Colorado LegiSource

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

Year: 2019

  • What Do You Mean By That? Definitions in the Statutes

    Editor’s Note: This is the second in a series of seven articles on statutory construction that LegiSource is reposting during the 2019 legislative interim. This article was originally posted July 31, 2014. We will post the third article in two weeks.

    By Julie Pelegrin

    When debating legislation or reading statutes, a person will sometimes wonder what a specific word means as it’s used in the bill or the law. A word may be defined in several places and in different ways within the Colorado Revised Statutes – or it may not be defined at all. Following are some tips for figuring out whether the words in a bill or statute mean what you think they mean.

    First, it’s important to know that there is a definitions section in the statutes that defines several words for purposes of the entire Colorado Revised Statutes. Section 2-4-401, C.R.S., states “The following definitions apply to every statute, unless the context otherwise requires:” and then defines several words, including:

    • Child, which includes a child by adoption;
    • Immediate family member, which means a person who is related by blood, marriage, civil union, or adoption;
    • Must, which means that a person is required to meet a condition for a consequence to apply;
    • Person, which means any legal entity, including an individual, corporation, limited liability company, or government; and
    • Shall, which means a person has a duty.

    Most words, however, are not defined for the entire C.R.S. They are defined specifically for the title, article, part, or smaller subdivision of law in which they are used. The definition of “minor” is an interesting case in point.  In one section of statute, “minor” means a person who is less than 22 years of age, and in another section, it means a person who is less than 18 years of age. The statute-wide definitions section – section 2-4-401 (6), C.R.S. – defines “minor” as a person who has not attained the age of 21 years. But also says that a statute that expressly states another age for majority will override this definition.

    To discover whether and how a particular word is defined, you should look first at the statutory section in which the word is used to see whether the section includes any definitions. Usually, if the section includes definitions, the word “definitions” is included in the headnote (the type in bold at the beginning of the section). If the section doesn’t include definitions or if the word you’re looking for is not defined, you should look to the next larger grouping of statutes – either the beginning of the part or the beginning of the article in which the statutory section is located.

    Note that the introductory portion of the definitions section specifies the portion of statute to which it applies, i.e., “As used in this part…” or “As used in this article…” or “As used in this title…” (etc.). Furthermore, the introductory portion to a definitions section or subsection almost always includes the words “unless the context otherwise requires.” This means, if the definition of a word conflicts with the context in which the word is used, the contextual meaning may override the written definition. The persons applying a statute, and, if necessary, a court, must decide which definition actually applies.

    When reading a bill, remember that the definition of a word probably won’t appear within the bill unless the bill is specifically defining the word or changing the definition of the word. To understand how a word in a bill is defined, you may need to look up the definitions section in the existing law that applies to the section that the bill amends.

    But, there will be many times when you will look for a definition in a bill or in the statutes and you won’t find one. Generally, a definition is included in a statute only if the word has more than one definition and it is important for clarity to define it specifically or if the word is a term of art. Also, a word may be defined to avoid repeated use of a long or awkward phrase. For example: the state board of public health and environment is usually defined as the “state board”.

    Generally, words used in a statute must be construed according to their commonly accepted meaning. So, if a court must interpret a statute, and the words used in the statute aren’t defined, the court will open the dictionary and interpret the statute by applying the standard definition of the word. If you’re reading a statute and wondering what an undefined word means, you should do the same!

  • Recent Developments in Single Subject Requirement Case Law – Part II

    By Jason Gelender

    Editor’s Note: This is the second article in a three-part series on recent court decisions interpreting and applying the constitutional single subject requirement. The first article was posted July 11, 2019.

    In part I of this series on developments in the case law interpreting the single subject requirement, we examined a recent case concerning the title of House Bill 18-1306 in which the Denver District Court decided that section 7 of the bill, added by amendment in the Senate, did not fit within the single subject expressed in the bill title. In part II of the series, we will consider another decision in a recent challenge to a bill enacted by the General Assembly.

    TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al.,[1] involved a single subject challenge to Senate Bill 17-267 “Concerning the sustainability of rural Colorado.”[2] Unlike House Bill 18-1306, Senate Bill 17-267 was a lengthy (35 sections and 58 pages as enrolled), complex bill that did a number of things that were not closely and obviously connected. Among other things, Senate Bill 17-267:

    1. Repealed the hospital provider fee program;
    2. Created a new Colorado health care affordability and sustainability enterprise (CHASE) to administer a new healthcare affordability and sustainability fee program (CHASE program);
    3. Lowered the excess state revenues cap (the voter-approved statutory cap on the amount of TABOR revenue that the state may annually retain and spend) by $200 million for state fiscal year 2017-18 and by $200 million plus TABOR formula inflation adjustments for subsequent state fiscal years;
    4. Provided additional one-time funding for rural school districts;
    5. Required principal departments to submit reduced budget proposals to the Office of State Planning and Budgeting (OSPB) for state fiscal year 2018-19 and required the OSPB to strongly consider the proposals;
    6. Required the state to enter into up to $2 billion of lease-purchase agreements to fund transportation infrastructure and capital construction projects;
    7. Exempted retail marijuana sales that are subject to the state retail marijuana sales tax from the general state sales tax;
    8. Made the annual state payment of reimbursement to counties for property tax revenue lost due to the property tax exemption for qualifying seniors the first TABOR refund mechanism when TABOR refunds are required; and
    9. Increased the state retail marijuana sales tax rate to 15%.

    In making their single subject challenge, the plaintiffs argued that, to satisfy the single subject requirement, “‘a bill must have one unifying subject and a purposive element or modification of that subject” and that “all substantive provisions of the bill must be dependent on or connected to that purpose or modification.”[3] But the Denver District Court rejected this proposed test for single subject requirement compliance, stating instead “that so long as the matters encompassed in the bill are necessarily and properly connected with each other rather than disconnected or incongruous, the single subject requirement of Section 21 is not violated.”[4]

    The Denver District Court applied its stated test for single subject compliance in an order denying plaintiff’s motion for summary judgment and granting defendants’ cross-motion for summary judgment and defendant-intervenor’s[5] motion for summary judgment. The court concluded that Senate Bill 17-267 satisfied the single-subject requirement because:

    • The “general and broad” title of the bill (Concerning the Sustainability of Rural Colorado) does not indicate a single subject violation but instead is “the preferred practice” and, furthermore, was not shown in any way by plaintiffs to have actually misled any legislators or confused any citizen witnesses regarding the contents of the bill;
    • After reviewing all of the provisions of the bill, including nonsubstantive legislative declarations that indicated the General Assembly’s intention to “address a number of issues affecting rural Colorado, some of which undeniably also affected other parts of the state,” all of the provisions “relate to the subject of the sustainability of rural Colorado, are necessarily or properly connected with each other, and none are disconnected or incongruous.” Specifically the court concluded that:
      • The fourteen sections of the bill relating to the repeal of the hospital provider fee program and the creation of the CHASE and the CHASE program all related to the sustainability of rural Colorado by addressing “proposed cuts to the [hospital provider fee p]rogram that would have disproportionately impacted rural Colorado and rural hospitals in particular;”
      • Provisions of the bill concerning retail marijuana taxes, the provision of one-time funding for rural school districts, and highway funding, some of which the bill specifically redirected for rural highways, “addressed other issues impacting rural Colorado[;]” and
      • Provisions of the bill addressing business and personal property credits, as well as the property tax exemption for qualifying seniors, “disproportionately benefit rural Colorado” because of its slower “economic recovery following the Great recession compared to urban areas” and its older population compared to urban areas.[6]

    What can we learn from the Denver District Court’s order in TABOR Foundation?

    • First, and in contrast to a bill with a narrow title, if a bill has a broad general title, there is a good chance that it will withstand a single subject challenge even if it includes many provisions that are not closely and obviously connected on their face. So long as each provision of the bill plausibly relates to the broad general subject expressed in the title and furthers the bill’s main purpose, the bill is likely to satisfy the single subject requirement even if some of its provisions also address matters that are not clearly identified by the title.
    • Second, and especially when contrasted with Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado, discussed in part I of this series, the benefit of a broad general title is that it puts legislators and the general public on notice that a bill may contain provisions that cover a lot of ground and that the bill should therefore be closely examined by anyone who wants to know what those provisions are. In this way, one of the main evils that the single subject requirement is intended to mitigate, legislator and public deception and confusion regarding the contents of a bill, can be avoided.
    • Third, if a bill is drafted with a broad general title, it likely can safely be amended in a wide variety of ways; only amendments that do not plausibly relate at all to the title or the general purpose of the bill and therefore are likely to lead to legislator or public surprise and confusion regarding the contents of the bill are likely to be at risk if subjected to a single subject challenge. A bill sponsor who wishes to limit amendments should therefore think carefully before introducing a bill with a title that is broader and more general than necessary to encompass its provisions within its clearly expressed single subject.

    The plaintiffs have appealed the Denver District’s Court’s order in TABOR Foundation, and their opening brief must be filed by August 7, 2019.

     

    [1] Case No. 15CV32305 (Denver Dist. Ct.).

    [2] The plaintiffs also alleged that certain provisions of Senate Bill 17-267 violated the Taxpayer’s Bill of Rights (TABOR)

    [3] Order re: parties motions for summary judgment (March 5, 2019), at 40. (court order quoting plaintiffs’ argument as made in plaintiffs’ briefs).

    [4] Id. at 42.

    [5] The Colorado Hospital Association, which had advocated for the provisions of Senate Bill 17-267 that repealed the hospital provider fee program and created the CHASE and the CHASE program, was the defendant-intervenor.

    [6] Id. at 42-47.

  • Introduction to Statutory Construction – The Plain Meaning Rule

    Editor’s Note: During the 2019 legislative interim, LegiSource will repost a series of seven articles on statutory construction, which was originally posted over several months from 2013-2016. We are posting the first article this week and will continue posting the articles every other week through October 10. This article was originally posted September 12, 2013.

    By Julie Pelegrin

    You’ve worked hard to get your bill through both houses and onto the Governor’s desk. You worked with your colleagues on amendments to be sure the bill language clearly and explicitly said just what you intended. Now, the act is signed and on its way to implementation and you can rest easy. Right? Hopefully right. But there may be some people who don’t agree on what this new statute means or on what your carefully crafted language says. Some of these disagreements may be so serious that someone files a lawsuit asking the court to interpret the precise meaning of this new statute. How is the court going to interpret your bill and decide what it means?

    This is the first article in a series that looks at statutory construction—how courts approach interpreting a statute and the various rules that they apply. Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute. This series of articles is intended to provide a helpful and informative overview of those rules.

    We’ll begin the series by looking at one of the basic ground rules a court applies when reading statutes. When someone asks a court to interpret a statute, the first thing the judge does is read the statute. If the statutory language is clear on its face and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand. This is known as the “Plain Meaning Rule.” The judge will decipher the plain meaning of a statute by applying the ordinary, everyday definitions of the statute’s words, unless the statute itself provides specific definitions of the words.

    Colorado actually has a statute, section 2-4-101, C.R.S., that supports the Plain Meaning Rule:

    Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

    In giving the ordinary meaning to words and phrases, the judge will avoid an interpretation that leads to an illogical or absurd result. The judge will also avoid an interpretation that would defeat the obvious intent of the statute.

    And as section 2-4-101, C.R.S., requires, the judge will read the statute in context, as a whole and try to give consistent and sensible effect to all parts of the statute. A judge assumes that the General Assembly intended the entire statute to be effective and did not include any statutory language that has no meaning or effect.

    Unfortunately the meaning of a statute is not always plain. A judge may find that the language of a statute can be reasonably read to have two or more meanings. Also, a judge may find that there are two or more statutes that apply to a particular situation. The meaning of each statute may be plain, but each statute, as applied, will result in different outcomes. When this happens, the judge will likely find that the statute is ambiguous.

    At this point, the judge may turn to the legislative history to try to determine the legislature’s intent when it enacted the statute. In Colorado, the legislative history consists almost entirely of the recorded debates and discussions concerning the bill in the committee of reference and on the floor. The court may also consider the goal that the statute is intended to accomplish, if that is clear from the legislative history or from the statutory legislative intent, and the consequences of a particular interpretation of the statute.

    In addition to the legislative history, a judge may apply one or more of the canons, or rules, of statutory construction to interpret a statute. Colorado has codified many rules of statutory construction that we’ll consider in later articles. There are also several widely accepted canons of construction that courts have developed and used to interpret statutes and other legal documents for many years. Subsequent articles will discuss these, as well.

    It is important to remember that, if the General Assembly disagrees with a court’s interpretation of a statute, the General Assembly can amend the statute to clarify its intent. But when the court interprets the constitution or finds that a statute violates a constitutional provision, the General Assembly, if it disagrees, can override the court’s opinion only by referring a constitutional measure to the ballot.

  • Recent Developments in Single Subject Requirement Case Law – Part I

    By Jason Gelender

    The single subject requirement of the Colorado constitution prohibits bills enacted by the General Assembly, constitutional amendments submitted for a vote of the people by the General Assembly, and initiated statutory changes and constitutional amendments from addressing more than one subject. While three distinct constitutional provisions separately prescribe the rule for bills, referred constitutional amendments, and initiatives, they all respectively state that a bill, referred constitutional amendment or initiative cannot “contain more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in [the bill, referred constitutional amendment, or initiative] which shall not be expressed in the title, [it] shall be void only as to so much thereof as shall not be so expressed.” [1]

    Most of the single subject case law from the last quarter century addresses proposed initiatives and is generated when the Colorado Supreme Court considers appeals of Title Board decisions.[2] But two recent single-subject challenges to bills enacted by the General Assembly have yielded interesting and informative, albeit not precedentially binding, Denver District Court decisions. One case involves a successful challenge to a bill that was not especially lengthy, complex, or broad in its scope; the other case involves a thus far unsuccessful challenge to a bill that was lengthy, complex, and broad in its scope.

    This post, which is the first of a three-post series on recent developments in single subject case law, examines the first of those two decisions. The second post will examine the second of those decisions, and the third post in the series will examine the Colorado Supreme Court’s recent decision holding that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR) contains a single subject.

    The first case, Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado,[3] involved a single subject challenge to House Bill 18-1306, “Concerning ensuring education stability for students in out-of-home placement, and, in connection therewith, making an appropriation.” House Bill 18-1306 contained six substantive sections;[4] the plaintiffs alleged that section 7 of the bill violated the single subject requirement. Section 7, which was added to the bill in the Senate, eliminated a requirement that a school district that wishes to furnish transportation to a child who resides in another school district first obtain the approval of the school district in which the child resides. The plaintiffs contended that it violated the single subject requirement because, unlike the other substantive provisions of the bill, it did not apply only to “students in out-of-home placement.” The Denver District Court agreed with the Plaintiffs. In an order granting their motion for summary judgment, the court declared “[s]ection 7 of House Bill 18-1306 … to be void and of no effect” on the grounds that:

    • The “modern application” of the single subject requirement “requires an act and its title [(1) to] notify the public and legislators of pending bills so that all may participate; (2) to make the passage of each legislative proposal dependent on its own merits; and (3) to enable the governor to consider each single subject of legislation separately in determining whether to exercise veto power;”
    • The title of the bill “is not general,” but instead “is narrow in its focus, specifically ‘out of home’ placed students;”
    • The title therefore did not provide proper notice to the General Assembly or the public that section 7 of the bill modified “transportation for all students, in all school districts, without any restrictions or qualifications;”
    • Because section 7 of the bill was identical to language that had been included in a different bill, Senate Bill 18-228, which the General Assembly had postponed indefinitely, section 7 could not have passed on its own merits and its inclusion in the bill was “logrolling;” and
    • The addition of section 7 to the bill deprived the Governor of the opportunity to consider the remainder of the bill, all of which had a necessary and proper connection to the narrow single subject of ensuring educational stability for out-of-home-placed students, separately from section 7.[5]

    The state initially planned to appeal the order granting plaintiffs’ motion for summary judgment, but the General Assembly rendered the appeal moot by enacting Senate Bill 19-039, which restored the district of residency approval requirement that the voided section 7 of House Bill 18-1306 had sought to eliminate.

    What can we learn from the Denver District Court’s Order in Arapahoe Cnty. Sch. Dist. No. 1?

    • First, legislators, bill drafters, and anybody else who happens to get involved in the drafting of a bill should make sure to carefully consider and review the scope of the bill’s title before the bill is introduced. House Bill 18-1306 did not fail to meet the single subject requirement because it was a lengthy or complex “omnibus” bill that addressed a myriad of matters that could not reasonably fit under even a broad title. It failed because the title was drafted too narrowly to encompass all of its provisions, specifically a provision that was added by amendment, which a broader title could have encompassed.
    • Second, there is a real risk that a provision that actually relates to the single subject of a bill will nonetheless be found to create a second subject if the provision also relates to other matters. The issue with section 7 of House Bill 18-1306 wasn’t that it didn’t apply to students in out-of-home placement, but that it also applied to all other students. Again this risk can often be mitigated by drafting a bill with a broad general title.
    • Third, a narrow title remains a useful tool for limiting the scope of a bill and preventing the bill from being amended in a way that is contrary to the sponsors’ intentions. This tool is especially useful for a bill sponsor who knows, before a bill is introduced, exactly what the sponsor wants to accomplish and how it should be accomplished. But a narrow title does carry some risk if, after introduction, the policy goal of the bill or the means of achieving it change.

    In the next posting, we’ll discuss the lessons to be learned from the district court’s decision in TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al., which addressed a single subject challenge to Senate Bill 17-267, “Concerning the sustainability of rural Colorado.”

     

    [1] For general information about the single subject rule, see the Colorado LegiSource post titled “Single Subject Requirement Prevents a Multitude of Evils” (https://legisource.net/2012/12/06/single-subject-requirement-prevents-a-multitude-of-evils/)

    [2] Before a proposed initiative to change the Colorado Revised Statutes or amend the Colorado constitution can be circulated for signatures and placed on the ballot, the Title Board, a three-member statutory body composed of designees of the Secretary of State, the Attorney General, and the Office of Legislative Legal Services, must determine whether the measure satisfies the single subject requirement and, if it does, “designate and fix a proper fair title” for it. Sections 1-40-106 and 1-40-106.5, C.R.S. Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [3] Case No. 2018CV32901 (Denver Dist. Ct.).

    [4] Sections 2 through 7 of the bill included substantive amendments to Colorado law, while section 1 contained a non-statutory legislative declaration, section 8 contained an appropriation, and section 9 was a standard “act subject to petition” clause.

    [5] Omnibus order re: plaintiffs’ motion for summary judgment, defendant’s motion for summary judgment, and defendant-intervenors’ motion for summary judgment (December 14, 2018).

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on July 11. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

  • Answers for the 120th Legislative Day

    By Julie Pelegrin

    Closing in on the final gavel of the first regular session of the 72nd General Assembly, our readers likely have a lot on their (tired) minds. So for our final posting of the session—and the final posting before LegiSource resumes July 11—we’re offering answers to some of the questions you may be asking.

    Why is it called a filibuster?

    We’ve heard the word “filibuster” used a lot during this session, and we’re all well aware of its definition: “An action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.”[1] But what is the derivation of this word?

    The Online Etymology Dictionary (Dictionary) says the word likely came from the Dutch word vrijbueterin the 1580s was rendered flibutor, and means “pirate” or “freebooter”. The word was used in reference to mainly French, Dutch, and English “adventurers” of the 17th century, many of whom were infamous for ransacking the Spanish colonies in the West Indies.

    By the mid-1800s, the English version—filibuster—referred to American adventurers who went down to Central America to foment and lead revolutions to overthrow the local governments. The Dictionary provides an interesting quote from Harper’s New Monthly Magazine, January 1853:

    FILIBUSTERING is a term lately imported from the Spanish, yet destined, it would seem, to occupy an important place in our vocabulary. In its etymological import it is nearly synonymous with piracy. It is commonly employed, however, to denote an idea peculiar to the modern progress, and which may be defined as the right and practice of private war, or the claim of individuals to engage in foreign hostilities aside from, and even in opposition to the government with which they are in political membership.

    With regard to the legislative process, the word is usually used as a verb, but it retains the sense of the original noun. The Dictionary suggests that when the word began to be used regularly in the 1860s to describe prolonged speeches to obstruct progress in the legislature, the definition was extended in this way “because obstructionist legislators ‘pirated’ debate or overthrew the usual order of authority.”

    For an interesting explanation of the use of filibustering in the U.S. Senate and the development of the cloture rule, you might want to read this testimony by Sarah A. Binder. She was a Senior Fellow at the Brookings Institute when she testified before the U.S. Senate Committee on Rules and Administrations in 2010. Spoiler alert: She blames Aaron Burr for enabling filibustering in the U.S. Senate.

    This has been a really busy session. How many bills were introduced?

    While everyone has worked really hard this session, the number of introduced bills is actually less than the number introduced in most of the preceding four legislative sessions.

    This year the House introduced 335 bills, which compares with:

    • 441 introduced in 2018
    • 374 introduced in 2017
    • 467 introduced in 2016
    • 392 introduced in 2015

    The Senate introduced 263 bills this year, which compares with:

    • 280 introduced in 2018
    • 306 introduced in 2017
    • 217 introduced in 2016
    • 289 bills introduced in 2015

    Although the Senate introduced fewer bills in 2016 than it did this year, the overall total for 2016 was 684. This year, it’s only 598.

    Nearing the end of the 119th legislative day, 511 of those 598 bills have been acted on. Of those bills: 109 were killed in committee, two lost on second reading, three lost on third reading, 202 are in the process of final enrolling, 39 are sitting on the Governor’s desk; and the Governor has already signed 155.

    How long does the Governor have to act on a bill?

    Under article IV, section 11 of the Colorado constitution, if the Governor receives a bill and there are more than 10 days left in the session, the Governor has 10 days to sign or veto the bill or the bill becomes law without his signature. If the Governor vetoes a bill, he must send it back to the House and the Senate with a letter explaining his reasons for vetoing the bill. The House and the Senate may then reconsider the bill and if two-thirds of the members elected to the House and two-thirds of the members elected to the Senate reapprove the bill, it becomes law despite the Governor’s veto.

    If, however, the House and the Senate adjourn sine die before the Governor’s 10 days for action have passed, then the Governor has 30 days after sine die to act on the bill before it becomes law without his signature. And if he vetoes the bill, there is no opportunity for an override vote.

    What does sine die mean? And how do you pronounce it?

    The exact translation of the Latin term, “sine die”, is “without a day.” As applied, it means that the General Assembly adjourns without specifying the day on which they are returning. During the session, when each house adjourns at the end of a legislative day, the motion specifies the time and the date when the house will reconvene. On the last day of the session, however, the motion is to adjourn sine die – no return date specified.

    As for how it’s pronounced, there seems to be a difference of opinion in the online dictionary electronic pronunciations. Check a variety of websites and you’ll hear sign-uh die-ee; sin-ay dee-ay; and even sign-die. Guess that’s what happens when the people who originally spoke the language have been dead for several centuries.

    So when are they coming back?

    Just because they adjourn sine die doesn’t mean they don’t know when they’ll be back. As our regular readers know, article V section 7 of the state constitution requires the General Assembly to convene in regular session by 10:00 a.m. no later than the second Wednesday of January each year. One of the last measures to pass each year is a joint resolution that establishes the convening date for the next regular legislative session. This year, Senate Joint Resolution 19-009 sets Wednesday, January 8, 2020, as the first day of the second regular session of the 72nd General Assembly.

    That said, the Office of Legislative Legal Services looks forward to welcoming everyone back next January … or sooner if the Governor calls a spec…. no, we’re not even going to put that in type.

    [1] Definition from the Google Dictionary.

  • Parsing Powers: Legislative Review of State Department Rules

    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 co-sponsors 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 new 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.

  • Automatic Rule Changes During the Last Days of Session

    By Julie Pelegrin

    (A previous version of this article was posted on April 30, 2015, as “The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace”.)

    On May 4, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 3, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last 3 Days of Session:

    • House Rule 25 (j)(3); Senate Rule 22 (f): Each House committee chairperson must submit committee reports to the House front desk as soon as possible after the committee acts on a bill. No more waiting for two or three days to turn in the report. This requirement—to submit the committee report as soon as possible—actually applies to Senate committee chairs in the last 10 days of session. And during these last 10 days, at the request of the Senate Majority Leader or President, the chairman must submit the committee report immediately. If that doesn’t happen within 24 hours after the request, the committee staff person is required to submit the report to the Senate front desk on the chairman’s behalf.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • House Rule 35 (a): Throughout most of the session, a Representative may give notice of the intention to move to reconsider a question. In this case, the Representative has until noon on the next day of actual session to move to reconsider. However, during the last three days of session, a member may not give notice of intention to reconsider.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

    Digest of Bills

    With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 2 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the preliminary and final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.

  • Statutory Revision Committee: Four Years In and Going Strong

    by Jessica Wigent

    In the four years since its (re)creation in 2016, the Statutory Revision Committee (SRC) (codified in part 9 of article 3 of title 2, C.R.S.) has, in accordance with its charge, introduced and passed more than 70 bills to modify or eliminate antiquated, redundant, or contradictory rules of law to harmonize the statutes with modern conditions.

    During the lively hearings held during the 2018 interim and the 2019 legislative session, committee members heard memo presentations and testimony on issues including the federal preemption of Colorado statutes concerning human smuggling; duplicative statutes governing the disposal of cancer drugs; and obsolete statutes concerning powers of the board of health that arguably should’ve been updated decades ago.

    Overall, hundreds of pages of statutory text have been repealed or brought into the 21st century through SRC-recommended legislation.

    Membership
    The SRC consists of eight legislators (two appointed by the majority and minority leadership in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The appointees for 2019-20 are:

    • Senator Rachel Zenzinger, Chair
    • Senator Rob Woodward, Vice-chair
    • Representative Jeni Arndt
    • Representative Hugh McKean
    • Senator Dominick Moreno
    • Senator Jack Tate
    • Representative Donald Valdez
    • Representative Kevin Van Winkle
    • Patrice Collins
    • Brad Ramming

    Attending to the Antiquated, Obsolete, and Anachronistic
    The SRC is introducing 19 bills during the 2019 legislative session, including legislation:

    • Correcting a very small, yet significant error in the definition of “appraisal management company” – the word “train” should’ve been “retain” (SB 19-046);
    • Eliminating redundant and potentially confusing language in statute that was created when two bills amended the same section in 2018, concerning the requirements for issuing professional teacher and special services licenses to applicants from another state (HB 19-1059);
    • Clarifying that the scope of a certain sales tax exemption applies to manufactured homes (HB 19-1011);
    • Making consistent the laws and administrative rules that allow payment of taxes by electronic funds transfer; (SB 19-024); and
    • Removing statutes that have been outdated for decades regarding the state board of health and clarifying that the board: Does not accept, handle, or act as a custodian for money appropriated to the department of health and environment (SB 19-082); does not make rules regarding water quality, as that’s the job of the Water Quality Control Commission (HB 19-1071); and hasn’t for more than 50 years tested cancer drugs – that’s the FDA’s job (HB 19-1070).

    How an SRC Idea Becomes a Bill
    Executive department agencies, the judicial branch, interested Colorado residents, and nonpartisan staff from a number of agencies in and around the Capitol, as well as legislators themselves, have brought issues for the SRC to consider. Initially, staff considers these requests and whether they fall within the charge of the SRC and then prepares a memo detailing the requested change, often with a bill draft attached for the SRC to consider.

    In addition, the statutory charge of the SRC includes examining “current judicial decisions.” To that end, the SRC has asked staff to review current statutes that are found by an appellate court to be unconstitutional. Staff annually prepares memos for the SRC to bring attention to these provisions.

    An affirmative vote from at least five of the legislative SRC members is needed to introduce proposed legislation, and the SRC regularly considers more draft bills than it approves. In 2019, the SRC rejected multiple proposals it determined were outside its charge. All proposed drafts are publicly available on the SRC’s website and in the annual report submitted to the General Assembly. You may also email staff for more information.

    The SRC plans to meet twice during the 2019 legislative interim, though they are still finalizing the dates and the issues to be considered. Join the SRC mailing list and be notified when the details are available.

    Know of any antiquated, redundant, or contradictory laws? Please contact the SRC staff via email: statutoryrevision.ga@coleg.gov All meetings are public, and everyone is encouraged to attend or to propose issues to the SRC staff.

  • Conference Committees: A Quick Review of the Options

    by Julie Pelegrin

    Editor’s note: This article was originally posted on March 29, 2018. It has been updated for this posting.

    With just a few weeks left in the 2019 legislative session, a legislator’s thoughts turn to…conference committees!

    So far this session, the House and the Senate have sent just five bills to conference committee. But there are still more than 300 bills pending in the House and the Senate for this session; chances are good, the number of conference committees will increase. So now seems like a good time for a quick refresher course on the ins and outs of conference committee procedure.

    For a bill to go to the Governor, it must pass both the House and the Senate in exactly the same form. If the second house amends a bill, it cannot go to the Governor for signature unless the first house accepts, or “concurs in,” the second house amendments and readopts the bill or unless both houses form a conference committee to create a report that resolves the differences between the two versions.

    There is a third option, but it can be risky. A legislator can move for the first house to adhere to its position (i.e., refuse to consider any changes to the bill proposed by the second house). At that point, the second house can choose to recede from its changes and adopt the version of the bill that the first house passed. However, the second house can also choose to adhere to its position (i.e. refuse to consider adopting the first house’s version of the bill). Most often, when the first house adheres to its position and refuses to discuss a compromise, the second house also adheres. If this happens, the bill is dead.

    But, let’s assume that the bill sponsor moves to reject the second house amendments and request the formation of a conference committee. The conference committee consists of three persons appointed from each house: Two majority party members and one minority party member. The Speaker and the President will each appoint the two majority members from their respective houses, and the Minority Leaders will each appoint the minority members from their respective houses. In most cases, the bill sponsors in both houses are appointed to the conference committee, and the bill sponsors can submit their preferences for the other members they would like to see appointed to the conference committee from their respective houses.

    The conference committee’s report can address any of the differences between the two versions of the bill. But, if the conference committee wants to address language that was not changed by the second house or address an issue that fits within the bill title, but was not included in either version of the bill, the bill sponsors must ask their respective chambers for permission “to go beyond the scope of the differences” between the two versions. Sometimes, the bill sponsors will ask for this permission at the same time that they request a conference committee; more often they do not. The conference committee members can discuss changes that are outside the scope of the differences before they ask for this permission, but the members cannot sign the committee report until both houses have granted the committee permission to go beyond the scope of the differences.

    The date, time, and location for all conference committee meetings are printed in the House and Senate calendars. After agreeing on wording changes to resolve the differences, the committee may adopt the committee report conceptually or, if the bill drafter prepared the report in advance of the meeting, may adopt the committee report as written. For the report to pass, a majority of the conference committee members from each house (i.e. two House members and two Senate members) must approve the report. Following adoption of the report, the committee members who voted to approve the report sign it. A committee member who voted against the report and any committee member who missed the meeting may also choose to sign the report.

    Once the report is signed and turned in to the front desk of the House and the Senate, the house that agreed to go to conference committee, usually the second house, acts first on the report. Usually, the second house adopts the report and readopts the bill as amended by the conference committee report. Then the first house also adopts the report and readopts the bill. At that point, the bill is enrolled and sent to the Governor.

    However, either house may choose to adhere to its position, recede from its position, or reject the conference committee report and ask that a second conference committee be formed. Assuming both houses agree to a second conference committee, they will appoint the members of the second conference committee, which may be the same as the first conference committee, and the committee will meet again and attempt to come to another agreement. Only two conference committees can be appointed for a bill. If either house rejects the committee report of the second conference committee, one of the houses will have to recede and adopt the other house’s version, or the bill is dead.

    This article describes how conference committees usually work. The OLLS has prepared charts for the House and Senate that explain the possible actions, in addition to adopting a conference committee report, that each house may take in resolving differences between the houses. If you are interested in reading the legislative rules on conference committees, you can find them at House Rule 36, Senate Rule 19, and Joint Rules 4, 5, 6, 7, and 8.