staff will be busy reviewing executive branch rules, auditing state agencies and programs, staffing interim committees, researching legal, policy, and fiscal issues, and generally preparing for the next legislative session.

And, starting July 9, we’ll be back publishing weekly articles to the LegiSource. If there’s a topic you would like us to address, please let us know by emailing feedback@legisource.net.

Legislators who want to start working on their ideas for legislation for the next legislative session can submit research requests and bill requests to the Office of Legislative Legal Services by emailing olls.ga@coleg.gov or or calling (303) 866-2045.
May 7, 2015
The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace
By Julie Pelegrin

One week from today, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 6, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

Last 5 Days of Session:
- Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.
Last 3 Days of Session:
- House Rule 25 (j) (3); Senate Rule 22 (f): Each House and Senate committee chairperson must submit committee reports to the House or Senate front desk as soon as possible after the committee acts on a bill. No more waiting for two or three or five days to turn in the report.
- House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
- House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
- Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
- House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.
Last 2 Days of Session:
- House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.
Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

Digest of Bills

With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 6 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.
April 30, 2015
Colorado Supreme Court May Decide Constitutionality of Negative Factor

By Julie Pelegrin

Less than two years after the Supreme Court held in State v. Lobato that Colorado’s public school financing system complies with the constitutional requirement to provide a “thorough and uniform” system of public education, parents and school districts are again suing to increase the amount of state money appropriated for public schools. The new lawsuit – Dwyer v. State of Colorado – focuses on the negative factor and whether it violates the constitutional requirement to increase the amount of statewide base per pupil funding by inflation each year. To better understand the plaintiffs’ claim, we’ll start with some background on how the state funds its public schools.

Calculation of Total Program Funding and Amendment 23
Under the “Public School Finance Act of 1994,” the department of education annually calculates the amount of operating money – called “total program funding” – that each school district receives. The calculation starts with the statewide base per pupil funding amount, which the General Assembly sets each year in statute. The department multiplies this amount by factors that account for each school district’s size and cost of living. This sum is the school district’s “per pupil funding.” The department multiplies the school district’s per pupil funding by the number of pupils enrolled in the district then adds certain amounts for the at-risk pupils, multi-district on-line pupils, and ASCENT program pupils that the school district enrolls. Before the 2010-11 fiscal year, this final sum was a school district’s total program funding.

Total program funding is paid with a combination of school district tax revenues and state money. The department of education figures how much a school district will receive in local property tax and specific ownership tax revenues each year. The department subtracts this amount from the school district’s total program, and the amount that’s left is paid using state money. This amount is called the “state share” of total program funding.

In 2000, the voters of Colorado passed a citizens’ initiative – Amendment 23 – that requires the General Assembly to increase the amount of statewide base per pupil funding by inflation plus one percent every year for fiscal years 2001-02 through 2010-11 and by inflation every fiscal year thereafter. As explained earlier, statewide base per pupil funding is important because it’s the basis for calculating how much each school district receives in total program funding each year.

Creation of the Negative Factor
In 2010, the nationwide recession caused a significant decrease in the state’s revenues, and there was not enough money available to pay each school district’s state share of total program funding and all of the other costs of state government. The General Assembly amended the School Finance Act to create what is known as the “negative factor.” This factor is a percentage reduction in each school district’s total program funding to ensure that the state’s revenues are sufficient to pay the state’s share of total program funding for school districts and the other expenses of state government.

Each year since 2000, the General Assembly has increased the amount of statewide base per pupil funding by at least the amount required in Amendment 23. However, because of the negative factor, the General Assembly in the 2014-15 fiscal year appropriated about $894.2 million less than it would have otherwise appropriated to fund the state share of total program funding.

Constitutional Challenge to the Negative Factor
Last June, a group that includes parents of students enrolled in public schools, educational organizations, and school districts – we’ll refer to them generally as “the parents” – filed suit against the State of Colorado, Education Commissioner Robert Hammond, and Governor John Hickenlooper – we’ll refer to them as “the state” – claiming that the statute that creates the negative factor is unconstitutional. The parents claim that the voters who approved Amendment 23 understood that it required total program funding levels to increase each year, regardless of other state funding or revenue needs. They argue that the negative factor actually is applied to and reduces the statewide base per pupil funding and that it therefore violates the requirements of Amendment 23.

Last August, the state filed a motion to dismiss the lawsuit. The state argued that the General Assembly has fully complied with the plain language of Amendment 23, which requires annual increases to statewide base per pupil funding, but does not require increases in total program funding for school districts.

The trial court issued an order in November of 2014 denying the state’s motion to dismiss. The trial court found that, since Amendment 23 prescribes minimum increases in the state funding for public education, the parents alleged sufficient facts by asserting that the negative factor reduces funding for school districts below the level that Amendment 23 requires.

Supreme Court Proceedings
Last January, the state asked the Colorado Supreme Court to exercise its original jurisdiction and issue a rule that the General Assembly’s actions to annually increase the statewide base per pupil funding amount comply with the requirements of Amendment 23, regardless of the negative factor. The Supreme Court directed the parents to file written answers as to why the Court should not grant the state’s request for a rule.

The parents have filed their answer, which makes generally the same arguments as the complaint – that the negative factor actually operates to reduce the statewide base per pupil funding and therefore violates Amendment 23. The parents also argue that, when Amendment 23 passed, the voters understood the language of Amendment 23 to be increasing per pupil expenditures.

The state has also filed its reply, which makes generally the same arguments as the motion to dismiss the lawsuit – that the language of Amendment 23 is plain and unambiguous and it requires only increases in the statewide base per pupil funding amount; it does not address the General Assembly’s authority to change or add any factors within the formula. The state argues that the General Assembly has increased the statewide base per pupil funding amount each year since Amendment 23 passed, and the negative factor has never reduced a school district’s per pupil funding amount below the statewide base.

So now, we wait for the Supreme Court to decide. If the Supreme Court decides to exercise its original jurisdiction and rules in the state’s favor, that would essentially decide the case. However, if the Supreme Court does not exercise its original jurisdiction, or if it rules in favor of the parents, the case may return to the district court for a full trial. Could be a long summer….

April 27, 2015