Colorado LegiSource

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

Month: April 2020

  • United States Supreme Court Equates Annotators to Legislators and Judges

    By Michele Brown

    In a case that began in Georgia in 2017, the U.S. Supreme Court concluded last Monday that copyright protection for original works of authorship does not extend to the annotations included in Georgia’s official annotated code.

    As background, the State of Georgia sued Public.resource.org (PRO) after PRO purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it online in its entirety. The District Court for the Northern District of Georgia determined that the Georgia statutory annotations were, in fact, original works entitled to broad copyright protection.

    However, PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether to treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable, because they represent the exercise of sovereign power and are therefore considered part of the public domain. This policy is referred to as the government edicts doctrine. In October of 2018, the Eleventh Circuit concluded that the OCGA annotations were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. For more in-depth explanations of the facts and issues in this case, see our earlier LegiSource articles published April 2017 and December 2019.

    Georgia appealed that ruling to the highest court and, on April 27, the Supreme Court released its 5-4 decision, split along unusual lines. Chief Justice John Roberts wrote the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

    The Supreme Court upheld the decision of the Eleventh Circuit but for different reasons.  Instead of examining whether written material carries “the force of law,” the Court instead focused on whether the author of the work is a judge or a legislator, observing that, whatever work that judge or legislator produces in the course of judicial or legislative duties is not copyrightable. Under the government edicts doctrine, judges and legislators are not considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether the written material carries the force of law. And, according to the Court’s majority opinion, it applies to the annotations because they are authored by an arm of the legislature in the course of its official duties.

    Justice Clarence Thomas dissented, joined by Justice Samuel Alito and for the most part by Justice Stephen Breyer, arguing that Georgia’s annotations do not purport to embody the will of the People because they are not the law. Georgia’s General Assembly does not enact statutory annotations under its legislative power.

    The core question for Justice Ruth Bader Ginsberg, joined in her dissent by Justice Breyer, was whether Georgia’s annotations are created in a legislative capacity. Her answer? “No.” The role of the legislature encompasses the process of making laws—not construing statutes after their enactment. Justice Ginsberg observed that annotating begins only after lawmaking ends. In her view, annotations are descriptive rather than prescriptive, and they merely provide the public with convenient references.

    As noted in a previous LegiSource article, the outcome of this case does not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan legislative staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are available at no cost on the Colorado General Assembly’s public access website, the Committee elected to suspend the historical practice of registering a copyright in the editorial work of the legislative staff, including the annotations.

  • Legislative Ethics – Public Disclosure and Reporting Requirements

    Part 2 of article 6 of title 24, C.R.S., otherwise known as the “Public Official Disclosure Law”, outlines requirements for the disclosure and reporting by public officials, including members of the General Assembly, of certain types of information. Section 24-6-202, C.R.S., largely concerns the disclosure of financial information, such as sources of income; businesses in which the legislator holds a financial interest; interests in property; the identification of all offices, directorships, and fiduciary relationships the legislator holds; and significant creditors of the legislator. Disclosure extends to the legislator’s immediate family. Financial disclosure must be made within 30 days after the legislator’s election or reelection, and each legislator must file an amended statement on or before January 10 of each calendar year.

    The reporting of gifts, honoraria, and other benefits that an incumbent or a candidate elected to public office receives in connection with his or her public service is the subject of section 24-6-203, C.R.S. Section 24-6-203 (3), C.R.S., lists certain items that the legislator must report, and section 24-6-203 (4), C.R.S., lists other items that the legislator need not include in his or her report. Gift and honoraria must be reported quarterly. If a legislator does not receive any of the covered items, he or she need not file a report. Legislators must file reports under both statutory sections with the secretary of state’s office.

    The subject of disclosure of reimbursement for travel expenses is addressed in section 24-6-203 (3)(f) and (4)(d), C.R.S.  Legislators must disclose reimbursements for travel if the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes the member’s office or the General Assembly.

    Seems easy enough. Here are some hypothetical situations for your consideration:

     Situation #1. You are a member of the General Assembly. Following a very stressful session of the General Assembly, you had to endure painful foot surgery, which you postponed during the session. Your doctor has instructed you to stay off your feet for 3 weeks to let your foot properly heal. A longtime friend who has known you since long before you commenced your political career has offered the use of her condominium in a mountain town for your extended use. The offer comes with the assistance of a housekeeper who will prepare your meals. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator.

    Are you required to disclose the gift of the use of the condominium?

    1. There is no need for disclosure because you cannot accept your friend’s offer. Now that you are elected to the General Assembly, you should never accept a gift from anyone at any time for any purpose.
    2. Since you probably can’t accept the gift under Amendment 41, there is no gift to accept and, therefore, to disclose under the Public Official Disclosure Law (“PODL”).
    3. Since the donor is a long-time friend, no one would think anything improper about receiving a gift from that person and therefore there is no need to disclose such gift.
    4. A gift from a long-time friend of the use of a condominium to assist in one’s recovery from surgery is not given in connection with the member’s public service. Accordingly, the member is not required to disclose the gift.

    The correct answer is 4. Section 24-6-203 (2), C.R.S., requires disclosure of gifts given in connection with the member’s public service. In this case, the donor was a long-time friend who gave you the use of the condominium while you were recovering from surgery. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator. For these reasons, it does not appear the gift was given in connection with public service, which means you have no obligation to disclose it under section 24-6-203 (2), C.R.S.

    Situation #2. You are the chair of an interim legislative committee formed to study the conversion of outdated shopping malls to alternate uses. A private non-profit foundation promoting this type of development by the name of STOP (for “Start Transferring Open Parcels”) has put together a trip for legislators from across the nation to study successful conversion projects in a dozen different cities. STOP wants to reimburse you for your reasonable travel expenses involved in participating on the trip. STOP receives less than 5% of its revenue from for-profit entities.

    Are you required under the Public Official Disclosure Law (“PODL”) to disclose the reimbursement you will receive for these travel-related expenditures?

    1. As it doesn’t look like you would be able to accept reimbursement for the trip under Amendment 41, you shouldn’t go, making disclosure of this reimbursement a moot point.
    2. Since the reimbursement is coming from the funds of a nonprofit entity that is not an entity whose membership includes your office or the General Assembly, you are required to disclose your acceptance of it.
    3. This trip sounds like one of those “junkets” that is the source of much criticism. Accordingly, if you go, you should disclose it if only for the sake of preventing an appearance of impropriety.
    4. The work STOP does is really important to your constituents. There are three old and decaying shopping malls in your district alone. You feel a strong need to join the trip to learn how to generate the process of conversion in Colorado. This is such a boring issue and the sights are so depressing — why would anyone think a member would be going on this trip if he or she didn’t feel the issue was so important?

    The correct answer is 2. Under section 24-6-203 (3)(f) and (3)(d), C.R.S., reimbursement for travel must be disclosed if payment of the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes your office or the General Assembly. In this case, because STOP, the nonprofit organization making payment to you for your travel expenses, does not meet these criteria, the reimbursement must be disclosed under the PODL.

    For more LegiSource articles on public disclosure and reporting requirements, see:

    Click here for other LegiSource articles regarding ethics.

  • Throwback Thursday 1920 – A Year of Presidential Intrigue

    By Patti Dahlberg

    America had a woman president? Many think so.
    Late in September of 1919, while in Pueblo, Colorado on a cross-country public speaking tour in support of ratifying the Treaty of Versailles with its formation of a League of Nations, President Woodrow Wilson suffered a “mini-stroke.” The remainder of his train stop tour was immediately canceled, and he was rushed back to Washington, D.C. for tests and recuperation. A few days later, on October 2, the President suffered a severe stroke, which left him paralyzed on his left side, unable to speak, blind in his left eye, and only partial vision in his right eye. He was confined to bed for the next few weeks and kept away from everyone except his wife and doctor. Edith Bolling Galt Wilson, President Wilson’s second wife, stepped in to “help him” run the government from his bedside. In the process of “protecting” her husband from unwanted stress and malicious gossip, she also excluded his staff, his Cabinet, and the Congress. Although surrounded by a “shroud of secrecy,” reports of the President’s stroke began to appear in the press in February of 1920. The extent of the President’s disability and his wife’s management of presidential affairs, however, was not fully known by the press nor shared with the nation. Several months later, the President, confined to a wheelchair, began to make public appearances again, giving an outward appearance of normalcy. Wilson did eventually walk again with the use of a cane, but many of those close to him felt he was only a shadow of his former presidential self.

    President Wilson’s health condition and probable inability to act as chief executive officer of the nation was considered by many as one of the greatest cover-ups in the history of the American presidency. During his recuperation, the First Lady would regularly review pending legislation and executive documents – becoming to some historians, the “de facto” acting president. She selected those matters that would get her husband’s personal attention and delegated the rest, without consulting him, to the members of his Cabinet to handle. Many considered her a sudden upstart, but she had been working at her husband’s side since America’s entry into World War I in April of 1917. She and the President worked together from a private, upstairs office where he gave her access to his classified document drawer and secret wartime codes. Wilson had her screen his mail and insisted she sit in on his meetings. She regularly provided him with assessments of political figures and foreign representatives and denied his advisors access to him if she determined he should not be disturbed. She was by his side in Europe as he helped negotiate the Treaty of Versailles and presented his vision of a League of Nations to prevent future world wars.

    Nevertheless, the First Lady did mislead the nation by releasing carefully worded press releases that only acknowledged that the President needed rest and was working from his bedroom suite. Meanwhile, anyone wishing to confer with the President was stopped at the door by the First Lady. It was months before more than a handful of people could even testify to the President’s physical existence. Rumors flourished, questions went unanswered, and the President’s staff and cabinet were disgruntled and worried. If cabinet members or staff had papers for review, Mrs. Wilson would review the material, and only if she deemed the matter pressing would she take the paperwork to her husband for his review. Officials cooled their heels waiting in the West Sitting Room hallway until she returned with their paperwork with margin notes said to be from the President.

    Edith Wilson steadfastly insisted that her husband performed all of his presidential duties after his stroke, stating in her 1938 autobiography, “My Memoir:”

    Historians, however, believe that Mrs. Wilson acted as more than “steward.” They believe she was, essentially, the nation’s chief executive until her husband’s second term concluded in March of 1921.

    Part of the issue preventing Congress or the Vice President from stepping in at the time was that clear constitutional guidelines did not yet exist regarding the transfer of presidential power when severe illness strikes the chief executive. Article II, Section I, Clause 6 of the U.S. Constitution regarding presidential succession states:

    President Wilson was not dead nor willing to resign because of his health. Vice President Thomas Marshall refused to assume the presidency unless Congress were to declare the President incapacitated and then only if Mrs. Wilson and Dr. Grayson went along. That never happened. It would take ratification of the 25th Amendment to the Constitution in 1967 before a more specific process for the transfer of power in the event of a presidential disability became law. Some believe, because of modern medicine, that even the 25th Amendment is not clear enough regarding presidential succession and needs additional revision.

    What? Did you say SIX past, present, or future presidents took part in the 1920 election?
    Privately looking for an unprecedented third term, President Wilson (28th President, 1913-1921) hoped to be his party’s nominee, but party leaders were unwilling to re-nominate the ailing president still recovering from his severe stroke. Former President Theodore Roosevelt (26th President, 1901-1909), looking to be president again, was an early front-runner for his party’s nomination, but he died in 1919. With both Wilson and Roosevelt out of the running and leaving no obvious “heir apparent” for their respective parties, the Democrats and Republicans looked to lesser-known candidates.

    Warren G. Harding (29th President, 1921-1923), a U.S Senator and newspaper editor from Ohio and considered a compromise candidate, won the Republican Party nomination on the tenth ballot at its national convention. Massachusetts Governor Calvin Coolidge was chosen to be the vice-presidential candidate. When President Harding died in 1923, Calvin Coolidge succeeded to the presidency and won re-election in 1924 (30th President, 1923-1929).

    James M. Cox, Governor of Ohio, won the Democrat Party’s nomination on the 44th ballot at its national convention. Future President Franklin D. Roosevelt (32nd President, 1933-1945) and Wilson supporter, was chosen to be the vice-presidential candidate.

    Future President Herbert Hoover (31st President, 1929-1933) initially sought to avoid committing to any party during the 1920 election, hoping that either major party would draft him for president in their respective national convention. In March of 1920, however, he changed his strategy and declared himself to be a Republican, but it was to no avail.

    Not to be left out – one presidential candidate runs his campaign from prison.
    Warren G. Harding was elected to the presidency by a landslide on November 2, 1920, with 60% of the popular vote and 75% of the electoral vote. However, in that same election, socialist, political activist, labor union organizer, and former Indiana State Senator Eugene V. Debs managed to collect more than 919,000 votes for the Socialist Party ticket, despite campaigning from the Atlanta, Georgia prison where he was serving a ten-year sentence for violating the wartime Espionage Act in 1918 by giving an antiwar speech.

    Debs ran as the Socialist candidate for president five times – 1900, 1904, 1908, 1912, and 1920. President Harding, taking Debs’ deteriorating health into account, commuted his sentence in 1921. After a brief stop at the White House, Debs returned home to Terre Haute, Indiana, where he was met by band music and a crowd of 50,000. In 1924, he was nominated for the Nobel Peace Prize for his work for peace during World War I. He tried to recover his health, but died from heart failure on October 26, 1926, at the age of 70.

    Resources:

    https://www.pbs.org/newshour/health/woodrow-wilson-stroke

    https://www.biography.com/news/edith-wilson-first-president-biography-facts

    https://www.historynet.com/big-lie-woodrow-wilsons-sham-presidency.htm

    https://www.loc.gov/collections/world-war-i-and-1920-election-recordings/articles-and-essays/from-war-to-normalcy/presidential-election-of-1920/

    https://www.britannica.com/event/United-States-presidential-election-of-1920

  • Supreme Court Finds General Assembly “Reasonable” in Counting Only Working Calendar Days

    By Julie Pelegrin

    As reported earlier, the General Assembly recently asked the Colorado Supreme Court to tell them whether, during a statewide public health declared disaster emergency, the General Assembly is allowed to determine the length of the regular legislative session by counting only “working calendar days” rather than consecutive calendar days. Because the General Assembly is currently in a temporary adjournment, this question of how to count the days is key to scheduling the remainder of the 2020 regular legislative session.

    Last Wednesday, the Supreme Court published its answer: Only working calendar days, “i.e., calendar days when at least one chamber is in session”, will count in determining the length of the session when the General Assembly is operating under a declared public health disaster emergency.

    As we previously explained, the voters amended the provisions of article V, section 7 of the Colorado Constitution (section 7) in 1982 to limit the length of the legislative session in even-numbered years to 140 “calendar days” and in 1988 to limit the length of all regular legislative sessions to 120 “calendar days.” The General Assembly adopted Joint Rule 23 (d) to clarify that “calendar days” are to be counted consecutively and in 2009 adopted Joint Rule 44 (g) to make the very limited exception for counting “calendar days” as only the working calendar days if the General Assembly meets in regular legislative session during a declared public health emergency.

    The Supreme Court’s decision was a 4-3 vote, so the answer was by no means a slam dunk. The analysis turned on whether the phrase “calendar days” used in the constitution is ambiguous or whether it plainly requires the calendar days to be counted consecutively from the first day of the legislative session.

    Justice Marquez, writing for the majority, concluded that the phrase is ambiguous. The Court considered the plain meaning of calendar days (i.e., days running from midnight to midnight) and the fact that the text of section 7 does not specify that calendar days are to be counted consecutively. It concluded that section 7 “may just as reasonably be construed to allot a sum of days during which the General Assembly may meet in regular session – continuously or not – to complete its work, so long as the total does not exceed 120 calendar days.”

    The Court also analyzed Joint Rule 23 (d) and Joint Rule 44 (g), first noting that, like statutes, legislative rules are presumed to be constitutional unless proven to be unconstitutional beyond a reasonable doubt. The Court specifically looked to whether the legislative rules were true to both the text and the purpose of the limitation on the length of the legislative session.

    The Court identified the purpose of the limitation as being to both preserve the Colorado tradition of a part-time citizen legislature and ensure sufficient time for the General Assembly to complete the critical work of legislating for the people of the state. The Court then concluded that the legislative rules support these purposes by defaulting to 120 consecutive days in all but the rarest of situations while allowing the General Assembly the necessary flexibility and time to legislate in response to a disaster emergency. Having already found that the text did not require calendar days to be counted consecutively, the Court held that Joint Rule 23 (d) and Joint Rule 44 (g) are consistent with the text and support the purposes of section 7 and, in combination, are a reasonable interpretation of section 7. As such, the rules are constitutional.

    As stated previously, this decision was a close call. Three of the seven justices dissented from the majority decision. Although the dissent acknowledges that the state is operating in “unprecedented times”, it cites to precedent stating, “there has never been, and can never be, an emergency confronting the state that will warrant the servants of the Constitution waiving so much as a word of its provisions.”

    In the view of Justice Samour, who wrote the dissent, section 7 is not at all ambiguous. By specifying calendar days, the provision can only mean consecutive calendar days. Justice Samour looked to the dictionary definition of “calendar day” as a consecutive 24-hour day running from midnight to midnight, and concluded that 120 calendar days must be equal to a total of 2,880 consecutive hours (120 x 24 = 2,880). The dissent also looked to the use of “calendar days” in the statutes, finding that in every instance it means consecutive calendar days even though the word “consecutive” is not included in most cases. And, when the General Assembly means something other consecutive calendar days, the statute uses another term, such as “business days.”

    The dissent also argued that, even if section 7 is ambiguous, by adopting Joint Rule 44 (g), the General Assembly is in essence amending section 7. And the General Assembly cannot by rule or statute amend the constitution; only the people can do that.

    Finally, the dissent feared the majority opinion opens a “Pandora’s Box,” setting a precedent that future legislatures may abuse. While concerns about how a future legislature may apply the majority opinion may be well-founded, there is language in the majority opinion that arguably limits how far a future legislature can go in interpreting section 7 as allowing something other than consecutive calendar days.

    The majority decision is narrowly written and does not give the General Assembly carte blanche to change the counting of calendar days in any circumstance it chooses. The Court made the point that the very limited conditions under which only working calendar days are counted are outside the control of the General Assembly and specifically stated that “a broader rule untethered to an external event such as a public health crisis or otherwise readily susceptible of legislative manipulation would be less likely to further the purposes of article V, section 7 and could be unconstitutional.”

    So, while it is clear that so long as the current public health disaster emergency continues the General Assembly can count only the working calendar days in calculating the 120 calendar days of the 2020 regular session, its ability to do so under different circumstances in the future remains questionable.