Colorado LegiSource

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

Month: October 2019

  • Spooky Oddities at the State Capitol

    by Ashley Athey

    In honor of All Hallows’ Eve, we’re reposting our article on the spooky tales and apparitions that haunt the gold dome. Have you encountered one of these spirits? Let us know!

    As with many old, historical buildings, a number of ghost stories haunt the Colorado state capitol. Officially, there are no ghosts to be found in the building. However, those of us who have smelled an odd perfume, seen an odd figure, or heard an odd hoof beat know better. In honor of Halloween, we present to you a few of the most notable ghosts that unofficially haunt our halls.

    The Bloody Espinosas
    Perhaps the most well-known story of the capitol, this tale begins in 1863. Back then, the Colorado settlement was four years young, and the Gold Rush had brought a curious crowd to the territory. Denver was less a big city and more a town full of tents and temporary occupants hoping to make it rich. A few smaller mining towns were popping up throughout the state as gold was discovered, including Breckenridge, Colorado City, and Black Hawk, but these developments upset many people who already lived in the area. Two brothers from New Mexico, Felipe and Vivian Espinosa, were especially irate at the pioneers moving onto their land in the San Luis Valley and, for the better part of 1863, were intent on killing as many of the new residents as they could. Numbers of the murdered vary, but it’s believed they killed between a dozen and 30 people in just a few months.

    Accounts of how the brothers’ bloody careers ended differ, but eventually the brothers were killed, likely by a volunteer group of citizens from Park County. Their heads were brought to the capitol to collect the bounty set by the governor, but the governor refused to pay and no one knew what to do with the heads. They were first kept in the Treasurer’s Office in the capitol building but were later moved to the sub-basement beneath the capitol. Eventually, the heads were destroyed in the furnace.

    Since then, it’s been said that the heads of the Espinosa brothers can be seen floating through the building after dark. And if you’ve ever heard the sound of horses galloping up and down the main staircase, well, that’s just the Bloody Espinosas…looking for their heads!

    The Victorian Apparition
    On the third floor of the capitol building, rumor has it that you can see the ghostly visage of a woman wearing Victorian-era garments. She appears out of a mist near the entrance to the senate chambers and then floats off to either side of the chamber before disappearing.

    The Woman in a Long Dress
    A female spirit, appearing in a long, turn-of-the-century dress, is said to wander the steam tunnels beneath the capitol, as well as the capitol building and all the buildings connected to the tunnels in the Capitol Hill area. She’s been seen reading over the shoulders of employees in each of the buildings.

    The Mysterious Tunnels
    Certainly the steam tunnels under the capitol building lend themselves to spooky stories and an overall heightened awareness. In addition to The Woman in a Long Dress, there have been reports of odd cold spells, during which keys, ID badges, and other items are pulled away from the body of the owner and lifted into the air by an unseen force.

    General Spookiness
    While the above stories illustrate a few of the known spirits, there are still a few more spooky happenings in the capitol building that don’t have a known explanation:

    • In the early hours before business gets going, and in the late hours well after business is done for the day, it’s said that the temperature in many areas of the capitol suddenly drops and a vintage, rose-scented perfume permeates the air before disappearing without a trace as the temperature returns to normal.
    • When business is done for the day, voices, conversations, and footsteps can be heard in and around empty meeting rooms and offices.

     

    For more on the Espinosa brothers, check out the “Legends of America” article about them here.

  • Parsing Powers: Legislative Review of State Department Rules

    by Julie Pelegrin

    Each year, executive branch agencies in Colorado adopt between 400 and 500 sets of rules creating many thousands of pages of rules and accompanying materials. Specifically, in 2018 alone there were 457 sets of rules adopted. Counting the rules and corresponding materials, that totals up to 26,971 pages. That’s a lot of rules! And every one of those rules, along with the corresponding materials, was read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    This rule review function provides an instructive example of how the vague constitutional concept of separation of powers actually works between the legislative and executive branches. The legislature has the authority to make the laws. But in some instances, it makes more sense for the persons working directly with a program to decide the implementing details. In those situations, the legislature delegates some of its legislative authority to an executive branch department, allowing it to adopt rules. However, in adopting rules, the department must comply with statutes and cannot go beyond the authority that the legislature delegated to it. To ensure this does not happen, the legislature retains the ability to review the executive branch department’s rules and approve only those rules that are within the department’s rule-making authority and do not conflict with state or federal law.

    This process for reviewing and approving executive branch department rules is found in the State Administrative Procedure Act (APA). The APA requires each department to submit every rule that it adopts or revises within a one-year period to the OLLS for review under the supervision of the Committee on Legal Services (Committee). The standard of review is based on language in §24-4-103 (8)(a), C.R.S., which states, “No rule shall be issued except within the power delegated to the agency and as authorized by law.” The vast majority of rules meet these requirements. But sometimes a rule conflicts with a statute or the constitution or does not fit within the limits of the department’s rule-making authority. At that point, the Committee and the General Assembly turn to the process laid out in the APA.

    The APA establishes a year-round cycle for reviewing rules.  Under §24-4-103 (8), C.R.S., rules adopted during the one-year period from November 1 through October 31 automatically expire on the next May 15, unless the General Assembly extends the rules by passing a bill.  This annual bill is called the Rule Review Bill and is sponsored by the Committee. This year, it’s introduced as S.B. 19-168. The Rule Review Bill postpones the automatic expiration of all of the adopted department rules, except for those rules listed in the bill that the Committee has decided should expire because the rules: 1) lack statutory authority, 2) exceed statutory authority, or 3) conflict with a state or federal statute or constitutional provision.

    During the process of reviewing the rules, if the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the department to discuss the issues with the rule. If the department disagrees with the analysis or is unable to fix the problems identified with the rule, the staff schedules the rule issue for a hearing before the Committee. The OLLS staff writes a memo for the Committee explaining its analysis, and the department may also submit a responsive memo to the Committee.

    At the hearing, the OLLS staff and if, they choose to appear at the hearing and make a presentation, the department staff or the department of law staff representing the department explain their positions to the Committee, and the Committee takes public testimony.  At the end of the hearing, the Committee votes to either extend the rule through the Rule Review Bill or allow the rule to expire. The Committee bases its decision on the legal question of the authority of the rule—not on whether the rule in question is good or bad policy for the state.  After the Rule Review Bill passes, the OLLS staff transmits the bill to the Secretary of State’s office, which removes any expired rules from the Colorado Code of Regulations.

    Sometimes a department will seek a change to a statute to provide authority for a rule. The Committee will not carry a bill to do this, but if an individual legislator introduces and passes such a bill, the Committee will amend the Rule Review Bill so that the newly authorized rule does not expire.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes departments to adopt rules. Many legislators, after passing bills that create new programs, later ask, “Did the department ever adopt rules to implement my bill?”  Section 24-4-103 (8)(e), C.R.S., requires the OLLS to identify rules related to newly enacted bills and notify prime sponsors and cosponsors when the department adopts rules required or authorized by the new legislation. The OLLS sends out e-mail notices to prime sponsors and co-sponsors when the rules are adopted.

    But what if you want to know whether a department ever adopted rules to implement a bill you heard in a committee of reference?  Or what if you’re a legislator and you no longer have the e-mail notice?  Anyone can look up rule implementation information at any time on the OLLS’s homepage under a tab entitled Rule Review. The OLLS maintains a chart that is organized by committees of reference and lists each bill for which rules are adopted.  The chart also provides a link to the rule information that each department files during the rule adoption process.

    Section 24-4-103 (8)(e), C.R.S., also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted.  Each January, the OLLS sends an email notice to the committees of reference with the chart of rules that the OLLS has compiled.

    So, while the legislature is willing, when appropriate, to delegate some of its authority to the executive branch by authorizing a department to adopt rules, the legislature keeps a close eye on how that authority is exercised, ensuring that the department stays within the lines.

  • Legislative Review of Administrative Rules: A History of Oversight – Part 2

    by Thomas Morris

    In our previous article about the history of rule review, we looked at the process from its pre-legislative oversight era to 1976, when the General Assembly required legislative oversight of executive branch rules. In today’s article, we pick up one year later, when the General Assembly made more changes to the process.

    Legislative review of existing rules. In 1977, just one year after directing committees of reference or the Committee on Legal Services (COLS) to conduct the initial level of legislative oversight of new rules, the General Assembly enacted a law[1] that, among several other significant changes, removed the authority to amend a rule and directed the “legislative drafting office” (the predecessor to the OLLS) to conduct the initial review:

    24-4-103.  Rule-making – procedure. (8) (d)  All rules adopted or amended on or after July 1, 1976, including temporary or emergency rules, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to legislative drafting office in the form and manner prescribed by the committee on legal services. Said rules and amendments to existing rules shall be filed by and in such office and shall be first reviewed by the staff of said committee to determine whether said rules and amendments are within the agency’s rule-making authority, and for later review by the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). The official certificate of the director of the legislative drafting office as to the fact of submission or the date of submission or a rule as shown by the records of his office, as well as to the fact of nonsubmission as shown by the nonexistence of such records, shall be received and held in all civil cases as competent evidence of the facts contained therein. Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or within twenty days after the date of the attorney general’s opinion rendered thereon to the legislative drafting office for review by the committee of legal services shall be void. The staff’s finding shall be presented to said committee at a public meeting held after timely notice to the public and affected agencies. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference proposed legislation at the next regular session of the general assembly. The committee on legal services shall be the committee of reference for any bill introduced pursuant to this paragraph (d). A committee of reference, or the committee on legal services, or Any member of the general assembly may introduce a bill which amends or rescinds or deletes portions of the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective, and that portion of the rule which remains after deletion of a portion thereof shall retain its character as an administrative rule. Passage of a bill repealing a rule does not result in revival of a predecessor rule.  Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services legislative drafting office. This paragraph (d) does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules. For the purpose of performing the functions assigned it by this paragraph (d), the committee on legal services, with the approval of the speaker of the house of representatives and the president of the senate, may appoint subcommittees from the membership of the general assembly. In addition, the said committee shall establish a program for the systematic review of all agency rules adopted prior to July 1, 1976, and in effect at the time of such review, which review shall be completed within a reasonable time not to exceed five years.

    Significantly, the final sentence of this statute directed the COLS to “establish a program for the systematic review of all agency rules adopted prior to July 1, 1976”.[2] In 1979, evidently to implement this program for legislative review of existing rules, the General Assembly enacted HB79-1063, which:

    • Provided for the automatic expiration of all new rules on the June 1 of the year after their adoption unless the expiration is postponed by bill;[3]
    • Struck the final sentence of section 24-4-103 (8)(d), C.R.S.;[4] and
    • Enacted section 24-4-108, C.R.S.[5]

    Section 24-4-108 (1) provided that, “[u]nless extended by the general assembly acting by bill, all of the rules and regulations of the principal departments shall expire on the dates specified in this section.” Subsections (2) through (6) of this section then specified, respectively, that all existing rules of the various departments would expire on July 1 of the five years commencing on or after July 1, 1980. Subsection (7) specified that the General Assembly could “postpone by bill the expiration of rules and regulations, or any portion thereof, as often as necessary, but no such postponement shall exceed four years.”[6] The General Assembly also amended subsection (7) to authorize the COLS to “establish procedures for the implementation of review of rules and regulations contemplated by this section including, but not limited to, a procedure for annual review of rules and regulations which may conflict with statutes or statutory changes adopted subsequent to review of a department’s rules and regulations pursuant to this section.”[7]

    After this 5-year legislative review of existing rules ran its course,[8] the statutes governing the legislative review of rules assumed much of their current form:

    • The validity of existing rules is not reviewed unless included in a submittal that amends existing rules or adds new rules;
    • All new rules must be submitted to the attorney general and OLLS for review of their statutory authority;
    • All new rules automatically expire on the May 15 that follows the one-year period from Novem ber 1 to October 31, unless the General Assembly postpones the expiration acting by bill; and
    • The OLLS takes rules that it believes lack statutory authority or conflict with statute to the COLS, which holds a hearing to make its determination. Those determinations are then compiled into the annual rule review bill.

    For a LegiSource article that explains the current standards and procedures for legislative rule review in more detail, see “Parsing Powers: Legislative Review of State Department Rules“.

     

    [1] HB 77-1646; L. 77, p. 1141, §1.

    [2] Recall that the General Assembly had already directed the attorney general to review all existing rules in section 3-16-2 (8)(c) (enacted by SB 67-102) (see footnote 7 above).

    [3] L. 79, p. 845, §1. The General Assembly later modified law governing the automatic expiration of rules, section 24-4-103 (8)(c)(I), C.R.S., by specifying that all rules adopted during the one-year period from November 1 to the following October 31 automatically expire on the May 15 that follows the one-year period unless the General Assembly postpones the expiration acting by bill. SB 93-035; L. 93, p. 496, §1.

    [4] L. 79, p. 845, §2.

    [5] L. 79, p. 846, §3.

    [6]The General Assembly soon repealed the four-year limit on postponement. SB 81-294; L. 81, p. 1145, §1.

    [7] SB 81-294; L.81, p. 1145, §1.

    [8] The legislature enacted several bills to repeal parts or all of subsections (2) through (6) of section 24-4-108, C.R.S., from 1980 to 1984.

  • Statutory Construction: Severing Statutes and Resolving Conflicts

    Editor’s Note: This is the final article in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. This article was originally posted February 19, 2016.

    In addition to presumptions and tools for discerning legislative intent, the statutes on construction of statutes provide specific guidance for when a court can salvage part of an otherwise unconstitutional statute and how a court should decide which statute to apply when two statutes conflict.

    Statutory Salvage Operations: Severability
    Suppose a court interprets a statute and finds that part of that statute is unconstitutional. Does that mean the entire statute is unconstitutional, or can some portions of the statute survive?

    The answer turns on the concept of severability. Section 2-4-204, C.R.S., says that, if a court finds part of a statute to be unconstitutional, the remaining constitutional parts of the statute are valid, unless the court finds that those remaining parts are:

    • So essential to the unconstitutional part that the General Assembly would not have passed the constitutional part without the unconstitutional part; or
    • So incomplete that they cannot be implemented without the unconstitutional portion.

    To illustrate, let’s consider a hypothetical situation: Assume there’s a statute that regulates caterpillar breeders. Under this statute, a caterpillar breeder cannot have more than 1,000 caterpillars at a time and the caterpillar breeder cannot advertise her caterpillar breeding business. A caterpillar breeder sues the state claiming that the statute is unconstitutional because limiting the number of caterpillars and prohibiting advertising restricts her freedom of commercial speech. The court agrees that the prohibition on advertising is unconstitutional and cannot be enforced. However, the court finds that the limit on the number of caterpillars has nothing to do with commercial speech and is constitutional. The court will find that the statute is severable because the limit on the number of caterpillars is not directly related to the prohibition on advertising and can be implemented even though the prohibition on advertising is not enforced.

    When Statutes Collide Part I: Specific Controls Over the General…Usually
    Sometimes a statute will state a general requirement that is intended to apply in a variety of situations. But another statute may impose a different requirement in a specific situation. How is a court supposed to apply both of these statutes?

    Section 2-4-205, C.R.S., directs a court to read the statutes together and give effect to both of them if possible. If the two requirements conflict and they cannot both apply, the court must apply the specific requirement instead of the general requirement. But, if the General Assembly passed the general requirement after it passed the specific requirement and made it clear that the general requirement was intended to replace the specific one, then the court will apply the general requirement, not the specific requirement.

    Another illustrative hypothetical: Assume there’s a statute that says applications for a professional license must be filed in triplicate with the appropriate licensing agency. But, the statute for licensing professional caterpillar breeders says a caterpillar breeder may submit a single copy of the license application with the professional caterpillar breeders board. Obviously, a court could not apply both of these statutes; one must prevail. The court would allow the caterpillar breeder to file a single copy of the license application with the board, unless the statute that requires the application in triplicate was passed after the caterpillar breeders’ statute, and the bill for the general licensing statute included a statement of legislative intent that it is imperative to good government that all licensing applications be filed in triplicate.

    When Statutes Collide Part II: Later In Time Controls
    Sometimes two statutes conflict, not because one is general and the other is specific, but because one prohibits what the other allows or requires. As in other cases, the court will first try to reconcile the differences and give effect to both sections. But, under section 2-4-206, C.R.S., if the differences are irreconcilable – there is a true conflict – the statute that has the latest effective date is the one the court will apply. If both statutes were passed in the same legislative session with the same effective date, the statute that has the latest date of passage will apply.

    Again, to illustrate: A caterpillar breeder loses his license because he does not post his license in the front window of the breeding building, as required by House Bill 1705. But, the caterpillar breeder argues to the court that he should keep his license because, under Senate Bill 923, a person who posts anything in the window of an insect breeding facility commits the crime of insect cruelty (papers in the window block the sunlight). The court cannot reconcile the conflict between the two statutes, so it looks to the effective dates of the bills. House Bill 1705 had an effective date clause that said it took effect July 1, 2009. Senate Bill 923 passed in 2009 without an effective date clause and without a safety clause – so it took effect August 5, 2009.  Senate Bill 923 took effect last, so it controls. The caterpillar breeder does not have to post his license.

    If House Bill 1705 and Senate Bill 923 had both passed without a safety clause and without an effective date clause, they would have both taken effect on August 5, 2009. In that case, the court would look for the date on which the Governor signed each of the bills. If the Governor signed House Bill 1705 on May 3, 2009, and signed Senate Bill 923 on May 4, 2009, the court would apply Senate Bill 923.

  • Legislative Review of Administrative Rules: A History of Oversight – Part 1

    by Thomas Morris

    Colorado’s constitution vests all legislative authority in the General Assembly[1]. It also requires a separation of powers between the “three distinct departments,—the legislative, executive and judicial” by specifying that “no person . . . charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others . . .”.[2] How, then, can executive branch agencies promulgate rules, which are a type of law[3] that seemingly should be enacted by the General Assembly?

    Pursuant to well-established principles of administrative law, a legislature may delegate its law-making power to an executive agency, but only if there are “sufficient statutory standards and safeguards and administrative standards and safeguards, in combination, to protect against the unnecessary and uncontrolled exercise of discretionary power.”[4] Accordingly, it is fairly common for a legislature, once it has delegated rule-making authority to an agency, to review the agency’s exercise of that authority to ensure that the legislature’s intent has been carried out faithfully.

    Since 1976, the Administrative Procedure Act (APA)[5] has required Colorado’s rule-making agencies to submit their new rules to the General Assembly for review. But the scope, procedures, and standards of that review have evolved over time. This article, the first of two regarding the rule review process, briefly summarizes that evolution.

    Pre-legislative oversight era

    The General Assembly enacted the earliest version of the APA in 1959.[6] This version of the APA did not provide for legislative rule review but did specify the following standards[7] for determining whether a rule is authorized:

    No rule shall be issued except within the power delegated to the agency and as authorized by law. A rule shall not be deemed to be within the statutory authority and jurisdiction of any agency merely because such rule is not contrary to the specific provisions of a statute.

    The General Assembly first provided for the systematic review of rules’ statutory authority in 1967[8] by directing the attorney general to review both new[9] and existing rules:

    3-16-2.  Rule making procedure. (8) (b) On and after July 1, 1967, no rule shall be issued, nor existing rule amended, by any agency unless it shall first be submitted by the issuing agency to the attorney general for his opinion as to its constitutionality and legality. Any rule, or amendment to an existing rule, issued by any agency without being so submitted to the attorney general shall be void.

    (c) All rules of any agency in effect on July 1, 1967, also shall be submitted, on or before December 31, 1967, to the attorney general for his opinion as to its constitutionality and legality, and no such rule shall continue in effect after December 21, 1968, unless so submitted.

    Early legislative oversight

    Evidently concluding that more oversight was needed, 10 years after directing the attorney general to review both new and existing rules, in 1976, the General Assembly added a law[10] that, for the first time, provided for systematic legislative review of new rules:

    24-4-103.  Rule-making – procedure. (8) (d)  All rules adopted or amended on or after July 1, 1976, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or to the committee of legal services shall be void. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference at the next regular session of the general assembly. A committee of reference, or the committee on legal services, or any member of the general assembly may introduce a bill which amends or rescinds the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective. Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services. This section does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules.

    This initial requirement for legislative review of new rules differs from current procedure in several respects:

    • The review was conducted by committees of reference, or, if the legislature was not in session, the committee on legal services (COLS); current law directs the Office Legislative Legal Services (OLLS) to conduct the initial review;
    • It appears that, if COLS determined that a rule lacked statutory authority, it was directed to submit a “resolution” to an appropriate committee of reference, although COLS could, along with a committee of reference or any legislator, also file a bill; current law directs COLS to file a bill;
    • The submitted rule must include a fiscal impact statement; current legislative review of rules does not specifically relate to fiscal impacts; and
    • Legislation resulting from the review would “amend[] or rescind[]” the rule; current law provides for “automatic termination” of all new rules and an annual bill that “postpones the expiration” of all rules other than those specifically listed.

    Not long after these changes, the General Assembly enacted more significant changes to the rule review process. In part 2 of this article, we’ll explore those changes and the rule review process from 1976 through its current iteration.

     

    [1] “The legislative power of the state shall be vested in the general assembly . . .” Art. V, §1 (1) of the Colorado Constitution.

    [2] Art. III of the Colorado Constitution.

    [3] “‘Rule’” means the whole or any part of every agency statement of general applicability and future effect implementing, interpreting, or declaring law . . .”. §24-4-102 (15), C.R.S.

    [4] Cottrell v. City and County of Denver, 636 P.2d 703, 709 (Colo. 1981).

    [5] §24-4-103 (8)(d), C.R.S.

    [6] HB 59-212; L. 59, p. 159, §2.

    [7] These standards, currently codified in section 24-4-103 (8)(a), C.R.S., were initially codified in section 3-16-2 (8), C.R.S. 1953 (cumulative supplement) and then codified in the same section in the 1963 C.R.S.

    [8] SB 67-102; L. 67, p. 300, §2.

    [9] Section 3-16-2 (8)(b), C.R.S. 1963, providing for the attorney general’s review of new rules, continues in essentially the same form today, codified as section 24-4-103 (8)(b), C.R.S.

    [10] SB 76-076; L. 76, p. 582, §15.