Colorado LegiSource

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

Month: August 2020

  • Making Sense of Committee Rules – A Brief Overview

    by Julie Pelegrin

    Editor’s note: This is the second in a series of articles on the legislative rules that LegiSource is reposting during the 2020 legislative interim. This article was originally posted February 6, 2014, and has been edited as appropriate. We will post the third article in three weeks.

    Following is a short overview of the more important committee procedural rules to help guide you through committee hearings. Except as specifically noted, the procedures described below apply to House and Senate committees.

    Committee Quorum:
    House Rule 25(i)(1) and (j)(10)
    Senate Rule 22(b) and (n)
    A quorum for a committee of reference in both the House and the Senate is a majority of the committee membership. A committee cannot take action on a bill or any other legislative matter unless a quorum is present. Passage of a bill, resolution, amendment, or motion requires approval of a majority of a quorum or a majority of those present and voting, whichever is greater.

    Committee Meetings and Consideration of Bills:
    House Rules 25(j)(1), (j)(1.5), (j)(6), and (j)(7) and 25A
    Senate Rules 22(a), (e)(1), (i), and (j) and 22B
    The responsibility for organizing and managing committee hearings lies mainly with the committee chairman, but the chairman of a House committee can delegate any duty or responsibility to the vice-chairman of the committee.

    Time and Place of Committee Hearings
    Each committee must meet at the times and places specified in the committee schedule, but a chairman can cancel a meeting by announcing the cancellation while the House or the Senate, whichever applies, is actually in session and before the meeting is scheduled to take place. In the Senate, if a committee is scheduled to meet upon adjournment, it will meet within 15 minutes after the Senate adjourns or recesses.

    Special Meetings
    A House committee may hold a special committee meeting on another day or at another place or time so long as the chairman announces the meeting as much in advance as possible and while the House is actually in session. Generally, a Senate committee may hold a special meeting only on the committee’s regularly scheduled meeting day. The chairman must announce the special meeting 24 hours in advance and while the Senate is actually in session. There is an exception during the last two weeks of session, or at any time with the President’s permission, that allows a Senate committee chairman to call a special meeting on a different day by announcing the meeting as much in advance as possible and while the Senate is actually in session.

    Every Bill Must Get a Hearing and a Vote
    Every bill that is assigned to a House committee must receive a hearing, consideration, and a vote on the merits at a scheduled committee meeting no later than the deadline for passage of bills out of committee. Although the Senate rules do not include this specific requirement,  article V, section 20 of the Colorado Constitution (commonly referred to as the “GAVEL Amendment”) requires that each measure assigned to a committee of reference receive consideration and a vote on the merits within appropriate deadlines.

    Order of Business
    The committee chairman sets the calendar for each meeting. But if a chairman holds a bill for seven or more days without calendaring it, the committee members can force the chairman to schedule the bill. A majority of the members of a Senate committee can simply request, at a regularly scheduled committee hearing, that the bill be scheduled for hearing. House committee members must submit to the chairman at a regularly scheduled committee hearing a petition signed by at least two-thirds of the committee members. A committee member can also force a hearing on a bill by making a motion to refer the bill to the committee of the whole when the bill is not on the committee’s calendar. In this case, the committee must consider the bill on its merits. In a House committee, if the motion to refer to the committee of the whole doesn’t pass, the bill is still pending before the committee for action.

    Chairman’s Authority
    During a House committee meeting, the chairman may limit testimony and discussion on a measure to the amount that he or she thinks is adequate to enable the committee to consider the measure on its merits. The House committee chairman may actually exclude testimony or discussion that he or she thinks is repetitious or irrelevant. The House committee chairman may ask a sergeant-at-arms to remove any person who disrupts the proceedings or endangers any person at a committee hearing.

    Although the Senate rules do not directly address the powers of the committee chair to control procedures within a committee hearing, Mason’s Manual Legislative Procedure, the source for parliamentary procedures in the Senate, supports the authority of the Senate committee chairman to maintain order and decide all questions of order in committee hearings.

    Motions, Voting, and Attendance
    Only committee members can make motions, and, in the House, each motion must receive a second to be debated. Each committee member, including the committee chairman, must vote on every motion that comes before the committee, unless the committee member has an immediate personal or financial interest in the bill. But the committee chairman does not vote twice to break a tie vote. If a committee member misses three consecutive scheduled committee meetings without being excused, the chairman must report the member’s absence to the floor leader of the member’s party.

    No Electronic Participation
    Members of committees of reference must be physically present at a hearing to participate. Members are not allowed to participate by telephone or other electronic means.

    Final Committee Action:
    House Rule 25(j)(3) and (j)(9)
    Senate Rule 22(f) and (m)
    A committee must take a recorded, roll call vote to take action on proposed amendments if at least one committee member objects to the amendment and to take final action on a bill. All recorded votes are available for public inspection.

    A committee takes final action on a bill by reporting the bill out of committee, with or without amendments, for consideration by the committee of the whole; referring the bill to another committee of reference, with or without amendments; or postponing the bill indefinitely. In reporting a bill for consideration by the committee of the whole, a Senate committee may recommend that the bill be placed on the consent calendar. A motion to postpone consideration of a bill for more than 30 days or until a date that’s later than the date for adjournment sine die is considered a motion to postpone indefinitely. A bill is also considered postponed indefinitely if a motion for final action on the bill dies on a tie vote, the deadline to report bills out of committee passes, and the bill doesn’t get delayed status.

    Reconsideration:
    House Rule 35(e) and (f)
    Senate Rule 18(e), (f), and (g)
    After a committee has decided a question, including taking final action on a bill, a member who voted on the prevailing side may move to reconsider the question. The procedures for reconsideration vary significantly between the House and the Senate.

    In the House, if a motion for final action on a bill dies on a tie vote, the committee doesn’t actually make a decision, so the bill is still before the committee and subject to any further motions without the need to reconsider. But, if the motion does not concern final action on the bill and the motion dies on a tie vote, a member who votes “no” is considered to have voted on the prevailing side and may move to reconsider the committee’s decision. A motion to reconsider in committee requires the affirmative vote of two-thirds of the committee members, except in the last two days of session during which it requires only a majority vote. A member must make the motion to reconsider at the same meeting at which the decision is made or at the next committee meeting. But the committee cannot reconsider the decision after the committee report that includes the decision is signed by the committee chairman and delivered to the Chief Clerk of the House. A committee member cannot prevent delivery of the bill to the Chief Clerk by giving notice to reconsider.

    In the Senate, if a motion on a bill dies on a tie vote, a member who votes “no” is considered to have voted on the prevailing side and may move to reconsider the committee’s decision. A motion to reconsider in a Senate committee requires approval by a simple majority vote. At the same meeting at which the committee makes the decision, a member can make the motion to reconsider or give notice of his or her intent to reconsider at the next meeting, unless the next meeting is after the committee passage deadline and the bill does not have delayed status. If the member who gives notice does not move to reconsider at the next committee meeting, the notice is considered withdrawn. The measure remains in the committee until the next committee meeting if there is an outstanding notice to reconsider.

  • Presidential Electors Must Keep the Faith

    by Julie Pelegrin

    The U.S. Supreme Court recently held in Chiafalo v. Washington that not only can a state require a presidential elector to vote for the candidate nominated by the elector’s political party, the state can also punish an elector who fails to do so—a so-called “faithless elector.” The case was based on the removal of faithless electors in both Washington State and Colorado. The Washington Supreme Court looked to the legal precedent interpreting the U.S. Constitution and upheld the constitutionality of punishing faithless electors. The Tenth Circuit Court of Appeals, in Baca v. Colo. Dept. of State, looked more to the plain language of the U.S. Constitution and how it had historically been applied and found that removing a faithless elector was unconstitutional.

    The U.S. Supreme Court resolved the issue by taking the same approach as the Tenth Circuit—looking to the plain language and the historical application—but coming to the opposite conclusion. Looking at the same language and interpreting many of the same facts, the Supreme Court reversed the Tenth Circuit with an 8-0 decision (Justice Sotomayor recused herself).  A brief comparison of the two opinions illustrates how easy it is for lawyers to reach opposite conclusions.

    First, a primer on how we really elect presidents and vice presidents. Article II, section 1(2) of the U.S. Constitution directs each state to appoint, “in such manner as the legislature thereof may direct,” electors to elect the president and vice president. These electors make up the Electoral College. In Colorado, when we vote for candidates for president and vice president, we are actually voting for a slate of electors nominated by the candidates’ political parties. In every state except Maine and Nebraska,[1] the winner of the statewide popular vote receives all of the state’s electoral votes. For example, if the Democratic Party’s candidates win the popular vote in a state, then the Democratic Party’s electors will participate in the Electoral College for that state.

    The Twelfth Amendment to the U.S. Constitution specifies the process the electors must follow in electing the president and vice president. Each elector casts a vote for president and a vote for vice president. The Electoral College votes from each state are tallied, and the candidates for president and vice president who receive the most votes win, so long as they receive a majority of all the votes cast by the Electoral College. If no presidential or vice presidential candidate receives a majority, the House of Representatives chooses the president from among the top three vote getters, and the Senate chooses the vice president from among the top two vote getters.

    Colorado is one of 32 states that, by statute, require electors to vote for their respective parties’ presidential and vice presidential candidates. After the 2016 election, however, some of the Democratic Party electors decided to vote for someone other than Hillary Clinton, hoping to entice some of the Republican Party electors to vote for someone other than Donald Trump and ensure that no one received a majority of the Electoral College votes. If they had been successful, the House of Representatives would have chosen the president. Obviously, this strategy didn’t work. Instead, in Colorado, when an elector—Mr. Baca—voted for John Kasich instead of Clinton, the Secretary of State replaced him. And in Washington State, three faithless electors who voted for Colin Powell instead of Clinton were removed and fined $1,000.

    In both states, statutes authorized removal of the electors. In Washington, the three electors sued in state court, claiming the statutes were unconstitutional and their removal violated their federal constitutional rights as electors. The Washington Supreme Court held that the Washington statute was constitutional and nothing prevented the state from requiring electors to vote for their party’s candidate and punishing them when they failed to do so. The Washington electors appealed to the U.S. Supreme Court.

    In Colorado, Mr. Baca filed a civil action in federal court, claiming that the Secretary of State violated his constitutional rights by removing him. The Tenth Circuit agreed with Mr. Baca, holding that, even if the state could require electors to vote for their party’s nominee, it could not enforce the requirement by removing a faithless elector and nullifying the elector’s vote. The Secretary of State appealed to the U.S. Supreme Court, which agreed to hear both cases to resolve the disagreement.

    Both the Supreme Court and the Tenth Circuit recognized that states may require presidential electors to support the presidential and vice presidential nominees of their parties.[2] The issue was, whether a state could enforce that requirement. Both courts also agreed that the U.S. Constitution is silent on whether a state may remove a faithless elector. But that’s pretty much where the agreement ended.

    The Tenth Circuit found there is no implied power for a state to remove an elector because the elector isn’t fulfilling a state duty; the elector is fulfilling a federal duty. But the Supreme Court looked at the state’s unfettered power to appoint electors, which includes the power to impose conditions on the appointment—like who the elector has to vote for. The Supreme Court concluded that removing an elector who fails to meet those conditions is just a natural extension of the power to impose the condition itself.

    The Tenth Circuit looked to the “plain language” of Art. II, Section 1(2) and the Twelfth Amendment. Using contemporaneous definitions, it determined that the terms “elector,” “vote,” and “ballot” clearly imply that electors are to have discretion and exercise individual choices in voting for candidates.

    The Supreme Court, however, noted that the “plain language” doesn’t specify that electors must make their own choice when voting, like some state constitutions did when the constitution was written. The federal constitution could have said that, but it didn’t. The Court also noted that the terms “elector,” “vote,” and “ballot” don’t have to connote independence. Electors had been pledging to vote their parties’ tickets for years before the Twelfth Amendment was written, and those votes were counted even though they were not the result of an independent choice.

    Finally, the Tenth Circuit looked at history and original intent. Citing the Federalist Papers and former Supreme Court Justice Joseph Story’s commentary on the constitution, it found that the authors of the constitution intended electors to exercise their independent judgment; Justice Story had complained that electors had been pledging their votes for years, which was never the authors’ intent. The Tenth Circuit also found 165 instances of faithless electors, and all of those votes were counted even though the electors broke their pledges.

    The Supreme Court countered all of these findings. The Court refused to allow the Federalist Papers to override or add to the actual language in the constitution. The Court noted that as early as 1796, voters expected electors to vote the party ticket and, citing Justice Story and others, recognized that electors did just what they were told to do. And finally, the Court identified 180 instances of faithless electors—out of 23,000. As such, those instances were mere anomalies, only one of which was even contested. That elector’s faithless vote was challenged and was upheld, but the elector came from a state that did not have a pledge statute. The Court observed that one instance in 200 years “hardly constitutes an historical tradition.”

    Based on its reading of history and the law, the Supreme Court found that states, for much of the last 220 years or so, have been requiring presidential electors to keep faith with their parties and the voters, and there’s no constitutional requirement to change that now.

     

    [1] In these states, the candidate who wins the popular vote in each congressional district gets the electoral vote for that district and the two remaining electoral votes go to the candidate who wins the statewide popular vote. So both Republican and Democratic Party electors may participate in the Electoral College for these states.

    [2] In the earlier case of Ray v. Blair, the U.S. Supreme Court had upheld the states’ ability to require presidential electors to vote for their parties’ candidates.

  • The Principles of Parliamentary Procedure – a Stepping Stone to Learning the Rules

    By Julie Pelegrin

    Editor’s note: During the 2020 legislative interim, LegiSource will repost several articles on the legislative rules, which were originally posted during 2014 and 2015. We are posting the first article this week and will continue posting the articles approximately every other week through mid-December. This article was originally posted January 23, 2014.

    One of the most challenging aspects of being a legislator is learning the legislative rules. Even if you are not a committee chair or serving in a leadership role, you need at least a general understanding of the legislative rules to be an effective legislator. The rules are at the heart of the legislative process. They are the framework that helps ensure that the legislature’s process for creating public policy is open, balanced, and efficient. A legislator’s facility with properly using the legislative rules can mean the difference between a bill signing ceremony and a vote to postpone indefinitely.

    The legislative rules derive from several sources, and they are usually followed in this order of precedence:

    1. The state constitution and judicial opinions interpreting it;
    2. The rules adopted by the House of Representatives and the Senate;
    3. The traditions of the House and the Senate, referred to as “custom and usage”;
    4. Statutes that establish legislative procedures;
    5. Adopted parliamentary manuals such as Mason’s Manual of Legislative Procedure; and
    6. General parliamentary law.

    It is important to remember, however, that House Rule 46 mandates that the Speaker of the House decides any issues that are not specifically covered in the House rules. Senate Rule 40 states that Mason’s Manual governs procedure in the Senate so long as it does not conflict with the Senate rules or the Joint Rules of the House and the Senate. The Senate President decides any matter not covered by the legislative rules or Mason’s Manual.

    Obviously, there are many legislative rules, and it’s difficult to learn and remember all of them. You may want to start by learning the basic principles behind legislative procedure. Knowing the principles may help you understand and remember the purposes behind the rules, even if you can’t remember each specific rule. The introduction to Mason’s Manual sets forth these ten principles for group decision making:

    1. The group must have the authority to take the action it is trying to take.
    2. The group must meet to take action.
    3. All members of the group must receive proper notice of the meeting.
    4. A quorum must be present at the meeting.
    5. There must be a question before the group that the group is authorized to decide.
    6. There must be opportunity to debate the question.
    7. The question must be decided by taking a vote.
    8. For an action to be taken or a question decided, there must be a majority vote of the group.
    9. There can be no fraud, trickery, or deception resulting in injury to any member.
    10. To be valid, an action or decision by the group must not violate any applicable law or constitutional provision.

    When a question about legislative process arises during a committee hearing or a floor debate or during procedures in the House or the Senate, the presiding officer decides the question. In a committee of reference, the chairperson of the committee decides the question. In a second-reading floor debate while the House or the Senate is sitting as the Committee of the Whole, the person chairing the Committee of the Whole decides the question. In the other cases, the Speaker decides the question for the House and the President decides for the Senate. A legislator can appeal the ruling of the presiding officer, but in Colorado, an appeal is seen as calling for a vote of no confidence in the presiding officer and is very rarely raised.

    As you strive to master the legislative rules, you will no doubt have several questions. Fortunately, there are several persons you may ask for interpretations and advice. The Speaker, the President, the Majority and Minority Leaders, and the Chief Clerk of the House and the Secretary of the Senate are your most likely advisors. You should also consider talking with your committee chair, the Legislative Council staff, and the staff of the Office of Legislative Legal Services.

    While knowing these basic principles is helpful, there’s no substitute for learning the rules. Remember: If you don’t know the rules, you can’t play the game.

  • Colorado Supreme Court Prohibits Electronic Initiative Signature Petition Collection

    by Jason Gelender

    The Colorado constitution requires a petition for a proposed ballot initiative to be signed by registered electors “in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election” before the initiative can be placed on the ballot.[1] If the proposed ballot initiative amends the Colorado constitution, the petition must also be signed by at least two percent of the registered electors residing in each of the state’s 35 Senate districts.[2]

    The Colorado constitution also imposes requirements regarding the manner in which an initiative petition must be signed, stating that a petition “shall be signed by registered electors in their own proper persons only,” and that each petition must include “an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector.”[3]

    Accordingly, the implementing statutes that govern the qualification of proposed initiatives for the ballot require initiative petitions to be signed in person by registered electors while in the physical presence of a petition circulator. In 2020, government, business, and individual efforts to reduce the spread of COVID-19 through mandatory and voluntary social distancing have made in-person ballot petition signature gathering considerably more challenging for proponents of proposed ballot initiatives than it typically is.

    The Colorado Disaster Emergency Act, §§ 24-33.5-701 to 24-33.5-717, C.R.S., (CDEA), authorizes the Governor to declare a disaster emergency during which the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency….” On March 10, 2020, the Governor declared a disaster emergency as a result of the COVID-19 global pandemic. On May 15, 2020, recognizing the challenges to in-person ballot petition signature gathering posed by social distancing resulting from the disaster emergency, the Governor issued Executive Order D 2020 065 (EO 65), which, among other things: (1) suspended the requirement of section 1-40-111, C.R.S., that initiative petition signature collection take place in person; and (2) authorized the Secretary of State to create temporary rules to permit signature gathering by mail and email.

    On May 18, 2020, petitioners Colorado Concern, a self-described “alliance of top executives with a common interest in enhancing and protecting the Centennial State’s business climate,” and Colorado Concern board member Daniel Ritchie filed a lawsuit in Denver District Court against the Governor and the Secretary of State seeking a preliminary injunction to stop the enforcement of EO 65 and a declaratory judgment finding EO 65 unconstitutional under the Colorado constitution and unauthorized under the CDEA. On May 27, 2020, after ordering expedited briefing and holding a hearing, the district court issued an order [https://www.courts.state.co.us/Media/Opinion_Docs/20cv31708%20-%20Ritchie%20v%20Polis%20-%20FINAL%20as%20filed.pdf] denying the injunction and declaratory judgment. The petitioners appealed to the Colorado Supreme Court.

    On July 1, 2020, the supreme court reversed [https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2020/20SC453.pdf] the district court, unanimously holding that article V, section 1 (6) of the Colorado constitution requires initiative petition signatures to be executed in person in the presence of a petition circulator and that the Governor cannot issue an executive order that suspends that requirement. The supreme court concluded that, by adopting the phrase “in their own proper persons,” the voters who approved article V, section 1 (6) intended that petition signatories sign for themselves rather than permitting someone else to sign for them. The supreme court further concluded that this requirement, read together with the additional article V section 1 (6) requirement that a registered elector attest to the validity of petition signatures, also requires that the in-person signing occur in the presence of the person circulating the petition. The supreme court supported these conclusions by observing, as the U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988), had observed, that Colorado’s initiative process is interactive and involves direct engagement.

    In light of its holding that article V, section 1 (6) requires in-person collection of initiative petition signatures, the supreme court did not determine whether EO 65 complied with the requirements of the CDEA. Instead it simply concluded that while the CDEA authorizes the Governor to suspend certain types of statutes, rules, and regulations during a declared disaster emergency, it does not authorize the Governor to suspend constitutional provisions.

    The supreme court’s decision that initiative petitions must be signed in person and in the presence of a petition circulator dissuaded the proponents of at least one proposed initiative from even attempting to qualify the initiative for the 2020 ballot. Before the court issued its decision, the Secretary of State had authorized email and mail signature collection for six of the sixteen initiatives that had been approved for circulation: initiatives numbers 174, 271, 283, 292, 300, and 301. On July 2, 2020, the day after the supreme court announced the decision, the proponents of initiative #174 (“Setback Requirement for Oil and Gas Development”) announced that they would end their signature collection efforts because they were left with no safe way to proceed.

    The proponents of at least one other proposed initiative also cited the decision as a factor in their inability to collect the required number of signatures. On July 31, 2020, three days before the August 3, 2020, deadline for turning in signatures, the backers of initiative #271 (“Policy Changes Pertaining to State Income Taxes”) announced that they had been unable to collect the required signatures because “we could not overcome the effects of a global pandemic and a Supreme Court decision that did away with a viable alternative to traditional signature collection.” However, despite these challenges, three initiatives have qualified for the ballot and four others have turned in enough signatures for the Secretary of State to review them for signature sufficiency.

     

     

    [1] Colo. Const. Art V, § 1 (2). For the 2020 general election, 124,632 verified signatures must be collected to qualify a proposed initiative for the ballot.

    [2] Colo. Const. Art. V, § 1 (2.5).

    [3] Colo. Const. Art. V, § 1 (6).