Year: 2016

Statutory Revision Committee to Introduce 15 Bills
by Kate Meyer

In August, Legisource told you about the Statutory Revision Committee (SRC), a recently rebooted entity that examines the Colorado Revised Statutes to develop legislation that will modify or eliminate antiquated, redundant, or contradictory rules of law and to bring the statutes of this state into harmony with modern conditions. Since that article was published, the SRC has been hard at work, meeting three times and ultimately approving 15 bills for introduction in the 2017 legislative session.

Committee process. Bill ideas can originate from any number of sources: Committee members or other legislators; legislative staff; jurists, attorneys, and other legal professionals; executive agencies; lobbyists; the public; etc. In its first meeting, the SRC adopted the following basic process for considering potential bills:

(Click image to enlarge)

The process starts when the SRC’s staff from the Office of Legislative Legal Services receives or creates a bill proposal and initially decides whether the proposal fits within the committee’s charge. Persons may submit bill proposals identifying possible defects or anachronisms in the law or possible antiquated, redundant, or contradictory laws by contacting a committee member or sending an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov

If staff finds that a bill proposal fits within the committee’s charge, they schedule it for committee discussion. The SRC’s process affords interested persons two opportunities to comment publicly on potential legislation:
- First the public may testify at an initial meeting when the SRC receives a memorandum describing the genesis, scope, and intent of the proposed bill. The SRC then votes whether to have a draft bill prepared.
- Second, for proposals for which the staff writes drafts, the public may testify at a subsequent meeting when the SRC votes whether to recommend bills for introduction. An affirmative vote from at least five members of the SRC is required for a bill to be introduced, ensuring that every bill has bipartisan support.
The staff includes memoranda and bill drafts with the SRC agendas, which are posted on the SRC’s website one week in advance of a meeting date. And of course, the chance to weigh in on bills doesn’t end with the committee. Each introduced bill is debated and vetted through normal how-a-bill-becomes-a-law legislative procedures.

Bills approved in 2016. Every bill recommended for introduction from the 2016 SRC proceedings received unanimous committee approval. The breadth of bill subjects typifies the SRC’s ability to consider a wide range of topics, including:
- Repealing obsolete congressional and state legislative district laws;
- Aligning statutory reporting requirements with section 24-1-136 (11), C.R.S.;
- Updating certain outdated references to standards promulgated by the American National Standards Institute;
- Removing “ghost statutes” inadvertently left on the books in 2016; and
- Implementing recommendations received from the Department of Education and the Office of the State Auditor to modernize and correct various statutes related to those entities.
To read the full text of the approved bills, please see the SRC’s 2016 Annual Report and the upcoming supplement on the SRC’s website.

Looking ahead. Although the SRC expects to conduct the majority of its work during legislative interims, the committee will meet early in the 2017 session (date TBD) to select a new chairperson and vice-chairperson; to continue analyzing bill drafts that reconcile reporting requirements with section 24-1-136 (11), C.R.S.; and to consider a fix to the “Uniform Trust Decanting Act.”

Among the topics the SRC will discuss in the 2017 interim is a comprehensive bill to modernize, without substantively changing, the transfer terminology used in the Colorado Revised Statutes relating to the organization of state governmental agencies under the “Administrative Organization Act of 1968.”

Additional information. To learn more about the SRC, please contact a committee member or send an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov. You may also check out a brief video detailing the SRC posted on the Colorado Channel’s website.
December 29, 2016
A Holiday Message

HAPPY HOLIDAYS FROM THE OLLS!

December 23, 2016
Bill Sponsor Basics and New Rules on Joint Prime Sponsorship of Bills

by Patti Dahlberg and Jennifer Gilroy

Bill requests are coming in thick and fast and the drafting season is well underway. Now is probably a good time to review a couple of things about bill sponsorship and to remind you of recent changes to the rules for joint prime bill sponsors.

Bill Sponsor Basics. The legislator who introduces a bill is the bill’s prime sponsor. Each bill must have at least one prime sponsor in each house. In both houses, the prime sponsor is the one who “carries” the bill, which means he or she explains the bill in committee and in debate on the house or senate floor and usually arranges for witnesses to testify in favor of the bill in committee. Sometimes, two legislators in one house will agree to act as joint prime sponsors, in which case they are both responsible for carrying the bill. A bill that has joint prime sponsors in one house may or may not have joint prime sponsors in the other house. We’ll have more information on joint prime sponsorship later.

A legislator can be the first house prime sponsor or joint prime sponsor for only five bills, unless he or she has special permission to carry more. But a legislator can agree to be the second house prime sponsor or joint prime sponsor for as many bills as he or she wants to carry.

The first house prime sponsor is responsible for asking a legislator in the second house to carry the bill in the second house. The first house sponsor may identify a second house prime sponsor before the bill is introduced, but he or she must do so before the bill can be heard on third reading in the first house. The second house prime sponsor must give his or her permission before staff will add his or her name to the bill. The prime sponsors’ names are listed on the bill in bold.

Other legislators may want to show support for a bill by having their names listed on the bill, but not take on the responsibility of actually carrying the bill. If a legislator agrees to put his or her name on a bill before it is introduced, the legislator is a “sponsor” of the bill. If a legislator wants to add his or her name to a bill after it is introduced – either when the bill passes on third reading or when the bill is readopted in the first or second house – the legislator is a “cosponsor” of the bill.

Changes to Joint Prime Sponsorship. With everything else going on during the final days of the 2016 legislative session, you may not have paid much attention to the fact that both chambers passed resolutions amending their respective rules on the joint prime sponsorship of bills. Senate Resolution 16-004 passed May 3, 2016, and House Resolution 16-1008 passed May 6, 2016. Leadership in both houses sponsored these nearly identical resolutions to address some of the issues presented by the ever-increasing number of bills with joint prime sponsorship. Statistics bear out the trend, showing that the number of House bills with joint prime sponsorship have increased over the past 5 years from 31 in 2012 to 148 in 2016. A full one-third of the House bills introduced in 2015 had a joint prime sponsor. Similarly, the number of Senate bills with joint prime sponsorship increased from 17 in 2012 to 42 in 2016.

The resolutions addressed three pressing issues: 1) The timing for adding joint prime sponsors; 2) the bases for removing a joint prime sponsor; and 3) the ability to substitute a joint prime sponsor for one whose name has been removed from a bill. The two resolutions made the following noteworthy changes to House Rule 27A and Senate Rule 24A impacting the joint prime sponsorship of bills:

➤The first house prime sponsor of a bill may now add a joint prime sponsor in the first house or in the second house either before the bill is introduced in the first house or after second reading of the bill, but before the bill passes on third reading, in either the first house or the second house.

➤While a bill is pending in the first house, the Speaker or the President, as the case may be, may grant a joint prime sponsor’s request to have his or her name removed from the bill for a reason other than resignation, serious illness or other incapacity, or death.

➤While a bill is pending in the first house but before third reading, the first house prime sponsor may now designate a substitute prime sponsor for the second house (and also a substitute joint prime sponsor in the second house if he or she chooses) when the Speaker or President, as the case may be, has granted the second house prime sponsor’s or joint prime sponsor’s request to have his or her name removed from the bill.

➤The prime sponsor in the first house must notify the Chief Clerk or the Secretary of the Senate, as appropriate depending on which house the bill starts in, of any changes in bill sponsorship so that the changes are reflected in the reengrossed version of the bill.

December 22, 2016
United States Supreme Court Effectively Upholds Colorado Internet Sales Tax Law
by Esther van Mourik

When you buy a present for your friend at a store in Colorado, the retailer collects the sales tax on that purchase and remits that amount to the Colorado Department of Revenue. If you buy the same item online from a retailer that does not have a brick and mortar store in the state, you are personally responsible for paying the same amount of tax (now called a use tax instead of a sales tax) to the Department of Revenue. Generally speaking this is because of the United States Supreme Court’s interpretation of the United States Constitution: To protect interstate commerce, a state can’t require retailers that don’t have a brick and mortar presence in the state to collect sales tax on its behalf. Instead, the responsibility for getting the tax money to the state falls to individual purchasers.

Because many people aren’t aware of the responsibility to pay the use tax, Colorado is missing out on a lot of tax revenue. And because the economy is rapidly changing so that more people are buying presents (and other “tangible personal property”) online from retailers without brick and mortar stores in the state, the lost revenue effect is even greater. Estimates indicate that the state’s annual lost revenue due to online sales exceeds $150 million.

In 2010, the General Assembly passed House Bill 10-1193, the so-called “Amazon law,” a reporting requirements statute that compels retailers who are not collecting sales tax to report a number of things to both the Department of Revenue and their Colorado customers. The law was immediately challenged in court and has been in litigation for the past six years. A state court also enjoined the enforcement of the new law while it was being litigated in federal court.

On February 22, 2016, the 10th Circuit Court of Appeals issued an opinion upholding the constitutionality of House Bill 10-1193. On Friday, December 9, 2016, the United States Supreme Court declined to hear an appeal of the Court of Appeals decision. By declining to hear the appeal, the Supreme Court effectively affirmed the constitutionality of the law. This means that the Department of Revenue can start enforcing the requirements in House Bill 10-1193. Many news agencies have reported on this decision. You can read some of those articles here, here, here, and here.

House Bill 10-1193 requires retailers who do not collect Colorado sales tax to do three things:
1. Notify Colorado purchasers that sales or use tax is due on certain purchases made from the retailer and that Colorado requires the purchaser to file a sales or use tax return;
2. Send notice to all Colorado purchasers by January 31 of each year showing certain information that the Department of Revenue will require by rule, including the total amount the purchaser paid for Colorado purchases in the previous calendar year. The notice must include, if available, the purchase dates, the purchase amounts, and the category of each purchase, including, if the retailer knows, whether the purchase is exempt or not exempt from taxation. This notice must also state that Colorado requires the purchaser to file a sales or use tax return and pay the sales or use taxes on certain Colorado purchases that the purchaser made from the retailer.
3. File an annual statement with the Department of Revenue by March 1 of each year for each Colorado purchaser that shows the total amount the purchaser paid for Colorado purchases in the last calendar year.
If the retailers who do not collect Colorado sales tax fail to do the three things listed above, those retailers are subject to fines for each failure. The Department of Revenue is trying to determine when the law will take effect. Hampering that decision is the fact that the state court injunction is still in place and must be vacated before the Department of Revenue can enforce the law. Many articles in the media that discussed House Bill 10-1193 appeared to argue that the law was intended to compel retailers who do not collect sales tax to voluntarily start collecting. While that intention is not clearly established in the law, it remains to be seen how retailers will respond when the law takes effect.

There are efforts by other states, particularly in South Dakota, to require retailers that do not collect tax on internet sales to start collecting. Legislation of this type is a direct challenge to the United States Supreme Court’s constitutional interpretation that states cannot require out-of-state retailers to collect sales tax. So while the United States Supreme Court’s decision not to hear the Colorado case represents movement on this issue of online sales taxation, many questions remain to be answered. Stay tuned!
December 15, 2016

A New Citation Format for the Colorado Revised Statutes

by Tom Morris

While trying to read a statute to unravel its meaning, have you ever felt dismayed or sidetracked when you came across a phrase such as this: “as specified in sub-subparagraph (D) of subparagraph (III) of paragraph (g) of subsection (4) of this section”? That’s a lot of words—what is a “sub-subparagraph”, anyway?—and understanding them is made even more difficult due to the fact that they’re presented in reverse order from how most of us probably think. It’s as if, to describe how much money was being appropriated, we said “19 cents, 235 dollars, 452 thousand dollars, and 2 million dollars” instead of “2,452,235.19 dollars”. Surely, a better format for statutory references is possible.

Well, the Office of Legislative Legal Services has decided that a better format is possible, and, in drafting bills for the 2017 regular session, we have already started using it.

First, it’s important to understand the scope of the changes. When a statute refers to a portion of a different statute, that’s called an “external” reference, and we don’t use the format described above. Instead, if you’re in a statute other than section 24-30-122, the reference would previously have been something like “section 24-30-122 (4)(g)(III)(D), C.R.S.”. The main difference in external references going forward is that we’re dropping the “C.R.S.” (the abbreviation for “Colorado Revised Statutes”). We figure that, if you’re reading title 8, you know when you see a reference to section 24-1-104, it’s referring to a section in another title of the Colorado statutes and that we’re not straying down the freeway and into another state’s statutes.

Second, we used to include the number of a title or article only when the reference was located in a title or article other than the one being referenced, but we would always include the part number regardless of whether the reference was in or out of that part. We will now treat titles and articles as we currently treat parts: We’ll always include the article and title number (so references to “this article” in statute now become “this article 12,” for example).

The most significant changes we’re making relate to “internal” references. For example, if the reference is located in section 24-30-122 and the reference is to a portion of that same section, that’s an internal reference. Instead of listing the various types of C.R.S. subdivisions (sub-subparagraph, subparagraph, paragraph, and subsection) in reverse order, we’ll use a format similar to that used for external references. So if you’re in section 24-30-122, the reference will usually be “subsection (4)(g)(III)(D) of this section”.

There are a few things to note about this new format. First, we’re no longer going to refer to sub-subparagraphs, subparagraphs, or paragraphs; every internal reference to a C.R.S. subdivision will be to a “subsection”. Second, for both external and internal references, we will no longer put a space between the parentheses—so it will be “(2)(a)” rather than “(2) (a)”. Third, if the internal reference is to the same subdivision where the internal reference is located, we will include the complete string of higher-level subdivisions in the reference. For example, we used to write “this paragraph (d)”, but now we’ll write “this subsection (3)(d)”. Finally, every internal reference to a different subdivision will end with “of this section”. We used to write “paragraph (a) of this subsection (1)”, but now we’ll write “subsection (1)(a) of this section”.

Here’s a table that summarizes our old and new citation formats for internal references:

Format Before 2017	Format Beginning in 2017
this paragraph (d)	this subsection (3)(d)
this sub-subparagraph (C)	this subsection (1)(e)(II)(C)
paragraph (a) of this subsection (1)	subsection (1)(a) of this section
subparagraph (III) of paragraph (b) of this subsection (4)	subsection (4)(b)(III) of this section
sub-subparagraph (A) of subparagraph (IV) of paragraph (c) of subsection (2) of this section	subsection (2)(c)(IV)(A) of this section

Finally, we will make these changes only prospectively and only in those sections of statute that are included in bills; we will not update the citation format for the entire C.R.S. through the publications process. All new citations will follow the new format. The bill drafters, subject to the sponsors’ preferences, will update existing references in the same way that other grammatical or terminology updates to existing statutes are made.

So there will be some inconsistency in the C.R.S. in how our statutory references are phrased for quite some time. But we’ve concluded that using a citation format that is as specific and accurate as our current system—and that uses less terminology and is more concise, easier to understand, and more internally consistent—is an easy choice. We hope that you’ll agree!

December 8, 2016

What happens when one bill is just like another?
by Patti Dahlberg

Duplicate bill requests – eventually every legislator will run into one of them. The Office of Legislative Legal Services (OLLS) tries to identify possible duplicate bill requests as early as possible in the drafting process, but it can be tricky. For example, Legislator A may submit a bill request regarding “Agricultural Products” and Legislator B may submit a bill request regarding “Fruits and Vegetables.” In the end, it may be that these two bill requests overlap one another or are actually duplicates. There’s also a chance that the two bills will end up with nothing in common or be opposites.

When a drafter suspects duplication, he or she will attempt to gather additional information from the requesting legislators to help determine whether the bills are identical, substantially similar, or include partial duplication. Once the drafter decides that bill requests are likely duplicates, he or she will take the following steps:
- First, the drafter will contact the sponsor of the second bill request (i.e., the request filed later in time), referred to in these steps as Legislator B. The drafter will inform Legislator B that the OLLS believes that his or her request may be a duplicate of a previously submitted bill request but cannot, at this time, disclose the name of the legislator who made the first request (Legislator A) because this would be a violation of the confidentiality requirements. The drafter can let Legislator B know whether the first request was made by someone in the same house or the opposite house of the legislature or by someone in the same party.
- The drafter will then ask Legislator B for permission to disclose to Legislator A that Legislator B has filed a bill request that appears to be a duplicate bill. If the bill has already been introduced, the drafter will inform Legislator B about the existence of the introduced bill and ask whether he or she wants to continue pursuing the duplicate bill request. In this case, there would be no need for the drafter to try to contact Legislator A.
When contacted by the OLLS, Legislator B may:
- Decide to withdraw his or her request.
  - If Legislator B withdraws the bill request before the bill’s introduction deadline because it is a duplicate bill request, he or she may submit another bill request, even if the deadline for requesting a bill request has passed. Legislator B must file the replacement request as soon as possible — usually within 24 hours — after withdrawing the first request.
  - If the drafter does not identify the bill request as a duplicate until right before its introduction deadline, Legislator B may need to obtain delayed bill permission in order for the drafter to have sufficient time to draft the replacement bill. If necessary, the OLLS can assist Legislator B in obtaining delayed bill authorization.
- Decide not to let the drafter contact Legislator A.
  - If Legislator B does not want the OLLS to contact Legislator A and wishes to continue with the bill request, the drafter will continue working on both requests without divulging any more information to either legislator about the other legislator’s request.
- Give the drafter permission to contact Legislator A.
  - If Legislator B gives the drafter permission to contact Legislator A and disclose Legislator B’s name, then the drafter will contact Legislator A and explain that Legislator B has requested what appears to be a duplicate to Legislator A’s bill request. Legislator A then has the option of withdrawing or moving forward with his or her request or talking with Legislator B before making a decision. The drafter will need Legislator A’s permission to disclose to Legislator B that Legislator A is the sponsor of the duplicate request.
A drafter may need to engage in several conversations with the affected legislators to determine their desires regarding their duplicate bill requests. Once the disclosure is made, the drafter will leave it up to the two affected legislators to consult with each other about how they wish to resolve the duplicate bill situation.

In resolving a duplicate bill situation, Legislator B and Legislator A may wish to join efforts as a prime sponsor in each house, become joint prime sponsors if they are serving in the same house (in which case the bill will count against each legislator’s five-bill limit), or decide that one legislator will be a prime sponsor and the other will be a sponsor (i.e., the legislator’s name appears on the bill before introduction, but he or she is not the prime sponsor). Either Legislator B or Legislator A may decide to kill his or her bill request or they may both want to go forward with their bills and let the situation be worked out through the process. It’s their decision.

In no event, however, will a legislator be required to withdraw a bill request just because another legislator has already submitted the same or a similar request. Nor does the OLLS refuse a bill request on the grounds that it may be the same as another legislator’s request. Being the first legislator to request a bill in a hot subject area does not necessarily mean that he or she will be notified of any other requests that were made in that same subject.
December 1, 2016
A Thanksgiving Message from OLLS

Happy Thanksgiving from the Office of Legislative Legal Services!

November 24, 2016
Revisor of Statutes Ensures Access to Colorado’s Laws

by Julie Pelegrin

As we explained a couple of weeks ago, the Office of Legislative Legal Services is responsible not only for writing bills and amendments, but also for publishing the statutes. But these functions—drafting and publishing—have not always been housed in the same office or even in the same branch of government.

The history of publishing statutes in Colorado is long and complicated. Starting in 1861, the Territorial Legislature published the session laws after each biennial legislative session, which contained all of the bills the Legislature passed. Until 1868, if someone wanted to amend a bill that passed in an earlier session, he had to amend the bill as it appeared in the session laws.

The first consolidation of the state’s laws occurred before Colorado became a state. In 1868, the Territorial Legislature authorized consolidation of the general statutes, all of the laws enacted since 1861 with any amendments to those laws, arranged into 90 chapters, alphabetic by topic. The Territorial Legislature then adopted this consolidation, making it the “positive law” of the state, which means that a person could cite to the section of consolidated statute, rather than having to cite to the act as it was published and later amended in session laws.[i]

The General Assembly voted to reconsolidate and republish the laws at various times: The General Laws of 1877; the General Statutes of 1883; Mills’ Annotated Statutes of 1891; the Revised Statutes of 1908; the Compiled Laws of 1921; and the Colorado Statutes Annotated of 1935. Each of these, except the Mills’ Annotated Statutes, was created with the General Assembly’s official authorization, but there was not a specific official or office that was consistently responsible for codifying and republishing Colorado’s laws on a regular basis.

Until 1951.

That year, the General Assembly adopted House Bill No. 201. Like earlier acts, this act provided for revising and codifying the laws of the state, but with this act, the General Assembly for the first time took a longer view. It created the Committee on Statute Revision within the Judicial Department, chaired by the Chief Justice of the Colorado Supreme Court. The committee consisted of the Attorney General, two Senators, and two Representatives.

The act also created the position of Revisor of Statutes. The act directed the Committee to appoint an attorney to this position and to oversee his work. The Revisor could hire attorney associates and clerical staff to assist him in collating, compiling, editing, and preparing the statutes; publishing the statutes and other important documents like the state and federal constitutions; and creating source notes, annotations, an index, and comparative tables of prior compilations. All of this work was to be completed and submitted to the General Assembly by the 1953 legislative session.

H.B. No. 201 also directed the Revisor, at the end of each legislative session after 1953, to annotate, arrange, and prepare pocket parts or supplements for the 1953 revision of the statutes. The Office of the Revisor of Statutes was now a continuing enterprise, responsible for maintaining the accuracy of the published statutes on an annual basis. The General Assembly also directed the Revisor to assist the Legislative Reference Bureau (in the Attorney General’s Office) in drafting bills and amendments and engrossing and enrolling bills.

Finally, a permanent process existed to ensure the published statutes kept up to date. But in 1958, 1959, and 1960, the office fell behind in publishing the pocket parts. So, in 1961, the General Assembly directed the Revisor of Statutes to publish a new recodification, incorporating all of the changes since 1953 into a single set of volumes: the Colorado Revised Statutes 1963. At this time, the Revisor was still working out of the judicial branch.

In the mid-1960’s, the General Assembly undertook a study of the organization of Colorado’s state government. In 1968, it passed Senate Bill No. 1, concerning the administrative reorganization of state government, which completely reorganized the executive branch of government, and moved the Legislative Drafting Office (LDO) from the Attorney General’s Office to the legislative branch. Then, in 1969, the General Assembly passed Senate Bill No. 396, which created the Office of Revisor of Statutes (ORS) in the legislative branch. Both the LDO and the ORS were under the direction of the Committee on Legal Services.

Finally, in 1988, the General Assembly passed House Bill No. 1329, which combined the LDO and the ORS into the Office of Legislative Legal Services (OLLS). In combining the offices, the General Assembly named the Director of the OLLS the ex officio Revisor of Statutes, although the Director was authorized to appoint another attorney to serve as the Revisor. This has been the Director’s practice since 1988. The current Revisor of Statutes, Jennifer Gilroy, was appointed March 26, 2004, and is the first woman to serve in this capacity.

The Revisor’s duties have not changed significantly over time. Under the direction of the Committee on Legal Services, the Revisor must compile, edit, arrange, and prepare for publication the Colorado statutes, the state and federal constitutions, other significant documents, an index of the statutes, and tables comparing the current statutes with previous compilations. Each section of the statutes must have a source note, which provides the history of the section, and annotations of any cases interpreting the section. In publishing the statutes each year, the Revisor, with assistance from legislative editors and attorneys in the OLLS, can correct errors in grammar and punctuation, and may identify other errors or inconsistencies that may be fixed in a revisor’s bill introduced in the next legislative session.

The most important recent changes to the published statutes are a result of technology. In addition to publishing the entire set of statutes each year, the Revisor oversees the electronic publication of and access to the Colorado Revised Statutes on the internet, on disc, and through e-books.

The last time the General Assembly recodified and reorganized the entire Colorado Revised Statutes was in 1973. With that recodification, it adopted a numbering convention that provides a great deal of flexibility and room for expansion in the statutes. In the last legislative session, the General Assembly recreated the Statutory Revision Committee to address defects and anachronisms in the law. These provisions make another complete recodification of the statutes less likely.

________

[i] See “Colorado Statutes: Past, Present, and Future” J. Myron Jacobstein, 33 Rocky Mountain Law Review, pg 36 (1960-61).

November 17, 2016
2017 Bill Request Deadlines Quickly Approaching!
The 2016 elections are (finally!) over and the next legislative session convenes on Wednesday, January 11, 2017. Unfortunately, legislative rules and a 120- day session do not allow new and returning legislators much time for rest and relaxation between the November election and January session. Bill deadlines actually require legislators to complete the bulk of bill drafting in December before the first day of the legislative session.*

Returning legislators have until Thursday, December 1, 2016, to submit their first three bill requests to the Office of Legislative Legal Services (OLLS). A legislator is a “returning legislator” if he or she served in either house of the General Assembly in the preceding legislative session.

Legislators who are new to the General Assembly have a little more time — but not much — to get their session legs. They must submit their first three bill requests to the OLLS by Thursday, December 15, 2016.

Legislators who have already submitted bill requests, and those who do so as soon as possible, give drafters a jump-start on crafting bill drafts. An early start on drafting can help a bill sponsor identify and fix any issues that may arise with a bill long before the first day of session.

What all legislators need to know about requesting bills [Joint Rule 24(b)(1)(A)]:
- The Joint Rules allow each legislator five bill requests each legislative session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may carry.†
- To reach the five bill request limit within session deadlines, a legislator must submit at least three bill requests to the OLLS by the appropriate December deadline. In addition, each legislator must submit the last two (of five) requests by Tuesday, January 17, 2017. †
- If a legislator submits fewer than three requests by the December deadline, he or she forfeits the other one or two unrequested bills that were due by that date.†
With the first bill request deadline still a few weeks away, some legislators may feel they have plenty of time to take care of business. But the reality is that when a legislator waits until December to submit his or her first three bill requests, he or she will also need to provide sufficient drafting information so that the drafters can immediately begin working on all three bills; the legislator will need to very quickly decide which of these requests will be filed for introduction on the first day of session. And for newly elected legislators, keep in mind that, although the legislative rules allow you more time than a returning legislator has to request your first three bills, these rules do not give you, as a new legislator, more time to have your bills drafted.

If possible, every legislator — even a new one — should try to submit at least one bill request ASAP. Don’t worry about having all the information or all the answers at this point. Through the bill drafting process, bill drafters will discuss the request with you, ask you questions, and help you find information. Getting an earlier start on bill drafts also enables any potential issues or problems to rise to the surface earlier, making it easier for the legislator to decide whether his or her idea is “workable.” If it becomes apparent that a request isn’t working, the legislator can withdraw it and replace it with a new request, as long as he or she makes that decision on or before the December 1 deadline for returning members or the December 15 deadline for new members.

Legislators should consider submitting more than the minimum three requests by the December deadline. By doing so, a legislator preserves the flexibility to withdraw and replace at least one and possibly two of his or her requests after the December deadline without losing a request. For example, if a legislator submits only three requests by the December deadline and later withdraws one of them, the legislator forfeits the withdrawn bill request because the rules allow a legislator to submit only two bill requests after the December request deadline and before the January request deadline. On the other hand, if a legislator submits four bill requests by the December deadline and later withdraws one of them, the legislator still has his or her three bill requests that meet the early request deadline plus the legislator can submit the two requests that are allowed after the early bill request deadline — for a total of five bill requests.

And a note to any returning legislators who already have more than five bill requests submitted to the Office: By December 1, these legislators must decide which five bills they intend to introduce. The legislators must seek delayed bill status for each of the remaining bill requests for the OLLS to be authorized to continue working on them.

* Every legislator’s first bill must be filed by Friday, January 6, 2017, to be ready for introduction on the first day of the legislative session. Every senator’s next two bills must be filed with the Senate on the 3rd legislative day (Friday, January 13), and every representative’s next two bills must be filed with the House on the 7th legislative day (Tuesday, January 17).

† A legislator can ask permission from the House or Senate Committee on Delayed Bills, whichever is appropriate, to submit additional bill requests or to waive a bill request deadline.
November 10, 2016
Legislature Passes the Laws – But Executive Branch Used to Write Them

by Julie Pelegrin

Newly elected legislators are often (pleasantly) surprised to find that they do not have to write their own bills. The Office of Legislative Legal Services – a nonpartisan legislative staff agency – provides expert legislative drafting services to help legislators put their policy ideas into statutory language. But this was not always the case. For over 90 years, Colorado’s legislation was written by employees of the executive branch.

From the first Legislative Assembly of the Colorado Territory in 1861 until 1917, it’s not clear who was writing the legislation. There is no mention of bill drafting services in the statutes or anywhere else that we can find. Presumably, every legislator wrote his or her own bills, although some may have sought help from private attorneys or the Attorney General. The first mention we find of a bill drafting office is in the 1917-18 biennial report of Colorado Attorney General (AG) Leslie E. Hubbard. He reports that he formed a division within the Attorney General’s office to assist legislators in writing bills. His motivation: To avoid the introduction of bills with “patent inaccuracies, conflicts and constitutional objections” and so reduce the amount of litigation against the state.

It appears this informal division of the AG’s office continued to operate until 1927. That year, the General Assembly officially created a legislative reference office (LRO) within the Attorney General’s office with the passage of S.B. No. 200. The LRO consisted of one attorney who served as director of the office and at least one stenographer. The Attorney General appointed the LRO director, with the consent of the Governor. S.B. No. 200 also authorized the Supreme Court Librarian to assign library employees to work with the LRO during the legislative session.

From the beginning, the employees of the LRO were nonpartisan – appointed without reference to party affiliation, solely on the ground of fitness. The director of the LRO had to be an attorney licensed to practice law for at least five years before appointment. And all bill requests were confidential; neither the director nor any employee of the LRO could reveal to anyone outside the office the contents or nature of a bill request without the requesting legislator’s consent. Also, the director and the LRO employees were prohibited from lobbying in favor of or against any type of legislation.

The LRO had several duties including: Maintaining bill files and information relating to bills; accumulating data and statistics concerning the practical operation of Colorado’s statutes and those of other states; studying the statutes to find ways to reduce the number and bulk of the statutes; and working with the legislative reference bureaus in other states.

Most importantly, at a legislator’s or the Governor’s request, the LRO was required to draft bills, resolutions, and amendments; advise the legislature or the Governor as to the constitutionality or probable effect of proposed legislation; prepare summaries of existing laws and compilations of laws in other states; and research proposed legislation.

Although employees of the executive branch were drafting legislation for the legislative branch, the separation-of-powers implications did not seem to cause any concern – at least not until 1968. That year, Senator Bill Armstrong and Representative Star Burton Caywood introduced and passed S.B. 1, concerning the administrative reorganization of state government. This was a massive bill, the product of at least two years of interim committee meetings and planning. The act significantly restructured state government, reducing the sprawling mass of executive branch agencies and offices to just 17 state executive departments.

S.B. 1 also moved the LRO out of the Attorney General’s office and into the legislative department, renaming it the Legislative Drafting Office (LDO). And the bill created the Legislative Drafting Committee, a bipartisan committee consisting of the three members of leadership in each house and one additional minority party member appointed from each house.

The new LDO had a director, appointed by the legislative drafting committee without regard to party affiliation, who had to be an attorney. The director could appoint additional attorneys and clerical personnel as necessary to staff the office. The duties of the new LDO were essentially the same as the old LRO, except the attorneys in the LDO could no longer advise the Governor as to whether to sign a bill.

In 1969, the General Assembly passed S.B. 396, which, among other things, renamed the legislative drafting committee the Committee on Legal Services and changed the membership to consist of eight legislators and the Attorney General – but it remained a bipartisan committee. The General Assembly removed the Attorney General from the committee in 1973 and expanded the membership to 10 legislators in 1985.

Finally, in 1988, the General Assembly passed House Bill 1329, which combined the LDO and the Office of the Revisor of Statutes into what we now know as the Office of Legislative Legal Services (OLLS). The duties of the OLLS did not change significantly from those exercised by the LDO, but, with the addition of the Office of the Revisor of Statutes, the OLLS is also responsible for revising, codifying, and publishing the statutes.

Several things about the OLLS have not changed as it has evolved from the executive branch into the legislative branch. Bill and amendment requests and communications between OLLS staff and legislators are all still confidential. The OLLS is still nonpartisan and is still charged with providing legal services. And, finally, the mission of the OLLS continues to be providing “the best technical advice and information … available to the General Assembly, agencies of state government, and the people of this state.”

November 3, 2016

Year: 2016

HAPPY HOLIDAYS FROM THE OLLS!

Happy Thanksgiving from the Office of Legislative Legal Services!