Colorado LegiSource

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

Month: January 2019

  • Happy Birthday House of Burgesses

    by Jery Payne

    The year was 1619. Although the colony of Virginia had yet to produce much in the way of profit, the years of starvation were at last over. The Virginia Company, who owned the colony because of a patent granted by King James I, had made a decision. The company decided that the necessity for martial law had passed, so it sent a new governor, George Yeardley, with instructions:

    And that they might have a hande in the governinge of themselves, yt was graunted that a generall Assemblie shoulde be helde yearly once, whereat were to be present the Govr and Counsell wth two Burgesses from each Plantation, freely to be elected by the Inhabitants thereof, this Assemblie to have power to make and ordaine whatsoever lawes and orders should by them be thought good and proffitable …

    This was actually Virginia’s third form of government, and historians have claimed that this grant was less motivated by a desire to advance the cause of representative government than by a desire to find a form of government that actually worked.

    Four hundred years ago, these instructions led to the first elected legislature meeting in the new world. Its first law required tobacco to be sold for at least three shillings per pound. They passed laws concerning such things as contracts, drunkenness, and gambling. They also sat as a court, where they sentenced a man to four days with his ear nailed to a pillory. They finished their work in six days.

    Small seeds grow mighty trees. Patrick Henry, Thomas Jefferson, and George Washington all served in the Virginia House of Burgesses.

    To be sure, the new world’s first legislature didn’t always advance freedom. During its first century, its laws transformed indentured servitude to slavery. Before that, the colony had followed the biblical rule that a servant was free after seven years. But for people of African descent, a series of laws evolved this into the chattel slavery that led to the Civil War.

    And some of their campaign practices would shock modern sensibilities. At a time when a day’s travel was about 30 miles, voting was an all-day affair. A person would come off a dusty road parched and tired. So the candidates would offer the voter a few drinks, such as rum, beer, or cider. This was known as “treating.”

    In his first election, George Washington refused to treat the voters; he received 40 out of 541 votes. In his second election, his campaign bought 160 gallons of libations for the voters. He won that election.

    Yet, for all its failings, the House of Burgesses inspired other colonial legislatures and made the colonists used to ruling themselves. Each colony eventually followed Virginia’s example and established a legislature. Self-government became a tradition they would not give up lightly. When the British Parliament levied taxes on the colonists, their protests and eventual rebellion were embodied in the cry “No taxation without representation!”

    The 1765 Stamp Act taxed the colonists without their leave. It enraged many of the colonists and led to months of protests. On May 29, Patrick Henry introduced a resolution in the House of Burgesses declaring, “Only colonial assemblies had the right to impose taxes on their constituents and that right could not be assigned to any other body.” This direct challenge to King and Parliament raised questions of his loyalty to the mother country.

    The next day, Henry gave his first speech in the House of Burgesses defending his resolution. Getting to George III, he said, “Caesar had his Brutus, Charles the First his Cromwell and George the Third …” Cries of “Treason!” interrupted his speech. Henry had uttered the names of dead rulers and the authors of their deaths in the same breath as Britain’s King, George III. Henry paused until the uproar died down, and then, he calmly finished his sentence: “…may profit by their example. If this be treason, make the most of it.” Trolling is nothing new.

    After months of protest, and an appeal by Benjamin Franklin before the British House of Commons, Parliament voted to repeal the Stamp Act in March 1766. But the King and Parliament kept levying taxes, so the colonies eventually rebelled. They wanted to be governed, not by Parliament, but by their own legislatures.

    Four hundred years ago, the first general assembly was born in the new world, and the institution of the state legislature was born.

    Happy Birthday!

  • Freedom of Speech for the New Legislator

    by Esther van Mourik and Pierce Lively

    It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black

    He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.

    You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly[1] and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!

    It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?

    Speech directed toward a public official

    Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.

    Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation.[2] Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.

    In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

    What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.

    So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.

    Speech made by a legislator

    An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”[3]

    Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.

    Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.”[4] Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.

    In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.

    When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.

    When speech turns criminal

    Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:

    • Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;[5]
    • Threatening or using physical action to place another “in fear of imminent serious bodily injury”;[6]
    • A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress;[7] and
    • Harassment. [8]

    If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol, call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.

    Final thoughts

    As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.

     

    [1] Or maybe you’re already a legislator and you just want a refresher!

    [2] If defamation is written, it is libel, and if it is spoken, it is slander.

    [3] See Legislative Ethics – Legislative Immunity and A Look at the Limits of Legislative Immunity.

    [4] For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.

    [5] Section 18-8-306, C.R.S.

    [6] Section 18-3-206, C.R.S.

    [7] Section 18-3-602, C.R.S.

    [8] Section 18-9-111, C.R.S.

  • The Office of Legislative Legal Services: More Than Just Bill and Amendment Drafting

    by Sharon Eubanks

    With the 2019 legislative session under way, legislators have already been interacting with the staff of the Office of Legislative Legal Services for their bill and amendment requests.  But the Legislative Legal Services staff, comprised of attorneys and other professional staff, provides a variety of written materials and services to legislators in addition to their bill and amendment drafting needs.  We encourage legislators to learn more about and make full use of the products and services we can provide.  Please visit our web page at https://leg.colorado.gov/agencies/office-of-legislative-legal-services.

    Legislative Legal Services is the General Assembly’s nonpartisan legal staff agency. As legislative lawyers, we maintain an attorney-client relationship with the General Assembly, as an institution, and not with each legislator. Therefore, we are obligated to serve the best interests of the institutional client, the General Assembly, as distinguished from the individual interests of any legislator. However, when working individually with legislators, we are statutorily bound to maintain the confidentiality of all bill and amendment requests before introduction, and we are ethically bound to maintain the confidentiality of the communications we have with each legislator, as a constituent of the institution.

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

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

    Our office also provides written legal opinions, including written legal opinions on issues relating to pending legislation. We hold legal opinion requests in strictest confidence. We will not release a written memorandum to other persons without the permission of the legislator who requested it. And we will give the same answer if another legislator asks us the same question, which will result in identical legal opinions for different legislators.

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

    • Voting records on an issue or bill;
    • Talking points advocating for or opposing a policy position;
    • Conveying messages that encourage a legislator to vote for a bill or discourage a legislator from voting for a bill;
    • Soliciting legislators as joint prime sponsors, cosponsors, or second house sponsors;
    • Violating confidentiality, e.g., telling a legislator about amendments prepared for other legislators to his or her bill, telling a legislator what another legislator said or told others about the legislator’s bill, or telling a legislator what legal advice our office gave another legislator;
    • Assisting a legislator in counting votes; and
    • Advocating for passage or defeat of legislation on policy or any other grounds.

    These lists illustrate the materials or services we can and cannot provide, but they are not exhaustive. If a legislator has a request for materials or assistance, please ask us. If it’s something we can provide, we will do so.

    The Legislative Legal Services staff is ready to provide the services and support to help the members of the Seventy-second General Assembly have a productive and successful legislative session in 2019. We encourage legislators to utilize the Legislative Legal Services staff for all their legislative needs, not just for bill and amendment drafting.

  • Does Colorado Have a “Stand Your Ground” Law?

    by Richard Sweetman

    [Editor’s note: We originally posted this article on October 3, 2013. Since that time, the Florida law has been amended. This reposting is an update to the original article.]

    No, Colorado does not have a “Stand Your Ground” law. We have a “Make My Day” law.

    Wait; I’m serious. Let me explain.

    “Stand Your Ground” Laws

    A “Stand Your Ground” law is similar to a standard self-defense statute, in that it allows a person to use deadly force in self-defense when the person has a reasonable belief that deadly force is necessary to prevent death or serious bodily harm. However, a “Stand Your Ground” law expands upon the traditional self-defense doctrine in one or more ways. For example, a “Stand Your Ground” law may:

    • Identify locations where a person may use deadly force under certain conditions, including dwellings, vehicles, businesses, and other public places where the person is legally present;
    • State explicitly that a person has “no duty to retreat” before resorting to the use of deadly force in self-defense;
    • Establish a presumption of reasonableness in favor of a person who uses deadly force under certain conditions;
    • Establish civil immunity for a person who uses deadly force under certain conditions; or
    • Allow a person to use deadly force to stop the commission of certain felonies.

    Florida’s “Stand Your Ground” law (Fla. Stat. 776.013), which has attracted much attention in the past, reads:

                (1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use: (. . .)

                (b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

    The Florida law also creates the following presumption:

                (2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

                (a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

                (b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

    This presumption eliminates the burden of proof for a person who used deadly force—that is, the burden to prove that he or she had a “reasonable fear of imminent peril of death or great bodily harm.” The presumption shifts the burden to the prosecution, who must prove otherwise.

    Florida adopted its “Stand Your Ground” law in 2005 and amended it in 2014 and 2017. Since then, according to the National Conference of State Legislatures, the number of states with similar laws has grown to 22.

    Colorado’s “Make My Day” Law

    Colorado adopted its “Make My Day” law in 1985. At that time, the phrase “make my day” had been popularized by the 1983 Clint Eastwood film Sudden Impact and then revived by President Reagan in his 1985 threat to veto any tax increase legislation sent to him by the U.S. Congress. The law is codified at section 18-1-704.5, C.R.S.

    Colorado’s “Make My Day” law is similar to a “Stand Your Ground” law, in that both laws may be seen as expansions upon the old common law “castle doctrine.” Under this doctrine, a person has no “duty to retreat” before resorting to the use of deadly force when faced with imminent peril in his or her home. Compared to a “Stand Your Ground” law, however, Colorado’s “Make My Day” law is a relatively limited expansion.

    The very idea of a statutory “castle doctrine” in Colorado is a little strange because the castle doctrine, by its own terms, is an exception to another doctrine—the duty to retreat. And except in certain specific circumstances, there has never been a duty to retreat in Colorado. (See People v. Toler, 9 P.3d 341, 348 (Colo. 2000), citing Boykin v. People, 45 P. 419 (Colo. 1896).) It is therefore no surprise that Colorado’s “Make My Day” law does not mention a duty to retreat; it has never been necessary for the General Assembly to state explicitly that no such duty exists in Colorado.

    The “Make My Day” law is like the “castle doctrine” because it is limited to dwellings. Rather than stating that there is no duty to retreat in a dwelling, however, Colorado’s law lowers the standard for justifying the use of deadly force against an intruder in a dwelling.

    Under Colorado’s law, any occupant of a dwelling may use deadly force against an intruder when the occupant reasonably believes the intruder (1) has committed or intends to commit a crime in the dwelling in addition to the uninvited entry and (2) might use any physical force, no matter how slight, against any occupant of the dwelling. This is a lower standard of justification than appears, for example, in Colorado’s historical self-defense statute, which is codified at section 18-1-704, C.R.S.

    Colorado also has longstanding statutes justifying the use of physical force in special relationships (18-1-703, C.R.S.), in defense of premises (18-1-705, C.R.S.), and in defense of property (18-1-706, C.R.S.).

    Perfectly Clear?

    So do you now understand the difference between a “Stand Your Ground” law and Colorado’s “Make My Day” law? Not entirely? Well, that’s okay. Frankly, the distinctions are not entirely clear—partly because 22 variations of the “Stand Your Ground” law now exist. But the table below, which contrasts Florida’s law with Colorado’s law, can help you remember the key differences. For more information about “Stand Your Ground” laws, visit the NCSL website.